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Neutral Citation Number:
[2013] EWCA Crim 1175
Case No:
2013/0691/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 18 June 2013
B e f o r e
:
LORD JUSTICE ELIAS
SIR DAVID MADDISON
THE RECORDER OF BRISTOL
HIS HONOUR JUDGE FORD QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
ASSAD YAROW
- - - - - - - - - - - - - - - - - - - - -
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 H Grayson (Solicitor Advocate)
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE ELIAS: On 4th December 2012 in the Central Criminal Court before His Honour Judge Joseph QC, the appellant pleaded guilty to two offences of robbery and three offences of fraud. He was sentenced on 16th January 2013 by His Honour Judge Morris to five years' detention in a young offender institution on each of the robbery counts and to 18 months' detention in respect of each of the fraud counts, all these sentences to run concurrently. Therefore the total sentence was five years' detention in a young offender institution.
2.
There were two co-accused, Morgan Meragan and Mohammed Abdullahi. They each pleaded guilty to the same counts and each received the same sentence of five years' detention in a young offender institution. He now appeals against sentence by leave of the single judge.
3.
The background was this. The first robbery occurred on 10th June 2012. At around 2 o'clock in the morning Avkash Halai, who was in his early twenties, was on his way home from a night out with friends in London. He was drunk. He was approached by the defendants. One asked: "What have you got for me?" Mr Halai replied: "Nothing". He was punched in the face by all the defendants. He remembered lying on the floor in a park with a group of males going through his pocket. His wallet containing his bank card was taken and his PIN number was demanded. He refused to provide it and was punched further in the face. One of the group said "jook him" - which he knew meant stab him. One of the men then took something out of his trouser pocket and put it up his sleeve. Mr Halai believed that it was a knife and he was scared. The male approached him and sat across his chest. Again his PIN number was demanded with a threat that they would "jook" him if he gave the wrong number. He complied with the request. Some of the males ran off in order to check the number while two remained with Mr Halai. The remaining men received a telephone call and went to leave. Before they did so one of them stole Mr Halai's watch and a gold ring. The property taken from him was valued at around £1,200. He sustained certain injuries, namely marks to his nose, left cheek and the side of his head, and some psychological effects of this attack: he is apprehensive about going out at night. His debit card was subsequently used to withdraw £300. The three defendants were seen on CCTV at the cashpoint. They then attempted to use the card in order to purchase expensive champagne and other goods to the value of just over £1,000 at a supermarket. That was unsuccessful so they reduced the amount of goods to £900. That attempt also failed because by then the card had been reported as stolen.
4.
The second robbery occurred some 10 days later on 20th June 2012, again in the early hours of the morning. Killian Martinez left a public house in a drunken state. He boarded a bus in Tottenham Court Road. The defendants followed him. They got on the same bus. They waited until he got off the bus to take another bus to his home and as he was about to board the second bus, one of the defendants grabbed him by the throat and threw him on the ground. He was kicked and punched by all three defendants. His watch and his silver neck chain which was of sentimental value were removed, along with a bank card and £35 in cash from his wallet. He suffered bruising and was left feeling anxious.
5.
The defendants were identified by the CCTV footage. They all initially made no comment at interview.
6.
The appellant was 18 at the time of the conviction and sentence but just short of his 18th birthday when these offences were committed. He had appeared before the court on three previous occasions for four offences between October 2011 and August 2012 including for possession of drugs, theft and failing to surrender. Of the other two defendants, one was 18 months older than he was and the other was somewhat older than that.
7.
The judge when sentencing described the offences. The second robbery, he said, was a brazen display of violence as traffic was going past when the attack was carried out. It was common ground that the offences fell into category 2 of the sentencing guidelines for street robberies and for such robberies there is a starting point of four years and a range of two to seven years. That would be the starting point for an offence committed by a single adult defendant of good character. The judge, perhaps generously, did not have regard to their convictions because they were of a somewhat different character. The judge concluded that there was no reason to distinguish between the appellant and the other defendants who he considered to be of similar age. They had all played equal roles and they should all be sentenced in the same way.
8.
The judge in sentencing identified a series of aggravating factors. He said this:
"First this was a group offending by the three of you. Second there was clear premeditation and planning behind them particularly in relation to the robbery in count 5. Thirdly these offences were committed at night. Fourthly you targeted individuals who were drunk and therefore would be more vulnerable to attacks. Fifthly in count one there is the conduct leading to the victim Mr Halai to believe he was going to be stabbed and might die and finally there were two such offences not a single offence.”
In addition as far as the appellant is concerned, these offences were committed during the operational period of a youth rehabilitation order which had been imposed only some two weeks before the first of these robberies.
There can be no doubt that for adults these would have been appropriate sentences. Indeed the judge said that he was giving full credit for the guilty plea and he took into account their ages. This means a starting point of seven-and-a-half years for this range of offences and we think that for older adults it would certainly have been more. The only point pursued in this appeal is that the judge ought to have given more credit than he did for this particular appellant because he was under the age of 18 at the time the offence was committed.
9.
We were referred to the authorities of
Ghafoor
[2003] 1 Cr.App.R (S) 84 and
Bowker
[2008] 1 Cr.App.R (S) 72 for the proposition that where somebody was 17 at the time when the offences were committed, that would be a significant factor to take into account in the sentencing exercise. The position is not that the defendant must then be sentenced in accordance with any guidelines applicable to young offenders, but the cases of
Ghaffoor
and
Bowker
do confirm that in those circumstances regard should be had to the sentence that would have been appropriate had they been sentenced in that way, and that it would be a powerful factor, albeit not the sole determining one, in deciding what their sentence should be. Counsel submits that in this case the judge failed to have regard to that principle.
10.
We note that in
Bowker
the position was that the maximum sentence for somebody who had been convicted at the age of 17 was then lower than somebody who was convicted at the age of 18. That is not the position here. Counsel does, however, point out that with respect to robbery the guidelines for somebody who is convicted of robbery at the age of 17 show a lower range than for those applicable to someone convicted over that age -- they are one to six years with a starting point of three years as opposed to two to seven years with a starting point of four.
11.
We have carefully considered this argument. Plainly there are going to be many cases where it will be appropriate to draw this distinction. But in this case we note that there was a discussion between counsel and the judge before he sentenced, and this point was raised directly with the judge. He had in mind the
Bowker
case. He was not obliged to give effect to the principle, merely to have proper regard to it. As we have said, it is often a powerful factor to take into account when considering the appropriate sentence but it is not a binding one. The judge was aware of it. He obviously would have taken it into consideration. He decided that looking at the records of these individuals and bearing in mind the serious offences for which they all played an equal role, he felt it appropriate to sentence them in the same way. No doubt he had partly in mind that the appellant was in breach of the recently imposed community order and was close to 18 when the offences were committed. The question is not whether other judges might have done something different. It is whether we can say that in the circumstances this was an error in principle or that overall the sentence was manifestly excessive. We do not think it was. Accordingly, the appeal fails.
|
{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2012-12-04"],"ConvictOffence":["Robbery","Fraud"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["5 years' detention in a young offender institution (each robbery count)","18 months' detention in a young offender institution (each fraud count)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[17],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["2"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["CCTV","Victim testimony"],"DefEvidTypeTrial":["No comment interview"],"PreSentReport":[],"AggFactSent":["Group offending","Premeditation and planning","Offences committed at night","Targeted vulnerable (drunk) individuals","Threat of stabbing (knife implied)","Multiple offences (not a single offence)","Offence committed during operational period of youth rehabilitation order"],"MitFactSent":["Full credit for guilty plea","Age of offender"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Sentence"],"AppealGround":["Judge ought to have given more credit for age (under 18 at time of offence)"],"SentGuideWhich":["Sentencing guidelines for street robberies"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge was aware of and considered the relevant principle regarding age; sentence not manifestly excessive; no error in principle"]}
|
2019/01264/B2
IN THE COURT OF APPEAL
(
CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT ATWOOD GREEN
{HHJAder)
Royal Courts of Justice
Neutral Citation Number:
[2019] EWCA Crim 1094
The
Strand
London
WC2A 2LL
Friday 21
st
June 2019
B e f o r e:
LORD JUSTICE MALES
MRS JUSTICE SIMLER DBE
and
MR JUSTICE MURRAY
_________________
R E G I N A
- v -
M
____________________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
__________________________
Mr J Anders
appeared on behalf of the Appellant
Mr W Noble
appeared on behalf of the Crown
______________________
J U D G M E N T
(
Approved
)
______________________
Friday 21
st
June 2019
LORD JUSTICE MALES:
Introduction
1.
This is an appeal, brought with the leave of the single judge, against the appellant's conviction for wounding with intent to do grievous bodily harm, contrary to
section 18
of
the Offences against the Person Act 1861
.
2.
The appellant (now aged 15) was only 14 years and a few weeks old at the time of the offence. The victim was also aged 14 at the time of the offence. We have, therefore, made an order under
section 45
of the
Youth Justice and Criminal Evidence Act 1999
that nothing shall be published relating to either the appellant or his victim, while they are under the age of 18, which is likely to lead members of the public to identify them. This judgment is anonymised accordingly.
3.
The incident with which we are concerned occurred on 1
st
July 2018. The appellant was tried in the Crown Court at Wood Green in February 2019. There were three counts on the indictment. Count 1 charged the appellant with attempted murder. On this count the jury could not agree and were discharged from reaching a verdict. The prosecution has since offered no evidence. Count 2, which was an alternative to count 1, charged wounding with intent, on which the appellant was convicted unanimously by the jury on 27
th
February 2019. Count 3 charged having an article with a blade or point in a public place, contrary to
section 139
of the
Criminal Justice Act 1988
. The appellant had pleaded guilty to that count at the beginning of the trial.
4.
On 15
th
April 2019, HHJ Ader, who had presided over the trial, sentenced the appellant to four years' detention on count 2 and imposed no separate penalty on count 3.
2
5.
The appellant sought leave to appeal against conviction on two grounds. The first ground was that the judge was wrong to allow evidence to be adduced of two previous incidents relating to knives. The single judge refused leave on that ground and the application is now renewed before us. The second ground was that the judge was wrong not to add a further alternative to the indictment, which would have enabled the jury to find the appellant guilty of unlawful wounding, contrary to
section 20
of
the 1861 Act
, and to direct the jury accordingly. That is the ground on which the single judge granted leave to appeal.
The facts
6. The incident with which we are concerned occurred in Islington on 1
st
July 2018. The victim "A" was stabbed three times with a kitchen knife. He sustained very serious and life-threatening injuries. He was flown by helicopter to the Royal London Hospital. He was found to have sustained two deep stab wounds to the right side of his chest and one superficial stab wound to the left side. That may have indicated that there was some movement in the course of the incident.
4.
A CT scan revealed a mixture of blood and air in the chest cavity, active bleeding to the abdominal wall, and a laceration to the liver. Surgery was required.
5.
We understand that, thankfully the victim has since recovered – at any rate from the physical injuries. In other respects, of course, the incident may have a longer lasting effect upon him.
6.
The background to the incident was that four days earlier, on 27
th
June 2018, A's father, who was with his girlfriend, had something of an altercation in the street (also in Islington) with the appellant and his older brother, "F". A's father recognised the boys as being from the local area, and it appears that F was verbally aggressive towards him.
7.
On 1
st
July, A's father was at a bus stop talking to a friend when he saw the appellant and his
brother get off the bus. A's father confronted F about the incident which had taken place a few days earlier, and an argument developed. A's father accepted that he had pushed F during the course of the argument. A physical altercation then ensued.
8.
It was the evidence of the prosecution witnesses that at an early stage of this argument the appellant lifted his waistband to reveal a black-handled knife tucked down his shorts. The appellant was not otherwise physically involved in the altercation at first, but moved away a short distance, drew the knife from his shorts and then approached the group where the altercation was taking place. By this time, A had appeared on the scene. He remonstrated with F about the rudeness shown to his father and placed himself between his father and the appellant. The appellant then stabbed A with the knife, causing him to sustain the wounds to which we have referred.
The witnesses
9.
There were a number of prosecution witnesses who gave evidence to this effect and, perhaps not surprisingly, there were some differences in their respective accounts. The evidence of the witnesses in outline was as follows.
10.
A's father said that the appellant, who was the younger of the two boys, showed him a blackhanded knife. He pulled it out, but said "Come around the corner, there are too many cameras here". He also said "Are we doing this?" A's father accepted that he had pushed F forcefully during the altercation. Later in the incident, A came out and became involved. He remonstrated as to the rudeness shown to his father. The appellant then pulled out the knife and a clash between him and A ensued, after which he noted that A was bleeding. He said that the appellant had made a jabbing motion – not as hard as he could have done, but in a manner that indicated that he knew what he was doing. He said that the appellant pulled out the knife and lunged at A's collar or neck area. He said that he saw the appellant pull out the knife. He had not been waving it about.
11.
A himself gave evidence. He said that he had heard an argument and went down to see his father talking to the older of the two boys. The older boy had later punched A and he went for the younger boy. He saw the younger boy holding something big and white. He felt pressure to his right-hand side, felt dizzy and saw "loads of blood". He had seen something in the boy's hand, close to his chest, as he approached him.
12.
Simon Pavitt was the friend with whom A's father was speaking at the bus stop. He said that A's father had told the older boy not to insult him when he was with his girlfriend. The smaller boy (the appellant) had said "You can't do nothing because there's a camera there". The older body was saying "Come on, do something". A had joined the group. He had not been aggressive. Mr Pavitt heard a woman shout "He's got a knife". He saw the smaller boy approach from the middle of the road with a large carving knife. He appeared to be moving towards A's father, but A moved across and put himself in between them. A put his hands on the boy's shoulders and said "Do not". The knife, according to Mr Pavitt, had a very long blade, seven or eight inches, plus the handle. The larger boy said "Do it", and then "Do him". The younger boy had referred to the presence of cameras.
13.
Alexandria House was an independent witness. She had witnessed the altercation. She saw a younger boy approach the group with a kitchen knife and stab the victim. The boy with the knife had then run around the corner and across the road. She saw him stab the victim multiple times in the stomach, thrusting rather than prodding. It appeared to be a kitchen knife with a black handle. The boy had not said anything.
14.
Sian Elliott saw the incident from a balcony overlooking the scene. She saw the smaller boy move towards the victim and noticed him take out a big kitchen knife. She had been shocked and shouted "Leave it". She had not seen the stabbing, but had seen blood on the victim's T-shirt.
15.
Stevie Elliott filmed part of the incident and gave a similar account. She saw the smaller boy with a kitchen knife. He had run around the group, come back with a knife, pulled it out and "pelted or thrusted" at the victim twice with it.
16.
Rhys Mathews witnessed the incident. He described seeing the younger boy walk off and then return with a knife about 20 centimetres long in his hand. He was swinging the knife. He had seen the boy swing at the victim's body.
17.
Lee Tomlinson saw the boy walking down the road with a long-bladed knife in his hand. He had squared up to the victim and brought the knife down about three times.
18.
Thus, there was clear evidence, including from independent witnesses, that the appellant had approached the group of which A was a part, brandishing a knife, and that he had stabbed him several times in a manner which could not have been accidental. Although cross-examined, none of the prosecution witnesses was prepared to accept that the appellant's motions in the stabbing could have been accidental.
The appellant’s case
19.
The appellant's defence was accident in the course of a fast-moving incident. He said that he had not intended to injure A and did not know how the injuries had been sustained. They must have occurred by accident when he was waving or swinging the knife about from side to side by way of deterrence and without intending to stab anyone. His evidence was that he did not habitually carry a knife but had found this knife earlier on 1
st
July and kept it. He had seen a strange man going down an alleyway and then coming back out. The appellant went into the alleyway and found the knife. He put it into his shorts. He did not know why he had picked it up.
He did not want to throw it away on the bus because he did not think that was appropriate. He did not tell his brother that he had it. He said that A's father had been aggressive and had grabbed F by the arm. He (the appellant) had not said anything about CCTV cameras. Another person arrived at the scene and punches were thrown. By now there were three men around his brother and he wanted to get him away. He pulled out a knife to get the men away from his brother. He did not intend to use it. A had run towards him, but the appellant had not stabbed him intentionally. They had wrestled. He had been moving or swinging the knife from side to side and only realised that A was hurt when he let go of the appellant. He regretted that A had been hurt and had been shocked. He denied showing the knife to A's father earlier in the incident. The witnesses were wrong when they said that they had seen the knife before there was any physical incident, or that he had used it in a stabbing motion. He had disposed of the knife afterwards in a bin.
20.
The appellant's evidence was the only evidence of accident in the case. There was, therefore, a clear conflict between the accounts of the prosecution witnesses and the appellant's version.
Alternative count/offence – the law
21. We deal first with the issue on which leave to appeal has been given: whether the judge should have left
section 20
to the jury as an alternative count. It was common ground between counsel at the trial that the law is correctly stated in
Blackstone's Criminal Practice 2019
at paragraph D-
19.58 as follows:
"
Judge's Discretion in Directing Jury as to Alternative
Offences
The judge in summing-up is not obliged to direct the jury about the option of finding the accused guilty of an alternative offence, even if that option is available to them as a matter of law. If, however, the possibility that the accused is guilty only of a lesser offence has been obviously raised by the evidence, the judge should, in the interests of justice, leave the alternative to the jury. This is the case even if neither prosecution nor defence counsel wishes the alternative offence to be left to the jury: (
Coutts
[2006] 4 All ER 353
, followed in
Brown
[2014] EWCA Crim 2176
, but see
Brown
[2011] EWCA Crim 1606
). It is important for the court to leave an alternative which does not require proof of specific intent where such intent was required for the charge on the indictment: (
Hodson
[2009] EWCA Crim 1590
;
Foster
[2009] EWCA Crim 2214
;
Johnson
[2013] EWCA Crim 2001
). The court should not take the initiative to add an alternative charge after the accused has given evidence: (
B(JJ)
[2012] EWCA Crim 1440
)."
22.
We would accept this as an accurate statement, although it would be preferable to regard the decision whether to leave an alternative offence as calling for an exercise of judgment, rather than an exercise of discretion. It is, however, the kind of decision which requires a number of matters to be taken into account and on which there is often no single right answer. Relevant matters will include: the evidence which has been given, or, if the question is whether to add a count at an early stage of the trial, which it can reasonably be anticipated may be given; whether leaving the alternative offence is likely to assist the jury on the one hand, or unnecessarily complicate a simple case on the other; and whether introducing a possible new offence can be done without unfairness to the defendant. This court will not interfere with a judge's exercise of such a judgment, unless it is clearly wrong. As Lord Bingham explained in
Coutts
[2006] UKHL 39
,
[2006] 1 WLR 2154
at [23], the critical question will often be whether the alternative verdict is one which is obviously raised by the evidence:
"The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. … I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge …"
23.
This court summarised the effect of
Coutts
and other authorities in
Barre
[2016] EWCA Crim
216. Gross LJ, giving the judgment of the court, said at [22]:
"The law in this area has been considered in a number of authorities, most recently
R v Coutts
[2006] UKHL 39
,
[2006] 1 WLR 2154
… and
R v Foster
[2007] EWCA Crim 2869
,
[2008] 1 WLR 1615
, a decision in four conjoined appeals heard by a fivemember Court of Appeal. For present purposes the following summary may be distilled based on these decisions and others there referred to together with the discussion in
Archbold
at paragraphs 4-532 and following:
1.
The public interest in the administration of justice will be best served by a judge leaving to the jury any obvious alternative offence to the offence charged. The actual wishes of trial counsel on either side are immaterial. As observed by Lord Bingham in
Coutts
:
'A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.'
2.
Not every alternative verdict must be left to the jury. Plainly there is no such requirement if it would be unfair to the defendant to do so. Likewise, there is a 'proportionality consideration':
Foster
at [61]. The alternative need not be left where it would be trivial, insubstantial or where any possible compromise verdict could not reflect the real issues in the case (
ibid
). The requirements to leave an alternative verdict arises where it is 'obviously' raised by the evidence. It is one to which 'a jury could reasonably come' or, put another way, 'where it arises as a viable issue on a reasonable view of the evidence':
Foster
at [54];
Coutts
at [85].
3.
Subject to the above framework, whether in any individual case an alternative verdict must be left to the jury is necessarily fact specific. In this context, the trial judge will have 'the feel of the case' which this court lacks:
Foster
at [61].
4.
Where an alternative verdict is erroneously not left to the jury, on an appeal to the court the question remains as to whether the safety of the conviction is undermined:
Foster
(
loc cit
)."
24.
Barre
was a case of injuries, in that case fatal injuries, caused by a knife wound during a fight although, inevitably, there were a number of differences between the facts of that case and the facts of the present case. The issue was whether the judge ought to have left manslaughter to the jury as an alternative to murder. The court held that he was not obliged to do so. The principal reason for so holding was that the use of a knife with "moderate force" (that being a technical expression in this context) in the chest area penetrating the deceased's body to the hilt of the weapon was itself indicative of an intention to cause at least really serious harm. In those circumstances the court concluded at [32]:
"The upshot, in our judgment, is that an alternative verdict of manslaughter was not obviously raised on the evidence. It did not arise as a viable issue on a reasonable view of the evidence. In the circumstances, the judge did not err in declining to leave the alternative verdict to the jury. The most that can be said is that some judges might have left it but that falls short of establishing error on the part of this judge in this case."
25.
The recent case of
R v Braithwaite
[2019] EWCA Crim 597
was also a case of a fatal stabbing where the question arose whether manslaughter should have been left to the jury. In fact, the judge did direct the jury that if the defendant deliberately stabbed the victim, without intending to kill or to cause really serious harm, but intending to cause some harm falling short of this, they should find him not guilty of murder but guilty of manslaughter. The defence contended, however, that the possibility of a conviction for manslaughter should also have been left to the jury on a different basis. This was unlawful act manslaughter which was said to arise because, even though the jury may not have been sure that the defendant had deliberately stabbed the victim who may therefore have been impaled on the knife in the course of a fight, the defendant was unlawfully in possession of and was brandishing a knife in circumstances where all sober and reasonable people would inevitably realise that there was a risk of some harm.
26.
The court rejected this argument. After citing what he had said in
Barre
, Gross LJ observed that this alternative version of manslaughter was remote from the real issues at the trial, which were primarily whether the stabbing was deliberate and, if so, whether it had been done in selfdefence. It was an artificial and unreal scenario which "emphatically does not arise obviously from the evidence".
27.
Thus, we see that the authorities have consistently followed the approach suggested by Lord Bingham in
Coutts
and that the critical question is often whether the alternative offence is one which arises obviously from the evidence.
The submissions
28.
For the appellant Mr Jon Anders submits to us, as he submitted to the trial judge, that the appellant's evidence raised the possibility that he had acted recklessly in brandishing the knife and that there was a real danger that the jury had concluded that the appellant was responsible for causing the injuries, without being sure that he intended to do so, and had convicted him on that basis. He emphasised the appellant's youth and the unlikelihood (as he suggested) that the appellant would have wished to cause really serious harm to a stranger whom he did not know.
29.
For the prosecution, Mr Will Noble submits that there was abundant evidence, including from independent witnesses, that the appellant walked towards the group, holding a knife, and that he stabbed A three times, in quick succession, in a manner which was clearly deliberate. It was a matter for the judge whether to leave
section 20
as an alternative; and in circumstances where the
section 18
count was already an alternative to the primary case of attempted murder, it was unnecessary for him to do so. The verdict of the jury, convicting the appellant on count 2 and being unable to agree on the count of attempted murder, demonstrates that they rejected any possibility of lack of intent to cause serious harm.
Analysis
30.
In our judgment there was in the circumstances of this case no realistic scope for the possibility that the appellant had stabbed A deliberately, but in doing so had not intended to cause him really serious bodily harm. The jury was indeed confronted with a stark choice. Either the appellant had stabbed A three times deliberately, in quick succession, with two of those stab wounds penetrating deeply; or it had all been an accident, in which the appellant had not meant to stab A at all. If the stabbing was deliberate, it was very difficult to see how the appellant could not have had the intention necessary for a conviction under
section 18
. The deliberate and repeated stabbing spoke for itself. It was compelling evidence of an intention to cause really serious harm.
31.
On the other hand, if it was an accident in which the appellant had not intended to stab A at all, he was not guilty under
section 18
or under
section 20
, and was entitled to be acquitted. As Mr Anders has acknowledged, because the wound was not fatal, there was no room for any conviction of a lesser offence along the lines of the unlawful act manslaughter argument advanced in
Braithwaite
.
32.
This was not, therefore, a case where
section 20
was an obvious alternative offence which there was evidence to support. It was not the appellant's evidence that he was guilty under
section 20
because he had stabbed A, but had not intended to cause him serious harm. His evidence was that he was not guilty at all. He did not suggest that he had stabbed A deliberately, but said that he could not account for how the injuries had occurred. On a proper analysis, therefore, far from being an obvious alternative offence supported by evidence, a conviction under
section 20
would have been an implausible outcome.
33.
That leaves the danger, highlighted in
Coutts
and other cases, which was summarised by Professor Hungerford-Welch in his commentary on
Barre
in [2016] Crim LR 770, which Gross LJ cited in
Braithwaite
at [39]:
"The real tension in such cases … arises from the possibility that the jury will decide that the defendant is not guilty of the offence on the indictment, but is guilty of 'something'. This in turn raises the risk that either the jury will convict him of the more serious offence to ensure he does not escape punishment altogether (which would clearly be unfair on the defendant), or else acquit him even though they … are sure that he is guilty of some criminality (thus leaving criminality unpunished)."
Mr Anders also invoked that concern as being a factor in this case.
34.
While that may be a reasonable concern in some cases, it does not mean that a lesser alternative must be left to the jury in every case where it is a possibility, regardless of whether the alternative is one which is obviously raised by the evidence. We refer to what Lord Mance said in
Coutts
at [98] to [100], on which Mr Anders relied:
"98. However, in the limited number of previous cases in the United Kingdom, a different general approach has been taken in a context where an alternative verdict presents itself as possible. The approach has been (a) to recognise that there
can
be a real risk of the absence of a direction regarding the possibility of an intermediate alternative verdict influencing a jury to convict of the more serious charge laid by the Crown, out of reluctance to let the appellant 'get clean away with a complete acquittal, and (b) to seek to identify whether in the particular circumstances of the case that real risk actually arose: … The test involved in part (b) of this approach was advanced by Lord Ackner in
R v Maxwell
[1990] 1 WLR 401
at p.408 in the following terms:
‘What is required in any particular case, where the judge fails to leave an alternative offence to the jury, is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct.’
99.
I am persuaded that this is an unworkable test to apply to a jury trial. There is no reliable means by which an appellate court can, on so particular a basis, measure whether or how a jury may react to an unnatural limitation of the choices put before it. One is entitled to assume that juries go about their task in the utmost good faith, but the concern is with sub-conscious as well as conscious reactions. Like my noble and learned friends, I find persuasive the reasoning of Callinan J in
Gilbert v The Queen
(2000) 201 CLR 414, 441, para. 101, to the effect that, as a matter of human experience, a choice of decisions may be affected 'by the variety of choices offered, particularly when … a particular choice [is] not the only or inevitable choice'. (In the present case, the possibility that the decision not to leave manslaughter to the jury might conceivably play out against, rather than for, the appellant is also inherent in defence counsel's apparent remark to the appellant at the time about 'rolling the dice'.)
100.
Accordingly, in my view, where, as Lord Bingham has said, an obvious alternative verdict presents itself in respect of some more than trifling offence and can without injustice be left for the jury to consider, the judge should in fairness ensure that this is done, even if the alternative only arises on the defence case in circumstances where as a matter of law there should apart from that alternative be a complete acquittal."
35.
It is apparent that Lord Mance's conclusion on this point, consistent with that of Lord Bingham, was that the alternative offence should be left, when there was evidence to support it as an obvious alternative verdict. He did not, therefore, propound a different approach from that to which we have referred.
36.
It is and remains the case that it is for the trial judge to make a judgment. He (or she) will have a better feel for the case than this court will have. That judgment is whether, in any particular case, it is appropriate to include the possibility of a lesser alternative verdict. We see no reason to think that the judge was wrong to conclude that an alternative count was unnecessary in this case. We note, moreover, that the jury knew that the appellant had pleaded guilty to possessing the kitchen knife and that therefore there would be no question of him escaping punishment altogether. We conclude, therefore, that the judge was entitled not to accede to the submission that
section 20
should be left to the jury as a possible alternative verdict.
Intention – the summing up
37.
In his written submissions, Mr Anders made no criticism of the judge's summing-up on the question of intention. However, he has this morning adopted an observation made by the single judge as to the terms in which the trial judge dealt with the question of intention. The judge directed the jury that in order to convict they had to be sure that the appellant intended to cause really serious bodily harm and that if they were not sure of this, he should be acquitted. It is clear that the jury were satisfied about this and that to the extent they entertained any doubt at all, it was whether the appellant had intended not merely to cause really serious bodily harm, but to kill. That is apparent from the fact that, as we are told, they indicated at an early stage of their deliberations that they had reached a verdict on count 2, but ultimately failed to agree on count 1.
38.
That said, and although there is formally no ground of appeal on this point, we agree with the single judge that the trial judge's direction was not as clear as it might have been. When ruling that the alternative
section 20
offence would not be left to the jury, the judge stated that the jury would be directed very carefully on the intent necessary for a conviction on count 2. It is, therefore, very surprising that the judge did not provide the jury with a written direction, as this court has repeatedly urged. When he summed up, the judge correctly told the jury that they had to be satisfied that the appellant intended to cause really serious bodily harm. However, after summarising the case for the prosecution and the defence, he added:
"… in particular, you need to look at whether those injuries could have been caused accidentally or whether they were in fact caused deliberately. And the prosecution would say that the facts speak for themselves, to some extent; it is not one wound it is three. That does not sound like an accident."
39.
Taken in isolation, that would, or at least might, suggest that it was sufficient for the prosecution to prove that the injuries were caused deliberately. That would, of course, be wrong. The fact that these particular wounds were caused deliberately would be evidence from which the jury might (and indeed would be likely to) conclude that the appellant intended to cause really serious bodily harm. But that is, nevertheless, a matter about which they would need to be sure. If written directions had been given after discussion with counsel beforehand, as should by now be standard practice, any such inaccuracy could have been avoided. As it is, however, the summing-up on the question of intention must be taken as a whole, and, taken as a whole, the direction on intention was sufficient, and the inaccuracy here, if such there was, does not render the appellant's conviction unsafe.
The previous knife incidents
40.
We turn next to the renewed application for leave to appeal against the judge's decision to allow the prosecution to adduce evidence of two previous matters. The first matter was an occasion when the appellant and his brother F were stopped by police on 31
st
October 2017 and the appellant was found to be in possession of a penknife, possibly with a missing blade. He told the police that he had found the knife and kept it. He received a police warning.
41.
The second matter occurred on 21
st
May 2018. The appellant, who was at school, was seen by a teacher searching for and viewing images of knives on his computer. It appears that they were flick-knives. He was spoken to by a police officer and warned about the possible consequences of carrying knives.
42.
It should be noted that by the time the judge gave his ruling, the appellant had pleaded guilty to count 3 (having an article with a blade or point in a public place). Accordingly, evidence of the earlier matters could only be relevant to the extent that it had a bearing on counts 1 or 2. Moreover, at the time when the judge gave his ruling, the appellant had not yet given evidence. Mr Anders, on his behalf, had indicated a provisional view that he would not be adducing evidence that the appellant, who had no convictions, was of good character. Ultimately, evidence of the appellant's good character was adduced and the judge gave an appropriate direction. But that was only done after the judge had ruled that the earlier matters could be adduced. If he had ruled otherwise, the trial may have taken a different course so far as the appellant's character was concerned.
43.
The single judge concluded that there was no arguable basis for interfering with the judge's ruling. We agree. The appellant has served a Defence Statement in which he asserted that he did not habitually carry a knife, but had found a knife in the street, had picked it up, and had kept it out of curiosity, without any idea of what he was going to do with it. The evidence of the previous matters was, therefore, relevant as showing that the appellant had an interest in knives and a propensity to carry them. It was relevant to undermine and contradict his case that he had just found the knife with which he stabbed A in the street. That was the same excuse as he had given in the previous incident. If the jury rejected that excuse and concluded that he had knowingly and deliberately taken a knife with him, that was a matter which they would be entitled to bear in mind when considering the appellant's state of mind.
44.
There is no criticism of the way in which, having decided to allow the evidence, the judge directed the jury in relation to the two previous matters.
Disposal
45. Accordingly, we dismiss the appeal in relation to Ground 2 (the alternative count) and refuse leave to appeal in relation to Ground 1 (the evidence of the two previous incidents).
Post script
46.
There is one final matter which must be mentioned, although it is not the subject of any ground of appeal. At the beginning of his summing-up, the judge explained in conventional terms that he would first direct the jury on the law and would then remind them of the evidence. He then said:
"I wish I did not have to do that. You have been reminded of the evidence by both counsel, perfectly appropriately, and in other countries this does not happen. But I am afraid it does in this country and I have to do it."
47.
The judge would, with respect, have done better to keep his opinions to himself. It cannot have assisted the jury – or even encouraged them to pay attention – to suggest to them at the outset that a major part of the summing-up, which they were about to hear, was pointless and unnecessary. In fact, however, a balanced summary of the evidence from an independent and impartial judge, pulling together the evidence on the important issues in the trial, is likely to be of assistance to the jury in all but the very simplest of cases, and even in those cases will at least reassure the jury as to the straightforward nature of their task, without taking very long to do.
This, however, was a trial which had lasted a week and numerous witnesses had been called. Providing that assistance to the jury, which will generally require more than simply reading out extracts from the judge's notebook, is an important part of the function of a trial judge.
_____________________________________
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hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
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________________________________
|
{"ConvCourtName":["Crown Court at Wood Green"],"ConvictPleaDate":["2019-02-27"],"ConvictOffence":["Wounding with intent to do grievous bodily harm (section 18 of the Offences against the Person Act 1861)"],"AcquitOffence":["Attempted murder (jury could not agree, prosecution offered no evidence)"],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at beginning of the trial (for count 3)"],"RemandDecision":["No"],"RemandCustodyTime":null,"SentCourtName":["Crown Court at Wood Green"],"Sentence":["4 years' detention (count 2)","No separate penalty (count 3)"],"SentServe":["Single"],"WhatAncillary":["Order under section 45 of the Youth Justice and Criminal Evidence Act 1999 (anonymity order)"],"OffSex":["All Male"],"OffAgeOffence":[14],"OffJobOffence":["Child"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[14],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony","Eyewitness testimony","Video evidence (filmed by witness)","Medical evidence (injuries, surgery, CT scan)"],"DefEvidTypeTrial":["Offender denies intent","Offender claims accident"],"PreSentReport":null,"AggFactSent":["Use of a knife","Multiple stab wounds","Serious and life-threatening injuries"],"MitFactSent":["Offender's young age","No previous convictions (good character evidence adduced)"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction"],"AppealGround":["Judge was wrong not to add a further alternative to the indictment (unlawful wounding under section 20 of the 1861 Act)","Judge was wrong to allow evidence of two previous incidents relating to knives"],"SentGuideWhich":["section 18 of the Offences against the Person Act 1861","section 20 of the Offences against the Person Act 1861"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Section 20 was not an obvious alternative offence supported by the evidence; the judge was entitled not to leave it to the jury. The evidence of previous knife incidents was relevant and properly admitted. The summing up on intention was sufficient and did not render the conviction unsafe."]}
|
No:
200601229/A8
Neutral Citation Number:
[2006] EWCA Crim 2051
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
MONDAY, 10th July 2006
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE LATHAM)
MR JUSTICE FORBES
MR JUSTICE SIMON
- - - - - - -
R E G I N A
-v-
ABU BAKER MANSHA
- - - - - - -
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 CARTER-MANNING QC
appeared on behalf of the APPLICANT
MR M TAYLOR
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
MR JUSTICE FORBES: On 22nd December 2005, at the Southwark Crown Court, this appellant was convicted, following a trial, of an offence of possessing information likely to be useful to a person committing or preparing an act of terrorism, contrary to
section 58(1)(b)
of the
Terrorism Act 2000
. On 26th January 2006 he was sentenced to 6 years' imprisonment. The judge directed that the period the appellant had spent on remand in custody was to count towards his sentence, and made an order for the forfeiture and disposal of a gun under
section 52 of the Firearms Act 1968
. The appellant now appeals against that sentence by leave of the Single Judge.
2.
A brief outline of the facts is as follows. In the early hours of the morning of 24th March 2005, officers from the Anti Terrorist Squad and Firearms Squad raided the flat in Woolwich, South East London, where the appellant was living. The appellant was arrested and the flat was searched. Officers found a number of documents in a bag belonging to the appellant. The first of those documents was a newspaper article about a soldier who had been decorated for gallantry in Iraq. It appeared that someone had researched the basic details contained in the article to the effect that the soldier came from Portsmouth in Hampshire. On a separate sheet of paper found in the same bag the appellant had written down the soldier's name and full address. In fact, the soldier had lived at that address with his partner until June 2002, but had then moved away. At the time of the search of the appellant's flat, therefore, the soldier was no longer resident at the address recorded on the sheet of paper although he had been resident there some time before.
3.
How the information concerning the address had been obtained is unknown. But it is obvious that someone had made the relevant research to enable the appellant to write down the address in question. An A4 refill pad was also recovered and forensically examined. From the indentations on the pad it was established that the appellant had written away for information concerning two prominent Jewish men and two prominent Hindu businessmen. The officers also found a number of DVDs containing anti-western propaganda, Islamic propaganda praising martyrdom, others giving details of suicide car bombings against the British and against the Russians in Chechnya and yet others showing the aftermath of a suicide bombing and the like.
4.
A dismantled pistol was also recovered. It was a pistol designed for firing blanks modelled on a Beretta self-loading pistol. However it was incapable of discharging a bullet, although examination revealed that an attempt had been made to bore out the dummy barrel and convert it into a working firearm.
5.
An eavesdropping device, a scanner and a Balaclava with cut out eyes were also found at the flat.
6.
When interviewed the appellant refused to answer questions but made several prepared statements in which he stated that he had nothing to do with terrorism, that he had no strong political views and that he was not a strict practising Muslim. He stated that he had purchased the dismantled pistol at a market stall for £25 to have as a souvenir, that he rented the flat from a friend and that several of his friends had access to the flat. He claimed some of the DVDs were his and that others belonged to his friends.
7.
When passing sentence the judge said this (inter alia):
"The maximum sentence for this offence is 10 years' imprisonment. You have never faced a charge of conspiracy to kill or cause harm and I do not sentence you for that, but when that information came into your possession and was recorded by you, you crossed the boundary into terrorism, and the other items found in your flat; the horrific DVDs and the imitation firearm that someone had tried to convert, confirmed that.
Any body who crosses that line and commits a terrorist offence must know that if convicted they will face a substantial sentence. In your case I take into account your limited intelligence and I have no doubt that others must have played a significant part in what took place and, in fact, nothing had yet happened.
The sentence of the court is one of 6 years' imprisonment."
8.
The appellant is now aged 22. He has one previous conviction for affray in the Thames Magistrates' Court for which he was conditionally discharged for 12 months on 8th May 2002. There were two psychological reports before the court, the first was from Dr Robert Epstein, dated 12th August 2005. In his report Dr Epstein concluded that the appellant had a learning disability, marked by poor overall intelligence, a directionless and irresponsible life-style and major adaptive behaviour defects. According to Dr Epstein the appellant's self reported history revealed difficulties in school, long periods of truancy, poor employment and conflict with his father, all of which would be consistent with frustration and poor ability to adapt to the necessities and responsibilities of everyday life. The second psychological report and had been prepared by Professor Gisli Gudjonsson and was dated 17th September 2005. Professor Gudjonsson concluded that the appellant's intelligence fell within the borderline range of intellectual disability, ie about the bottom 2 per cent of the population. However, Professor Gudjonsson concluded that the appellant was not unduly suggestible. In the course of his oral evidence before the court, when presented with other documentary material Professor Gudjonsson maintained the conclusions that he had expressed in his report.
9.
There was also a pre-sentence report, dated 23rd January 2006. In it the probation officer expressed the opinion that there appeared to be a low risk of the appellant re-offending, but a medium risk of harm to the public.
10.
On behalf of the appellant, Mr Carter-Manning QC submitted that the sentence passed was manifestly excessive. He contended that insufficient account had been taken of the appellant's youth, the low level of his educational abilities and intelligence, his role as a follower rather than a leader and the fact that no approach of any kind had been shown to have been made to either the soldier to or to any of the other persons about whom enquiries had apparently been made. Mr Carter-Manning also referred to the case of the notorious cleric Abu Hamza. Mr Carter-Manning submitted that Abu Hamza's case was a very much more serious case involving the commission of offences under the same Act. It was Mr Carter-Manning's submissions that a difference of only one year was insufficient to distinguish between the two cases, having regard to the difference in the level of seriousness of the criminality involved in the two cases.
11.
We have considered these submissions with great care. We note that the maximum sentence available for this offence was one of 10 years' imprisonment. However, we are not persuaded that any useful comparison can be made between this case and that involving Abu Hamza. In our view the judge was entirely right to have regard, as he did, to all the relevant facts and circumstances relating to this particular case and to this particular appellant. As the judge observed when passing sentence, the jury's verdict established that the appellant had committed a terrorist offence. We agree with the judge that a person convicted of a terrorist offence must expect a substantial sentence to be imposed by the court. The court must impose such a sentence in order to serve as a deterrent to others and to mark the extreme seriousness of the criminality involved in terrorist activities. In our view, the law abiding public is entitled to expect no less. In this case, the judge took into account all the relevant factors, including the appellant's limited intelligence, and passed a sentence that was, in our judgment, within the range that was appropriate in all the circumstances. In our view, the sentence passed by the judge certainly cannot properly be stigmatised as manifestly excessive. Accordingly for all those reasons this appeal against sentence is dismissed.
|
{"ConvCourtName":["Southwark Crown Court"],"ConvictPleaDate":["2005-12-22"],"ConvictOffence":["Possessing information likely to be useful to a person committing or preparing an act of terrorism, contrary to section 58(1)(b) of the Terrorism Act 2000"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Southwark Crown Court"],"Sentence":["6 years' imprisonment"],"SentServe":["Single"],"WhatAncillary":["Order for the forfeiture and disposal of a gun under section 52 of the Firearms Act 1968"],"OffSex":[],"OffAgeOffence":[21],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Has learning difficulties"],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Forensic evidence (indentations on pad)","Documentary evidence (documents, DVDs, gun, eavesdropping device, scanner, balaclava)"],"DefEvidTypeTrial":["Prepared statements by defendant","Psychological reports"],"PreSentReport":["Low risk of reoffending","Medium risk of harm"],"AggFactSent":["Possession of information likely to be useful to terrorists","Possession of DVDs containing anti-western propaganda and details of suicide bombings","Possession of a dismantled pistol that had been attempted to be converted into a working firearm"],"MitFactSent":["Limited intelligence","Learning disability","Borderline intellectual disability","Youth (aged 21 at offence)","Role as follower rather than leader","No approach made to any potential victim"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Insufficient account taken of youth, low intelligence, role as follower, and lack of approach to any victim"],"SentGuideWhich":["section 58(1)(b) of the Terrorism Act 2000","section 52 of the Firearms Act 1968"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Sentence was within the appropriate range","Judge took into account all relevant factors including limited intelligence","Sentence not manifestly excessive"]}
|
No:
200504518/A6
Neutral Citation Number:
[2006] EWCA Crim 270
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 19th January 2006
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE CRANE
MRS JUSTICE RAFFERTY DBE
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 90 OF 2005
(PAUL DALTON)
- - - - - - -
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 Z JOHNSON
appeared on behalf of the ATTORNEY GENERAL
MR D FISHER QC
appeared on behalf of the OFFENDER
- - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: The Solicitor-General for the Attorney-General makes an application, under
section 36 of Criminal Justice Act 1988
, to refer a sentence said to be unduly lenient.
2.
The offender is 35 years of age, having been born in June 1970. On 22nd July 2005 he was acquitted by the jury of the murder of his wife but convicted of her manslaughter. The jury, having been invited to do so, expressly indicated that the basis of their verdict was lack of intent, that is, an absence of an intent to cause death or serious harm.
3.
From the outset, the offender indicated his willingness to plead guilty to the second count of preventing lawful burial. He was not arraigned until the morning of the trial and, on that occasion, he pleaded guilty to manslaughter on count 1, which plea the prosecution did not accept, and guilty to count 2. Sentence was adjourned to 21st July in order that the Court could consider the relevant authorities. On that occasion, he was sentenced at the Central Criminal Court by Gross J, who had conducted the trial, to a total sentence of 5 years, consisting of 2 years' imprisonment for manslaughter and 3 years consecutively for preventing lawful burial.
4.
In summary, the offender and his wife, Tae Hui, had been married for a number of years and they had a 6 year old daughter to whom, it is common ground, the offender was devoted. On 22nd May 2004 they argued. She taunted him that he was not the natural father of the child. Thereupon the offender punched his wife in the jaw, breaking it in two places. He took his daughter, who had appeared at the doorway, upstairs and he remained with her upstairs for some 5 or 10 minutes. When he returned, his wife was, sadly, dead, having apparently choked on her own blood.
5.
The offender failed to call the police. A few days later he bought a deep freezer and a saw and proceeded to cut his wife's body into pieces. He then fled to Japan but returned a fortnight later and was arrested.
6.
In a little more detail, the parties had been married for about 7 years. They lived in Kingston, Surrey, and ran a language school for foreign students. They had quarrels from time to time. On 9th June 2004, that is to say after the death had occurred, the offender dropped his daughter off at his mother's house, saying he had a lot to do and that his wife, who was Korean, had gone to Korea. The offender did not come back, as his mother had expected, to collect her grandchild and so, on 11th June, the offender's parents went to the offender's house to check that all was well. There was no reply. They went in. In a deep freeze in the kitchen they found their late daughter-in-law's dismembered body.
7.
Postmortem examination revealed that the body had been cut up using a saw. The level of decomposition indicated that the body had been stored at room temperature for a number of days before it had gone in the freezer. There was bruising and a double commutated fracture of the jaw, indicating the blow which had been administered by the offender was a hefty punch. The consequence was that it had compromised the airway and inhalation of blood had caused death. The offender had gone to Japan leaving his daughter with his parents. He sent a number of text messages to his mother admitting that he had punched his wife and that she did not wake up. There were receipts found showing that the deep freezer had been bought on 26th May and the saw on 2nd June. On 21st June the offender returned to the United Kingdom and was arrested at Heathrow.
8.
In interview, he explained that his wife had been taunting him that he was not the child's natural father. He accepted that he had lashed out and punched his wife once on the jaw. He then described removing his daughter upstairs and then returning downstairs 5 or 10 minutes later to find his wife dead. He said that he had dismembered his wife's body in order to protect his daughter and to give himself time to think. The offender was a man of previous good character.
9.
On behalf of the Solicitor-General, Miss Johnson draws attention to three aggravating features, the first of which she, correctly, categorises as the most serious of the three: they are the failure to call for any medical assistance, the delivery of a blow of significant force and the fact that the violence took place within the matrimonial home.
10.
Miss Johnson draws attention to the mitigation to be found in the pleas of guilty to manslaughter and to the prevention of lawful burial at the first available opportunity, the offender's previous good character, the fact that the offence was not premeditated, the fact that there was provocation, as we have described, and, of particular significance in cases where death results from domestic violence, that there had been no previous episodes of violence between the married couple.
11.
There are a number of authorities referred to in the written reference. First is
R v Coleman
13 Cr App R(S) 508, where an unusually strongly-experienced constitution of this Court presided over by the then Chief Justice, Lord Lane, reduced, from 2 years to 1 year, a sentence for manslaughter imposed for delivering a single blow and following a plea of guilty. Miss Johnson distinguishes
Coleman
on the basis that, in the present case, there was the delivery of a hefty blow which itself caused death, rather than, as in
Coleman
, the delivery of a blow which resulted in the banging of the victim's head which caused death. That is a distinction rightly drawn. Miss Johnson particularly relies on
R v Tzambazles
[1997] 1 Cr App R(S) 87, where, following trial, a sentence of 6 years was upheld, when a man, in the course of a fight with his wife, had struck her with a blunt instrument. In our judgment, the circumstances of that case were, in particular by reference to the use of the weapon, but for other reasons as well, very different from those of the present case. There is also, in the written reference, through Miss Johnson did not refer to it
R v Henley
[1999] 2 Cr App R(S) 412, where this Court reduced from 4 years to 18 months, the sentence imposed following a plea of guilty, for a single blow which broke the jaw of the victim.
12.
Miss Johnson, in the written reference also refers, so far as count 2 is concerned, to
R v Swindell
(1981) Cr App R(S) 255, where a sentence of 5 years was reduced to 3 following a plea of guilty to preventing burial by dismembering a body, the defendant having been acquitted of manslaughter.
13.
There are other authorities to which the sentencing judge was referred in the course of the proceedings before him. In
R v Edwards
[2001] 2 Cr App R(S) 540, a sentence of 2 years was reduced to 18 months, following a trial which resulted in a conviction of manslaughter resulting from a single punch. In
R v Grad
[2004] 2 Cr App R(S) 218, a sentence of 18 months was reduced to 9 months, following a trial: the circumstances of the offence there were that there was a single punch of moderate force.
14.
The submission which is made by Miss Johnson, as attractively as the submission is capable of being made, is that the sentence passed by the learned judge failed to accord sufficient weight to the aggravating features present and, in consequence, the sentence was unduly lenient.
15.
The sentencing judge who, as we have said, had conducted the trial, was referred by counsel on both sides to a number of relevant authorities, which he correctly analysed. He accurately and concisely in his sentencing remarks, rehearsed the circumstances of these offences and set out the aggravating and mitigating features. It may be that some judges would have passed a higher sentence for the manslaughter than for the offence of preventing burial. Whether that is so or not, the crucial question for this Court's determination is whether or not the total sentence of 5 years, was unduly lenient. In our judgment, it was not. On the contrary, it was, in total, an entirely appropriate sentence in its totality and arguably, in its constituent parts.
16.
In the judgment of this Court, this is not an application, having regard to the discretion vested in trial judges with regard to sentencing, which should have been brought. This was not capable of being categorised as an unduly lenient sentence. Accordingly, we refuse leave to refer the case for review.
|
{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2005-07-22"],"ConvictOffence":["Manslaughter","Preventing lawful burial"],"AcquitOffence":["Murder"],"ConfessPleadGuilty":["Yes","Yes"],"PleaPoint":["at trial (morning of trial)"],"RemandDecision":["No"],"RemandCustodyTime":null,"SentCourtName":["Central Criminal Court"],"Sentence":["2 years' imprisonment for manslaughter","3 years' imprisonment for preventing lawful burial"],"SentServe":["Consecutive"],"WhatAncillary":null,"OffSex":["All Male"],"OffAgeOffence":[34],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":null,"OffIntoxOffence":["No"],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":null,"VicJobOffence":null,"VicHomeOffence":["Fixed Address"],"VicMentalOffence":null,"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Postmortem examination","Receipts for freezer and saw","Text messages admitting punch","Victim's body found in freezer"],"DefEvidTypeTrial":["Offender admits punch but claims lack of intent"],"PreSentReport":null,"AggFactSent":["failure to call for any medical assistance","delivery of a blow of significant force","violence took place within the matrimonial home"],"MitFactSent":["pleas of guilty to both counts at first available opportunity","offender's previous good character","offence was not premeditated","provocation by victim","no previous episodes of violence between married couple"],"VicImpactStatement":null,"Appellant":["Attorney General"],"CoDefAccNum":null,"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["failed to accord sufficient weight to aggravating features"],"SentGuideWhich":["section 36 of Criminal Justice Act 1988"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":null,"ReasonSentExcessNotLenient":null,"ReasonSentLenientNotExcess":["sentence passed was not unduly lenient; was appropriate in totality and constituent parts"],"ReasonDismiss":["not an unduly lenient sentence; trial judge correctly analysed aggravating and mitigating features; sentence appropriate"]}
|
No:
2003/1358/B1
Neutral Citation Number:
[2004] EWCA Crim 1834
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 8 July 2004
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE STANLEY BURNTON
MR JUSTICE KEITH
- - - - - - -
R E G I N A
-v-
GARY REYNOLDS
- - - - - - -
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 LAWS
appeared on behalf of the APPELLANT
MR R WHITTAM
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE LATHAM: On 5th November 1987 at the Central Criminal Court, before His Honour Judge Hazan (as he then was) the appellant was convicted of murder and ordered to be detained during Her Majesty's Pleasure. He was 17 years old at the time. He appeals against conviction upon a reference by the Criminal Cases Review Commission under
section 69 of the Criminal Appeal Act 1995
on the basis that medical evidence now available indicates that he suffers from Asperger's Syndrome which may have substantially diminished his responsibility for the killing of the victim within the meaning of
section 2 of the Homicide Act 1957
.
2.
The facts of the offence were that at the time the appellant worked in a pharmacist's shop in Bow, East London. The pharmacist was Miss Anita De Souza. For some time it would appear that the appellant had had in mind a plan to steal the takings from the shop and then go to France in order to obtain work.
3.
On Saturday 14th February 1987, as Miss De Souza was setting the shop alarm, the appellant took a claw hammer and struck her on the head inflicting multiple injuries which resulted in a fractured skull and damage to her brain from which she died. The pathologist was of the view that 14 blows were struck. The ferocity of the attack was such that it is likely that she would have been rendered unconscious after three to five blows. It follows that the majority of the blows were struck when Miss De Souza was helpless and unconscious.
4.
The appellant did as he had planned. He took £500 from the shop. He left. He met some girlfriends that evening and told them that he had robbed the shop, and laughed about it. The next day he purchased a change of clothing and travelled to Dover intending to sail to France. However, he was there arrested and when he was arrested he asked the police officers: "Is she dead yet?" In interview he admitted hitting her but denied that he had intended to kill her.
5.
At the trial the issue was intent. Medical evidence had been obtained on behalf of the defendant which indicated that he had an unusual personality. At the trial defence counsel sought leave to call that evidence on the issue of the appellant's ability to form the necessary intent. The judge refused that application on the basis that there were no exceptional features which could justify the conclusion that a jury would need assistance in determining the issue of intent. It was in those circumstances that he was convicted. He appealed to this court; but on 18th October 1988 his appeal was dismissed.
6.
The matter was referred to the Criminal Cases Review Commission essentially as a result of a report dated 2nd September 1999 which was prepared for the purposes of the Parole Board's consideration of this appellant's position by a Dr Gralton. Dr Gralton was of the view that there was sufficient evidence to suggest that the appellant was suffering from what was described as autistic spectrum disorder, sometimes known as Asperger's Syndrome. He considered that it was unlikely that given the nature of the disorder the appellant would be able to make any major gains around, as he put it, "victim empathy", nor would he be able to display emotions consistent with remorse for the offence. He concluded that there was no specific treatment for the disorder and that there was no immediate place to which he could go where there were facilities which would enable his condition to be ameliorated in any way.
7.
That report was supported by a report from a Dr Shah who was a clinical psychologist, who saw the appellant in December of 2000. She concluded that he had suffered from Asperger's Syndrome since birth and that the prognosis was uncertain save that there was no medical treatment available which could treat the basic impairments underlying the syndrome.
8.
The Criminal Cases Review Commission in the light of those two reports instructed Dr Staufenberg, a consultant forensic neuropsychiatrist, to consider the appellant's condition. He has provided a comprehensive report dated 18th December 2001 which gives a full and detailed history of the appellant and confirms the diagnosis of Asperger's Syndrome. He also indicated in his report that such a condition was not widely recognised at the time of the conviction. Indeed Asperger's Syndrome was not named in the ICD until 1990. He was of the view that Asperger's Syndrome was capable of amounting to an abnormality of mind within
section 2 of the Homicide Act 1957
and that in those circumstances a plea of guilty to manslaughter on the grounds of diminished responsibility may have been accepted or if the matter had proceeded to trial the judge may well have directed the jury that it was a defence open to the defendant justifying a conviction of manslaughter.
9.
He, however, was concerned as a result of the interviews that he had had with the appellant that the appellant had a continuing preoccupation of anger against two men in particular, Mr Mayor, who was his employer at the time, and a Mr Driver, who was his mother's then companion. He considered as a result that the appellant was a risk to those two individuals and that that risk should be assessed.
10.
As a result of those reports, the Criminal Cases Review Commission referred the matter to this court, concluding that the evidence of Dr Staufenberg in particular was evidence which was capable of being considered by this court to be fresh evidence under
section 23 of the Criminal Appeal Act 1968
and that this court may well be prepared to admit it and consider that as a result the conviction for murder was unsafe.
11.
The matter having been referred to this court, the Crown Prosecution Service commissioned a report from a Dr Joseph. He concluded that the diagnosis of Asperger's Syndrome was correct and that the appellant had been suffering from that condition at the time of the offence. He confirmed Dr Staufenberg's opinion that at the time it was unlikely to have been identified by psychiatrists as a condition which constituted an abnormality of mind for the purposes of the Homicide Act; and his conclusion was that had the condition been recognised and evidence called to that effect at trial, it was highly likely that the jury would have concluded that the appellant's behaviour in attacking the deceased was significantly attributable to his mental disorder and accordingly that the jury would have concluded that his abnormality of mind substantially impaired his responsibility at the time of the killing.
12.
We have seen, as we have indicated, the reports of Dr Staufenberg and Dr Joseph. We consider that the material contained in those reports constitutes fresh evidence which we are entitled to receive under
section 23 of the Criminal Appeal Act 1968
. We consider that the evidence is clearly credible evidence and could have had a significant effect if it had been available at the trial. We are of the view that Dr Joseph is correct in his conclusion that it was highly likely that had that material been before the court in the form that it is before us, the disposal either by way of plea to manslaughter or, if the matter proceeded to trial, by a jury's verdict of manslaughter, means that the conviction of murder must now be considered in the light of that material to be unsafe and we accordingly quash the conviction. The material, however, before us makes it plain that the appellant must be convicted of the offence of manslaughter and accordingly that is the verdict which we substitute for the verdict of murder.
13.
The question then arises as to disposal in the light of the material that we have and also any further evidence which the parties wish to put before us.
14.
We turn therefore to the question of the appropriate sentence to be imposed on this appellant in the circumstances of the medical evidence that we have rehearsed. That has, however, been augmented now by oral evidence before us from Dr Staufenberg and Dr Johnson. The position can be, it seems to us, encapsulated in the following way. There is no doubt that the appellant is suffering from a mental abnormality, as we have already described, which is of a psychopathic nature. There is no indication in any of the documentation before us that that condition can be ameliorated by treatment. It follows that there is at present no material before this court which could justify any disposal other than a custodial disposal as opposed to a Mental Health Act disposal. It is equally clear, and is accepted expressly by Dr Staufenberg, that the evidence of all the doctors establishes that this appellant does indeed pose a serious risk to the public, in particular to the two named individuals about whom he has expressed the anger which is identified in the reports. The fact that there has been no incident to which anybody has been referred within the prison system since he was sentenced which indicates that he has been violent in any way, does not seem to us to justify the conclusion that the doctors' assessment is other than one upon which we should act. That is particularly so because it is apparent from all the reports that the ordered routine of a prison life is one which he finds comfortable. In other words, there are for him no conditions which are likely to give rise to the sort of relationships which a more unstructured and free environment might result in and which could give rise to the eventuality which is feared by those who consider that he does pose a serious risk to the public. Accordingly, the only appropriate sentence would in those circumstances and could in those circumstances be a sentence of life imprisonment.
15.
Dr Staufenberg and Mr Laws on behalf of the appellant have sought to persuade us, however, that there is an alternative today which is to adjourn the case for the appellant's position to be put to a psychiatrist who we understand works in Broadmoor, on the basis that he is a doctor who might be able to give a more constructive answer to the question of the appellant's treatability. What is suggested is simply that an enquiry should be made to determine whether that individual considers that it would be worthwhile making a formal assessment of the appellant's condition, with a view to reporting whether that possibility does exist.
16.
That is a very tenuous basis upon which to suggest that this court should act. The difficulty, it seems to us, about the application is that there is nothing before us which suggests that it would bear any fruit. More importantly, the evidence is clear that as far as secure hospital regimes are concerned, it is unlikely in the extreme that this appellant could possibly meet the criteria for admission to one of the special hospitals which would be, as we understand it, the necessary ingredient in the proposal of Dr Staufenberg because it is a person who is working within the special hospital system to whom he would like the appellant to be referred. But the difficulty is not merely that so far the evidence is clear that those who examined him do not consider that he would meet what might be described as the treatability criteria, but that of course could be said to beg the question which Dr Staufenberg considers the adjournment might answer, but more important, the appellant does not require the security which is a necessary precondition for admission to a secure hospital. He is satisfactorily held in category C conditions and accordingly a special hospital would not consider that he would be an appropriate person to take up the precious bed that he would have to be given in order for an assessment to be made.
17.
We are grateful to Dr Staufenberg for the concerns that he has expressed to us because we do accept that the position in relation to psychopathic individuals such as the appellant is not satisfactory within the health service. But we do not consider that there is sufficient in the material with which we have been provided which could justify the conclusion that there should be any disposal of this case other than that which we have already indicated is the appropriate disposal on the evidence before us; that is that he should be sentenced to life imprisonment.
18.
We are required to indicate what would have been the appropriate determinate sentence. That is a somewhat unreal exercise in the context of this case, bearing in mind that the appellant has already served 17 years in prison. But it seems to us that the court could not have imposed a determinate sentence in excess of 12 years had the appellant been convicted of manslaughter on the grounds of diminished responsibility at his original trial; and the appropriate period therefore which would, if it mattered, have to be served before consideration by the parole board of release would have been one of six years. That therefore is the sentence that we impose today.
19.
MR WHITTAM: My Lord, can I just simply raise one matter to get some guidance from the court. It became clear, once the appeal was being prepared and the reports written, that not all agencies dealing either with the appeal or with this appellant were aware of either the general nature of the appeal or had all the reports and those who instruct me wonder whether it would be appropriate for them to collate all the reports that have been prepared for this appeal and make them available to the prison where the defendant currently is, because it became clear they do not appear to have the reports.
20.
LORD JUSTICE LATHAM: It seems to me to be absolutely vital that any decisions that are taken from now on in relation to this appellant are taken in the light of all the material which can possibly be made available to those who have to make those decisions and it would be very helpful if, therefore, you could collate those reports and make them available. Indeed, it seems to us that if Dr Staufenberg wished to put in letter or report form the views that he expressed to us in his evidence as a consideration for somebody to consider, then he is perfectly at liberty to do so and it may or may not be a matter which could be taken up by other agencies.
21.
MR WHITTAM: My Lord, thank you.
|
{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["1987-11-05"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["Detained during Her Majesty's Pleasure (original)","Life imprisonment (substituted for manslaughter)"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[17],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Pathologist report"],"DefEvidTypeTrial":["Medical evidence (unusual personality)"],"PreSentReport":[],"AggFactSent":["Ferocity of attack (14 blows, most after victim unconscious)"],"MitFactSent":["Diminished responsibility due to Asperger's Syndrome"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Fresh medical evidence of Asperger's Syndrome affecting responsibility"],"SentGuideWhich":["section 2 of the Homicide Act 1957","section 23 of the Criminal Appeal Act 1968"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Fresh medical evidence shows diminished responsibility; conviction for murder unsafe"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
|
Neutral Citation Number:
[2007] EWCA Crim 926
Case No:
200601892 D3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
(Judge McKinnon)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
26/04/2007
Before:
LORD JUSTICE SCOTT BAKER
MR JUSTICE OPENSHAW
and
SIR RICHARD CURTIS
- - - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Respondent
- and -
PAUL ALAN CURRIE
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Tanya Robinson
for the
Appellant
Katherine Hunter
for the
Respondent
Hearing date: 21/03/07
- - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Scott Baker:
1.
On 17 February 2006 Paul Currie (“the appellant”) was convicted in the Crown Court at Maidstone before Judge Mckinnon and a jury of dangerous driving. The underlying point on this appeal is whether the prosecution were required to serve a notice of intended prosecution, their contention being that they were not because there had been an accident. The appeal raises the following issues.
i)
Whether there was ‘an accident’ within the meaning of
s2
of the
Road Traffic Offenders Act 1988
(“
the 1988 Act
”).
ii)
Where an issue or issues of fact has to be determined in order to decide whether there has been an accident, whether this is for the judge or jury to decide.
iii)
On whom the burden of proof lies in deciding whether there was an accident and what is the standard of proof.
2.
The relevant statutory provisions are to be found in
ss1
and 2 of
the 1988 Act
. They provide:
“1(1) subject to
section 2
of
this Act
, a person shall not be convicted of an offence to which this section applies unless –
(a)
he was warned at the time the offence was committed that the question of prosecuting him for some one or other of the offences to which this section applies would be taken into consideration, or
(b)
within 14 days of the commission of the offence a summons (or, in Scotland a complaint) for the offence was served on him, or
(c)
within 14 days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it was alleged to have been committed, was –
(i)
in the case of an offence under
section 28
or 29 of the
Road Traffic Act 1988
(cycling offences), served on him,
(ii)
in the case of any other offence, served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence.”
Ss(1
A) and 1(2) make provisions about the service of the notice.
“1(3) the requirements of sub
section (1
) above shall in every case be deemed to have been complied with unless and until the contrary is proved.
2(1) the requirement of
section 1(1)
of
this Act
does not apply in relation to an offence if, at the time of the offence or immediately after it, an accident occurs owing to the presence on a road of the vehicle in respect of which the offence was committed.”
S2(2)
provides that
s(1)(1)
does not apply where fixed penalty notices or notices under
s54(4)
of
the Act
have been given.
“2(3) failure to comply with the requirements of
section 1(1)
of
this Act
is not a bar to the conviction of the accused in a case where the court is satisfied –
(d)
that neither the name and address of the accused nor the name and address of the registered keeper, if any, could with reasonable diligence have been ascertained in time for a summons or, as the case may be, a complaint to be served or for a notice to be served or sent in compliance with the requirement, or
(e)
that the accused by his own conduct contributed to the failure.”
Sub
section 2(4)
has no relevance to the issues in the present appeal.
3.
It was common ground that if there was an accident within the meaning of
s2(1)
then there was no requirement on the prosecution to serve a notice of intended prosecution. If, however, there was no such accident then no notice had been served and the prosecution was bound to fail.
Facts
4.
The prosecution case was that at about 5.30pm on 31 March 2005 the appellant was driving a car in Folkestone when he was stopped by WPC Harper and PC Blackman. The officers noticed a strong smell of cannabis and told the appellant and his two passengers to get out. WPC Harper went to speak to the appellant whilst PC Blackman dealt with the two passengers. When one of the passengers became troublesome WPC Harper went over to assist her colleague. As she did so the appellant got back into the vehicle and started the ignition. WPC Harper shouted at him to stop and ran towards the vehicle. As she got halfway across the front of the car the vehicle lurched forward and she had to put her hands on the bonnet. When the car moved forwards towards her again she shouted at the appellant to stop.
5.
Another driver, Mr Grover, saw her struggling with the vehicle and blocked the road to prevent the appellant from passing. WPC Harper grabbed hold of the front passenger door, which was still open, but the appellant reversed up the road at speed causing the officer to lose her grip. According to the officer the appellant had little control over the car, which she described as swinging from side to side as it travelled. She chased after him on foot. After nearly hitting a parked car he drove off and she lost sight of the vehicle.
6.
PC Blackman, who was busy struggling with one of the passengers, described seeing the vehicle lurch forward and then stop abruptly in front of WPC Harper, nearly hitting another vehicle travelling down the road. He heard WPC Harper shout ‘stop’ repeatedly but instead of stopping it began to reverse up the road at speed with its engine revving loudly.
7.
The defence was that the appellant panicked and decided to leave in a hurry. He got back into his car and started the engine. He was looking at the keys, the ignition and the gear stick and did not know if he looked ahead. He did not recall seeing any officer in front of his car. He denied driving at WPC Harper either accidentally or deliberately and denied that the car had lurched forward. He had not reversed at speed nor had he narrowly missed parked vehicles. In short he had not driven dangerously, and nor had there been any ‘accident.’
8.
The judge visited the question of whether there had been an accident within the meaning of
s2(1)
on a number of occasions. In summary, first he decided on the witness statements that there had been an accident. Later, after rejecting a submission that there was no case of dangerous driving to be left to the jury, having heard evidence from both sides he confirmed his ruling. He expressed his conclusion in these words:
“On the basis of those findings of fact, namely that what WPC Harper said happened did in fact happen and that the defendant in the course of his unconvincing evidence, simply wholly failed to discharge the burden required on the balance of probabilities, as set out in
section 1(3)
, and then applying the rational set out in my original judgment, I come to the firm conclusion that this was indeed an accident. An accident because the car did lurch forward when the woman police officer was in front of the car and had to hold on to it to balance herself so that she did not fall over from the fright of the car advancing suddenly towards her. It is plainly an accident by any definition, it seems to me, and fortified by what happened later when she managed to hurry round to the side door, grab on to it only to be thrust off by the motion, speedy motion of the car reversing away from her. If there was any doubt about the one or the other the two in conjunction with (one) another make for an accident.”
Accordingly, the judge resolved the relevant factual issue himself rather than leaving it to the jury and concluded that there had been an accident.
9.
In this appeal we have heard quite admirable submissions from Ms Tanya Robinson on behalf of the appellant, who did not appear in the court below, and Ms Katherine Hunter for the prosecution. They were succinct, clear and to the point, as indeed were their helpful skeleton arguments.
Judge or jury
10.
It is Ms Robinson’s first submission that where, as here, there are disputed facts, it is for the jury and not the judge to decide whether there had been an accident. The opening words of
s1
are that, subject to
s2
,
a person shall not be convicted
unless the provisions of the subsection have been complied with. If there was no accident it was not open to the jury to convict the appellant unless a notice of intended prosecution had been served, which it had not.
11.
She referred us to a number of authorities. The first is
R v Bolkis
(1932) 24 Cr App R 19
. That case was concerned with
s21
of the
Road Traffic Act 1930
, which is the forerunner of the present provision dealing with notice of intended prosecution. There was a proviso to that section that failure to comply with the section was not a bar to conviction if the court was satisfied of certain matters e.g. that the accused’s name and address could not be discovered with reasonable diligence. The Court of Criminal Appeal upheld the trial judge’s decision that the words in the proviso “the court is satisfied” referred to the judge and not the jury. It is to be noted that
s2(3)
of
the 1988 Act
uses the same expression in relation to the notice provisions in
this Act
.
12.
It is argued, however that
Bolkis
is distinguishable from the present case because there was no issue of fact in
Bolkis
. Ms Robinson submits that a much more helpful decision is
R v Seward
[1970] RTR 102. That case concerned
s2(2)
of the
Road Safety Act 1967
which provided:
“If an accident occurs owing to the presence of a motor vehicle on a road…..a constable in uniform may require the person who…..was……attempting to drive the vehicle at the time of the accident to provide a specimen of breath for a breath test…..”
The conviction was quashed because the deputy chairman determined as a preliminary issue that there had been an accident and so directed the jury. In allowing, the appeal Lord Widgery CJ said at p104:
“The issue whether there was an accident or not is not a matter which gives rise to a discretion of the court, it is a vital question going to guilt on this charge, because if the prosecution decide to base their proceedings upon the allegation that an accident occurred, they have to prove it as one of the essential factors in the case. Accordingly the deputy chairman, in our judgment, was wholly wrong in taking this issue away from the jury and determining it himself as he did.”
13.
Ms Robinson argues that whether or not there was an accident was integral to a conviction both in
Seward
and in the present case. If there was no accident there could be no conviction. We think, however, that there is a distinction. In the present case the appellant was indicted for dangerous driving. Proof of an accident was not necessary to establish the offence itself. An accident was not an element of the offence whereas under
s2(2)
of
the 1967 Act
it was the fact of an accident that gave the constable power to require a specimen of breath. The existence of an accident in the present case is relevant not to the offence of dangerous driving itself but to the procedural requirement in
s1
of
the 1988 Act
of giving a person notice, without which he cannot be convicted of an offence to which the section applies.
14.
S2(2)
of the
Road Safety Act 1967
again fell for consideration in
R v Morris
[1972] RTR 201. We shall return to
Morris
when we come to consider the meaning of ‘accident’ but Lord Widgery CJ in emphasising what he had said in
Seward
said this at p204:
“We would add only one other point on this aspect of the case. It is now recognised and has been recognised in a number of instances that there will be cases under
section 2(2)
where the primary facts are not in dispute and when the question of accident or no becomes a matter of pure law, in the same way that cases sometimes arise where the primary facts are not in dispute and in which the question of whether a person is driving or not becomes a pure matter of law. We think that in this case the deputy chairman would not have erred if he had directed the jury in that sense. We do not criticise him for not taking that line – he may well have been wise in seeking the verdict of the jury on the facts before them – but cases of this kind, where there really is no factual dispute left and the matter is one of law only, are cases in which the presiding judge can, if he thinks fit, give a ruling to that effect. If there is a dispute as to fact the issue must of course be left to the jury: see
Reg v Seward
[1970] RTR 102.”
15.
What emerges from
Morris
is that whether particular facts do or do not amount to an accident is a question of law. In a case of disputed facts under
s2(2)
of
the 1967 Act
it would be for the jury to decide the facts and apply to the facts found the judge’s direction as to the meaning of accident. However, as we have said, we think the present case is distinguishable from cases under
s2(2)
of
the 1967 Act
because here we are concerned with what is essentially a procedural provision.
16.
The remaining authority to which it is necessary to refer on this question is
R v Stacey
[1982] RTR 20. In that case the appellant was arrested for driving whilst unfit through drink. Three hours after being arrested he was warned that consideration would be given to prosecuting him for reckless driving. He was not charged with any offence relating to drink. At his trial for reckless driving he submitted that there was no case to answer because he had not been warned “at the time the offence was committed” within the meaning of
s179(2)
(a) of the
Road Traffic Act 1972
. The Court of Appeal (Criminal Division) applied
Bolkis
and held that the decision was one for the judge. As he had arrived at the only appropriate answer on the facts the appeal was dismissed.
Woolf J, giving the judgment of the court, pointed out at p26 that there was no authority on all fours but added:
“….it does appear to this court that the question is one which is much more suited to a decision by the judge than by a jury. It would be very unsatisfactory if one were to get a situation where one jury would come to one conclusion and another jury would come to another conclusion when exactly the same direction in law was given to them. It is therefore some comfort to find that whereas this point has not been considered on
S179(4)
…..(it) was in
Rex v Bolkis
[1932] 24 Cr App R 19
.”
He went on to say:
“This court, in so far as the decision deals with the proper interpretation of
S179(4)
is bound by the decision in
Rex v Bolkis.
Quite clearly, if the court came to the conclusion that the word “court” in subsection 4 referred to the judge, then that is a very real indication as to the proper interpretation of sub
section (2
).
The position is that in view of the decision in
Rex v Bolkis
….this court must take the view that the word “court” in subsection (4) refers to the judge. Accordingly, when an issue under subsection (4) is raised before the court, the judge will be the person who determines the issue. It would lead to absurd results if a judge had to determine that issue but a jury had to determine an issue under sub
section (2
). Quite clearly, under subsection (4) the court is going to determine questions of fact as well as of law, and if the court, in the form of the judge has to determine the facts on subsection (4), it is only sensible and desirable that the judge should determine an issue under sub
section (2
).”
17.
We return to
ss1
and 2 of
the 1988 Act
. It has been settled since
Bolkis
approved in
Stacey
, that the reference to “court” in what is now
s2(3)
of
the 1988 Act
means the judge when the case is proceeding in the crown court. The issues which the judge is required to decide under that subsection will plainly involve issues of fact. Other issues of fact can arise under
s1(1)
, for example whether the defendant was warned at the time of the offence that he might be prosecuted e.g. a police officer says he was warned but the defendant says he was not. The subsection is silent as to who decides such questions, but it seems to us that the whole of
ss1
and 2 are directed to the need to ensure that as far as possible defendants are not taken by surprise in relation to motoring offences to which
s1
of
the Act
applies. What is required is that by one means or another they should have notice of the relevant event in sufficient time to be able to recall it themselves and recall it to others who may be able to give evidence on their behalf, see Donaldson LJ in
Gibson v Dalton
[1980] RTR 410, 413 G – J. These sections are essentially procedural with the consequence that if the necessary requirements are not complied with the defendant cannot be convicted. They do not impinge on the elements of the offences themselves. That is why in our view this case is distinguishable from
Seward
and
Morris
and is governed by
Bolkis
and
Stacey.
It would, as Woolf J, as he then was, said in
Stacey
be absurd for some issues under the sections to be decided by the judge and others by the jury.
18.
We are satisfied therefore that the judge was right to decide the issues of fact himself rather than leave them to the jury. He was fully entitled to reject the account of the appellant and accept the account of WPC Harper, subject, however to one matter which requires further consideration. It is this.
Burden and standard of proof
19.
It is submitted by Ms Robinson that the judge misdirected himself about the burden of proof. In the course of his ruling that we have recited, the judge said in relation to his findings of fact that the appellant had “wholly failed to discharge the burden required on the balance of probabilities, as set out in
s1(3)
.
S1(3)
is the provision which says that the requirements in
s1(1)
are deemed to be complied with unless and until the contrary is proved. Ms Hunter, for the prosecution, accepts that the judge was in error in referring to this provision. The reason he was in error is that the judge was not dealing with whether a
s1(1)
requirement had been complied with. The issue was whether there had been an accident within the meaning of
s2(1)
; for if there had been an accident the case was taken outside
s1(1)
and its provisions did not apply. The prosecution was seeking to show there had been an accident and that therefore they were not required to comply with the
s1(1)
notice provisions. The deeming provision in
s1(3)
was not in play. As the prosecution were making the positive averment that there had been an accident, and that in consequence they were not obliged to comply with the notice provisions in
s1(1)
, it seems to us that the burden of proof was upon them. Ms Hunter concedes that this is the case and that the criminal standard of proof applies.
20.
However, Ms Hunter goes on to submit that it is very clear that the judge accepted the police evidence and wholly rejected the appellant’s evidence. The outcome of the factual issue did not therefore turn upon where the burden of proof lay or to what standard. Had he directed himself correctly, the result would inevitably have been the same. On three occasions the judge considered the issue of whether there had been an accident. The first was on the papers at the outset of the trial; the second was at the close of the prosecution’s case and the third was when he had heard the appellant’s evidence. On each occasion he appears to have been satisfied that an ‘accident’ had occurred and in no occasion does he appear, despite his misdirection, to have placed the burden of disproving ‘accident’ on the appellant. The misdirection does not therefore threaten the safety of the conviction. We accept Ms Hunter’s submission.
Was there an accident?
21.
The remaining question is whether, on the evidence he accepted, the judge was entitled to find that there had been an accident. It is important to start by placing the word ‘accident’ in the context of the section for that is how the word has to be interpreted. The relevant words are “…if, at the time of the offence or immediately after it, an accident occurs owing to the presence on a road of the vehicle in respect of which the offence was committed.”
22.
In
Morris
the court held that ‘accident’ in
s2(2)
of the
Road Safety Act 1967
meant an unintended occurrence which had an adverse physical result. Lord Widgery CJ said at p204:
“Several attempts at definitions of the words “accident” have been made in the course of argument. We have been referred in particular to the words of Lord Lindley in
Fenton v J Thorley and Co Ltd
[1903] AC 443
, a case on the Workmen’s Compensation Act in which the word “accident” was a prominent word. Lord Lindley said at p453:
“The word “accident” is not say a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss…..”
Sachs LJ in the course of the argument supplied an alternative, with which the other members of the court agree, in which he suggested that “accident” in the present context means an unintended occurrence which has an adverse physical result. We think that it would be wrong to construe “accident” in this context too narrowly. We are conscious of the fact that this is an interference with the liberty of the subject, but
the Act
does not make the having of an accident an offence, it merely provides it as a qualification for the taking of a breath test, and the underlying conception of
section 2(2)
is that if some unintended occurrence which has adverse physical result arises out of the presence of motor vehicle on a road, that is a fair basis on which a police officer may request the provision of a specimen of breath. Such an occurrence is one in which, prima facie at any rate, the circumstances of the occurrence and of the driver involved in it deserves consideration by authority, and accordingly we think that the definition suggested by Sachs LJ is one which fits the intention of Parliament and will not open the door unduly widely to the suggestion that random breath tests can be taken in purported consequence of it.”
23.
The word ‘accident’ appears in a number of places in the
Road Traffic Act 1988
and in
s1
of the
Road Traffic Offenders Act 1988
. That the occurrence should have been unintended, as suggested in
Morris,
does not seem to have been regarded as an essential element in subsequent cases. In
Chief Constable of West Midlands Police v Billingham
[1979] RTR 446 (a breath test case) Bridge LJ, as he then was, said there had been many authorities dealing with the meaning of the word ‘accident’ in different statutory and contractual contexts. He added:
“It is, in my judgment, a word which has a perfectly well understood meaning in ordinary parlance, but that meaning is an elastic one according to the context in which the word is used.”
He said, and we respectfully agree, that the attempt to define the word in
Morris
must be understood in relation to the particular facts of that case. He went on at p452:
“I approach the matter here by asking whether in the ordinary man’s understanding of the word, especially having regard to the mischief at which this statue is aimed, the man in the street would say in such circumstances as those with which we are concerned that an accident had occurred owing to the presence of a motor vehicle on a road.”
He said that accident in the context the court was considering was perfectly capable of applying to an untoward occurrence which had adverse physical results not withstanding that one event in the chain of events which led to the untoward consequence was a deliberate act on the part of some mischievous person.
24.
The Scottish decision of
Bemner v Westwater
(1993) 1994 SLT 707 suggests that physical impact is not essential to constitute an accident. In that case a police officer was driving in the opposite direction to the accused. As he rounded a bend in the road, he was faced with two vehicles. One was being driven by the accused who was attempting to overtake the other vehicle and was in the police officer’s path. The police officer braked, skidded and mounted the nearside verge, thus avoiding a head on collision. The sheriff held that an accident had occurred owing to the presence of the accused’s vehicle on the road and that the requirements of
s2(1)
of
the 1988 Act
had been met. The accused’s appeal to the High Court of Justiciary failed. The Lord Justice General (Lord Hope) said that the word ‘accident’ was to be given a commonsense meaning and that it was not restricted to untoward or unintended consequences having an adverse physical effect. We respectfully agree that that is the correct approach to apply to the present case.
Conclusion
25.
On the findings of the judge, WPC Harper had to hold on to the front of the appellant’s car to balance herself. Then she tried to hold on to the passenger door only to be thrust off it by the speeding motion of the car reversing. There was, in this case, indeed some physical contact. The appellant cannot have been unaware of what happened. The circumstances would have been sufficiently memorable to him for it to be unnecessary to draw them to his attention by serving a notice of intended prosecution. That, of course, is the underlying reason why a notice is not required where there has been an ‘accident’ within the meaning of the section. In our judgment the judge was fully entitled on the evidence he accepted to conclude that there had been an accident within the meaning of
s2(1)
of
the 1988 Act
. Accordingly, the prosecution were not required to serve a notice under
s1
. The conviction is safe and must stand. Accordingly we dismiss the appeal.
|
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|
No:
201900600/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 5 February 2020
[2020] EWCA Crim 140
B e f o r e
:
LORD JUSTICE FLAUX
MRS JUSTICE ANDREWS DBE
HER HONOUR JUDGE ROBINSON
SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION
R E G I N A
v
VAN HUONG NGUYEN
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Mr M Lavers
appeared on behalf of the
Appellant
Mr B Maguire
appeared on behalf of the
Crown
J U D G M E N T
(Approved)
LORD JUSTICE FLAUX:
1.
On 16 January 2019 in the Crown Court at Blackfriars, following a trial before His Honour Judge Shetty and a jury, the appellant, now aged 53, was convicted on two counts of kidnapping, one count of carrying an imitation firearm with criminal intent and two counts of false imprisonment. He was acquitted on another count of carrying an imitation firearm with criminal intent. On 17 January 2019 he was sentenced to a total
of 13 years' imprisonment.
2.
Of his co-accused, Trevor Thomas was convicted on the two counts of kidnapping and sentenced to four years' imprisonment. He was acquitted on the two counts of carrying an imitation firearm with criminal intent. Dung Nguyen was acquitted of the two counts of kidnapping and the two counts of carrying an imitation firearm with criminal intent. Que Thu Kieu was convicted of the two counts of kidnapping and was sentenced to 11 years' imprisonment. She was acquitted of the two counts of carrying an imitation firearm with criminal intent. Michael Ryan was convicted of one count of false imprisonment and acquitted of the other and sentenced to 42 months' imprisonment. Lloyd Barrow-Holnes was convicted of one count of false imprisonment and sentenced to
two years' imprisonment.
3.
The appellant now appeals against conviction with the leave of the single judge.
4.
The facts of the offences are as follows. The complainants Pham and Vu had some involvement in cannabis grow houses, having initially entered the United Kingdom illegally to work as "gardeners". In January 2018 they were suspected by some of their criminal associates of having arranged for at least one of those grow houses to be robbed. The prosecution case was that the co-defendants Kieu and Nguyen had a proprietary interest in those grow houses and had lost money as a result of the robberies. They had
hired the appellant to kidnap the two men in an attempt to recover their losses.
5.
In January 2018, Pham and Vu were living in a house at 22 Sutherland Mount, Leeds. Kieu was the tenant and also lived there with the co-defendant Nguyen and a number of other Vietnamese people. During the night of 27/28 January 2018 the appellant was driven to the address from London by Thomas. The appellant entered the premises carrying an imitation firearm which he used to threaten Pham and forcibly remove him from the premises. He also threatened to set off an explosion if Pham did not cooperate. Pham's wrists were tied and he was driven to London in Thomas's car. He was taken to 3 Berry Lane in Lambeth, the home of Ryan. He was held prisoner there, forced to stay and sleep in a small room. He was beaten and assaulted by the appellant, only
occasionally provided with food and forced to urinate into a bottle.
6.
He was then taken by the appellant to another address, 10B Gothard Road, the home of Barrow-Holnes, where he was kept for about 36 hours, being tied up, gagged and beaten by the appellant, and being asked repeatedly to confess to the robbery of Kieu's cannabis grow house. The appellant recorded the occasions when he beat Mr Pham. During one such recording the appellant was recorded as saying: "You still have to admit to it in the end. Now you say it again for me, what was said before, you took from Kieu, would you
agree to give it back to her?"
7.
In the early hours of 31 January 2018, the appellant was once again driven to 22 Sutherland Mount by Thomas with a view to kidnapping Vu. Vu's evidence was that the appellant was carrying an imitation firearm, but this was not seen by Thomas who
remained in the car. In the event, the appellant was acquitted of that count of carrying an imitation firearm with criminal intent. He forced Vu into the car and Vu was driven to 3 Berry Lane where he was repeatedly beaten by the appellant, deprived of food and water and detained in a small storage room. He was not provided with sufficient water and was forced to drink his own urine. Pham became aware that Vu had arrived at the property and had been imprisoned in a different room. The appellant told Pham that he and Vu would have to pay £60,000 to Kieu and Nguyen to obtain their release. Kieu's bank details were obtained in order to transfer the funds. On two occasions the appellant forced Vu to go to the nearby address at Gothard Road. His hands and feet were tied together with plastic ties and he was assaulted by the appellant with a metal tube and a hammer. A bin bag was forced into his mouth and taped in place. When assaulting him, the appellant shouted: "I'm going to beat you black to white and white to black" and "You need to give your part back, that part didn't belong to you". Vu managed to escape
and summoned help from a passer-by. The police were called.
8.
The prosecution case relied upon the evidence of Pham and Vu. Pham said that at about 3 am on 28 January 2018 the appellant entered his room with a Western person. The appellant pointed a gun at him and told him to get up and follow him, pointing the gun close to his head. He went downstairs with the appellant, pointing the gun at the back of his head. His hands were tied with black wire. The appellant was wearing an explosive vest and said that if he ran away the appellant would trigger explosions to blow him up. He was taken to London in the car, still tied up, and the appellant threatened to shoot him if he jumped out of the car. He was locked inside a room with his hands and feet tied. The appellant used to hit him on the legs, hands and body. He was taken to another address where he was tied with a cloth in his mouth. The appellant tried to make him admit the robbery of a house in Newcastle, but he would not. The sounds on the audio recording were of him being hit. He said that co-accused Nguyen had spoken to him on
the phone and told him he was now in the hands of the mafia and if he wanted to be released he had to get the money. Nguyen had then come to the house and punched him in the face and kicked his chest. There were inconsistencies in Pham's evidence to which the judge referred in summing-up. The co-defendant Nguyen was of course
acquitted.
9.
Vu's evidence was that early in the morning of 28 January 2018 he had opened the door to the appellant and a black man, who was Thomas. After he let them in, the appellant drew what he described as a handgun and asked where Pham was. The appellant went upstairs and came down with Pham. The appellant had black cable ties. At about 4 am on 31 January 2018 he was woken up. The co-defendant Nguyen had opened the door to the appellant who had a gun and told Vu to come with him, saying: "Are you faster than my bullets?" The appellant tied his hands with cable ties and took him to a taxi outside, forcing him to go to London. The appellant put the gun in a rucksack and he did not see
it again.
10.
The appellant took him to 3 Berry Lane and tied him to an armchair with cable ties. He put a small soft toy in his mouth and taped it to stop him shouting. The appellant used a metal tube and a hammer to hit him repeatedly on the ankle. He had to urinate into a cup and drink it. He was then taken to another address and the appellant said that he would get a black man to beat him up. He was tied up with cable ties and a plastic bag was put into his mouth and taped. The appellant beat him for about 30 minutes. He wanted him to admit stealing cannabis and that he would pay for it. When the appellant was out of the room he managed to escape and ran out of the property, seeing a woman in the street and saying "Please police". . She rang the police. The prosecution relied upon her read statement as evidence of his first complaint
11.
The prosecution also relied upon footage from a police body-worn camera of Vu when the emergency services attended the address and they relied upon the digital audio
recordings of the applicant beating Pham and photographs taken inside 3 Berry Lane.
12.
In interview, the appellant provided a prepared statement which stated that he was looking after a homeless person, i.e. Pham, for a friend. He stated that he had never been to Leeds and he had never seen a gun in the United Kingdom. He denied falsely imprisoning or assaulting the homeless man. In a further interview on 21 May 2018, the appellant provided a further prepared statement within which he denied the allegations and wanted it put on record that he suffered from arthritis and could not exert pain or force upon people. In his original defence statement served in July 2018 he continued to
deny having been to Leeds.
13.
In a further defence statement dated 10 September 2018, the appellant accepted that he went to Leeds and assisted transporting Pham and Vu to London, but with their consent. There had been no force or threat of force. He denied having a gun or an imitation gun with him. He accepted that Pham was at 3 Berry Lane but as a guest. He also accepted beating Pham at Gothard Road but it was in the context of helping Kieu who was owed money from prostitution. He denied being involved in any beatings at 3 Berry Lane.
He denied that Vu had stayed at Berry Lane or had ever been at Gothard Road.
14.
Thomas was also interviewed. He told the police that he had known the appellant for a couple of years. He said that the appellant set up weed houses for his friends, he would wait for the plants to grow and then he would rob them. On 27 January 2018 the appellant had offered him £350 to drive to Leeds to collect a friend. On the journey to
Leeds the appellant had been speaking in Vietnamese to a lady on the telephone.
Apparently the men at the address had robbed her weed house. When they arrived they went inside the property. There were others there all speaking in Vietnamese which Thomas did not understand. The appellant marched one of the men upstairs. At that point Thomas saw a firearm. He said that the appellant looked like he was going to "gun butt" the male. The appellant had taken the gun out of a little black bag. He said that the male cowered. Thomas said that they were upstairs for 15-20 minutes. When they came back downstairs he thought the man had his wrists tied together with a cable tie or plastic rope. He said that he was devastated because he thought the appellant was going to get him into bother. He said to the police that he was pleading guilty and not beating
about the bush. He panicked because he had been in trouble with guns before, a reference to one of his previous convictions. He described the gun as a black handgun.
After they put the man in the car he did not see the gun again.
15.
During the journey back to London he had asked the appellant what they would do if stopped by the police and the appellant had replied that it was just a toy, not the real thing. Thomas had driven the appellant and the man to an address in Norwood and he had then gone home. He decided that he was not going to have any more to do with the appellant. However, the appellant had offered him another £350 or £400 to do the journey again. He said that the appellant was very persuasive. He said the second time they went to the address it was the same procedure although that time he did not go into the property because he did not like what was going on. He did not see a gun on the second trip. The male was brought out of the property and put into the vehicle. He did not think the male was cable-tied. They drove to the same address in Norwood where the male and the appellant got out of the vehicle and Thomas drove home. He thought
he was paid around £500 for the trip.
16.
He said he was pleading guilty; he wished he had not done it. There was a time when he thought "Do I Phone the police, you know, is it going to do me harm or, and then I just forgot about it." He said he knew the appellant had been involved in trafficking for quite
a long time. He had done previous journeys for the appellant in return for cannabis.
17.
Both the appellant and Thomas gave evidence. The appellant said he was asked by a man called Mai to collect a friend of his and provide him with accommodation in London. He had asked Thomas to drive him which Thomas would only do at night because there was less traffic. On the way there he had telephoned Kieu, whose number Mai had given him, and asked her to provide Thomas with some cannabis. When they got to the house in Leeds he rang her again and asked her to wake Pham up. She said
these were not good people and Pham owed her money for food.
18.
Vu had opened the door and the appellant had told Pham that he was there to collect him. Pham had gone with him voluntarily. No gun was produced, real or imitation, and there had been no discussion with Thomas about a gun. The appellant said he talked to Pham on the way back to London who told him that he did growing and the people in the house blamed him for the robbery. He said that he had never locked Pham in a room. He told Pham the property belonged to a friend and it was up to Pham what he did and where he slept. He said that Pham had followed him on two or three occasions to Barrow-Holnes' address to collect drugs. Mai had told him that he had been supposed to collect two
people from Leeds.
19.
He had been told by Kieu that the two men had forced her into prostitution and she had lost money. This had made him angry so he thought of a way of getting her money back. He put a recording device in his pocket and asked Pham about the money. Pham had not been gagged. He got angry with Pham and hit him. He hit him with a chair at
Gothard Road which was a spur of the moment thing. Pham could not speak properly on
the recording because he had wrapped himself up in a blanket and covered his face with it. When he told Pham to stop wriggling, the word for 'wriggle' in Vietnamese meant misbehaving. When he was asked what the house referred to in the recordings was, he said it was a cannabis grow house. He rang Kieu and told her he had proof, asking her to
allow Pham time to make some money to pay her back.
20.
When he found out that he was supposed to have collected two people, he eventually persuaded Thomas to make a second journey. Upon arrival at the house in Leeds he collected a bag of cannabis for Thomas to smoke. Vu opened the door and the appellant said his friend had asked him to collect Vu. They left together. He did not have a gun and he did not threaten anyone. When they arrived at the property in London, Pham opened the door. He had not done any of the acts alleged to have been committed against Vu. That had been another group of traffickers who had managed to get hold of Vu and Vu was trying to pin it on him.
21.
In his evidence, Thomas described the first journey to Leeds and then smoking cannabis on their arrival. He had joined the appellant in the property when he finished smoking. The people there were all Vietnamese. It was not a jolly environment. He saw
something black in the appellant's hand. It looked like a gun but he was unable to say it was a gun. The appellant had gone up to one of the men and raised his hand but had not hurt anyone. The appellant had gone upstairs while he remained downstairs. The appellant had come down with another man. Thomas had not seen that man's hands tied. There had been no violence. They got in the car, the appellant driving and the man in the back. Their conversation in Vietnamese had been very calm. He had taken them to Berry Lane where they got out and he drove home.
22.
He described the second trip to Leeds which he agreed to do and which he understood was to collect one of the appellant's friends. He stayed in the car and smoked cannabis while the appellant went into the property. The appellant had come out with another Vietnamese man who had no visible injuries and seemed relaxed. He had not seen anything like a gun. Thomas had taken them to the same address in London where they got out and he went home. He thought he had been paid £800 to £900 for the two trips. He did not understand that he was involved in kidnapping. He did not believe either
man was transported against his will.
23.
On 25 April 2018 the police had come to his home address and arrested him, taking him to the police station. On the way there, the police told him they were interested in persons trafficking Vietnamese people. They made him feel they were not really interested in him so he had not felt he needed a lawyer. In interview he had said he would be pleading guilty because he thought driving the car made him guilty. He was not doing his best to be truthful and accurate in the interview, but wanted to be spiteful to
the appellant for getting him into this trouble.
24.
In relation to the "gun butt" statement he could not be sure what he had seen and did not see anyone get struck with anything. The appellant did not have a little black bag but rather a small money bag. He had not seen Pham's wrists tied with cable ties, but had said this in interview because he wanted to hurt the appellant. He said he did not think it
was a real gun. Having been arrested, he wanted to get the appellant into more trouble.
25.
Thomas was cross-examined by Mr Lavers for the appellant. He agreed that he had
accepted that parts of what he had said in the interview were said out of a feeling of spite towards the appellant and that he was now trying to assist as to what he actually remembered happening. He agreed that the item that the appellant had taken out of his bag could have been a mobile phone. He said had he seen a gun on the first trip to Leeds he would not have gone back on the second trip. He could not remember the appellant wearing anything that would have stood out. He said he would have noticed if the appellant had worn a strap-on bomb or body armour. As far as he was concerned there
was no gun on the second journey.
26.
In cross-examination by Mr Maguire for the prosecution, Thomas maintained that he did not see a gun but something that looked like a gun. What he had said in interview about the appellant having a gun was because he hated the appellant so much for getting him mixed up in this. He was lying in interview when he told the police that the appellant had an imitation gun with which he was threatening people. He was asked about
questions which his counsel put to the appellant in cross-examination about a discussion with the appellant about the gun. He denied that there had been any discussion and said what had been put had been wrong. He denied changing his evidence at trial in order to help the appellant. He said he had invented the account in interview in order to get the appellant into trouble. He had lied to the police when he had said Pham had come downstairs with his hands tied together and did not know where he had got the reference to cable ties from. He had told the police that the appellant had been trafficking people
for a long time because he wanted to get the appellant "deeper in the shit".
27.
The prosecution had not made any application to adduce Thomas's interview as hearsay admissible against any other defendants, including the appellant, either before or at the beginning of the trial. Nor did they do so during his evidence or immediately after he finished giving evidence on 6 December 2018. There was a discussion with the judge as to his legal directions on 10 December 2018. Thomas's interview came up briefly in relation to whether a
Lucas
lies direction was appropriate in his case. It was agreed with his counsel that it was not. There was no suggestion by the prosecution or the judge during these discussions that the interview might be admissible not just against Thomas himself but against the other defendants as hearsay under either
section 114(1)(d)
or
section 119 of the Criminal Justice Act 2003
.
28.
On the afternoon of 10 December 2018, in accordance with the modern practice, the judge then started part one of his summing-up with the legal directions before counsels' speeches. He completed the legal directions on 11 December 2018 and counsels'
speeches followed.
29.
Before he commenced his speech, prosecution counsel, Mr Maguire, indicated that he wanted to be able to address the jury on the basis that the co-accused Thomas's interview confession was evidence in the case generally and not just admissible against Thomas. The judge did not give a ruling or express any view at that stage and completed his legal directions without making any reference to that issue. In his speech Mr Maguire did suggest that Thomas's account in interview about the appellant having an imitation firearm was true, although he did not suggest that the interview was evidence in the case
generally or admissible against the other defendants.
30.
In his speech for the appellant, Mr Lavers submitted that what Thomas had said in interview was only evidence against him and could not be used by the jury against a co-defendant. That submission was in accordance with the position at common law and would be the position unless the judge had admitted the interview as evidence against the appellant under one of the hearsay provisions of the
Criminal Justice Act 2003
, which at
that stage he had not done.
31.
It was only on the afternoon of 14 December 2018, when all counsel had completed their speeches, that the judge invited legal argument on the status of Thomas's interview, evidently having considered the judgment of this Court given by Hughes LJ in
R v Y
[2008] EWCA Crim. 10
,
[2008] 1 Cr.App.R. 34
. From this it seems clear that the judge was focusing on the admissibility of the interview under
section 114(1)(d)
rather than
section 119
. Having heard argument, he ruled shortly that he would admit the interview against the appellant. He did not give a full ruling but said he would do so in due course
in writing.
32.
A discussion ensued with counsel as to what, if any, further directions should be given to the jury in those circumstances. Mr Lavers considered that a standard
section 119
direction, that is concerning a previous inconsistent statement, would suffice, but the judge said that in his view the main gateway for admissibility was under
section 114(1)(d)
and that he had not thought about
section 119
before the legal argument that day. The judge referred to the checklist of factors in section 114(2), but counsel indicated, and the judge agreed, that it would not be appropriate to give the jury a
direction by reference to those factors which were for the court.
33.
In the event, the judge did not give the jury any specific direction about the use they could make of the interview or any sort of warning about it. When he resumed his summing-up on 17 December 2018, he only said this about how the jury could use the
interview:
"Mr Thomas's evidence on count one is different to that of [the appellant]. There is, of course, his interview and that interview can count as evidence against Mr Thomas and indeed, you can use it, contrary to what Mr Lavers said, to decide what happened in the house in Leeds and whether there was a kidnap and a gun produced."
34.
A fully reasoned written ruling was provided by the judge on 9 January 2019, the day
after the jury had retired to consider their verdicts. In that ruling the judge noted that the
issue on count 1 was whether Pham went consensually with the appellant and Thomas.
The issue on count 2 was the same with the addition that it was disputed that any type of gun was produced. It was common ground that the factual question of whether a gun was brandished by the appellant was likely to be strongly determinative of whether count 1 could be proved. It was an essential fact in respect of count 2.
35.
The judge identified what he saw as the difficulty. As a secondary party, Thomas could only be guilty if the appellant was guilty. The route to verdict document identified that pre-requisite. However, in determining as a matter of fact whether a gun was produced or brandished, Thomas's evidence and his confession was part of the evidence in determining whether or not a gun was produced. In so far as Thomas's evidence was concerned, the jury had a stark choice: Thomas was either telling the truth before the court or he was lying and telling the truth in his interview. The judge considered that it would be illogical for a jury to determine the issue of fact of the gun and then having made their determination go through the route to verdict to be directed that they could not use evidence in the interview as counting against the appellant. Jury deliberations had to
be imbued with common sense and logic.
36.
The judge referred to authorities where the matter had come up, specifically the decision of the House of Lords in
R v Hayter
[2005] 1 WLR 605
which preceded the passing of the relevant provisions of the
Criminal Justice Act 2003
, and the decisions of this Court in
R v McLean
[2008] 1 Cr.App.R 11
and
R v Y
(supra). He cited what Hughes LJ said
at paragraph 52 of
Y
:
"A bare accusation against someone, whether associated with a confession by the maker or not, is capable of falling within
section 114(1)(d)
. It follows that if such an accusation is in fact associated with a confession by the maker, it cannot ipso facto become incapable of falling within
section 114(1)(d)
." with the caveat that "The admission of a confession (disputed in the sense that the maker no longer accepts what he previously said) is not to be routine."
37.
The judge then went through the specific factors in section 114(2) which must, together with any other relevant matter, be considered before addressing the question whether it is in the interests of justice for the hearsay statement to be admitted. He said that he had come down in favour of the jury being allowed to rely upon the confession of Thomas when considering the case as a whole and in particular whether a gun was brandished by
the appellant. He continued:
"... the real problem with not allowing the jury to consider the confession evidence of Thomas in a context of the case as a whole and their factual judgments, is that it would create a potential for the jury to decide one thing against Thomas (by rejecting his oral evidence and accepting his confession) ... and then being forced to arrive at a separate factual conclusion against [the appellant]. This would be nonsensical, artificial and illogical."
38.
The judge said that both counsel had invited him to consider
section 119
. It was noteworthy that that section would allow the interview to be admissible as evidence of any matter stated of which oral evidence by Thomas would be admissible. There was nothing in the terms of the section which required it to be read consistently with the common law rule that it was only admissible against Thomas, as Mr Lavers had
submitted. The judge concluded that the confession was evidence of what happened, not just against the interests of Thomas but also against the appellant and in respect of the case in general that may be relevant concerning the co-accused Nguyen and Kieu who
were also present at the house when the apparent kidnapping took place.
39.
Before considering counsel's submissions, we will set out the statutory provisions with
which we are primarily concerned.
Section 114(1)(d)
provides:
"Admissibility of hearsay evidence
(1)In criminal proceedings a statement not made in oral evidence in the
proceedings is admissible as evidence of any matter stated if, but only if—
...
(d) the court is satisfied that it is in the interests of justice for it to be admissible."
40.
Section 114(2) provides:
"In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—
(a)
how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b)
what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c)
how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d)
the circumstances in which the statement was made;
(e)
how reliable the maker of the statement appears to be;
(f)
how reliable the evidence of the making of the statement appears to be;
(g)
whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h)
the amount of difficulty involved in challenging the statement;
(i)
the extent to which that difficulty would be likely to prejudice the party facing it."
41.
Section 119
provides:
"Inconsistent statements
(1) If in criminal proceedings a person gives oral evidence and—
(a)
he admits making a previous inconsistent statement, or
(b)
a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the
Criminal Procedure Act 1865 (c. 18)
,the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.
(2) If in criminal proceedings evidence of an inconsistent statement by any person is given under section 124(2)(c), the statement is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible."
42.
In support of his case that the judge had erred in admitting the interview evidence against the appellant, Mr Lavers contended that
section 114(1)(d)
was forward looking and not retrospective, as was made clear by the reference in the opening words of subsection (2) "whether a statement not made in oral evidence should be admitted under subsection (1)(d)". He submitted that this demonstrated that the decision as to whether to admit
hearsay evidence under the subsection must be taken before the evidence is introduced.
43.
Mr Lavers submitted that the judge had been particularly influenced in determining that the interview should be admissible against the appellant by his assessment that if the interview was only evidence against Thomas, the jury would be in a position where they could make a finding of fact against Thomas on the basis of the interview, but were only forced to make a separate factual conclusion against the appellant having been told they could not use the interview against him. The judge thought that this was nonsensical, artificial and illogical. However, Mr Lavers submitted juries have regularly been given directions that out of court statements by one defendant are not evidence against another, including in cases of primary and secondary liability, for many years without this
presenting any obvious difficulty.
44.
Mr Lavers submitted that the judge's concern about what he saw as an artificial and illogical approach had led to him paying insufficient regard to the note of caution sounded by Hughes LJ in
Y
at 57 that interviews should not become routinely admissible against defendants, other than the interviewee, and that "in the great majority of cases it
will not be in the interests of justice to admit them in the case of any other person."
45.
He also submitted that the judge's concern about what he saw as an artificial and illogical approach had led the judge to pay insufficient regard to the lateness of the application to admit the interview as evidence against the appellant. He submitted that there was a fundamental unfairness in admitting the hearsay evidence at such a late stage. Both the appellant and Thomas had completed their evidence. Mr Lavers submitted that he had only dealt with Thomas's interview in a cursory manner in his examination of the appellant. Whilst he cross-examined Thomas briefly about what he had said in interview about the gun, he had not challenged him at all about the various prejudicial references to the appellant's bad character, specifically suggestions that he had previously been
involved in trafficking and running cannabis grow houses.
46.
Contrary to the suggestion in the Respondent's Notice, there had not been an agreement between him and Mr Maguire as to the admissibility of the appellant's bad character. The only agreement was as to the content of Thomas's interview which had been played to the jury. Mr Lavers did not accept that, as was asserted in the Respondent's Notice, the fact that he had attacked the character of Pham and Vu in cross-examination meant that the generalised evidence in Thomas's interview of the appellant's criminal activities was admissible. The prosecution never made an application to adduce that evidence under
section 101(1)(g)
of the
Criminal Justice Act 2003
and Mr Lavers submitted that such an application would have been doomed to fail as it was based only on Mr Thomas's hearsay say-so.
47.
He submitted that if he had been given proper notice by the prosecution that they intended to rely upon Thomas's interview, including the bad character allegations, he could have made a properly formulated severance application, although he recognised that the judge had indicated that he would not accede to such an application. He also submitted that if he had such notice he would have been able to make detailed submissions in his speech to the jury about the unreliability of Thomas's evidence generally and specifically in his interview. As it was, he had made brief submissions to the effect that Thomas's interview was not admissible in evidence against the appellant
which the judge had then told the jury to ignore.
48.
He also submitted that in his consideration of the section 114(2) factors the judge had paid insufficient regard to the importance of factor (e) "how reliable the maker of the statement appears to be". He submitted that the trial judge's assessment of the reliability of an out of court statement was of paramount importance to determining whether it was in the interests of justice to admit the statement under
section 114(1)(d)
. Here the judge
had merely said in his ruling:
"... of course D2 is said to be unreliable bearing in mind contrasting versions."
Mr Lavers submitted that it had been incumbent on the judge to assess the reliability of Thomas himself which he had not done.
49.
He submitted that the judge's interpretation of
section 119 of the Criminal Justice Act 2003
was wrong. If the judge and the prosecution were correct then provided that a defendant in the position of Thomas gave evidence, his out of court statement implicating a co-defendant would always be admissible for its truth. If he adopted the interview in evidence then the contents of the interview would become evidence against the
co-defendant. If his evidence were inconsistent with the contents of the interview and he retracted the answers in interview which incriminated his co-defendant, as had happened here, the contents of the interview would be admissible against the co-defendant under
section 119
. If this were correct then the interview implicating a co-defendant would become routinely admissible for the truth of its contents, the very thing which Hughes LJ in
Y
at 57 said should not happen. Mr Lavers submitted that
section 119
only made the interview admissible in evidence against Thomas, not against the appellant. In any event, the judge should have exercised his discretion under
section 78 of the Police and Criminal Evidence Act 1984
to rule that the statements in interview were not admissible
against the appellant.
50.
He submitted that if the judge had been correct to admit the interview as evidence against the appellant either under
section 114(1)(d)
or
section 119
, the judge should have given the jury some sort of warning direction about relying on the hearsay statements in the interview, given that the appellant was not present at the time and given Thomas's self interest in exculpating himself and incriminating the appellant. The fact that Mr Lavers had not sought such a direction should not be held against the appellant when considering
the fairness of his conviction.
51.
So far as the references to bad character in the sense of the allegations of previous involvement in trafficking or robbing weed houses were concerned, again there had been no direction. The jury had been told about the appellant's previous convictions
consisting of shoplifting, burglary, driving offences, possession of a class A drug, being concerned in the production by another of cannabis, assault and possession of an offensive weapon. The defence had in fact introduced evidence of those convictions during the course of the appellant's evidence.
52.
The judge had given a short written and oral bad character direction stating:
"You have heard about his previous convictions, you should bear in mind that just because someone has committed previous criminal offences does not mean that he must have committed the offences that he is charged with. Nor does that mean, of course, that he must be lying now."
53.
Mr Lavers submitted that far from giving the jury appropriate directions warning them about the hearsay statements in interview, the judge had compounded the unfairness by what he did say in the summing-up about the interview which had steered the jury towards concluding that the interview account was true and did not present Thomas's
evidence in a balanced way.
54.
Mr Lavers also complained that the judge had failed to give the standard direction in relation to the interviews of the co-defendants other than Thomas, namely Kieu, Ryan and Barrow-Holnes, that the respective interview account of each was only evidence against that defendant and not the co-defendants. He submitted that such a direction would potentially have undermined the judge's efforts to convince the jury that Thomas's interview had probative force against the appellant and the judge may have seen a logical inconsistency in telling the jury that they could rely upon Thomas's interview against the
appellant whilst giving them the standard direction in relation to the other interviews.
55.
Overall, he submitted that in consequence of the judge's admission of the interview and failure to give any warning directions about it, the convictions were unsafe. Pham and Vu had been accepted by the prosecution as far from perfect witnesses with credibility issues. The effect of admitting the interview was that the jury were able to use Thomas's statements in interview that the appellant had produced a gun at the house in Leeds to support the evidence of Pham and Vu. This went not only to the verdicts on counts 1 and 2 (kidnap and carrying an imitation firearm) but to the whole indictment as it undermined the appellant's credibility generally and bolstered the evidence of Pham and Vu. He submitted that the jury's acquittal of the appellant on count 5 and of Thomas on counts 2 and 5 was explicable on the basis that the jury placed significant reliance on Thomas's account in interview. The acquittal of all four defendants on count 5 is likely to have been because there was no support for Vu's evidence that the appellant had a gun
on the second occasion, Thomas having remained in the car on that occasion.
56.
In opposing the appeal, Mr Maguire on behalf of the prosecution in his Respondent's Notice points out that it is noteworthy that Mr Lavers had agreed the contents of the interview which went before the jury and did not seek to exclude the references to the appellant's bad character. Nor did he object when Mr Maguire cross-examined Thomas about those matters. During the course of that cross-examination, Thomas accepted that the appellant had said to him that he robbed weed houses. Mr Lavers did not himself cross-examine Thomas further about the reference in interview to the appellant having robbed grow houses. Mr Maguire suggested that that objection was not taken because Mr Lavers appreciated that evidence of the appellant's criminal activities would be admissible against him, once he had attacked the character of Pham and Vu. Mr Maguire questions how the appellant's case or Mr Lavers' closing speech would have differed if the judge had admitted the interview at an earlier stage. He submitted that the judge exercised his discretion correctly in admitting the interview under
section 114(1)(d)
giving proper consideration to the factors set out in section 114(2) and to the caution
sounded by Hughes LJ in
Y
.
57.
In his written Respondent's Notice, he contended that the judge had also been right to admit the statement under
section 119
, although in his short oral submissions to us this morning, Mr Maguire accepted, it seems to us correctly for reasons we will come to, that
the judge had been wrong to rely upon
section 119
in the alternative.
58.
We can deal shortly with the submission that
section 114(1)(d)
only operates prospectively. Ingenious though that submission is, we cannot accept it. In
Y
at paragraph 60 this Court expressly recognised the possibility that where the maker of the statement was called to give evidence and cross-examined about that previous statement, an application might subsequently be made to admit the previous statement under
section 114(1)(d)
even though it was already before the jury. Of course it does not follow that an application to admit the previous statement under the subsection will
succeed, especially if that application were made late in the trial process.
59.
We agree with Mr Lavers that the judge's concern about putting the jury in the artificial and illogical position of reaching different factual conclusions vis-a-vis the two defendants was misplaced. As he submitted, juries are routinely given warning
directions that out of court statements by one defendant are not evidence against another, which may lead to them having to reach different factual conclusions in relation to one defendant than in relation to the other. That does not seem to present any difficulties
with jury deliberations.
60.
However, leaving aside the lateness of the application under
section 114(1)(d)
, we consider that the judge did properly assess the various factors under section 114(2). Mr Lavers criticised the judge's approach to factor (e) concerned with reliability, but it seems to us that, looking at the ruling as a whole, what the judge concluded was that the jury would be entitled to conclude that Thomas had told the truth in interview but had lied in his oral evidence when he sought to explain away those answers in interview as motivated by spite. This was in accordance with the approach advocated by this Court in
R v Sliogeris
[2015] EWCA Crim 22
, at paragraph 41, where Elias LJ giving the
judgment of the Court said:
"At the very least it seems to us that the judge must be satisfied that the evidence is properly capable of being considered reliable by a jury."
61.
The judge also gave proper consideration to
Y
and what Hughes LJ said about it not being routine to admit statements in interview by one defendant as evidence against another. It follows that, subject to the issue of the lateness of the application in the ruling, we consider that the judge cannot be criticised for admitting the interview under
section 114(1)(d)
.
62.
We will return to the lateness of the application shortly, but first we will deal with the question of whether the judge was also right to admit the interview as a previous inconsistent statement under
section 119
. In our judgment he was wrong to do so. The section refers to the previous inconsistent statement being "admissible as evidence of any matter stated of which oral evidence by him
would be
admissible" but does not say that the evidence in question - the previous inconsistent statement - is treated in every respect as if he did give that evidence. We consider that under the section the previous inconsistent statement is admissible against the person making the statement as evidence against him of the truth of its contents, thus reversing the common law rule enacted in
section 5 of the Criminal Procedure Act 1865
that the statement only went to the
witness's credibility: see Archbold paragraph 8-270.
63.
The conclusion at which the judge arrived that
section 119
also made the previous inconsistent statement by Thomas in interview admissible as evidence against another defendant such as the appellant is inconsistent with what Hughes LJ said in
Y
at paragraph 48 to the effect that out of court statements which did not amount to confessions would only be admissible against another defendant "under
section 114(1)(d)
providing of course the interests of justice test was satisfied", see also the cautionary
approach in paragraph 57 of that judgment to which we have already referred.
64.
We note also that in giving the judgment of the Court in
R v Riat
[2012] EWCA Crim 1509
,
[2013] 1 WLR 2592
, where the statutory framework in relation to hearsay evidence under the
Criminal Justice Act 2003
was considered, Hughes LJ does not identify
section 119
as one of the gateways to admissibility of hearsay evidence against a defendant. It seems to us that if the section had the wide-ranging effect for which the prosecution contended at trial and which the judge accepted, it is inconceivable that a judge of the immense experience of criminal law of Lord Hughes would not have said so in one or
other of these judgments.
65.
We return to the lateness of the application. It is unfortunate that the application was made so late. Mr Maguire is entitled to say that he did not know until Thomas gave evidence that he would seek to retract the answers in interview which had incriminated the appellant. Of course, if he had adopted the contents of the interview in his evidence the answers would have become part of his oral evidence and admissible against the appellant, in which case the prosecution would not have needed to make an application under
section 114(1)(d)
. However, once Thomas had been cross-examined by the
prosecution, it must have been obvious that an application under
section 114(1)(d)
would need to be made. It seems to us that the application should have been made at the end of the prosecution cross-examination of Thomas, or at the very least the prosecution should
have warned Mr Lavers at that stage that an application was likely to be made.
66.
However, what matters is the extent to which the lateness of the application can be said to have caused irremediable prejudice to the appellant. We do not consider that there is anything in the point that, if Mr Lavers had known that the application was going to be made, he would have presented the appellant's case or his evidence differently, not least because, for the reason we have just given, we do not consider that the prosecution can be criticised for not making the application until the end of their cross-examination of Thomas, by which time the appellant's case was closed. Nor do we consider that there was any prejudice to the appellant in relation to the allegation Thomas made in interview that the appellant had a gun on the first occasion. Mr Lavers cross-examined Thomas extensively about whether the appellant had a gun on the first occasion and as to why he
said that in interview.
67.
Mr Lavers did not ask Thomas any questions in cross-examination about his assertion in interview that the appellant had previously been involved in trafficking and robbing grow houses - no doubt because he did not want to draw attention to the point which had not been put to the appellant himself when he was cross-examined. Mr Lavers had of course allowed the assertion to go before the jury as part of the agreed contents of the interview. As we have already said, Thomas accepted in cross-examination by the prosecution that the appellant had told him that he had previously robbed weed houses. Whilst that line of questioning should not have been embarked upon without an application to adduce such bad character evidence, the fact is that Mr Lavers did nothing to object to the cross-examination. Once Thomas had given that evidence, what was in the interview was overtaken by events, as Thomas had now given direct evidence in the witness box that the appellant had told him that he had previously robbed weed houses. At that point there should probably have been an application by the prosecution to rely upon this as bad character evidence under either section 101(1)(d) or (g). Contrary to Mr Lavers' submissions, it would not necessarily have failed because it was only based upon Thomas's hearsay evidence statement since he had now repeated the assertion in his oral
evidence.
68.
In a very real sense therefore, any prejudice was already suffered before the judge gave his ruling. We are sceptical about the suggestion that Mr Lavers would have engaged in a more detailed cross-examination of Thomas about those assertions, even if he had known that the judge would rule the interview admissible against the appellant. Tactically, he may not have been able to improve on the evidence Thomas gave early in his cross-examination, that parts of what he said in interview were said out of a feeling of spite towards the appellant, and that in his oral evidence on reflection he was trying to assist as to what had actually happened. Further questioning of Thomas about his generalised assertions as to the bad character of the appellant might only have made matters worse for the appellant, particularly given what Thomas had said in cross-examination by the prosecution about the appellant telling him that he had
previously robbed weed houses.
69.
We are also somewhat sceptical as to whether the appellant was prejudiced because Mr Lavers was unable to include in his speech further criticism of Thomas and his statements in interview. It is apparent that he did submit to the jury that Thomas had a self-interest in exculpating himself and implicating the appellant and that he had an axe to grind in relation to the appellant. Whilst he may have made more of these points if he had known the interview would be admitted in evidence against the appellant, this seems to
us to be more a question of emphasis than one of substance.
70.
Overall, we consider that whilst there was some prejudice to the appellant from the lateness of the application, this was not sufficiently serious to warrant refusal of the application under
section 114(1)(d)
. Any prejudice could have been cured by an
appropriate warning direction.
71.
What is clear from the discussion on 14 December 2018, after the judge had ruled that he would admit the interview as evidence against the appellant, is that for tactical reasons Mr Lavers did not want the judge to give a specific direction about hearsay and appears to have accepted that no such direction was necessary because Thomas, as the maker of the hearsay statement, had been challenged in cross-examination. It would appear that both Mr Lavers and the judge had in mind the assertions in interview about the gun which had been fully explored in Thomas's evidence and were not thinking about the assertions about the appellant's bad character, perhaps because of the direct evidence that Thomas
had given.
72.
However, although the judge gave part 2 of his summing-up on 17 December 2018, there was then a three-week break in the trial until 8 January 2019 when the judge gave the jury a summary of the critical parts of the evidence as suggested by counsel. Thus, Mr Lavers had plenty of time in which to consider whether to ask the judge to give a fuller bad character direction specifically dealing with Thomas's assertions in interview. He did not do so, presumably again for tactical reasons. The judge had not in fact referred in the summing-up to Thomas's evidence in the witness box that the appellant had told him that he had previously robbed weed houses, so that tactically it was probably
better not to draw attention to that evidence by seeking a further bad character direction.
73.
Ultimately, whatever position the defence adopts as regards legal directions for tactical reasons, the decision as to whether in fairness a particular direction should be given rests with the trial judge. We consider that in the present case it would have been better for the judge to give the jury a warning direction addressing the limitations of the interview
and the need to consider Thomas's explanation for his lies.
74.
In relation to the assertions in interview about the appellant's bad character, as we have already said, these were really overtaken by events because Thomas had said in his oral evidence that the appellant had told him that he had previously robbed weed houses. Given that evidence the judge was faced with a choice of either giving a direction as to the potential relevance of that evidence of bad character or telling the jury to ignore it. The short bad character direction he had given, which we quoted earlier, did not deal with this aspect but only with his previous convictions. It was not really adequate because it failed to tell the jury how they could use the evidence. On balance, given the potential complication of any further direction and the fact that the prosecution did not make a formal bad character application in relation to the evidence that the appellant had said he had previously robbed weed houses, the better course would have been to direct the jury to ignore that evidence, which after all was no more than an assertion by Thomas which
had not been put to the appellant when he gave evidence.
75.
We also consider that Mr Lavers is correct that the judge should have given the standard direction in relation to the other defendants' interviews, although they were only evidence against the particular defendant being interviewed. During the further discussion about directions on 14 December 2018 the judge indicated he would give that usual warning,
but in the event he did not do so. It is entirely speculative to attribute that failure to the judge's desire to avoid logical inconsistency, as Mr Lavers suggested. In our judgment, although it would have been better if the judge had given such a direction, there was no prejudice suffered by the appellant as a consequence of his failure to do so. Indeed, it might be said that by giving such a direction the judge would have highlighted the differences between those interviews and Thomas's interview in a way which was prejudicial to the appellant.
76.
In relation to Mr Lavers' criticism of the judge's summing-up, we consider that the evidence that Thomas was telling the truth in interview was strong given that he referred to certain details, for example the use of cable ties, which were consistent with the evidence of the complainants, which he had not been told by the police and which he could only have known if they were true. The judge referred to Thomas's evidence that his interview was a lie in many respects, to the possibility that his explanation of what he
said in interview may be true and to the appellant's denials. Elsewhere in his summing-up he had referred the jury to the many inconsistencies in the complainant's evidence. When the trial resumed in January, as we have said, he gave the jury a written
summary of the evidence about which no complaint is made. We consider that Mr Lavers' suggestion that the summing-up was unbalanced and somehow biased
towards the prosecution is unfounded.
77.
Accordingly, we consider that the interview was appropriately admitted under
section 114(1)(d)
despite the lateness of the application, but that the judge should have given the jury directions about how they should approach it and the bad character evidence. The question remains whether his failure to do so rendered these convictions unsafe. In our judgment it did not. Irrespective of the evidence of Thomas and what he said in interview, the case against the appellant that he had kidnapped these two men and falsely imprisoned them in London was very strong. The evidence of the appellant at trial was inconsistent with his original denial in his prepared statement in interview and in his first defence statement that he had gone to Leeds at all. Much of what he said in evidence he had failed to mention in interview or to disclose in his defence statements.
The judge gave a specific direction to the jury about that failure.
78.
The audio recordings of the appellant beating Pham were particularly damning as regards what had really been going on and the appellant's explanation in evidence was, to say the least, unconvincing. The fact that he had assaulted Pham in this way provided strong support for the overall case that he had gone to the house in Leeds to kidnap Pham and had done so, threatening him with a gun, rather than his own somewhat absurd and incredible explanation that he had been asked to collect Pham by a friend and provide him with accommodation in London. As Mr Maguire says in his Respondent's Notice, the appellant was an unlikely choice for collecting Pham for innocent purposes given that he could not drive. That the appellant committed the offences in counts 1 and 2 was also supported by the evidence of Pham and Vu which was consistent with the overall picture
of kidnap and violence.
79.
In relation to the counts relating to Vu, there is not only the evidence of Vu and Pham but the evidence of first complaint and the footage from the body camera of the police officer. Again all this other evidence is consistent with kidnap and violence, even if the jury were not sure that the appellant had a gun on the second occasion. As with Pham, the appellant's explanation that he went back to Leeds to collect Vu and provide him with
accommodation and thus that this was an innocent trip was absurd and incredible.
80.
In our judgment, despite our conclusion that it would have been better for the judge to have given some directions about the assertions in interview and that the appellant had told Thomas that he had previously robbed weed houses, we are satisfied that overall the
convictions were safe. This appeal against conviction is dismissed.
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Case Nos: 2009/04542, /04693, /04719 and /04721
Neutral Citation Number:
[2010] EWCA Crim 2740
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
THE CROWN COURT AT BRADFORD
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
24/11/2010
Before :
LORD JUSTICE RICHARDS
MR JUSTICE GRIFFITH WILLIAMS
and
HIS HONOUR JUDGE ROOK QC
(sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - -
Regina
- v -
(1)
John Daniels
(2)
Anthony Paul Davies
(3)
Anthony Vincent Neale
(4)
Darren Trevor Martin
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Peter Kelson QC and Danielle Cooper
(instructed by the Registrar of Criminal Appeals) for
Daniels, Davies and Neale
Iain Goldrein QC
(instructed by
BH Mohamed Solicitors
) for
Martin
Tom Bayliss QC
(instructed by
the Crown Prosecution Service)
for
the Crown
Hearing date : 20 October 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Richards :
1.
Anthony Davies and Darren Martin appeal against their conviction on 5 August 2009, after a trial at Bradford Crown Court before Langstaff J and a jury, on counts of murder and conspiracy to rob. John Daniels and Anthony Neale appeal against their conviction, after the same trial, on the count of conspiracy to rob. Davies also appeals against sentence. A co-defendant, Sonny Stewart, had previously entered into an agreement pursuant to section 73 of the Serious Organised Crime and Police Act 2005 (“SOCPA”) under which he agreed to give assistance to the authorities. In accordance with that agreement he pleaded guilty to manslaughter and to conspiracy to rob, and he gave evidence for the Crown at the trial of the appellants. The central issue in the conviction appeals is whether it was an abuse of process for the case to proceed on that evidence and/or whether the evidence should have been excluded under
section 78 of the Police and Criminal Evidence Act 1984
(“
PACE
”).
2.
The victim was Edward (or Teddy) Simpson, whose body was found in the grounds of a disused nursing home at Shirley Manor, Bradford, on 2 August 2007. He was naked save for his underpants, trousers binding his ankles, and a top which was wrapped loosely around his neck. His hands were tied behind his back. The pathologist recorded some 56 separate external injuries to the body. They included a cut to the left ear which was consistent with it having been pulled by an instrument such as a wrench. The facial skeleton had been shattered by blows which had also caused underlying brain damage. The cartilages of the voice box had been broken, either by stamping or by compression. Both shoulder blades had been fractured. At least seven ribs had been fractured, also causing a lung to be punctured. The multiple injuries were the cause of death. It was likely that the deceased remained alive for between one and six hours after the injuries were inflicted. The brain injury would have led to unconsciousness and it was unlikely, though not impossible, that he regained consciousness.
3.
A number of men were charged with the victim’s murder. In June 2008, shortly before their trial was due to commence, Stewart entered into the SOCPA agreement and entered guilty pleas as we have indicated. At the trial he gave evidence for the Crown. Dacosta Daniel, Errol Witter and Robert Cameron were convicted of murder and conspiracy to rob and were each sentenced to life imprisonment with a minimum term of 33 years. Mumtaz Ali was acquitted on both counts. The jury were unable to agree a verdict on either count in respect of Davies, Neale and Martin.
4.
A second trial took place between June and August 2009. For Davies, Neale and Martin it was a re-trial. Tried with them was Daniels, who had been implicated by Stewart but too late for him to be charged and tried with the other defendants at the first trial. Stewart again gave evidence for the Crown. Davies and Martin were convicted on both counts and were each sentenced to life imprisonment, with a minimum term of 35 years in the case of Davies and of 24 years in the case of Martin. Neale and Daniels were acquitted of murder but convicted of conspiracy to rob, and were sentenced respectively to 12 years’ imprisonment and 13 years’ imprisonment.
The evidence at the second trial
5.
Stewart’s importance as a prosecution witness is shown by a summary of the evidence he gave at the second trial. We will start with that and will refer briefly to the main features of the other evidence at the trial, before examining Stewart’s SOCPA agreement, the circumstances surrounding it and the issues arising out of it.
6.
Stewart gave evidence that he and Anthony (“Jigger”) Davies had been like cousins and had more or less grown up with each other. Stewart, Davies and Daniels had had two conversations together at Daniels’ house during which they formulated a plan to rob the deceased. The first of the conversations occurred about one week before 1 August 2007, soon after Daniels had been released from prison. Daniels was looking to raise some money and said that he had just “slapped a kid and taken 50 grand off him”. Daniels suggested that they find somebody worth robbing, and Davies enthusiastically supported the suggestion. Daniels and Davies were doing the talking. No specific target was identified during this first conversation.
7.
Stewart felt that Davies and Daniels must have spoken together without him between the first and second conversations, as by the time of the second conversation they had narrowed the intended target to two people. Daniels said that he had taken the £50,000 from the deceased, who had owed him the money for protection, and that the deceased was worth robbing as he had a further couple of hundred thousand pounds at his house and was due to receive a shipment of drugs. Daniels thought that it would be quite easy to take the money from him. The decision was therefore taken to rob the deceased.
8.
Daniels gave the impression that he wanted Davies to commit the robbery as Daniels himself was on an electronic tag. He said that the deceased was a “shiverer”, meaning that he would give up the money straightaway when confronted by intimidating looking men. He said that there would not be any need for violence. Davies told Stewart privately that he did not want to do the robbery and asked him whether he knew anyone from out of town who would want to do it. Stewart said that he did know someone. He phoned Neale, who said that he was not interested but that he could get someone who would be willing.
9.
On 1 August Davies phoned Stewart at 16:00, asking him to find out whether Neale had found someone to do the robbery as it was on for that evening. At the time of the call Stewart was in his Renault Laguna together with the co-accused Ali and with a man called Dean Martin (to be distinguished from the defendant Darren Martin, to whom we refer simply as “Martin”). Davies said that he was on his way back to Bradford and told Stewart to “get it sorted”. Further calls from Davies followed, as Stewart did not immediately phone Neale. When he did phone Neale, he was told that Neale had found someone to do the robbery and that that person would phone Stewart within the next 20 minutes. The person who thereafter contacted him was Dacosta Daniel, who said to him, “I’m going to do this thing for you”, and stated that he would make his way over shortly. (Dacosta Daniel, Witter and Cameron were referred to as “the Leeds men” and were the three defendants convicted at the first trial.)
10.
Stewart was picked up from his brother’s house by Ali. They drove together to a petrol station where they met Davies, and then on to another petrol station where they had a rendezvous with the Leeds men between 18:00 and 18:30. From there they drove in convoy: Stewart and Davies in a Ford Focus, the Leeds men in a white van, Ali in Stewart’s Laguna. They drove to Daniels’ house in Cutler Heights Lane where Davies had a quick conversation with the Leeds men before going into Daniels’ house for about five minutes.
11.
Thereafter Stewart got a call to go to a restaurant called Akbar’s which was about five minutes away. He travelled to Akbar’s with Davies and Ali in the Laguna. The men from Leeds followed them and waited in a side street while they were at the restaurant.
12.
After they left Akbar’s there was a series of phone calls between 19:11 and 19:16 to establish the whereabouts of Martin, who had been tasked with delivering a replica hand-gun for use in the robbery. After leaving Daniels’ house Davies had made a phone call to Martin and had said, “Bring the toy”. Stewart had known that a gun was to be involved since that afternoon at the latest. The handover of the gun took place in a side street called Broad Lane. Davies got out of the Laguna and directed Martin to pass the gun through the window of the van. Martin got out of his car and did as instructed. Stewart saw the handover with his own eyes.
13.
Following the handover they drove past the deceased’s house in Sticker Lane. Davies, while on the phone to the Leeds men, pointed out the house from the car. They parked nearby. Davies got out of the car and said to the Leeds men that they knew to simply threaten the deceased and not to hit him. He also told them to take the CCTV video tape from the house and to phone when they were in the house. Stewart, Davies and Ali then all returned to Stewart’s house in Hope Lane.
14.
While they were there, Stewart received a phone call from Dacosta Daniel who said that he was in the deceased’s house and asked where the money and video tape were. Stewart did not know, so he handed the phone over to Davies. Stewart understood from what he could hear of the conversation that the men were unable to find the tape, the drugs or the money. Davies eventually said that they were coming over to Sticker Lane.
15.
They met up with the Leeds men in a side road just off Sticker Lane. Davies waved at them and indicated that they should follow. They eventually stopped and Witter informed Davies that they had found no money or drugs and that the deceased was in the back of the van. Davies told them to drive to Judy Woods. Davies phoned Martin and told him to bring a Transit van. Stewart left before Martin arrived.
16.
Stewart returned home with Davies to put on a tracksuit top. He said he did not want to leave the house again but Davies persuaded him to do so. Davies received a phone call, Stewart thought from Dacosta Daniel, and was informed that Witter and Cameron had gone home. Davies relayed this phone conversation to Stewart. Dacosta Daniel was complaining that Martin was hitting the deceased and cutting him. Davies’ reaction to the news was to laugh and say, “He’s a game lad, Darren”. Davies appeared to be enjoying it.
17.
They went to pick up Martin. Stewart swore at him and voiced the opinion that what he had done to the deceased was wrong. Martin replied, “What’s up?”, as if he had not done anything at all. Stewart asked him what he had done and Martin replied, “What? I haven’t done nowt”.
18.
Back at Martin’s house they swapped cars and Martin took the Laguna. Stewart understood that he was going back to Judy Woods. Stewart and Davies drove to Davies’s house before setting out to look for Dacosta Daniel. Stewart received a phone call from Neale wanting to know what had happened. Neale said that he had heard that Cameron had been stabbed (this referred to an injury received by Cameron in the course of events at the deceased’s home) and that there was no money or drugs. He said that he was on his way to Bradford and wanted to speak to Davies and collect Dacosta Daniel.
19.
Davies spoke to Martin on the phone and told him that they were going to meet Neale. Stewart heard from Martin, via Davies, that the deceased was still alive in the van. Stewart and Davies met with Neale. They then drove to Shirley Manor where Dacosta Daniel and Martin were present with the van and where the deceased’s body was dumped.
20.
The following morning Stewart was awoken by Davies and informed that the deceased had died. Davies told him to get up. Martin was waiting outside the house in his car. Stewart blamed Martin for what had happened, but Martin did not seem bothered. In the afternoon he and Davies hired some bikes to go to Judy Woods to look for the discarded gun. During an argument between Davies and Ali which was captured on CCTV, Davies had said, “You’ve just found out you’re involved in a murder and you’re going around with a known grass (i.e. Dean Martin)”. Stewart and Ali both left Bradford to get out of the way.
21.
Matters covered in the cross-examination of Stewart included the circumstances in which he had agreed to give evidence for the Crown (an issue to which we will return) and inconsistencies between the accounts he had given at various times.
22.
Other prosecution evidence included a detailed log of calls made between the defendants’ various mobile phones, together with cell site evidence as to the location of the phones when those calls were made. Stewart’s evidence was consistent with that evidence, though one of the points made in cross-examination of him was that he had tailored his account to fit with it. There was also a body of CCTV evidence showing the movements of vehicles and defendants at various times. Dean Martin gave evidence which, among other things, supported Stewart’s account of the phone call he received from Davies while he was in his car with Ali and Dean Martin.
23.
A man called Gary Folkard, a friend of the deceased, gave evidence that he called at the deceased’s home at about 20:00 for a pre-arranged meeting. Having knocked repeatedly at the door, he was dragged into the house and hit a number of times over the head with a wrench and some sort of metal object (which forensic evidence indicated was probably a frying pan). A man wearing tights over his head came into the hallway carrying a gun, which he forced into Mr Folkard’s mouth. Mr Folkard lost consciousness. As he regained consciousness he saw two men dragging the deceased out of the house by his shoulders, face down. The deceased looked unconscious. The man with the gun said that the deceased was coming with them until they got what he owed.
24.
Forensic examination of the address revealed that the deceased must have received at least four blows at that location. Evidence also suggested that a cushion cover had been placed over the deceased’s head while he was bleeding and that water had then been poured over it from a jug. There was extremely strong evidence that the deceased had been struck with the wrench and had then been dragged out of the house.
25.
Moving to the later stages of the crime, a van and a car, driving in convoy, were witnessed entering the grounds of Shirley Manor just after midnight. At about 00:30 a group of teenagers camping in the area heard a number of people talking and what sounded like a van door sliding open and shut. The van drove off with screeching tyres. At 01:13 Martin purchased some petrol. At between 2:10 and 2.45 the van was set alight. The burnt-out van was subsequently recovered and was identified as a Ford Transit purchased by Davies less than a month before the killing. There was expert evidence that the tyre marks found at Shirley Manor matched the section of burnt tyre recovered from the van.
26.
In relation to Davies, there was evidence of bad character: in an undercover police recording made in connection with an unrelated matter he was heard directing violence against an unknown individual in relation to an unpaid drug debt, and expressing his approval of the violence used.
27.
In relation to Martin, there was evidence that a swab taken from the inside of the left arm of the deceased matched Martin’s DNA.
28.
Daniels, Davies and Martin did not give evidence. Neale gave evidence to the effect that he had no involvement in the robbery and that his contacts with Stewart and Dacosta Daniel were entirely to do with a cannabis deal.
The SOCPA regime
29.
Sections 71-75 of SOCPA, the statutory provisions relating to defendants who assist in the investigation or prosecution of an offence, were examined in detail in
R v Blackburn
[2007] EWCA Crim 2290
, [2008] 2 Cr App R (S) 5, and do not need to be set out at length here. Section 73 governs the arrangements for a reduction in sentence for a defendant who in specified circumstances has provided assistance. By subs.(1), the section applies if a defendant (a) following a plea of guilty is either convicted of an offence in proceedings in the Crown Court or is committed to the Crown Court for sentence, and (b) has, pursuant to a written agreement made with a specified prosecutor, assisted or offered to assist the investigator or prosecutor in relation to that or any other offence. By subs.(2), in determining what sentence to pass on the defendant the court may take into account the extent and nature of the assistance given or offered.
30.
At para 27 of the judgment in
R v Blackburn
the court stated that “[t]he essential feature of the new statutory framework is that the offender must publicly admit the full extent of his own criminality and agree to participate in a formalised process”. Those and other features of the SOCPA regime are reflected in the Attorney General’s guidelines on witness immunities and undertakings.
31.
Because of the way it featured in the judge’s ruling at the trial and in the argument on the present appeal, it is also relevant to note what the court said at para 22 of the judgment in
R v Blackburn
, under the heading “The Common Law”, before it came to the detail of the SOCPA regime:
“There never has been, and never will be, much enthusiasm about a process by which criminals receive lower sentences than they otherwise deserve because they have informed on or given evidence against those who participated in the same or linked crimes, or in relation to crimes in which they had no personal involvement, but about which they have provided useful information to the investigating authorities. However, like the process which provides for a reduced sentence following a guilty plea, this is a longstanding and entirely pragmatic convention. The stark reality is that without it major criminals who should be convicted and sentenced for offences of the utmost seriousness might, and in many cases, certainly would escape justice. …. The solitary incentive to encourage co-operation is provided by a reduced sentence, and the common law, and now statute, have accepted that this is a price worth paying to achieve the overwhelming and recurring public interest that major criminals, in particular, should be caught and prosecuted to conviction.”
Stewart’s SOCPA agreement
32.
The factual background to the making of Stewart’s SOCPA agreement was as follows. On 7 August 2007, Stewart was arrested, interviewed and released without charge. 13 November 2007, he was arrested for a second time, was interviewed further and was charged with murder. Throughout this process he made limited comment and denied any involvement in the murder.
33.
Some time between February and April 2008, an exchange of draft proofs of evidence took place between Stewart and Dacosta Daniel while they were in prison. Stewart wrote a manuscript letter to Dacosta suggesting a number of amendments to Dacosta’s proof of evidence so that it more closely reflected Stewart’s account of events.
34.
In June 2008 Stewart contacted the police through his solicitors to indicate that he wished to speak to them within the SOCPA framework. On 16 June 2008 there took place a “scoping” interview in which he gave his account of events for the purpose of enabling a decision to be made by the prosecution as to whether to enter into a SOCPA agreement. In the course of the interview Stewart handed over a draft proof of evidence prepared by his legal team on the basis of his instructions. At the end of the interview one of the interviewing officers expressed the view that they had got enough for a decision to be made. On the morning of 17 June, however, before the SOCPA agreement was entered into, a further scoping interview took place at which, as explained further below, Stewart for the first time implicated Daniels in the events leading up to the death of Edward Simpson.
35.
The SOCPA agreement was then entered into, signed by Stewart and a specified prosecutor. It provided:
“2. It is hereby agreed that Sonny STEWART will assist the investigator and prosecutor in relation to the ongoing investigation being conducted by West Yorkshire Police into the murder of Edward Simpson.
3. Assistance under the terms of this agreement will include the following:
(a) Sonny STEWART will plead guilty to the offences of conspiring to rob Mr Simpson and manslaughter as a result of his death.
(b) Sonny STEWART will participate in a de-briefing process. He undertakes during that process, which will be tape recorded and conducted under caution, to fully admit his own involvement in the matters under investigation.
(c) Sonny STEWART will provide the investigator with all known facts, statements, documents, evidence or any other items available to him relating to the said investigation and offences and the existence and activities of all others involved.
(d) Sonny STEWART will maintain continuous and complete co-operation throughout the investigation of the said offences and until the conclusion of any court proceedings arising as a result of the investigation. Such co-operation includes but is not limited to Sonny STEWART:
(i) voluntarily and without prompting providing the investigator with all information that becomes known to him or available to him relating to the said offences in addition to any such information already provided;
(ii) providing promptly, and without the prosecutor using any powers under any section of the Act, all information available to him, wherever located, requested by the investigator in relation to the said offences, to the extent it has not already been provided.
(e) Sonny STEWART will give truthful evidence in any court proceedings whatsoever arising from the investigation of the said offences.”
36.
There followed, on 17 June and 18 June, a number of formal evidential interviews under caution.
37.
Thereafter Stewart pleaded guilty to conspiracy to rob and to manslaughter, and the evidence he gave at the trials of his co-defendants accorded with the account given in the evidential interviews which followed the SOCPA agreement.
38.
Certain features of the SOCPA agreement and the surrounding circumstances are of particular importance for the submissions on the appeal:
i)
Stewart’s plea of guilty to manslaughter, and the Crown’s acceptance of that plea, are criticised on the basis that Stewart’s own account provided no proper factual basis for a plea to manslaughter, whilst on the case as advanced by the Crown at trial Stewart was guilty of murder rather than manslaughter. In his own account Stewart accepted involvement in the conspiracy to rob but maintained that the conspiracy envisaged only minimal if any violence being required to facilitate the robbery, owing to the timidity of the victim. The prosecution case, on the other hand, was that the conspirators must have envisaged that serious violence might be needed for the robbery.
ii)
It was only at a very late stage, immediately prior to the signing of the SOCPA agreement, that Stewart implicated Daniels in the events leading to the death of Edward Simpson. In his first scoping interview, on 16 June, and the draft proof of evidence handed across at that interview, he made no reference to Daniels. At the beginning of the further scoping interview, on the morning of 17 June, he was asked if there was anything else he wanted to tell the police about the events leading to the death. He responded that Daniels was “the main player in the organisation and all of the death of Edward Simpson” and went on to give details of Daniels’ involvement and of the basis of his, Stewart’s, knowledge of it. He claimed not to have said this before because he was scared for himself and his family’s wellbeing.
iii)
In the first scoping interview and the draft proof of evidence, Stewart said that Davies “laughed” on hearing that Martin was cutting the deceased’s ear. In the interviews after the SOCPA agreement, however, Stewart added to his account by stating that Davies not only laughed but said words to the effect of “Darren’s a game lad” on hearing the news about Martin cutting the deceased’s ear. It is said that this evidence about Davies glorifying in violence became a potentially important part of the case, because the jury convicted Davies of murder after asking a specific question “If a defendant became involved in the events at a point after some injuries had occurred, but did not contribute to the death by way of violence, but also did not stop events and attempt to help the victim, does that make him guilty of murder?”.
The application to exclude Stewart’s evidence at the trial
39.
At the start of the second trial it was submitted on behalf of Daniels that the case against him should be stayed because the evidence of Stewart had been obtained through an abuse of executive power and there was no other evidence on which the Crown could rely against him; the Crown had irrationally and for improper purposes failed to observe the usual practice under ss.71-75 of SOCPA; there was no proper legal basis for Stewart’s plea to manslaughter; Stewart did not accept his full criminal responsibility; the circumstances and timing of his first mention of Daniels gave rise to the suspicion that he was induced to mention that name; and his evidence at the first trial lacked credibility in a number of respects. For similar reasons it was submitted on behalf of Davies that Stewart’s evidence should be excluded under s.78 of
PACE
.
40.
In rejecting those submissions, Langstaff J said that ss.71-75 of SOCPA deal with the relationship between the Crown and those who give evidence about their own criminality in return for immunity or a reduction in sentence; they do not deal with the relationship between the Crown and co-defendants, save that they may be said to imply that it will not be an objection to the admissibility of the evidence of such a witness that he has “self-interestedly done a deal or entered into … a Faustian pact”. He referred to
R v Blackburn
, cited above, in particular to the passage in para 22 which talks of an overwhelming public interest that major criminals should be caught and prosecuted to conviction. As to the well recognised risk that where a witness gives evidence against accomplices he is serving his own ends and not those of justice, the judge observed that the conventional answer to that has not been exclusion but entrusting the jury to reach the appropriate conclusion on the evidence in the light of cross-examination and with an appropriately worded direction from the court. He also referred to
R v Cairns
[2003] 1 Cr App R 38
for the proposition that the prosecution has a discretion to call a witness part of whose evidence is capable of belief even if not all of his evidence is regarded as reliable. He continued:
“It seems to me that there is no abuse in executive discretion given the overriding public interest to which I have made reference. For the Crown to accept as a pragmatic matter a plea which is freely offered in consequence of legal advice accepted by him and in respect of which there is no evidence of improper pressure, … put shortly in the circumstances of this case – I can understand, as I indicated in the previous trial I did, why that pragmatic approach might be taken. It does not seem to me to be relevant that there is, in effect, a plea to [an offence] which, on my current understanding of the law, it would be difficult if not impossible for the Crown to make out. Given not least that Section 71 to Section 75 make provision, amongst other things, for immunity in cases of those defendants who are known … to have committed various crimes.
I turn, therefore, to the argument in respect of
Section 78
. The argument here is to exclude the whole of the evidence, that is a bold argument. In my view there is no proper basis for excluding the whole of the evidence. … The jury are the proper arbiters. It is not in my view appropriate to regard evidence of a co-conspirator or accomplice otherwise admissible and whose admissibility is provided for by inference by Sections 71 to 75, by regarding the prejudicial effect as outweighing the probative value, because in one sense the more cogent the evidence is against a defendant the greater the ‘prejudicial’ effect may seem to be. The safeguard it seems to me to be applied here is that which is conventionally applied in the case of those who give evidence against their mates, and that is to give proper directions reminding the jury of Stewart’s self-interest, and any particular flaws which have emerged in his evidence and inconsistencies therein.
It seems to me that that is the way in which the interests to which I first referred, those of securing a fair trial, that is a fair trial to all parties, can be served. For those reasons I do not regard the balance is made out favourably to exclusion. The evidence is to be included.”
41.
Prior to the judge’s ruling there had also been argument on behalf of Davies that, by handing over his draft proof of evidence in the course of the first scoping interview, Stewart had waived legal professional privilege in communications between himself and his legal advisers, so that the defence could seek disclosure of that material. The proposal canvassed by counsel for Davies was that a witness summons should be issued by the defence against Stewart’s solicitors. The judge expressed a provisional view that privilege had not been waived. Full argument was left over on the basis that it would require Stewart himself to be represented, since the privilege was his. It appears, however, that the matter was not then pursued and that the judge was not called on to make a formal ruling on it.
42.
When it came to his summing-up, the judge gave directions of the kind he had indicated in his ruling on abuse of process and unfairness, as to how the jury should approach Stewart’s evidence. They included this:
“Do not lose sight of the fact that some witnesses may have reasons of their own for being not wholly truthful. In particular, take care when you are looking at the evidence of Sonny Stewart. He was ‘One of the gang’. He has done what has been described as the deal of the decade if not of the century, got away with murder, engaged in a deal which the Prosecution are said have ‘Done a deal with the devil’, two of the phrases. You may think that if he had been in the dock you would have been asking whether he was guilty of murder.
Well, he offered a plea to manslaughter. Plainly, you may think, the prosecuting authorities accepted that in order to put his evidence before you. They do so on the basis that he promised, in a form of agreement which is authorised by an Act of Parliament, the SOCPA agreement, … to tell the whole truth. That does not mean to say he has told the whole truth, it is for you to decide the extent to which he has done. It has been strongly suggested that to secure the deal he might have emphasised some other Defendants’ roles or even in the case of Daniels, invented them. Does he have a reason to do so? Has he minimised his own role? Your distaste for the procedure does not matter, you must avoid prejudice. But you should be careful of the fact that he might have interests of his own to serve. He did not mention a word of Johnny Daniels’ involvement on the day he was first interviewed by the Police to see if they would enter into an agreement, yet the very next morning almost the first thing he did was to volunteer his name. Look carefully at why that was. Do you accept that the reason he did not mention Daniels on the 16
th
June last year, was that he was worried, scared about what he thought Daniels might do to him and his family? Or was it because he wanted to offer a name to secure a beneficial deal?”
The submissions on the appeal
43.
The case advanced on appeal is that the prosecution should not have been allowed to adduce Stewart’s evidence at all: it was an abuse of process for the trial to proceed on the basis of that evidence, or the evidence should have been excluded under s.78 of
PACE
.
44.
Reliance is placed, first, on the general nature of the SOCPA agreement and Stewart’s plea of guilty to manslaughter. Neither Stewart’s own account nor the way in which the prosecution put its case against the co-defendants at trial provided any proper basis for Stewart’s manslaughter plea. Thus the prosecution were calling as their principal witness a man whom they knew or believed to be lying on a matter as fundamental as the basis of his own plea. Moreover, under the SOCPA agreement Stewart had agreed to “fully admit” his own involvement in the matters under investigation; and the effect of the agreement and its statutory framework was to compel him to see his account through to the bitter end if he was not to lose the benefit of the SOCPA process. It was an abuse or unfair for the prosecution to rely on his evidence in those circumstances.
45.
Reliance is also placed on the specific circumstances surrounding the making of the SOCPA agreement, a point which shades into the second aspect of the case advanced. The fact that the SOCPA agreement was entered into immediately after Stewart had implicated Daniels, having made no previous mention of his involvement, prompted questions about the conduct of the police. Concern was expressed that one of the officers concerned harboured prejudice towards Davies. The nature of the questioning of the police officers at the trial and of the evidence elicited is apparent from the following passage in the judge’s summing-up:
“What is of particular importance, you may think, in this case was whether or not Sonny Stewart had had any off-the-record conversations between the first day, the 16th, and the second day, the 17th, the very first time that he mentioned anything about the involvement of Johnny Daniels. Why was that? Was it because he had spent the night wondering how he might beef up his account; was it because he was wondering whether he should tell what he knew. Was it because something was said to him secretly, off-the-record, that is, off the tape record – there was a record of it but not a tape record of it, by the Police.
Well, when he was asked in cross-examination, my note of it reads thus. ‘Did you have any conversations with the Police about the account you’d given?’ Answer, ‘No’. ‘No-one approached you to ask you about what you had said?’ Answer, ‘No’. The Police Officers who came told you that there were conversations about telling the truth, that is what you had to do. They said there was a conversation about giving him material which he had not got with him in the police station, the CCTV and the telephone records. But there is no actual evidence that there was a conversation about the account which he had given. That may miss the point, the point that has been made to you powerfully by Defence counsel is, everything else was tape-recorded, why was this particular conversation not tape-recorded? So you know, so you can be sure of that. But there it is, it is for you to make of the evidence what you will.”
46.
That feature of the evidence is relied on as reinforcing the general case as to abuse and unfairness in permitting Stewart to give evidence. It also leads in, however, to the separate submission that Stewart should not have been permitted to give evidence without waiving legal professional privilege so as to allow the defence to see his solicitors’ files. It is submitted that that material was of potential importance for a number of issues, notably: (i) the reason for Stewart changing his account just before the SOCPA agreement so as to implicate Daniels in the events leading to the murder; (ii) what led Stewart to embellish, in a manner adverse to Davies, his account of Davies’s reaction to the information that Martin had cut the deceased’s ear; (iii) the circumstances in which Stewart came to exchange draft proofs of evidence with Dacosta Daniel in prison and to suggest changes to Dacosta’s own proof; and (iv) the wider circumstances of Stewart’s entry into the SOCPA agreement and his change of plea to one of guilty to manslaughter. Given the dangers inherent in evidence of the kind given by Stewart against his co-defendants (cf.
Benedetto v The Queen
[2003] 1 WLR 1545
), the prosecution bore a heavy burden to investigate his account exhaustively as to its reliability, and those investigations should have included full analysis of the solicitors’ files on those matters.
47.
The argument put to Langstaff J that Stewart had waived legal professional privilege by entry into the SOCPA agreement or disclosure of his draft proof of evidence was, very sensibly, not pursued before us. It was, however, submitted to us, though it had not been put that way to the judge, that the prosecution could and should have required Stewart to waive privilege and that in the absence of a waiver and an investigation of the solicitors’ files it was an abuse and unfair for Stewart to give evidence.
48.
In his submissions on behalf of Daniels, Davies and Neale, Mr Kelson QC placed a great deal of weight on the ruling given by Owen J on 7 December 2009 on a defence application for prosecution disclosure in
R v George and Others
. In his contention that ruling, which was made after the trial of the present appellants, could be transposed to this case and should lead to the conclusion that every defendant who enters into a SOCPA agreement can be required to waive privilege and that the prosecution cannot rely on his evidence if he refuses to do so. We examine Owen J’s ruling in the next section of this judgment.
49.
Mr Goldrein QC, who represented Martin on the appeal but did not appear below, put the focus of his submissions on the obligations in Stewart’s SOCPA agreement. The existence of the SOCPA process may be the result of pragmatism (see
R v Blackburn
, para 22), but there is no room for pragmatism in the operation of that process. Unlike the former “text” regime, which still exists as an alternative, the SOCPA regime is much more formalised (see
R v Blackburn
, para 27, and the observations in
R v H
[2010] 2 Cr App R (S) 18, para 3). The formalised process means that strict compliance is required. The defendant is bound by contract to make complete disclosure and is in breach of contract if he fails to do so. If a defendant is to be “cleansed” by the process, he can have nothing to lose by waiving privilege; and if a waiver is not volunteered, the inference must be that there is something to hide. For that reason some authorities are including a provision in their SOCPA agreements requiring the defendant to waive privilege. In this case the prosecution called a witness, Stewart, whom they could not put forward as totally reliable, yet they had contracted with him that he would tell the whole truth. The SOCPA agreement does not allow the prosecution to call someone whose evidence is known or believed to be contaminated by lies.
50.
We should emphasise that the case advanced before us relates only to the question whether the trial should have been allowed to proceed at all on the basis of Stewart’s evidence. No complaint is made about the way in which the judge dealt in his summing-up with that evidence once it was given, either as regards his summary of the evidence itself or as regards his directions to the jury about the approach they should adopt in assessing Stewart’s reliability.
The ruling in R v George
51.
R v George & Others
was a prosecution brought by the Office of Fair Trading (“the OFT”) against executives of British Airways (“BA”) for alleged participation in a price-fixing arrangement with Virgin Atlantic Airways (“VAA”). Owen J’s ruling of 7 December 2009 was made on a pre-trial application by one of the defendants for disclosure by the prosecution. The material in question was in the possession of third parties. The judge proceeded on the basis that where there were reasonable grounds to suspect that a third party had material or information that might be disclosable if in the possession of the OFT, the OFT was under a duty to take reasonable steps to obtain it.
52.
The disclosure sought included material relating to three VAA executives who had been granted immunity from prosecution and were prosecution witnesses. Legal professional privilege had been claimed in respect of such material. The relevance of the material can be seen from this passage of the ruling (para 21):
“So far as the first category is concerned, the defence seek disclosure not only of all previous accounts of the relevant events given by the three VAA witnesses, but any record of the context in which such accounts were given, i.e. the questions put to or comments made to them in the course of giving their accounts. It is submitted on behalf of Mr George that in the light of the disclosure that has now been given, it can be seen that each of them give accounts that develop significantly and change over time. Moreover none of the witnesses, either in their first or subsequent more detailed accounts suggested that they were guilty of the cartel offence, yet subsequently admitted their guilt when required to do so by the OFT. [Counsel for Mr George] also relies upon the fact that the statements made by them to lawyers acting for VAA are inconsistent with the statements served by the OFT. She submits that it is therefore reasonable to infer that the witnesses were put under pressure either to give statements and/or to tailor their evidence to safeguard their own position and/or to protect the perceived interests of VAA. It is submitted that the material in relation to which disclosure is now sought is likely to support the proposition that such witnesses were subject to inducement or pressure, and that that could have the most serious effect upon their reliability or credibility. I accept that it is possible that such material could have that effect, and I have no doubt that if in the possession of the OFT, it would be disclosable.”
53.
Owen J considered it far from clear that legal professional privilege had been properly claimed in relation to the VAA witnesses. He also held, however, that the OFT ought to press for a waiver of the privilege if it existed. In reaching that conclusion he took into account an OFT guidance note concerning the obligations assumed by those who benefit from immunity or leniency. The note included the following:
“8.1 The requirement to maintain continuous and complete co-operation throughout the OFT’s investigation and any subsequent proceedings is at the heart of the leniency process and is a stated requirement in both the OFT’s penalty and no-action guidance. Clearly the requirement necessitates compliance with the rules and principles set out in those guidance documents and also in this guidance note ….
…
8.26 It is important that a careful note is made of all actions taken as part of an internal investigation, and that those are retained until the conclusion of any proceedings. There may be circumstances where the OFT will need to rebut arguments that an internal investigation has compromised the integrity of the OFT’s case, and clear contemporaneous notes detailing each step in such an investigation will be invaluable.
8.27 The importance of note-taking and the retention of notes is particularly acute when it involves the conduct of interviews with witnesses ….
…
8.29 It is accepted that the undertaking may contend that legal professional privilege will attach to both of the types of notes referred to in paragraphs 8.26 and 8.27 above. However, there may be circumstances where the OFT is advised by counsel that disclosure to the OFT and to others is
necessary
to enable a case to proceed and in those circumstances the OFT will expect an undertaking or individual to waive any applicable privilege to the extent that the OFT is advised that it is necessary ….”
54.
The judge said that the question was whether it would be reasonable for the OFT to press for disclosure of the material, notwithstanding the claim to legal professional privilege, on the basis that both the airlines and the VAA witnesses were under the duty to give continuous and complete co-operation as a condition of leniency/immunity and, failing a satisfactory response, to invoke its power to revoke the leniency agreements and no-action letters. He stated (at para 32):
“In my judgment the OFT ought reasonably to take such steps. I arrive at that conclusion for a number of reasons. First I have borne in mind the overriding obligation on the OFT as the prosecuting authority to deal fairly with the defence. Secondly I take account of the duty on the airlines and VAA witnesses to give continuous and complete co-operation, and of the fact that the airlines are required to grant the OFT access to all relevant documentary material as a condition of the leniency agreements. Thirdly I take account of the nature of the material sought, and of the fact that it may shed light upon an issue likely to be of considerable importance at trial, namely whether the VAA witnesses were subject to pressure or inducement with regard to the changes in their account of the events in question. Fourthly I bear in mind that waiver would not result in any unlimited loss of the applicable privilege since any waiver would be for the purposes only of the criminal trial. If a request for waiver is made, it may be that the airlines, and more importantly the VAA witnesses, will respond favourably, bearing in mind that if they do not do so, they will face the risk that immunity/leniency will be withdrawn.”
The conviction appeals: discussion
55.
We do not accept that Stewart’s evidence was wrongly admitted at the trial. It was not an abuse of process for the prosecution to adduce it, nor did it have an adverse effect on the fairness of proceedings so as to call for exclusion of the evidence under s.78 of
PACE
.
56.
There can be no objection of principle to the admission of evidence given by a defendant who has entered into a SOCPA agreement. As Langstaff J observed in his ruling, it is implicit in the statutory framework that the fact that a witness has done a SOCPA deal will not in itself be an objection to the admissibility of that witness’s evidence; but in any event the position in this respect is no different from that which applies to a defendant who co-operates with the authorities under the procedures that have existed at common law since long before the enactment of SOCPA (to which reference is made in para 22 of
R v Blackburn
, cited above). The dangers inherent in a witness giving evidence against accomplices in such circumstances are of course well recognised. They are met, however, by ensuring that the jury are given a proper warning of those dangers and of the need to take them into account in their assessment of the evidence, as was done by the judge’s directions to the jury in this case. They do not generally mean that the evidence should be excluded altogether, even where it is of central importance as it was here. Similar considerations apply to the contention that the evidence of a defendant who has entered into a SOCPA agreement should be excluded because the agreement and the statutory framework “compel” him to see his account through to the bitter end for fear of losing the benefit of the agreement. That, again, may be relevant to the assessment of the evidence but is not a reason why the evidence should not be admitted at all.
57.
There is nothing in the particular circumstances of the present case to warrant the conclusion that Stewart’s evidence should nonetheless have been excluded. The prosecution’s decision to accept his plea of guilty to manslaughter even though it was neither supported by Stewart’s own account nor consistent with the way the Crown advanced its case of murder was described as a pragmatic one and, like the judge, we find it difficult to see a coherent legal basis for the plea. There is, however, plainly room for pragmatism under the SOCPA regime as in relation to the corresponding processes at common law. It may well be that, in return for giving evidence against his co-defendants, Stewart got off very lightly. Indeed, in sentencing him the judge observed: “You are lucky, in my view, not to have been convicted of murder, and for that you have the fact that you entered into the agreement you did with the Prosecution to thank”. Such a possibility is inherent in the SOCPA regime. It does not provide a good reason for excluding the evidence, though it does reinforce the need to ensure that the jury are properly directed on how to approach the evidence.
58.
If the prosecution considered core features of Stewart’s evidence against his co-defendants to be capable of belief, it was entitled to put Stewart forward as a witness even if he was not considered to be telling the whole truth about his own involvement. The judge rightly relied on
R v Cairns
[2003] 1 Cr App R 38
to that effect. The position is not altered by the fact that Stewart’s SOCPA agreement required him fully to admit his involvement and to give truthful evidence but there was reason to believe that he was not making a full admission or giving truthful evidence as to the extent of his own involvement. Any such failure to fulfil the terms of his agreement exposed him to the risk that he would lose the benefit of the agreement and to proper attack upon his credibility in cross-examination by the defence. It did not, however, make it an abuse or unfair for the prosecution to put him forward as a witness.
59.
Although a great deal was made at trial, as in the submissions to us, about the circumstances in which the SOCPA agreement came to be made, we see nothing in those circumstances that made it an abuse or unfair for the prosecution to rely on Stewart’s evidence as it did. It is true that Stewart’s first mention of Daniels was made at a very late stage, just before the agreement was entered into. It is also true that in his evidential interviews he added to what he had said previously about Davies’ reaction to Martin cutting the ear of the deceased (“Darren’s a game lad”). There was, however, no evidence that he had been pressured or induced by the police to change his account in either respect or had been encouraged to lie in the account he gave. The evidence about his conversations with the police over the relevant period, including the absence of a tape record of them, was before the jury for them to assess. That, rather than the exclusion of his evidence, was the correct way for the matter to be dealt with.
60.
On the issue of legal professional privilege, one of the difficulties facing the appellants is that the arguments were advanced before the judge in a less developed way than before us and do not appear to have been pursued to a conclusion. Unlike in
R v George
, there was no application for prosecution disclosure that would have required the prosecution to obtain documents in the possession of the witness’s solicitors and if necessary to procure a waiver of privilege for the purpose. It seems that there was no actual application of any kind. Nevertheless we think it right to address the issues that have been raised on the appeal.
61.
The fundamental importance of legal professional privilege in the context of disclosure in criminal proceedings was affirmed by the House of Lords in
R v Derby Magistrates’ Court, ex parte B
[1996] 1 Cr App R 385
; and see, more recently,
R (Kelly) v Warley Magistrates’ Court
[2008] 1 Cr App R 14
, para 25, and
R v Seaton
[2010] EWCA Crim 1980
. Mr Bayliss QC, resisting the present appeals, submitted that it is so fundamental that, in the absence of express provision to that effect, SOCPA is not to be read as authorising the imposition of a requirement that a defendant waive privilege as a condition of a SOCPA agreement, and/or the terms of Stewart’s SOCPA agreement are not to be read as imposing such a requirement: they should not be so read in the absence of express provision or necessary implication to that effect.
62.
We are inclined to the view that it is open to a prosecutor to include in a SOCPA agreement an express condition as to waiver of privilege if it is considered that such a waiver is or may be necessary for the purpose of obtaining the defendant’s full assistance. But we heard only limited argument on the issue and we do not need to decide it for the proper disposal of the present appeals.
63.
Assuming that a requirement to waive privilege can lawfully be included in a SOCPA agreement, we doubt whether the terms of Stewart’s actual SOCPA agreement are sufficient to enable the prosecution to require him to waive privilege. The language is certainly very wide, with obligations such as to provide “all known … documents” and to “maintain continuous and complete co-operation”, but in our view one should be slow to read such general language as imposing an obligation to waive privilege or to provide documents that are the subject of privilege. If a requirement to waive privilege is to be imposed, we would expect it to be spelled out in clear, specific terms. We acknowledge that in
R v George
Owen J took the view that the OFT could rely for that purpose on the obligation under the immunity/leniency agreements to give continuous and complete co-operation and to grant access to all relevant documentary material, and that the scheme under consideration in that case had many similarities to the SOCPA regime. On the other hand, the OFT guidance contained an express indication that a waiver of privilege might be called for, and the agreements in question might fall to be read in the light of that guidance. There are other possible points of distinction between the cases. Accordingly, the reasoning in
R v George
cannot necessarily be transposed to the present context. Again, however, we do not need to reach a decision on the point.
64.
It is sufficient for present purposes that even if the prosecution had the power in this case to require Stewart to waive privilege in the material in his solicitors’ files and thus the power to obtain that material, there was no application that the prosecution should follow that course; it did not fail in its duties of investigation and disclosure by not following that course of its own initiative; and such a failure could not be said in any event to have been of such seriousness as to make it an abuse or unfair to rely on Stewart’s evidence. The material simply did not have the potential importance claimed for it. The suggestion that it might have contained something capable of undermining Stewart’s credibility or unreliability is pure speculation. As it was, the nature of the SOCPA agreement and what it meant for Stewart were squarely before the jury. The changes in his account over time and in particular just before and just after entering into the agreement were likewise before the jury, as were his explanations for them, the evidence of the police as to the conversations that took place and the fact that, exceptionally, those conversations had not been tape-recorded. The jury also had Stewart’s letter to Dacosta Daniel asking for changes to Dacosta’s proof of evidence, and Stewart’s explanation for that letter. There is no reason to believe that the solicitors’ files contained anything capable of adding materially to the very full picture already before the jury on those issues.
65.
Further, although cross-examination of Stewart and comment on his evidence were limited to some extent by the need to avoid intruding upon the privilege, we have been shown nothing to suggest that this was a serious limitation in the overall context of the case.
66.
Taking everything together, the arguments concerning legal professional privilege appear to us to lack cogency in the factual circumstances of this case even if the requisite powers to require a waiver of privilege and to obtain privileged material are assumed to exist.
The conviction appeals: conclusion
67.
In conclusion, we are satisfied that Langstaff J’s ruling on the issues of abuse of process and exclusion of evidence under s.78 of
PACE
was correct and that Stewart’s evidence was properly admitted at the trial of the appellants. We are also satisfied that it was not an abuse or unfair for Stewart’s evidence to be given without waiver of legal professional privilege and disclosure of the material in his solicitors’ files. The matters advanced on behalf of the appellants have not caused us to doubt in any way the safety of their convictions. All the appeals against conviction are therefore dismissed.
Davies’s appeal against sentence
68.
That makes it necessary for us to consider Davies’s appeal against the minimum term of 35 years specified by the judge in respect of the offence of murder.
69.
In setting that minimum term, the judge took a starting point of 30 years, on the basis that, as a murder committed in the course of a robbery, this was an offence of particularly high seriousness. He considered there to be a number of aggravating features which justified an increase over the 30 year starting point: a significant element of pre-planning of the robbery, that it was a group attack, the fact that the victim was vulnerable, the use of an imitation firearm, and the persistence of the assaults committed on the deceased throughout the evening until he succumbed, without any attempt to seek assistance for him although he was known to be seriously injured. He had previously also referred to the attack on Gary Folkard (the man who called at the victim’s house at the time of the robbery) as an aggravating factor. The judge accepted that the defendants did not intend to kill the deceased, but he said that that mitigating feature was balanced by the fact that the intent was to use whatever violent means were necessary to extract the whereabouts of the money and cash, and it was an intent to cause considerable suffering.
70.
Davies had a substantial criminal record, mainly for drugs offences and acquisitive offending. His first convictions were in 1998, for possession of cannabis and amphetamine. Other convictions included numerous offences of theft and obtaining by deception in 2001 and an offence of handling stolen goods in 2004. In October 2008 he was sentenced to a total of 6 years’ imprisonment for offences relating to the supply of class A and class C drugs. The judge noted that Davies’s record was not one of violence but that he had been heavily involved in drugs. Davies still had over a year to serve of the 6 year sentence imposed in October 2008. The judge considered that he should reflect the outstanding period in the minimum term for the murder.
71.
The judge went on to refer to evidence called in the case which demonstrated that on a number of occasions around the time of the murder Davies used violence as an ancillary to his drugs trade. He had no doubt that Davies was someone who had taken pleasure in his physical strength and in violence. Further, Davies occupied a central role in the present offences, foresaw that serious bodily harm might occur within the house and knew that it was happening thereafter.
72.
Having gone through those various matters, the judge concluded as follows:
“Starting at 30 years, the aggravating features I have already identified put that figure up to 33 to 34 years given your organising role. I make allowance for the fact that you did not yourself wield a weapon within … the home of the victim. Having taken account of the fact that you are currently serving a sentence with a year and some months to run, it seems to me that the appropriate minimum terms that you must serve before you are even considered for release is one of 35 years.”
73.
It is submitted on Davies’s behalf that, while the 30 year starting point was not inappropriate, the minimum term of 35 years was manifestly excessive. The aggravating factors relied on by the judge were factors that had already been accounted for in the starting point of 30 years, and in using them to increase the figure from that point he was double-counting. The judge was also wrong to describe the victim as vulnerable and to treat the attack on Gary Folkard as an aggravating factor. The only fair conclusion from the evidence and the jury’s verdicts in respect of the various co-defendants is that Davies did not have within his contemplation the very serious violence that was inflicted during the attack inside the deceased’s house; and the fact that he was not directly involved in the initial attack is a relevant factor, although the jury’s verdict must mean that his involvement in the treatment of the deceased after he had been removed from the house was such as to make him guilty of murder. In those circumstances a longer minimum term than given to those who inflicted the fatal injuries and carried out the torture inside the house cannot be justified. Finally, the judge failed to give adequate weight to the lack of an intention to kill in this case.
74.
In assessing those submissions, it is highly material to note that the co-defendant Cameron was refused leave to appeal against his minimum term of 33 years, the court taking the view that a minimum term in excess of the 30 year starting point was inevitable and that a term of 33 years could not be said to be manifestly excessive: see
[2010] EWCA Crim 1282
.
75.
The judge, having presided over the two trials and heard all the evidence in the case, was in an excellent position to form a view on the relevant aggravating and mitigating factors, Davies’s organisational role, the degree of violence contemplated by him and other matters relevant to culpability. We see no error in the matters that he took into account or in the conclusion he reached. Bearing in mind what the court said on Cameron’s application and the particular features of Davies’s case, including the period remaining to be served of his existing sentence, we take the view that it was open to the judge to specify a minimum term of 35 years. The sentence was not manifestly excessive.
76.
Davies’s appeal against sentence is therefore dismissed.
|
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|
Neutral Citation Number:
[2014] EWCA Crim 1614
Case No:
201306162 C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday 8th July 2014
B e f o r e
:
LORD JUSTICE TREACY
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE LEWIS
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R E G I N A
v
SALAAM DAVID ALL HILLY
- - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr A Edie
appeared on behalf of the
Appellant
Mr J Davis
appeared on behalf of the
Crown
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J U D G M E N T
LORD JUSTICE TREACY:
1. On 1st November 2013, in the Crown Court at Swansea, this appellant was convicted of rape. In due course he was sentenced to an extended sentence of ten years, comprising a custodial term of five years with an extension period of five years. He was sentenced to concurrent terms arising from his guilty pleas to two counts of possessing an extreme pornographic image. Ancillary orders were made. The single judge has granted leave to appeal against conviction. We confirm that the usual reporting restrictions concerning the victim in this case apply.
2. The victim was a 27-year-old woman. Both she and the appellant had struggled with drug addiction. They met at a Narcotics Anonymous meeting in 2011. On 18th November of that year they began a sexual relationship. There was no dispute that the complainant was attracted to the appellant and quite willing to have a sexual relationship.
3. The Crown's case was that on the evening of 25th November the victim invited the appellant to her home. The pair had consensual oral sex. After this the appellant penetrated her anus with his penis. This had begun consensually but it hurt the victim and she told him to stop. However, he ignored those protests and continued to penetrate her, knowing that she was not consenting. The penetration was hard and fast and went on for several minutes. The appellant ignored the complainant's repeated protests. Indeed, at one point he said, "I'm anally raping you". As the jury's verdict showed, this was true.
4. The defence case was that the victim had consented to the anal intercourse, the victim had enjoyed it and had not told him to stop. When she did say it was hurting, he had stopped of his own accord.
5. So the issue for the jury was one of consent, with the credibility of the victim's account being of vital importance.
6. In the course of her ABE interviews, and also through the ordinary and proper disclosure process, it was disclosed to the defence that the complainant had made previous allegations of sexual assault by men other than this appellant. Before any evidence was heard counsel raised with the judge whether he might be permitted to cross-examine her about those matters. The judge gave an initial ruling that since there was no evidence that the allegations were false, such cross-examination should not take place. However, the judge indicated he would leave the matter open and would hear further argument if need be.
7. The complainant's evidence-in-chief consisted of her ABE video interviews, which had been edited by agreement. The allegations of earlier sexual abuse by others were excluded, although the jury did hear brief reference to the fact that the victim had been abused in the past by her father.
8. In the course of the victim's cross-examination, she volunteered that she had been abused in the past by three men. We do not accept the characterisation of this by Mr Edie as representing the introduction of evidence as part of the prosecution case. This was an observation made by the victim in cross-examination voluntarily. This information had not been adduced in chief by the Crown and formed no part of the Crown's case as presented to the jury.
9. In the light of what had happened, Mr Edie again applied to be permitted to cross-examine the victim about those allegations. The judge again ruled against Mr Edie on the basis that there was no evidence that any of the allegations was false. In the course of exchanges between judge and counsel, the judge said:
"... the fact remains the only reason really that you want it in is to say to the jury 'well, how can she be telling the truth if she's been abused by, whether it be three or six people'."
10. Mr Edie frankly acknowledged that that was the case.
11. The grounds of appeal assert that the conviction is unsafe, and that the judge should have permitted cross-examination of the victim about the falsity of her allegations of sexual abuse by other men. The credit of the victim was critical to the case. There was a basis for allowing the questions to be asked and they would have had a substantive probative value in the case.
12. It is clear that the restrictions on questions about a complainant's sexual history set out in section 41 of the Youth Justice and Criminal Evidence Act 1999 do not apply to previous false complaints of sexual assaults. Cross-examination is permitted since such complaints are not about any sexual behaviour of the complainant within the meaning of section 42(1)(c) of the Act. However, before any such questions are permissible, the defence must have a proper evidential basis for asserting that any such statement was (a) made, and (b) untrue.
13. This court observed in
Murray
[2009] EWCA Crim 618
that the difficulty lies in what constitutes a proper evidential basis. The court said that it was less than a strong factual foundation for concluding that the previous complaint was false, but that there must be some material from which it could properly be concluded that the complainant was false.
14. We agree with the observation that the exercise for the judge is fact-sensitive and will not be assisted by an examination of the facts of other cases. We also agree that it is an exercise of judgment rather than discretion, so that it is for the judge to evaluate the matter on the basis of all the relevant material. The ultimate question is whether the material is capable of leading to a conclusion that a previous complaint was false.
15. Mr Edie contends that in this case there was a proper evidential basis that would enable leave to cross-examine to have been given under section 100 of the Criminal Justice Act 2003. Accordingly, if a previous complaint or complaints was or were false, it would have substantial probative value as to the appellant's credit, as required by section 100(1)(b).
16. In those circumstances we need to examine the matters relating to the earlier complaints. They are:
(A) complaints of sexual abuse, including rape by her father, on occasions between the ages of two and 16. These were referred to in an ABE interview in April 2012 but had first been disclosed in May or June 2010. The victim had then been interviewed by police after a referral following counselling. When spoken to by the police, she said her recollections were vague. She concluded her interview by stating:
"These memories are so vague that I cannot entirely rely on them myself. I do not feel I could say with any great amount of certainty that these events actually happened and because of this I am not willing to take the matter any further with the police at this time."
When asked about these matters in April 2012, at the time of the ABE interview in these proceedings, the victim gave some further detail and she also mentioned that she had reported the matter to the police previously and had not divulged everything or pressed charges.
(B) In her ABE interview the victim said that her grandfather had forced her to give him a "blow job" when she was about ten. No complaint was made to the police at the time, and by the time of the ABE interview we understand that the grandfather had died.
(C) In the ABE interview the victim said that a man, whom she named, took her to the woods and touched her indecently. She had been interviewed about this in 1996 apparently, about three years after the event. Hampshire police have no record of this complaint.
(D) On 6th August 2004 the victim's mother phoned the police, saying that the victim had been sexually abused. The victim had said to her mother that on 1st August her uncle had exposed himself and grabbed her head, pushing it down onto his penis. He also put his hand down her top. The victim, when seen by the police shortly afterwards, told them that she did not want to make a statement or pursue a complaint and gave a number of reasons. The police did not take the matter further.
17. There was another matter originally raised in the grounds of appeal which it is now accepted was a complaint mistakenly attributed to this complainant due to an error made by a forensic examiner. This further matter need not detain us any more.
18. It is Mr Edie's submission that the material summarised provides a proper evidential basis for showing the falsity of previous complaints. The circumstances show an inherent unlikelihood of unpursued allegations of sexual abuse against a number of men being true. The evidence should have been admitted because the credibility of the complainant was of critical importance and any difference between the issues of consent and credit were reduced to vanishing point in this sort of case: see
R v Funderburk
[1990] 90 Cr App R 466
.
19. We have come to the conclusion that the judge properly came to the decision that the material relied on did not satisfy the necessary evidential test. The mere fact that a complaint is raised and is not pursued does not necessarily mean that a complaint is false. Courts should be ready to deploy a degree of understanding of the position of those who have made sexual allegations. Failure to pursue the complaint does not of necessity show that it is untrue. A rather closer examination of the circumstances is required.
20. In relation to (A), the matters concerning the victim's father had occurred between ten and 24 years previously at the time they were first mentioned to the police. The 2010 record of interview shows the victim's thought processes, which in our judgment do not support a suggestion of a false complaint. As to (B), there is no basis for saying that the allegation was false, and the matter could not be taken further in any event. As to (C), there was no material to show that the complaint was false. As to (D), the complainant gave reasons based on her past experiences as to why she did not want to make or pursue a complaint. They do not, in our judgment, tend to demonstrate that the account which she had given to her mother, and which she had confirmed to the police as accurate, was untrue.
21. None of the individual matters raised begins to provide a basis for an inference or conclusion of a false complaint. In those circumstances there is no advantage to the appellant in seeking to rely on an accumulation of negative results. The fact that there is no instance which begins to show falsity cannot be converted into evidence of falsity by the fact that complaints have been raised more than once. An earlier example of this approach being applied by the court is
Etches
[2004] EWCA Crim 1313
.
22. In the circumstances, and for the reasons given, the submissions made by Mr Edie cannot succeed. Accordingly, this appeal against conviction is dismissed.
|
{"ConvCourtName":["Crown Court at Swansea"],"ConvictPleaDate":["2013-11-01"],"ConvictOffence":["Rape","Possessing an extreme pornographic image"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Swansea"],"Sentence":["Extended sentence of 10 years (5 years custody, 5 years extension) for rape","Concurrent terms for 2 counts of possessing an extreme pornographic image"],"SentServe":["Concurrent"],"WhatAncillary":["Ancillary orders"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Female"],"VicAgeOffence":[27],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":["Yes-drugs"],"ProsEvidTypeTrial":["ABE video interview (victim testimony)"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge should have permitted cross-examination of the victim about the falsity of her allegations of sexual abuse by other men"],"SentGuideWhich":["section 41 of the Youth Justice and Criminal Evidence Act 1999","section 42(1)(c) of the Youth Justice and Criminal Evidence Act 1999","section 100 of the Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["The judge properly decided that the material relied on did not satisfy the necessary evidential test; no proper evidential basis for showing the falsity of previous complaints; failure to pursue a complaint does not necessarily mean it is false; none of the individual matters raised provides a basis for an inference or conclusion of a false complaint"]}
|
No:
201802340 A1
Neutral Citation Number:
[2018] EWCA Crim 2193
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 26 July 2018
B e f o r e
:
LORD JUSTICE SIMON
MRS JUSTICE CARR DBE
THE RECORDER OF PRESTON - HIS HONOUR JUDGE BROWN
(SITTING AS A JUDGE OF THE CACD)
- - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
R E G I N A
v
JAMES KEVIN STAPLEY
- - - - - - - - - - - - - - -
Ms C Pattison
appeared on behalf of the
Attorney General
Ms A Cotcher QC
appeared on behalf of the
Offender
- - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - -
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.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
LORD JUSTICE SIMON:
1.
The Solicitor General seeks leave to refer to this court a sentence passed on the offender in the Crown Court at Maidstone under section 36 of the Criminal Justice Act 1988 as being unduly lenient.
2.
On 13 March 2018, the offender, aged 26, pleaded guilty on a full facts basis to a charge of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Persons Act 1861. On 14 May, he was sentenced by Mr Recorder Gallagher to a term of 4 years' imprisonment.
3.
During the early hours of Saturday, 26 August 2017, Daniel Broadley, the victim of the assault, was with his friend, Joe Steadman, at the Red Lion pub at Northfleet, Gravesend. He went into the pub to buy a drink, leaving Mr Steadman outside. When he returned, Mr Steadman was engaged in a heated conversation with a man called Luke Silver. The offender was there too. Mr Broadley had previously met him through mutual friends. The offender was encouraging Mr Steadman and Mr Silver, saying to Mr Silver, "Hit him, hit him". Mr Broadley said to the offender, "Don't stir them up, just let them have their conversation". A crowd of people formed around Mr Broadley and at some point he was pushed in the chest by someone he did not know. The incident that followed was captured on CCTV footage, which this court has seen.
4.
The offender walked around the back of the crowd and up to Mr Broadley. He had a bottle in his raised left hand from which he had been drinking a few minutes earlier. He used the bottle as a weapon upended to strike towards Mr Broadley. The first strike missed him and instead came into contact with the head of one of his friends, who was knocked sideways. Mr Broadley faced the offender, who immediately launched his left hand and struck him in the face with the bottle. He felt a thud and put his hands up in an attempt to cover and protect his face. He can be seen trying to get away to a red car. However, the offender continued to assault him, punching him twice. Mr Silver attempted to bring the assault to an end. However, Mr Broadley fell to the ground and the offender then used his left and right hands to punch Mr Broadley to the head. The CCTV footage shows a total of five strikes to Mr Broadley whilst he was on the ground. Another man then intervened and pushed the offender away and a group came to Mr Broadley's aid. The incident lasted approximately 10 to 11 seconds.
5.
The offender returned a short time later and said to his victim, "You tried to hit me first but I'm just too fast for you so I hit you first". He was smirking when he said this. Mr Broadley was tearful and said, "I have to go home and see my kids like this. I have to see my family like this and I haven't done fuck all wrong". Police and paramedics attended the scene.
6.
Mr Broadley was taken to Darenth Valley Hospital, where a triangular shaped cut to the right side of his forehead was treated with two stitches. Redness had formed over his right eye and swelling over his right cheek, but no abnormalities were noted on the CT scan and he was then discharged.
7.
Three days later, he went to A&E at Milton Keynes University Hospital reporting headaches, nausea and discharge from his nose. Further, his nose was clicking in and out of place and he had decreased sensation in the right side of his face with bruising around his eyes. A CT scan revealed fractures to his right eye orbit, right cheekbone and nose. Mr Broadley refers to chipped teeth too. He photographed his injuries, which this court has seen.
8.
On 22 September, the offender was interviewed. A legal representative was present. He was asked question about the incident and was shown CCTV footage. He answered no comment to all questions asked. On 31 January 2018, he was charged by way of a postal requisition with section 18 wounding.
9.
It is clear from the victim personal statement of Mr Broadley that the assault had an impact on him emotionally, physically and socially, and has affected his ability to work. At first he felt stressed and angry because the incident made him feel that he was unable to look after himself, and the appearance of his facial injuries was such that he felt too embarrassed to see his family, including his children and friends. The incident caused him a lot of emotional stress in the relationship with his partner. He was already suffering from depression when the incident happened and became more depressed. His partner was unable to deal with this depression. The incident also had an impact on his ability to work. He had to take time off, and spent two weeks in a mental health centre. He lost two and a half weeks' wages through his inability to work.
10.
The offender had no previous convictions, although he had a caution for common assault in 2011 when he was aged 19.
11.
On 13 February 2018, he attended the Medway Magistrates' Court, where the case was sent to Maidstone Crown Court. He indicated a guilty plea and was remanded on unconditional bail.
12.
On 13 March 2018, at the plea and trial preparation hearing, he was arraigned and pleaded guilty to the section 18 charge. Sentence was adjourned for a psychiatric report and the offender was remanded on conditional bail; (residence and to attend an appointment with the psychiatric expert as arranged by his instructing solicitor).
13.
On 14 May 2018, the case was listed for sentence. Prior to this hearing the recorder received written submissions on behalf of the prosecution summarising the facts and highlighting the relevance and application of the assault definitive guidelines. Two further documents were placed before him in support of the offender's plea and mitigation. The first was a psychiatric report prepared by Dr Sajeela Karim dated 14 May 2018. This provided background information, a psychiatric history recording alcohol and substance abuse, self-harm and a tendency to act impulsively and without consideration of the consequences. The offender's symptoms were, in the view of Dr Karim, suggestive of traits of emotionally unstable personality disorder. He did not, however, suffer from a mental disorder of the nature and degree to require treatment in hospital. Nor did he show any evidence of a severe and enduring mental illness which would benefit from psychiatric treatment under supervision. The second was a letter from Mr D Kmita of Kmita Motors. He spoke to the offender's good character and positive work ethic.
14.
The recorder sentenced the offender on the following basis. That it was a wholly unprovoked attack against a defenceless man. There was some degree of premeditation since he deliberately walked around the back of Mr Broadley before striking. He used a bottle as a weapon. It was a sustained attack. More than one blow was inflicted. The strike had missed Mr Broadley and hit another man. The second strike made contact, and he then continued to assault his victim, having knocked him to the ground. There were repeated punches whilst the victim was on the ground. There was a wound requiring stitches and fractures to the right eye orbit, the right cheek and to his nose and he also suffered chipped teeth. The recorder referred to the impact on the victim, and expressed the view that the dangerousness criteria were not met.
15.
Applying the definitive guidelines, he determined the case fell on the cusp of category 1 and category 2. The starting point for category 1 was 12 years' imprisonment with a range of 9 to 16 years. The starting point for category 2 was 6 years' imprisonment with a range of 5 to 9 years. The recorder identified a starting point of 6 years' imprisonment and reduced the sentence by 2 years to 4 years' imprisonment to reflect the full credit for the plea of guilty.
16.
For the Solicitor General, Ms Pattison submits that in terms of harm this was a sustained and repeated attack, but she concedes that although serious in personal terms to Mr Broadley, the physical and psychological harm was not serious in the context of the offence. As to culpability, there was the use of the bottle to cause the serious harm. There were in addition a number of aggravating features: the targeting of the victim, the location and timing of the offence (an unprovoked attack outside a public house in the early hours of the morning) and the continuing effect of the crime on the victim. She also acknowledges the mitigation available: the offender's background and struggles with mental health issues, his lack of previous convictions, his remorse and his plea. She submits that the recorder was right to place this offending on the cusp of category 1 and 2 but that the sentence did not reflect that assessment and that a sentence of 6 years before credit for the plea did not reflect the seriousness of the offence.
17.
For the offender, Ms Cotcher QC submits that this offending was properly characterised as one of lesser harm. It was not a sustained attack in the sense envisaged by the guidelines and the harm was not so serious as to justify greater harm being found. This was, she submitted, a category 2 offence: lesser harm but greater culpability because of the use of the bottle. However, she submits that the bottle was not broken, although she recognised that it was used as a weapon.
18.
The recorder had seen a very full and clear psychiatric report from Dr Karim which included material information. He had been the victim of physical abuse from his father and bullying as a child. He had witnessed domestic violence at his home. He had begun to have live issues with his mental health coinciding in part with his father's death about 3 years before. He had made a number of suicide attempts over the past years, matters to which we will come shortly. He had suffered from paranoia, hallucinations and anxiety, as well as drug dependency and the excess use of alcohol.
19.
She draws attention to the fact that in the period between August 2017, the offence date, and May 2018, the sentence date, a period of 9 months, he had sought help from mental health authorities and taken a number of steps, including voluntary admission to the Littlebrook Secure Psychiatric Hospital in Dartford, to address his problems. He had initially approached the liaison psychiatric team 3 days after trying to hang himself. There had been other attempts at suicide in October and November and by March 2018 there was still reference to suicidal thoughts. Ms Cotcher submits that this showed a firm commitment by the offender to attempt to solve problems that led to what was an entirely out of character offence and this resolution, she submits, continues in custody, as is clear from the reports.
20.
The psychiatric report notes the offender's reaction when viewing the CCTV image of the incident: it made him "disgusted" and he said, "I panicked, I was disgusted I'd done it". She draws attention to the fact that since the date of sentence he has spent much of his time in custody on suicide watch. That information comes from the offender himself, the offender supervision report and, most recently, staff at Rochester Prison.
21.
The recorder treated the offender as a man of entirely good character and agreed that the offence was out of character, and Ms Cotchen submits that there are many mitigating factors identified in the guidelines which are present in this case. Apart from his good character, it was an isolated incident and he had shown remorse. The offender told the psychiatrist, "I accept what I did was wrong" and that he was feeling guilty for the negative impact he had had on the victim's life. Nevertheless, she accepts that this was a lenient sentence, although she submits that it was not unduly so in the light of the highly unusual circumstances to which she has drawn the court's attention.
22.
We start by observing that this was a despicable crime. The victim was subjected to an entirely unprovoked assault. The offender initially used a bottle as a weapon to inflict the injury before laying about the victim with his fists while he was on the ground. This was an offence of higher culpability within the meaning of the Sentencing Council definitive guidelines on assault.
23.
We are not, however, persuaded that there were factors indicating greater harm. As we have said, we have seen the recording of the crime recorded on the CCTV image and serious as the assault was, it lasted no more than 11 seconds from start to finish. We do not regard this as a sustained and repeated assault such as to bring it into the category of greater harm in the guidelines.
24.
The assault caused the victim both physical and, as is often the case with this type of crime, longer-lasting mental harm. But these have to be assessed by reference to the nature of the crime charged under section 18. In our view, the nature of the assault and the injuries caused both justified an upward adjustment within the category 2 range, lesser harm and greater culpability, rather than elevating the offence into category 1 or placing it on the cusp of category 1 and 2.
25.
The starting point for a category 2 offence is a term of 6 years' imprisonment but these two factors, as well as the location and timing of the offence, the commission of the offence while drunk and the continuing effect of the crime on the victim, would have elevated the starting point.
26.
On the other side of the sentencing balance were his effective good character, his troubled background and his continuing mental health difficulties, which he was trying to address, as well as his clearly expressed remorse.
27.
The sentence in fact imposed was a sentence of 4 years. In our view, this was a lenient sentence. However, in the circumstances we have described, we do not regard it as unduly lenient. It follows that although we grant leave to refer, we decline to interfere with this sentence, which will remain a sentence of 4 years' imprisonment.
|
{"ConvCourtName":["Crown Court at Maidstone"],"ConvictPleaDate":["2018-03-13"],"ConvictOffence":["Wounding with intent to cause grievous bodily harm (s.18 OAPA 1861)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at plea and trial preparation hearing"],"RemandDecision":["Unconditional Bail","Conditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Maidstone"],"Sentence":["4 years imprisonment"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[26],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Victim testimony"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":[],"AggFactSent":["use of a weapon to frighten or injure victim","offence committed while drunk","unprovoked attack","location and timing (outside public house, early hours)","continuing effect on victim"],"MitFactSent":["offender showed genuine remorse","Offender has no relevant previous convictions","offender had troubled background","offender had mental health difficulties","offence out of character"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["sentence did not reflect seriousness of the offence"],"SentGuideWhich":["Sentencing Council definitive guidelines on assault"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["sentence was lenient but not unduly so in light of highly unusual circumstances"],"ReasonDismiss":["sentence was lenient but not unduly lenient; mitigating factors justified sentence"]}
|
Neutral Citation Number:
[2013] EWCA Crim 502
Case No:
201203064 D2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 8th March 2013
B e f o r e
:
LORD JUSTICE LAWS
MR JUSTICE KEITH
HIS HONOUR JUDGE WIDE QC
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
KIM SMITH
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7422 6138
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Miss O Davies
appeared on behalf of the
Appellant
Mr A D Harris
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE KEITH: On 3rd June 2011 at Leicester Crown Court, the appellant pleaded guilty to three counts of dishonestly making false statements with a view to obtaining benefit. She was sentenced to four months' imprisonment suspended for 12 months with unpaid work and programme requirements. An application for a confiscation order was made, and on 16th December 2011 Judge Rogers made a confiscation order against the appellant in the sum of £8,394.99, to be paid within six months, with four months' imprisonment in default of payment. She now appeals against the confiscation order with the leave of the single judge. All references in this judgment to sections of an Act are references to sections of the
Proceeds of Crime Act 2002
.
2.
The facts were these. On 20th February 2003 the appellant applied to Leicester City Council for housing benefit and council tax benefit. She said in the form that she had no savings or investments (count 1). She said the same thing in a later form dated 15th March 2004 (count 2), as well as on 20th May 2006 when she was visited by a Council official to verify her claims and she told the official that she had only two accounts (count 3). All those statements were untrue. She had several accounts over the years, together with significant savings. At the time of the first false statement, she had savings of £1,500. At the time of the second, she had savings of over £24,000. She had roughly the same amount of savings at the time of the third false statement.
3.
In the light of her savings, the appellant had not been entitled to any benefit at all. The total amount she had received came to a sum in excess of £23,000. In September 2010, she repaid £10,000, and she then repaid the equivalent of £40 a month from December 2010 to June 2011. She also repaid a sum in excess of £6,000, but that was, at least in part, attributable to payments which had been made to her which did not form part of the indictment. That resulted in an outstanding balance of £12,364.06. Since the benefits to which count 3 related came to just under that – £12,039.32 – the prosecution limited its application for a confiscation order to count 3 and to that amount.
4.
There was no dispute that the recoverable amount, and therefore the amount which the confiscation order should require the appellant to pay, was £12,039.32. To use the language of section 7(1), that was her “benefit from the conduct concerned”. It was then for the appellant to show that the amount available to her was less than that. If it was, then that amount became the recoverable amount: see section 7(2).
5.
The appellant's case was that by the time of the hearing of the application for the confiscation order, she had no available assets. She had spent all the money she had. Sums in excess of £16,000 had been used to repay the Council, and the balance had gone on her day-to-day living expenses, on paying off the sums due on her credit cards and on money which she had given to members of her family. The sums of money she had given to members of her family were to be treated as gifts because section 78(1) provides:
"If the defendant transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer, he is to be treated as making a gift."
Those gifts came to £8,394.99, though it is not clear to us how that sum was calculated because the appellant was not able to particularise many of the gifts she claimed to have made.
6.
As it was, the judge found that she had no hidden assets, and he accepted her evidence that all her savings had gone, because he said in terms that he accepted her evidence “as to her own current situation”. He made no specific finding about the gifts she claimed to have made, but since he did not say that he was rejecting her evidence on the topic, he must be presumed to have proceeded on the assumption that what she had said about giving members of her family money had been correct.
7.
Section 9(1) is the governing provision when it comes to determining the amount which is available to a defendant for the purposes of deciding what the recoverable amount should be. It provides:
"For the purposes of deciding the recoverable amount, the available amount is the aggregate of -
(a) the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and
(b) the total of the values (at that time) of all tainted gifts."
In the context of the present case, any gifts made by the appellant after 20th May 2006 were tainted gifts: see section 77(5)(a). It was not disputed by the appellant's solicitor that the gifts which the appellant had admitted making were tainted gifts. However, it was argued that there was no prospect of the appellant being able to recover the sums she had given, and since she therefore had no prospect of being able to meet any confiscation order in the sum of £8,394.99, she would inevitably be in default of such a confiscation order. It was argued that in those circumstances the gifts should be treated as having been of no value, and that therefore a confiscation order only in a nominal amount should be made. The judge disagreed.
8.
This appeal therefore addresses the circumstances when a tainted gift within the meaning of section 9(1)(b) should be regarded as having no value. The question of how you value “free property” within the meaning of section 9(1)(a) was considered in
Najafpour
[2010] 2 Cr App R (S) 38
. In that case, the offender had been convicted of money-laundering. It was common ground that he had benefited from his general criminal conduct in the sum of £10m, but that sum dwarfed his available assets, and the court therefore had to determine what his available assets were. One of his assets was a sum in excess of £40,000 which he was owed by an Iranian living in Iran, and which the judge found to be “money which on any likelihood he is not going to get”. One of the arguments advanced on his behalf was that the court should not have treated this sum as an available asset as it could not in practice be recovered. The Court of Appeal rejected that argument, but it held at the same time that although it was an available asset, it should be treated as being an asset of no value.
9.
The court reached that conclusion after considering what Lord Bingham had said in
May
[2008] 1 AC 1028
at [35]:
"From the 1986 Act onwards, the courts have been required to reinforce confiscation orders by the imposition of a term of imprisonment to be served in default of payment. But it has been recognised that a defendant may lack the means to pay a sum equal to the aggregate of the payments or rewards he has received, or the value of the property or pecuniary advantages he has obtained. It has also been recognised that it would be unjust to imprison a defendant for failure to pay a sum which he cannot pay. Thus provision has been made for assessing the means available to a defendant and, if that yields a figure smaller than that of his aggregate benefit, making a confiscation order in the former, not the latter, sum."
10.
In the light of that, Elias LJ in giving the judgment of the court in
Najafpour
said at [33]-[34]:
"33. If it is impossible to recover the debt then it would be quite inconsistent with the structure of
the Act
as explained by the judgment of Lord Bingham in
May
to trigger the default sentence. A defendant is not to be imprisoned if he satisfies the court that he simply does not have the assets available: see the decision of this court in
Chen
(4th December 2009) [
[2009] EWCA Crim 2669
]. So if an asset is in fact of no financial value, it must be assessed as such.
34. We anticipate that this situation will arise but rarely. In many and perhaps most cases a court may well at the point of determining the Confiscation Order be sceptical about assertions by a defendant that monies due are irrecoverable. The court may quite properly wish to have evidence from the defendant of the steps he has taken to recover the sums before he is able to satisfy the court that the debt is in practice worthless. In those circumstances the court will make a confiscation order and the amount will include the value of the debt, and the defendant will have to seek a certificate of inadequacy at a later date. But where, as here, the judge is fully satisfied when making the order that the debt will not be recovered, he should assess the value of the asset at nil."
11.
Najafpour
therefore deals with how you value the defendant's “free property” within the meaning of section 9(1)(a). It does not deal with how you value “tainted gifts” within the meaning of section 9(1)(b). We shall come shortly to whether a tainted gift which cannot be recovered by the defendant has no value, but it is important to note that in this case the judge did not find that the money which the appellant had given to members of her family could not be recovered. The judge noted that the appellant had not made “any real attempt to recover” the money. That was in part due to what the judge described as “a personal choice in the difficult family circumstances”, but he said that it “may also [have been] a realisation that it would be a fruitless exercise on her part”. He was not finding that attempts to recover the money would be futile. He was just saying that that may have been what the appellant thought. It is true that he went on to find that “her family members are very limited in terms of their own personal resources and would not be able easily to pay money to her or to return goods”, and that “such goods as there were in any event are likely now to be old and used and of very little tangible value”. That amounts to a finding that what members of her family bought with the money she gave them may not be worth that much, and that it would not be easy for them to raise the money to repay her. But there was no finding that the money could not be recovered if the appellant put her mind to it, or if, to use the words of the judge, she had made “rather greater efforts than the present”.
12.
Having said all that, though, we recognise that the judge said in terms that there was no need for him to decide whether the money could be recovered. What he said was:
"So an application of the statutory provisions seems to me to lead to this inevitable result: that once items are included within the definition of 'tainted gifts' there is no need for an investigation to be made as to whether in fact there is any prospect of the items being returned or their value being recovered."
His reading of the statutory provisions was unaffected by what was said in
Najafpour
, if only because
Najafpour
was not dealing with tainted gifts under section 9(1)(b), but with one of the defendant's assets to which section 9(1)(a) related, and whether the value of an asset of that kind was affected by its lack of recoverability.
13.
We agree with the judge for two reasons. First, there is a specific statutory regime governing the valuation of tainted gifts. It is in section 81, which is headed "Value of tainted gifts". There is nothing in section 81 which links the value of the gift to its recoverability, even though it contemplates the situation where the recipient of the gift has parted with it. There is no equivalent provision relating to the valuation of “free property”, and the basic rule in section 79 about valuing property focuses only on the market value of the property. It does not address the value of the debt owed to the defendant which it may be difficult or impossible for the defendant to recover. It was therefore open to the court in
Najafpour
to decide for itself whether the recoverability of such a debt was relevant to the valuation of “free property” of that kind.
14.
Secondly, the whole point of including assets which a defendant has given away as one of the components in assessing the amount which a defendant has available was to prevent a defendant dissipating his assets by giving them away. If he is to be able to say that they are of no value because he cannot get them back, that would defeat what the inclusion of tainted gifts in section 9(1) was seeking to achieve. Since you cannot sue the recipient of a gift for its return, there may be many occasions when gifts cannot be recovered. It cannot have been intended for those gifts which the recipient is prevailed upon to return to be included as part of the offender's available assets, but not those which the recipient cannot be persuaded to give up.
15.
For these reasons, this appeal must be dismissed.
|
{"ConvCourtName":["Leicester Crown Court"],"ConvictPleaDate":["2011-06-03"],"ConvictOffence":["Dishonestly making false statements with a view to obtaining benefit"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Leicester Crown Court"],"Sentence":["4 months' imprisonment suspended for 12 months with unpaid work and programme requirements"],"SentServe":[],"WhatAncillary":["Confiscation order"],"OffSex":["All Female"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Confiscation order"],"AppealGround":["Tainted gifts should be valued at nil if not recoverable"],"SentGuideWhich":["Proceeds of Crime Act 2002, sections 7(1), 7(2), 9(1), 77(5)(a), 78(1), 81"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Statutory regime for tainted gifts does not link value to recoverability; section 81 applies; allowing otherwise would defeat purpose of confiscation regime"]}
|
Neutral Citation Number:
[2015] EWCA Crim 166
Case No:
2014/4080/A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 6 February 2015
B e f o r e
:
LORD JUSTICE JACKSON
MR JUSTICE MITTING
MR JUSTICE JAY
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
MARINA USACEVA
- - - - - - - - - - - - - - - - - - - - -
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 I Brownhill
appeared on behalf of the
Appellant
Miss G Gibbs
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE MITTING
: On 10th July 2014 the appellant pleaded guilty on re-arraignment to causing death by dangerous driving. She was sentenced by His Honour Judge Enright on 31st July 2014 to six years' imprisonment and disqualified for 10 years. Her licence was endorsed with 11 penalty points.
2.
The facts are as follows. At 4.30 pm on 15th March 2013, a Peugeot 206 motorcar was being driven at moderate speed by Sukhdeep Johal along the single carriageway A47 road towards Peterborough when it struck the nearside kerb near to the New Toll Service Station and spun across the road into the front of an articulated lorry driven at 38 mph in the opposite direction. Sukhdeep Johal was killed. He and the lorry driver were blameless. What had caused his car to strike the kerb and spin across the road was the fact that it was struck from behind by a Jaguar X Type car driven by the appellant. The collision caused significant damage to the Jaguar and was of sufficient force to cause the driver's airbag to deploy. The sky was overcast and it had been raining but the road surface was in good condition. There was nothing to prevent the appellant as she approached the Peugeot from slowing down safely behind it.
3.
What caused her not to do so? Her car had attracted the attention of Andrew Harrison, a house owner looking out of his window facing onto the A47, who saw it braking so hard that its bonnet dipped and its back raised up. He remarked to his mother that someone had just gone speeding by the window. The next thing he heard was the sound of the collision out of his eyesight. Speed may therefore have been a factor. The judge was satisfied that the Jaguar approached the scene of the collision at less than 70 mph on a 60 mph road, but was travelling significantly faster than the Peugeot.
4.
Something must have caused the appellant to be inattentive of the road ahead. She had two mobile telephones in her car, both of which she had used without stopping to do so in the minutes before the collision. She had used a Samsung handset to send a text message at 4.12 pm, to make a two second outgoing call at 4.16 and to receive an incoming call immediately afterwards of one minute 33 seconds. At 4.19 an incoming call was diverted to voicemail and at 4.24 she took an incoming call for 28 seconds. On a Sony mobile telephone she sent an outgoing text message at 4.15 and received an incoming text message at 4.17. She denied using a mobile telephone during the journey when interviewed by the police and initially said that she had never used a mobile telephone when driving. In fact she had done and had received two fixed penalties for doing so in 2009 and 2012. She did not reveal the existence of the Sony mobile telephone to the police until records of its usage established that it had been in the Jaguar before the collision.
5.
The judge concluded that she must have been fiddling with one or both of the mobile telephones with a view to making or receiving calls at the time of the collision. He invited her counsel to call evidence on the issue -- in other words to call the appellant herself -- if he wished to do so, but he declined. This finding caused the judge to put the case into category 2 because by driving whilst fiddling with one or more mobile telephones the appellant had behaved in a seriously culpable manner. He treated the two recent fixed penalty offences as seriously aggravating factors which took the case to the top of the bracket of four to seven years after a trial. He discounted the sentence by one year to reflect her belated plea of guilty.
6.
The appellant appeals with the permission of the single judge on three grounds:
1. It was manifestly excessive.
2. It was wrong in principle.
3. It was imposed on a wrong factual basis.
7.
We deal with the third ground first. In our view the judge was entitled to find that the appellant was fiddling with one or both of her mobile telephones as she approached the scene of the collision. There was nothing else to distract her. She had a history of using mobile telephones when driving and had been doing so no more than five or six minutes before the collision. She had lied about mobile telephone use both before and on that day and concealed the existence of the Sony mobile telephone. She declined the judge's invitation to give evidence about the issue. In the absence of any other plausible explanation, the judge's conclusion had to be right. He was therefore right to place the case in category 2.
8.
We deal with the first and second grounds together. In our view the judge was entitled to treat the previous offences of using mobile telephones whilst driving as seriously aggravating features. He was also entitled to conclude, as he did, from what she said to the author of the pre-sentence report, that she did not accept responsibility for her conduct and showed no real remorse for it. He was entitled to arrive at a sentence of seven years after a trial. He gave her adequate credit for her belated plea of guilty by reducing it to six.
9.
The judge finally had to consider one very significant factor. The appellant was a 31-year-old single mother of an eight-year-old son. In the event (which was inevitable) that she would be sentenced to an immediate term of imprisonment of some length, he would have to be cared for by his grandmother. As presented to the judge, she would have to care for him in Germany, although we are told that pending the outcome of this appeal she has come to look after him in England. Germany is a country with which he was not apparently familiar and whose language he did not speak. Her imprisonment would inevitably cause a significant upheaval for him.
10.
Mr Brownhill relied before the judge and before us on the case of
Petherick
[2012] EWCA Crim 2214
, in which on different facts the dilemma facing the sentencing judge was carefully explored. The Court observed at paragraph 24 that 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." The judge concluded on the facts of this case that it did not do so. He expressed himself perhaps unfortunately by reference to the Article 2 rights of the deceased driver of the Peugeot car. But he concluded that the public interest demanded that the appropriate sentence be imposed without discounting it to reflect the Article 8 rights of the appellant's son.
11.
These are always difficult sentencing decisions. The judge gave proper attention to this significant factor and he was entitled in our view to conclude that the public interest did require the appropriate sentence not to be discounted. We agree with his conclusion. Accordingly the appeal against the sentence of six years' imprisonment must be dismissed.
12.
Finally, at the invitation of counsel for the prosecution the judge ordered that in addition to disqualification the appellant's licence should be endorsed with 11 penalty points. A note in Archbold based on
Kent
77 Cr.App.R 120 decided under the predecessor to the
Road Traffic Act 1988
, the
Road Traffic Act 1972
, as amended by the
Transport Act 1981
, at 32-231 in the 2015 Edition, states that if a court imposes an obligatory sentence of disqualification from driving, it cannot order penalty points to be endorsed.
13.
The statutory language at the time when
Kent
was decided was clear.
Section 101(1) of the Road Traffic Act 1972
as amended by
schedule 9 of the Transport Act 1981
required particulars of conviction and disqualification to be endorsed and only if the court did not order disqualification should particulars of the offence and penalty points be endorsed. The modern statutory provision is simpler.
Sections 28(1)
and
99
of the
Road Traffic Offenders Act 1988
provide that where a person is convicted of an offence involving obligatory endorsement the number of penalty points shown in column 7 of Parts 1 or 2 of Schedule 2 to the Act should be ordered to be endorsed. Columns 6 and 7 of Schedule 2 show that endorsement is both "obligatory" and that the number of points to be endorsed is three to 11 for an offence under
section 1 of the Road Traffic Act 1988
. On the face of it therefore the court has no choice but to order endorsement with three to 11 penalty points.
14.
Section 44(1) of the Road Traffic Offenders Act 1988
however provides:
"(1)Where a person is convicted of an offence involving obligatory endorsement, the court must order there to be endorsed on [F1the counterpart of] any licence held by him particulars of the conviction and also—
(a) if the court orders him to be disqualified, particulars of the disqualification, or.
(b) if the court does not order him to be disqualified—
(i) particulars of the offence, including the date when it was committed, and
(ii)the penalty points to be attributed to the offence."
Section 44(1)(a)
therefore requires only that the particulars of conviction and of disqualification are to be endorsed when a person is convicted of an offence involving obligatory disqualification and is disqualified.
15.
The language is simpler and less explicit than that used in previous legislation, but from the language of the provision we cannot discern that Parliament intended to change the law and can discern no policy reason why it should have thought it right to do so. Therefore the decision in
Kent
should be applied to the legislation currently in force. The order for endorsement therefore must be quashed. To that extent only this appeal is allowed.
|
{"ConvCourtName":[""],"ConvictPleaDate":["2014-07-10"],"ConvictOffence":["Causing death by dangerous driving"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on re-arraignment"],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["6 years' imprisonment","10 years' disqualification from driving"],"SentServe":["Single"],"WhatAncillary":["Licence endorsed with 11 penalty points (quashed on appeal)"],"OffSex":["All Female"],"OffAgeOffence":[31],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Mobile phone records","Eyewitness testimony"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Previous offences of using mobile telephones whilst driving"],"MitFactSent":["Single mother of an eight-year-old son"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["Manifestly excessive","Wrong in principle","Imposed on a wrong factual basis"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed (except for quashing of penalty points endorsement)"],"ReasonQuashConv":["Order for endorsement of penalty points must be quashed as not permitted by law"],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge was entitled to treat previous offences as aggravating; adequate credit for guilty plea; public interest required appropriate sentence; judge's factual findings were justified"]}
|
Case No:
2003/01799/C2
Neutral Citation Number:
[2003] EWCA Crim 3214
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PORTSMOUTH CROWN COURT
(HHJ HUGHES QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 14 November 2003
Before :
LORD JUSTICE POTTER
MR JUSTICE CRESSWELL
and
MR JUSTICE DAVIS
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Between :
R
Respondent
- and -
HAWAR HUSSEIN ALI
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr William Mousley
instructed for the Appellant
Ms Sally Carter
for the Crown
Hearing date : 6.11.2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lord Justice Potter:
1.
On 28 February 2003 in the Crown Court at Portsmouth before His Honour Judge Hughes QC and a jury, the appellant was convicted and sentenced on four counts of indecent assault, Counts 1-3 related to an 11 year-old girl, T, and Count 4 to her mother, P. The appellant was sentenced to 2 years’ imprisonment on Counts 1-3, such sentences to run concurrently and to 1 year’s imprisonment on Count 4, such sentence to run consecutively to the 2 years imposed on Counts 1-3. Thus he was sentenced to a total of 3 years’ imprisonment. He was also recommended for deportation on completion of his sentence. He appeals against conviction and sentence by leave of the single judge.
2.
The appellant, who is a Kurdish national, was living in shared local authority accommodation. T and her mother, together with her father, occupied a bedroom in the house. It was the prosecution case that on two occasions on the same day, one occasion shortly following the other, the appellant had touched T’s breasts and vagina over her clothing and that, on the first occasion, he had pressed his groin against her from behind. It was also alleged that on a further occasion next day, he behaved in a similar fashion. A few days later, he had touched P on her breasts and pulled her towards him. Each of the occasions mentioned was reflected in an individual count of the indictment. It was the defence case that the allegations had been invented by T and P. There had been no indecent assault by the appellant on either of them and he had not touched any of their intimate areas.
3.
In relation to Counts 1-3, T gave evidence via a video-taped interview and television link. She said she had been sitting in the lounge and the appellant had come in and asked her to read him a story. She read him a story and he went out to the shops and bought her a small tin of ‘Pringles’ biscuits. He came back and grabbed her and started touching her. He touched her breasts with one hand and rubbed her vagina with his other hand over her clothing while “humping” her [i.e. repeatedly pressing his groin against her] from behind. (Count 1)
4.
She said that the appellant then went to his room and, when he came back, was wearing red and white boxer shorts and a white top and he had his penis hanging out of his boxer shorts. Eventually he looked down and said “Oh my God” and then went to put on his jeans. T then ran upstairs to her mother. The appellant ran after her and touched her again on her breasts and vagina when she was halfway up the stairs. (Count 2) There was evidence that T subsequently identified the boxer shorts to the police.
5.
She said that, next day, when she was in the upstairs passageway, the appellant had started touching her breasts and vagina again and pressing his groin against her. She kept on telling him to stop it and saying that she did not like it. (Count 3)
6.
Thus T stated that there were three places within the house in which indecent assaults occurred: in the lounge (Count 1), on the stairs (Count 2) and the next day in the communal upstairs passageway (Count 3).
7.
In cross-examination T was asked if she had seen the appellant (in innocent circumstances) in boxer shorts outside his room. She said “No”. She said “When he looked down and said “Oh, my God” it was as if he did not want me to see his man parts either. Perhaps they fell out of his boxer shorts”. She denied that there was any occasion, as put to her in cross-examination, when the appellant gave her a hug in the presence of her mother.
8.
So far as Count 4 was concerned, P, T’s mother, gave evidence that they had moved to the address in question at the end of July 2002. She said that after about three weeks T spoke to her in the bathroom about the appellant having touched her in inappropriate places. She took T to their room and they spoke to T’s father. After that they tried to avoid the appellant. P did not confront the appellant but told a friend who spoke Kurdish to talk to him. About two days after her conversation with T, P heard the appellant calling for T down in the passage and went to see what he wanted. He asked if T was all right because he had not seen her. P said “She’s fine” and, when she turned round, the appellant grabbed her from behind, put both his hands on her breasts and pulled her towards him. She told him to “Fuck off” and went back into her room.
9.
At this point it is to be noted that, whereas the prosecution were aware from P’s statement to the police that T had complained in detail to P of her alleged assaults soon after they occurred, the Crown did not seek to rely upon that evidence by way of ‘recent complaint’ as part of the prosecution case. Whereas its timing was of a nature which would have enabled it to be so presented, the prosecution was prepared to accept that it could not be relied on for that purpose because there were a number of inconsistencies in it. Counsel for the defence then cross-examined to elicit some inconsistencies in aid of the defence.
10.
In cross-examination in respect of the offences concerning T, P stated that T had told her that the incidents occurred in three places: the appellant’s room, the kitchen and the passageway. She did not say that any incident had occurred in the lounge or on the stairs. She also said “[T] said that [T] had told her that “it had happened a lot of times and not just on two occasions on one day and on one occasion on a subsequent day”. Thus so far as T’s evidence was concerned, there was now before the jury evidence from her mother that, when complaining to her, T made statements as to the alleged assaults which were in those respects inconsistent with her own evidence to the jury.
11.
So far as the offence against P was concerned, she said it would be wrong to say that she was touched by the appellant on the same day that T had spoken to her. When pressed she said “Well, I’m not too sure. When I made the statement to the police on 4 September I did say it was the same day”. P denied the suggestion put to her that she had invented a similar incident in her case in order to bolster the allegations of T. She said there was an occasion when the appellant gave her and T some sweets and clothes. T had given him a hug but he did not kiss her on the forehead as suggested.
12.
In the light of the inconsistencies which had been opened up, quite properly, by the defence in relation to the evidence of T, prosecuting counsel sought to re-examine P as to the terms of T’s complaint in order to emphasise or establish that such complaint was in other respects consistent with the account T had given to the jury. Counsel asked:
“What was your understanding, from what [T] said, had happened?”
13.
At this point defence counsel made an objection which was dealt with in the absence of the jury. We shall turn to the substance of the argument which followed below. However, the judge ruled in favour of the prosecution and, upon the return of the jury, the following further evidence was given in re-examination.
“
Q
…I was about to ask you that you have been asked questions about how many times [T] had said things had happened and where. And I was asking you what in fact she had said to you had happened. Can you tell the court, please?
A
When I was in the bathroom with her, she was sitting on the floor crying, I said to her she must tell me exactly happened to her … She told me that Ali touched her in her private parts and on her vagina and …
A
Can I stop you there? What I want you to do is to tell the jury exactly, not paraphrasing, but from your recollection exactly what [T] said with the words that [T] asked. Alright? It is very important that you … if you cannot remember then say you cannot remember.
A
Alright.
Q
But do not paraphrase or say something which you interpreted. Say what she said.
A
Okay. She told me that he touched her boobs and he touched her flower and that he was standing behind her and he pulled her towards her [sic] and was humping her from the back … That’s all I can remember at this stage.”
14.
The appellant gave evidence in his own defence. He said that he first met T’s family when asked by the landlord’s agent to help them by showing them their rooms when they arrived and helping them with their luggage. After that he used to see them from time to time. He did not see T without her mother and father and he never put his hands on T or her mother. When they first arrived he gave the family t-shirts, biscuits, some sweets and some slippers. He intended to help them and he had noticed that they had got nothing. They came and collected the items to take them upstairs. T hugged him and he kissed her on the forehead. He did not put his arms on her. He said he wore his boxer shorts when he went to the bathroom and T may have seen him when the door of his room was open or perhaps when he put his clothes on the bed when his door was open. He never showed T his private parts and he never talked to her – his English was not good enough. She only said “Thank you very much” to him for the gifts. He provided gifts for the family twice, but he could not remember the date of the second time. He did not go out and buy T a small tin of ‘Pringles’ as alleged and he did not ask her to read him a book.
15.
In passing sentence following the appellant’s conviction, the judge observed that the offences involved were “serious offences of indecent assault”. He said that the courts had an important public duty to deter men from molesting children and that duty could only be discharged by passing severe sentences. He was satisfied that this was a proper case for a recommendation to be made by him to the Secretary of State for the appellant’s deportation. His reasons were that this was not an isolated act but a series of serious indecent assaults and that the appellant’s victims were an 11 year-old child and her mother.
16.
The grounds of appeal are based on the ruling of the judge that the prosecution were entitled to re-examine T’s mother to demonstrate the degree of consistency as well as the inconsistencies in T’s complaint to her mother, defence counsel having cross-examined as he did, despite the strictures of this court against the legitimacy of such a course in
R v Beattie
[1989] 89 Cr App R 302 and the summary of the law and the authorities in
Archbold
2003 at paras 8-102 to 8-110 the text of which was considered by the judge.
17.
The judge said:
“Mr Mousley was perfectly entitled to cross-examine [P] to establish the inconsistencies that there were in the complaint that had been made by T. If I misapply the analogy given by Mr Justice Turner, what Mr Mousley was able to do, and, I emphasise, perfectly properly, was extract the duff and spread it out before the jury.
The prosecution now apply – and this application is opposed by Mr Mousley – to have my leave to re-examine [P] on the rest of the complaint that was made by [T] to her mother. The rest of the detail of the complaint is, of course, broadly speaking wholly consistent with the evidence that she gave. And again, misapplying the words of Mr Justice Turner, the prosecution therefore seek to put the plums on top of the duff so that the jury see the full picture.
Mr Mousley makes a number of objections. The most forceful he makes … is that this re-examination is simply inadmissible in law. However, the fact of the matter is that the terms of the recent complaint were introduced in evidence by his own cross-examination.
…
Recent complaint is recognised as an exception to the general rule of evidence that prohibits evidence of previous consistent statements being adduced in evidence before the court. Part of the recent complaint having been adduced, I am quite satisfied that it is necessary, in the interests of justice and fairness to both parties, to allow the jury to form their own view on the reliability and consistency of [T] as a witness by considering the whole of the complaint that she made to her mother.
The case of
R v Riley
(1866) 4 F&F 964, although not directly on the point, has an analysis which I would pray in aid. It is the words of Baron Channell. He describes the workings of the
Criminal Procedure Act 1865
and he indicates that, once the whole of the deposition is before the jury, and I quote:
… it will appear how far the suggested contradiction exists, and the absence of a particular statement may be explained by the context; or even if there is a discrepancy on the point, it may appear that it is only one minute point, and that in all the rest of the evidence there is perfect consistency, so that the
general
result of the comparison may be confirmation rather than contradiction.
As I say, Baron Channell was talking about the operation of the Criminal Procedure Act. There is no suggestion that any deposition or witness statement should go before the jury in this case. The application is strictly limited to questions in re-examination. But, for the reasons that Baron Channell indicated, namely that it will allow the jury to see the whole picture, will allow them to see the contradictions in context, and allow them to give what weight the jury think fit to the contradictions, I am firmly of the view that it is appropriate that this re-examination should be allowed. If it were not to be allowed, the jury would only see the duff; they would not know about any plums, and the jury could not be invited to speculate about what else was in the terms of the complaint.”
18.
The grounds of appeal complain that the judge erred in allowing the prosecution to re-examine P as to the complaint made by the daughter to demonstrate that there were also consistencies, in order that “a balanced picture was given”. It is said that the complaint did not fall into one of the three categories of exception available to render a previous consistent statement made by a witness admissible. It is said that the judge erred in not applying the law as laid down in
Beattie
, the words of Channell B in
Riley
not being applicable to the situation which arose in the instant trial. It is said that the case for the prosecution on Counts 1-3 rested entirely on the evidence of T and, there being no other supporting evidence, her credibility was crucial. Thus, by wrongly allowing the introduction of a previous consistent statement to bolster her credibility, the convictions on those counts were unsafe. Finally, although it is acknowledged that the remaining count relating to P had no obvious evidential overlap with Counts 1-3, and that the judge properly directed the jury to consider it separately, the ‘knock-on’ effect of P’s evidence of T’s complaint would not merely have been to bolster T’s evidence, but also the case in respect of P.
19.
So far as the appeal against sentence is concerned it is said that, having regard to the nature and number of the assaults and the absence of any breach of trust, the sentences imposed were manifestly excessive and out of line with previous decisions of this court.
20.
In our view the position on the law is as stated in
Archbold
at para 8-102. There is a well-settled
“general rule of evidence that statements may be used against a witness as admissions but that you are not entitled to give evidence of statements on other occasions by the witness in confirmation of the testimony”:
see
Jones v S E and Chatham Railway
(1918) 87 LJ KB 775 at 779. This is sometimes described as the general rule against previous consistent or self-serving statements and sometimes as the rule against narrative. It operates as a general rule, subject to three well-known exceptions, to prevent a witness being asked about a previous oral or written statement made by him and consistent with his evidence: see
R v Roberts
28 Cr App R 102
;
R v Larkin
[1943] 29 Cr App R 18
and
R v Oyesiku
(1971) 56 Cr App R 240 at 245-7. Similarly, evidence of the previous statement may not be given by any other witness: see
Roberts
supra.
21.
The general rule applies in examination in chief, cross-examination and re-examination:
“The evidence of a witness cannot be corroborated by proving statements to the same effect previously made by him; nor will the fact that his testimony is impeached in cross-examination render such evidence admissible. Even if the impeachment takes the form of showing a contradiction or inconsistency between the evidence given at the trial and something said by the witness on a former occasion.”
See
R v Coll
(1889) 25 LR Ir 522 per Holmes J at 541, as approved in
Oyesiku
at 245. See also
R v Weekes
[1988] Crim LR 244 and
R v
P
(GR)
[1998] Crim LR 663 and the commentaries thereto.
22.
The three well-known exceptions to this general rule as stated in
Archbold
,
Blackstone’s Criminal Practice
and other textbooks are recent complaints in sexual cases, statements forming part of the
res gestae
and statements rebutting an allegation of recent fabrication as identified in the case of
Beattie
. In that case, (at 307) Lane CJ clearly stated that “There is no general further fourth exception to the effect that where counsel cross-examined to show inconsistencies, the witness can be re-examined to show consistency”.
23.
We add for completeness that, in addition to the three well-known exceptions identified in
Beattie
, there are three further exceptions which are generally recognised in practice, namely statements made by an accused upon arrest; statements made by an accused by way of explanation when found in possession of recently stolen goods or upon recovery of other incriminating articles; and the statements of witnesses made by way of identification of an accused outside court, all of which are admissible to demonstrate consistency with an account given in court.
24.
In this case, it seems clear that none of the three exceptions identified in
Beattie
applied. It was not contended for the prosecution that it was necessary to elicit those parts of T’s complaint to her mother as were consistent with her evidence in court in order to rebut an allegation of recent fabrication (as for instance in the case of
Oyesiku
). Such suggestion had not been made. In that connection, we observe that it is not necessary for such an allegation to be made expressly in order to let in rebutting evidence. It is for the judge to assess whether the challenge made in the course of the cross-examination amounts to or might be taken by the jury as an allegation of recent fabrication. The position in this regard is set out in the Australian case
of
Nominal Defendant v Clements
(1961) 104 CLR 476
per Dixon CJ at 479, as quoted in
Oyesiku
at p.246):
“The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party, but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness’s account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course.”
25.
This was not such a case. At trial, the fact of T’s complaint to P had been dealt with in T’s evidence in chief by a formula agreed by counsel in recognition of the fact that, in the light of the inconsistencies, it would not be used by the prosecution as proof of consistency on T’s part. The solution adopted was that P simply agreed with a leading question put by prosecuting counsel that, in the bathroom, T had spoken to her about the appellant “touching her in inappropriate places”. In cross-examination, defence counsel had not challenged or sought to go behind that description, save to put to P that, when T had so complained, she had stated that the incidents occurred on more occasions and in places other than T had testified.
26.
From the transcript of the argument which is before us, it appears that the judge took the view that the observations of Channell B which he quoted justified his ruling. However, in our view they did not do so. The passage quoted was concerned with the appropriate procedure to be followed in relation to cross-examination of witnesses as to previous statements in writing. In
Beattie
, a question arose in relation to the written statement of a witness which, following challenge on the question of consistency, the judge allowed to be exhibited and copied for the jury. The court held that, although it was open to the judge under s.5 of
the 1865 Act
to allow the whole of the statement to go before the jury, in the view of the court he would have been well advised to confine that portion of the statement shown to the jury to the two matters the subject of cross-examination.
27.
In this case, the inconsistencies elicited as contradictions of the evidence of T were not denied by her mother in cross-examination and the situation which it was the purpose of s.5 to alleviate simply did not arise.
28.
It has correctly been observed, e.g. in the commentary upon
Weekes
in the Criminal Law Review, that
“On occasion, a strict application of the general rule excluding previous consistent statements may generate the appearance of unfairness in that the court is left with an unbalanced view of the overall consistency of the witness.” (1988 Crim LR 245)
29.
Again, in the commentary upon
R v P (GR)
at 1998 Crim LR 664, it is stated that:
“It might be thought a failing of the rules of evidence that an attack on a witness based on the making of an earlier inconsistent statement cannot be met by demonstrating in re-examination that on balance the witness’s previous statements show a high level of consistency. Instead, the cross-examiner has a relatively free hand in the use of inconsistent statements (subject to the provisions of
sections 4
and
5
of the
Criminal Procedure Act 1865
, of which more later) while the party calling the witness can only rely on previous consistency if the case falls within one of the three exceptions to the rule against the use of consistent statements … The overall effect is that a jury, given the information which the rules permit them to have, may be left with a wholly unbalanced picture of the witness’s previous statements. This may be a particular disaster where the witness is a child and the jury may be over-persuaded by inconsistencies which may seem significant to an adult, but which do not necessarily indicate lack of veracity in a child …
That having been said, it is not the intention of the Law Commission materially to alter the imbalance between these rules, so for the time being we must, it seems, put up with them (Report No. 245, Evidence in Criminal Proceedings: Hearsay and Related Topics (1997))”
30.
We cannot but agree with those observations. They are a recognition rather than a contradiction of the position as stated in
Beattie
that there is no general further fourth exception to the effect that, when counsel has cross-examined to show inconsistencies in the testimony of a witness, the witness can be re-examined to show consistency by reference to a previous statement.
31.
That said, however, we would emphasise that in
Beattie
the court referred to absence of a
general
further exception. No doubt the matter was put in that way because we do not consider that in that case the court intended to detract from the existence of a residual discretion in the judge to permit re-examination to show consistency when there is “something either in the nature of the inconsistent statement, or in the use made of it by the cross-examiner, to enable such evidence to given” (see
Oyesiku
at 245 as already quoted).
32.
It is this residual discretion, necessary in the interests of justice, which permits, and indeed requires, close examination of the position in relation to a suggestion of recent fabrication, as well as the need in all cases to ensure that, as a result of a question put in cross-examination, the jury is not positively misled as to the existence of some fact or the terms of an earlier statement. If, as a result of cross-examination, that is the situation which faces the judge, then, to the extent that it is necessary, he will be justified in his discretion in permitting questions in re-examination and/or use of s.5 of
the 1865 Act
where applicable, in order to correct the position.
33.
In our view, no such correction was required in this case. The fact that T had made a complaint to P, dealt with by the formula we have mentioned, was not sought to be challenged by the defence. Counsel for the defence simply sought to establish inconsistencies on the part of T which were admitted to exist and which were not unfairly or inaccurately extracted from P. In seeking in re-examination to adduce evidence of the precise terms of the complaint, prosecuting counsel was seeking not to correct an evidential position which would otherwise be erroneous or misleading, but to add to the evidence in order to establish the consistency of T’s complaint with her testimony in a manner prohibited by the general rule and not within a recognised exception. We therefore consider that the judge was in error in ruling as he did.
34.
That said, however, we do not consider that the convictions were thereby rendered unsafe. The judge directed the jury emphatically to the effect that the complaint made was not evidence, let alone independent evidence, of what actually happened and he highlighted the inconsistencies relied on by the defence. He also directed the jury that the charges must be considered separately. It is plain from the conviction on Count 4 that the jury accepted the evidence of the mother as to the indecent assault upon her, roundly rejecting the suggestion that she was complaining herself in order to bolster the complaints of her daughter. The manner of the assault described by P was almost precisely the same as that which T described in respect of Count 1. The jury reached a unanimous verdict in respect of Counts 1 and 4 upon the indictment following their retirement and provided a note to that effect. The verdicts were then taken on Counts 1 and 4. After further consideration, the jury were given a majority direction and speedily supplied a note to the effect that
“We have given the two indictments [i.e. counts] due consideration and the majority has not changed and is not likely to change. Current Count 11:1 on both indictments.”
35.
Verdicts of guilty by a majority of 11:1 were then returned. Having carefully considered the matter we consider that the convictions are safe and the appeal against conviction is therefore dismissed.
36.
So far as the appeal against sentence is concerned, we have been referred to four authorities:
Lennon
[1999] 1 Cr App R (S) 19,
L
[1999] 1 Cr App R (S) 347,
Attorney General’s Reference No 43 of 1999 (Glyn GM)
[2000] 1 Cr App R (S) 398 and
Attorney General’s Reference No 72 of 1999 (MG)
[2000] 2 Cr App R (S) 79. All involved indecent assaults of a substantially more serious character than those in this case and involved persons in positions of trust. The closest to being comparable is the case of
Glyn GM
which involved somewhat more serious offences by a father upon his daughter. It was stated that, upon conviction on a plea of not guilty, the appropriate sentence would have been one of between 15 and 18 months’ imprisonment. It seems clear to us that, in the present case, the sentences imposed were manifestly excessive. We consider that the appropriate sentence on Counts 1 – 3 would have been concurrent terms of 15 months in respect of T and on Count 4 a consecutive term of 3 months in respect of P, i.e. 18 months imprisonment in all.
37.
Accordingly, we quash the sentences imposed on each of the counts and substitute upon Counts 1-3 sentences of 15 months in each case, such sentences to run concurrently, and upon Count 4 a sentence of 3 months’ imprisonment to run consecutively to Counts 1-3. To that extent the appeal against sentence is successful.
|
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|
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
Neutral Citation Number
[2021] EWCA Crim 224
CASE NO
202003275/A3
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday 18 February 2021
LORD JUSTICE HOLROYDE
MR JUSTICE LAVENDER
MR JUSTICE CAVANAGH
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
REGINA v
DALE TARBOX
__________
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)
_________
MISS S WHITEHOUSE QC
appeared on behalf of the Attorney-General
MISS K COLLEY
appeared on behalf of the Offender
_________
J U D G M E N T
(Approved)
1.
LORD JUSTICE HOLROYDE: In February 2019 Dale Tarbox murdered Susan Howells. He was convicted of that crime in December 2020 after a trial in the Crown Court at Leeds before the learned Recorder of that City, His Honour Judge Kearl QC and a jury. On 10 December 2020 he was sentenced to life imprisonment with a minimum term of 16 years, less the 427 days he had spent remanded in custody before trial. The judge imposed a concurrent sentence of two years' imprisonment for an offence, to which Tarbox had pleaded guilty at an earlier stage of the proceedings, of preventing the decent and lawful burial of the dead body of Susan Howells.
2.
Her Majesty's Solicitor General believes the length of the minimum term to be unduly lenient. Application is accordingly made, pursuant to
section 36 of the Criminal Justice Act 1988
, for leave to refer the case to this court so that the sentencing may be reviewed.
3.
Susan Howells was 51 years old at the date of her death. She had moderate learning difficulties and was a vulnerable adult by reason of her mental health. She was also physically disabled as a result of an injury and walked with a Zimmer frame. She had known Tarbox for several years and would sometimes stay with him at his home. She continued to do this on occasions after he had begun to live with another woman, Joan Arnold. She had been staying with him for three or four weeks at the time of her death.
4.
On 19 February 2019 Susan Howells is said to have urinated on the floor. An argument began between her and Joan Arnold. Tarbox took Susan Howells upstairs to the bathroom. There he strangled her to death, probably with his hands, although possibly with a ligature.
5.
A police investigation into Miss Howells' whereabouts began in March 2019. Tarbox said he did not know where she was. It was not until September 2019 that her body was found. This was because Tarbox had gone to considerable lengths to conceal it. He had initially left the body of Miss Howells in the bath. He then put it in a wheelie bin in the basement of the property. He then tried to destroy the body by fire in an incinerator, crushing the corpse in order to fit it in, and using an accelerant. He was unsuccessful. The body was therefore returned to the wheelie bin in the basement, where it was to remain until June 2019.
6.
Tarbox meanwhile had moved a considerable distance away to live in a caravan with Joan Arnold, but he took steps to ensure that the premises in which the body had been left remained secure. He then bullied and exploited a man called Keith Wadsworth to assist him to transport the dead body to the area of the caravan and to assist him to bury it in a shallow grave near the caravan site. It was there that the body was found.
7.
Tarbox was arrested. At his trial he alleged that it was Joan Arnold who had killed Miss Howells. The jury disbelieved him and convicted him of murder.
8.
Tarbox is now 40 years old. Between 2002 and his arrest in 2019 he had been sentenced on 15 occasions for a total of 34 offences, including 13 offences of common assault and two of assaulting a police officer. A psychiatric report was prepared for the assistance of the judge in sentencing.
9.
In a victim personal statement, Miss Howells' younger sister spoke movingly of the sadness caused to the family by her death. She described the distress, pain and helplessness of not knowing for many months what had happened to her sister, and she described the impact on her and her parents of learning, on what would have been Miss Howells' 52nd birthday, that her body had been found. It is clear that in this case,
as in many others, the crime of murder has not only ended one life but has also blighted others.
10.
In his sentencing remarks, the judge said that Tarbox had exercised control over both Miss Howells and Joan Arnold and also over Wadsworth. He knew Miss Howells to be vulnerable and frail. What had triggered the murder was not clear. The judge found the murder to have been opportunistic rather than planned. He said at page 3C:
"You have a quick temper and it is known ... that you can react aggressively and violently to the smallest disagreement. She was defenceless, you are younger by far, larger by far, more powerful by far and she stood no chance of resisting you and you showed her no mercy."
11.
The judge went on to say that he found that the killing was "more likely to have been an intent to silence rather than to kill" and indicated that he would therefore sentence on the basis of an intent to cause grievous bodily harm.
12.
After the murder, the judge said, Tarbox had acted in a heartless and brutal manner as he tried to cover his tracks, treating Miss Howells' dead body as though it were base and worthless. He had tried to deprive the family of the opportunity to learn of her fate and bury her body. He had shown no remorse. He had actively tried to promote the idea that Miss Howells was still alive. Although the judge found that the murder had not been motivated by financial gain, there was evidence that Tarbox had withdrawn sums of money from Miss Howells' Post Office account in the months after he murdered her.
13.
The sentence of life imprisonment for the offence of murder is of course prescribed by law. The judge was required, in accordance with
schedule 21 to the Criminal Justice Act 2003
, to decide the minimum term which Tarbox must serve before he can even be considered for release on life licence. In doing so, he took into account the offence of preventing the burial, so that the minimum term would reflect the overall seriousness of both the offences. The judge took, in accordance with
schedule 21
, a starting point of 15 years. He identified as aggravating features the vulnerability of Miss Howells, which Tarbox exploited, and the determined attempt over a period of months to conceal and dispose of the body. The mitigating factors were that the murder was not planned or premeditated and that Tarbox' intention had been to cause grievous bodily harm, not to kill. The judge also accepted from the psychiatric report that Tarbox had been diagnosed as suffering from mixed anxiety depressive disorder and had been treated with anti-depressants for many years, which might cause him some problems in prison. Adjusting the starting point to reflect those aggravating and mitigating factors, the judge concluded that the appropriate minimum term was 16 years. For the offence of preventing the burial of Miss Howells' body, he took a notional sentence after trial of four years, which he reduced to two years to take account of totality and to give credit for the guilty plea to that offence.
14.
In her submissions on behalf of the Solicitor General, Miss Whitehouse QC accepts that the appropriate starting point was 15 years and accepts that the judge correctly identified the aggravating and mitigating factors. She further acknowledges that the judge's notional sentence after trial for the offence of preventing the lawful burial of the body was in line with the limited case law for offences of that kind. She submits, however,
that overall the judge failed to give sufficient weight to the aggravating factors. In particular, she makes two points. First, that the prevention of the lawful burial of Miss Howells’ body was not merely an offence committed in the course of seeking to avoid detection for murder: it also involved serious desecration of the corpse, as well as the exploitation and involvement of others in a planned enterprise which was sustained over a period of many months. Secondly, and pointing to the vulnerability of Miss Howells, Miss Whitehouse invites the court's attention to the Sentencing Council's overarching principles guideline on Domestic Abuse. She submits that the nature of the relationship between Miss Howells and Tarbox was such that Miss Howells was in effect in thrall to the man who was to kill her. She wished to be a part of his life and more than merely friends. Miss Whitehouse submits that these circumstances should have led the judge to give much more weight than he did to the domestic context of the murder. Overall, Miss Whitehouse submits that the aggravating factors substantially outweighed the mitigating factors, and the judge should therefore have moved upwards from the starting point by more than one year.
15.
Miss Colley, representing Tarbox before this court as she did in the court below, submits that the judge adopted a correct approach in setting the minimum term, and that the sentence was not unduly lenient. She accepts that Miss Howells' dead body was successfully concealed for a period of months, but submits that the attempt to dispose of the body by burning was unsophisticated and most unlikely to succeed. She accepts that Tarbox had controlled and manipulated Miss Howells during her life, but submits that she was capable of making her own decisions as to whether to stay or to go and that it was not her physical disability, but rather Tarbox' much greater size and strength, which rendered her defenceless against his fatal attack. Miss Colley accordingly submits that the vulnerability of the victim was not as serious an aggravating feature as
Miss Whitehouse suggests. She further submits that the Domestic Abuse guideline is inapplicable to the circumstances of this case, having regard to the fact that Miss Howells was merely staying with Tarbox and Joan Arnold as a friend. She notes that in that guideline, a definition is given of domestic abuse which speaks of those who "are or have been intimate partners or family members". She submits that in truth the relationship between the three persons in this case was a dysfunctional one and it could not fairly be said that Miss Howells was either an intimate partner or family member of Tarbox.
16.
As to mitigation, Miss Colley relies on the psychiatric report and the fact that Tarbox will require support and treatment in prison, and submits that he will therefore find prison life more difficult than would many others. On a fair balance of the aggravating and mitigating factors, she submits, a sentence not much in excess of the statutory starting point was appropriate. She reminds us that the judge, having presided over the trial and thus having had ample opportunity to assess Tarbox, including when he was giving evidence, was in the best position to determine the appropriate minimum term. If the sentence was lenient at all, she submits, it was not unduly so.
17.
We are grateful to both counsel for their very helpful and focused submissions.
18.
In accordance with
schedule 21
,
15
years was clearly the appropriate starting point. In considering what adjustments fell to be made to that starting point, we think the following considerations are relevant.
19.
First, the method by which Tarbox murdered Miss Howells was strangulation. Whether that was done manually or by ligature it was a particularly brutal way to end a life. The terror which she must have experienced as she was choked to death, defenceless against a much larger man, is awful to contemplate.
20.
Secondly, although none of Tarbox' previous convictions have involved serious violence, his record of repeated offences of common assault over a period of many years was an aggravating factor. We note that his most recent such convictions had resulted in a short sentence of imprisonment in October 2014.
21.
Thirdly, we agree with Miss Colley that the circumstances of this case do not quite fit within the ambit of the Domestic Abuse guideline: although Miss Howells had stayed with Tarbox several times and for appreciable periods, and although there had been some sexual activity between them on at least two occasions, we do not think it can be said that they were or had been intimate partners or family members. It is nonetheless relevant that Miss Howells had for several times weeks been living in Tarbox' home. The Sentencing Council's guideline at paragraph 7 indicates that the domestic context of offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship. Although we have found that the relationship here did not quite fit within that description, nonetheless we are satisfied that the killing of Miss Howells did represent a violation of the trust and security which in the circumstances of this case she could reasonably have expected to exist between her and Tarbox. We should make clear that although we have had helpful submissions from Miss Whitehouse on the subject of the Domestic Abuse guideline and related considerations, that does not appear to have formed part of the submissions made to the learned judge by the prosecution at the sentencing hearing. The judge, accordingly, did not have the advantage which we have had of detailed submissions about it.
22.
Fourthly, and additionally, Miss Howells' vulnerability, of which Tarbox was well aware and which he exploited, was a significant aggravating feature.
23.
Fifthly, there is no sentencing guideline for the offence of preventing the lawful burial of a dead body. Case law shows that such conduct is sometimes the subject of different charges, including assisting an offender and doing acts tending and intended to pervert the course of justice. There is nonetheless a clear general principle, stated as follows by Lord Bingham CJ in
R v Godward
[1998] 1 Cr.App.R (S) 385 at page 388:
"Although it appears that different charges are preferred in different cases ... it appears to us that the most important factor when judging the appropriate level of sentence is the intention of the accused. If it appears that the intention of the accused was to obstruct the course of justice by disposing of or concealing a body, and so making it difficult or impossible for the prosecuting authority to bring home a charge against the defendant or another person, then that is in our judgment an offence which merits a sentence at the top of the appropriate scale. If, on the other hand, the intention of the defendant is not established or is an intention of a more venial kind, then a shorter sentence will be appropriate."
24.
In the present case, given the jury's verdict on the charge of murder, it is clear that Tarbox' conduct in preventing the lawful burial of Miss Howells' body was done with a
view to his avoiding detection, arrest and punishment for the most serious of crimes.
Moreover, by maintaining the pretence that Miss Howells was alive and that he did not know where she was, he added greatly to the anguish which he had already caused to Miss Howells' family by killing their loved one. He acted in that way over a period of months, whilst at the same time withdrawing sums of money from the account of the woman he had murdered. In the circumstances of this case, the offence of preventing the lawful burial was a very serious aggravating feature.
25.
Sixthly, the judge's finding of an intention to cause grievous bodily harm in the context of an angry outburst intended to silence rather than to kill was a mitigating factor. However, killing by strangulation is a crime in which the seriousness of an intention to cause grievous bodily harm will often fall not far short of the seriousness of an intention to kill. In the circumstances of this case, we take the view that only a comparatively small reduction from the starting point was appropriate in this respect.
26.
Seventhly, the lack of premeditation was a further mitigating factor, but in our view could carry only limited weight given the judge's findings as to the manner in which Tarbox had controlled and manipulated Miss Howells, and as to his propensity to violence.
27.
Lastly, it seems to us that Tarbox' mental health difficulties could also carry only limited weight.
28.
In our judgment, the balancing of those aggravating and mitigating factors necessitated a significant upward movement from the starting point established by
schedule 21
. We bear very much in mind that the judge had the advantage of having been able to assess Tarbox during the trial and we hesitate to differ from his assessment of the overall seriousness. We also bear in mind however that the judge was not as fully addressed as we have been about factors which are in our view significant.
29.
We conclude, with all respect to the judge, that too much weight was given to the mitigating factors and/or insufficient weight to the aggravating factors, with the result that the minimum term imposed by the judge failed adequately to reflect the overall seriousness of the offending and was unduly lenient. In our judgment, the least minimum term which was appropriate in the circumstances of this case was one of 18 years.
30.
For those reasons, we grant leave to refer. We quash the sentence of life imprisonment with a minimum term of 16 years imposed below as being unduly lenient, and substitute for it a sentence of life imprisonment with a minimum term of 18 years. The sentence for preventing the lawful burial of a body is not subject to this Reference and remains as before.
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Neutral Citation Number:
[2018] EWCA Crim 2739
Case No: 2018/04159 A1, 2018/04158 A1
& 2018/04161 A1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT PRESTON
His Honour Judge Altham
T2018-0167
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
06/12/2018
Before:
THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE MR JUSTICE PHILLIPS
and
THE HONOURABLE MRS JUSTICE CUTTS
- - - - - - - - - - - - - - - - - - - - -
Between:
Richard Roberts
Simon Blevins
Richard Loizou
Appellants
- and –
Regina
Respondent
And
(1) Liberty
(2) Friends of the Earth
Interveners
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Kirsty Brimelow QC & Richard Brigden
(instructed by
Robert Lizard Limited
) for the
Appellants
Craig MacGregor
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing date: 17 October 2018
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
Lord Burnett of Maldon CJ:
1.
On 22 August 2018 in the Crown Court at Preston before His Honour Judge Altham the applicants were convicted of public nuisance contrary to the common law. Their convictions arose out of their conduct in protesting against the authorisation to Cuadrilla by the Oil and Gas Authority to begin hydraulic fracturing, now well known as fracking, to explore for shale gas at a site just off the Preston New Road, the A583, near Blackpool. On 26 September 2018 the judge sentenced Mr Blevins and Mr Roberts to 16 months’ imprisonment and Mr Loizou to 15 months. The applicants sat on top of the cabs of lorries for between two and half and three and a half days with the result that one carriageway of the road was blocked. Substantial disruption was caused to thousands of people.
2.
The applications for leave to appeal against sentence were referred by the Registrar to the full court as a matter of urgency. On Wednesday 17 October we heard the applications, granted leave to appeal and allowed the appeals. We concluded that an immediate custodial sentence in the case of these appellants was manifestly excessive. In our judgment the sentence which should have been imposed on 26 September was a community order with a significant requirement for unpaid work. However, by the time of the hearing, the appellants had been in custody for three weeks meaning that they had served a sentence equivalent to six weeks. As a result, and only in consequence of that, we concluded that the appropriate sentence was a conditional discharge for two years. A conditional discharge leaves the appellants vulnerable to being resentenced if they offend in any way within the period of two years.
3.
These are our reasons for arriving at this conclusion.
Public Nuisance
4.
Public nuisance is a common law offence, the boundaries of which were explored in
R v Rimmingtan
[2006] 1 AC 459
. Both Lord Bingham of Cornhill and Lord Rodger of Earlsferry (at 484A and 487D respectively) were content to adopt, with minor modification, the definition of public nuisance in the then current edition of
Archbold, Criminal Pleading, Evidence and Practice,
with this result:
“A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.”
The other members of the Committee agreed. The essence of the case advanced by the prosecution against these appellants, accepted by the jury, was that their occupation of the lorries was not warranted by law and it had the effect of obstructing the public from going about their business. It is a serious offence of a different order, for example, from temporarily obstructing the highway.
The Grounds of Appeal
5.
The appellants relied upon four grounds of appeal:
(i) An immediate custodial sentence is never appropriate for a non-violent crime committed as part of peaceful protest as a matter of domestic law and would breach article 10 of the European Convention of Human Rights [“ECHR”];
(ii) Even if the custody threshold had been passed on the facts of these cases, the judge should have imposed a suspended sentence having regard to all the circumstances. In particular, the judge erred in concluding that immediate imprisonment was unavoidable because these appellants were unsuitable for rehabilitation given their unswerving beliefs against fracking;
(iii) The sentence was manifestly excessive because the undoubted disruption that followed the appellants’ action was largely the direct cause of the concurrent actions of others;
(iv) Information obtained after the sentences were imposed raised the question of the appearance of bias on the part of the judge.
6.
We decided to hear oral argument on the first three grounds and were assisted by written submissions from Liberty and Friends of the Earth. The fourth ground had arisen very shortly before the hearing of the applications. The respondent had not had an opportunity to investigate the matter and neither had any inquiry been possible of the judge to establish what he knew of the matters relied upon by the appellants. In the event it was not necessary to hear the argument in this appeal.
7.
There is no suggestion that the judge was in fact biased. The test to be applied in cases of apparent bias was set out by Lord Hope in
Porter v Magill
[2002] 2 AC 359
at [103]:
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
8.
Such questions generally arise in advance of a trial when the facts can be properly explored but as Lord Bingham CJ observed in
Locabail (UK) Ltd v Bayfield Properties Ltd
[2000] QB 451
at [18] it may be necessary to explore whether the judge was aware of the features said to give rise to concern, because if the judge was ignorant of something said to require him to recuse himself, there would be no danger of bias.
9.
In view of the rather lurid news reporting that surrounded this ground, we shall summarise the evidence relied upon.
10.
It is contained in a statement produced by a “climate justice campaigner” employed by Friends of the Earth who states that on 27 September 2018 (that is the day following the sentencing) he “was requested to research the links between [the judge’s family] and the fossil fuel industry.” The information he provides in the statement was gathered from the internet on that day.
11.
The judge’s octogenarian parents remain directors of a family business, which is run by his sister (who we are told was born in 1963), that has operated since the mid-nineteenth century as a grocer and butcher. Prior to 1984 the business diversified into supplying ships’ stores in the north west. The website of the business said that new areas of business were developed including supplying the new Freight Ferry services from Heysham and Liverpool to Ireland. Then in 2000, the business began supplying stores to the area’s offshore gas and oil platforms. It is in that way that it is said the business “supplies the oil and gas industry”. The next step in the chain is the statement that “one of the dominant firms engaged in the Irish Sea oil and gas industry is Centrica.” The final step is that Centrica is a substantial investor in Cuadrilla.
12.
The statement shows that the judge is not a shareholder in the family business.
13.
Even were the judge to have been aware that the rigs supplied with stores by the business were owned or operated by Centrica (if that be the case, which is not established by the evidence filed) and that Centrica had an interest in Cuadrilla, which is evidenced by quotations from public statements, at first blush this looks tenuous when considering the test for apparent bias.
14.
Two other features are relied upon.
15.
The lorries occupied by the appellants had travelled from Immingham Docks, through which the drilling equipment was imported. There is no direct connection suggested between the business operated by members of the judge’s family and the lorries in question, but a website operated by an organisation called 4C Offshore suggests that the business “is one of four suppliers to Immingham Docks”. It appears to be suggested that because the business has commercial dealings with the port through which the lorries entered the United Kingdom that somehow that would lead a reasonable and fully informed observer to suppose that the judge might be biased.
16.
Finally, the appellants place reliance on the fact that the judge’s sister put her name to an open letter in 2014 to Lancashire County Council supporting the grant of permission for two exploratory wells in Lancashire. The letter, signed by a large number of local business people who expressed a desire to enhance the economic prosperity of the region, was co-ordinated by the North West Energy Task Force. That declares itself independent of, but receiving support from, both Centrica and Cuadrilla. Whether the judge was aware of any of this is unknown. That said, it would be surprising if anyone living in the vicinity did not have an opinion on the question of fracking in Lancashire, even more surprising if members of their immediate or extended families did not have opinions, sometimes publicly expressed. Judges are generally not their brother’s keeper and public support expressed for or against a cause by a sibling or child would be unlikely to give rise to any concern in any reasonable objective observer. If a sibling signing a round-robin letter of this sort disqualified a judge in these circumstances, the implications would be significant. What of a child or sibling who was a vocal supporter of an environmental cause? The argument, if sound, would cut both ways.
The Facts
17.
In January 2017 the oil and gas exploration and production company Cuadrilla was granted a licence by the Oil and Gas Authority to explore for shale gas by fracking. The licence allowed them to explore at a site just off the Preston New Road, the A583, near Blackpool. That is the main road between Blackpool and Preston.
18.
Fracking remains controversial. Many people hold sincere views that it should not be permitted. There are those who have what might be described as local concerns, which centre on objections to a particular site; and those who have wider concerns linked to the general abstraction of and use of hydrocarbons to provide energy. Many campaigners oppose the development of any new oil, gas or coal reserves because their use will generate greenhouse gases. Others take a different view focussing on economic prosperity, energy security and, at least as regards gas, that it produces less greenhouse gas than some other hydrocarbon fuels.
19.
The site at Preston New Road has been the subject of various demonstrations since Cuadrilla began to make preparations in advance of fracking. That has included disrupting attempts to transport the necessary equipment to the site and also the use of civil legal action to challenge what is proposed by reference to environmental law. Those legal actions have been unsuccessful.
20.
On Tuesday 25 July 2017, seven lorries travelled from the port of Immingham to the Cuadrilla site carrying specialist drilling equipment which had been imported from the continent. The police were given about 15 minutes advance notice of the imminent arrival of the convoy before its appearance on the Preston New Road. Many protestors were in the vicinity and so the police placed patrol cars in front of and behind the convoy. They deployed police officers to provide a physical cordon in an attempt to enable the vehicles to get to the site. At 08:06 Mr Roberts managed to get through the police cordon and climbed onto the top of the cab of the first lorry in the convoy. Naturally, it stopped to protect Mr Roberts’ safety. Very shortly afterwards Mr Loizou managed to get through the cordon and climbed on top of the cab of the last lorry. The traffic on the A583 very quickly was brought to a standstill in both directions but the actions of the two appellants were not the sole cause. The convoy of lorries blocked one of the carriageways. Other protestors were milling around on the other carriageway, not least encouraged by and interested in the activities of these appellants, causing the complete blockage of the road. There was a total of 75 police officers on site. Road diversions were set up and, as was inevitable, massive disruption developed.
21.
The road was still blocked at 15:18 when Mr Blevins climbed onto the roof of the lorry next to the one on which Mr Roberts was positioned. It remained blocked in both directions until about 17.00.
22.
Later that evening the police established a contraflow which enabled traffic to negotiate the blockage. The appellants’ occupation of the lorries was understandably very popular with other demonstrators, whatever the impact on the thousands of people inconvenienced, and so although the lorries themselves did not cause the complete blockage of the road, the appellants’ conduct with the inevitable attention it drew from likeminded supporters was a significant contributory cause of the closure of the road.
23.
Mr Loizou was the first of the appellants to come down from a lorry. He did so at 05:10 on 27 July after just short of 2 days. Mr Blevins came down at 16:45 on Friday 28 July having spent just over 3 days on his lorry. Mr Roberts climbed down at 20:13 later that day having been on his lorry for 3 and a half days.
24.
A fourth man, Mr Brock, had also climbed on top of one of the lorries. He pleaded guilty to public nuisance and received a suspended sentence. He did not come down until 11:35 on Saturday 29 July 2017, after just over 3 days.
The Judge’s approach to sentencing
25.
The judge set out the background facts and noted that a decision was taken by the police not to seek to force the appellants (and Mr Brock) from the lorries. He summarised the very significant disruption suffered over a wide area as a result of the blockage and subsequent contraflow and its effects on local residents and businesses. The lorry drivers were affected not least because they had to stay in the vicinity until the unlawful interference with the lorries was over. The judge made clear that he intended to sentence the appellants only for the disruption for which they were responsible.
26.
The judge correctly directed himself to have regard to both harm and culpability in determining the sentences. He considered that previously decided cases on sentencing for public nuisance gave little assistance, observing that each case turned on its particular facts in respect of which he had the advantage of hearing the evidence over a relatively lengthy trial. He continued:
“Culpability … is high. Even if the defendants did not appreciate immediately the impact of what they were doing, and it is difficult to see how they could not have appreciated it, it would soon have become abundantly clear to them … naivety must surely have been quickly dispelled. … This would have been a completely different case for the purposes of sentencing if after a few hours that originally unseemly euphoria had abated and they had decided to come down.”
The judge rejected the suggestion that the appellants were sorry for the disruption they caused, a submission which had been made on their behalf. They appreciated the implications of blocking a main road between a city and a town. The prolonged length of the disruption was the critical factor in weighing culpability.
“What could have been regarded as a protest which made its point and created a level of disruption which was not so intolerable was deliberately turned into a significant public nuisance by these defendants placing their belief in their own correctness above the interests of the wider public and indeed without regard to the interests of the wider public.”
27.
The judge noted that the harm suffered by those inconvenienced was widespread with each individual, subject to a few exceptions, suffering modest harm. It was the length of the disruption that extended the harm to a very large group.
28.
The judge had regard to the personal position of each of the appellants. Mr Loizou was 31. He was self-employed, working in education talking about the environment. He had no previous convictions. There was a substantial number of letters attesting to his positive good character. Mr Blevins was 26. After his arrest for this offence, and whilst under investigation (he was not on bail) he committed another offence of vehicle tampering. The judge recognised that this did not aggravate the offence with which he was concerned, but it did throw light on the risk of reoffending and the chances of his complying with the conditions of a non-custodial sentence. At the time of his offending Mr Blevins was employed as a research scientist at Sheffield University. His employers indicated that they could hold the job open for him for three months, but not longer. He too had many references which attested to his positive good character and had no previous convictions. Mr Roberts was 36 at the time of sentencing. He was studying environmental science at the Open University and completing a thesis on the impact of fracking but worked as a piano tuner and restorer. He was convicted in 2005 when, as an undergraduate, he used his vehicle as an unlicensed taxi. There was evidence of his current good character.
29.
The judge was referred to a number of previous cases in which protesters had received non-custodial sentences (albeit not for public nuisance) but noted that none was as serious or involved such prolonged inconvenience to the public. He quoted from the speech of Lord Hoffmann in
R v Jones (Margaret)
[2007] 1 AC 161
at [89] (to which we will return) explaining the honourable history of civil disobedience. He was alive to the right of free expression guaranteed by article 10 ECHR.
30.
The judge concluded that the custody threshold was crossed but, having regard to the relevant Sentencing Council definitive guideline, decided that the sentences could not be suspended. He accepted that there was strong personal mitigation in the case of each of these appellants and that their immediate imprisonment would have adverse impacts upon them and others. But he considered, contrary to the conclusions in the pre-sentence reports, that there was a present risk of reoffending. He said:
“Each of them remains motivated by an unswerving confidence that they are right and it was plain that during the course of their evidence at trial that they felt even then that they were justified in how they acted. Whilst they each make protestations of remorse those came only after they were convicted. It is most unlikely that they can be dissuaded from any intention to carry on by meaningful work, to that extent there is no real chance of rehabilitation.”
A custodial sentence not appropriate as a matter of principle?
31.
Miss Brimelow QC’s core submission was that those convicted on any offence in the course of protesting, as a matter of domestic and ECHR law, should not receive a custodial sentence in the absence of violence against the person. She submits that in such cases it is punishment enough to receive the stigma of a conviction and that, in this case, the judge should have imposed absolute discharges, or at most a fine.
32.
We were unable to accept that submission. There is a wide range of offences that may be committed in the course of peaceful protest of differing seriousness; and within the offending very different levels of harm may be suffered by individuals or groups of individuals. They carry various maximum sentences. Some are triable only as summary offences (for example low level criminal damage or wilful obstruction of the highway) and others are indictable. Many protests are directed at government or official bodies and the harm is suffered at what might be described as official level only. Trespassing at military bases or damaging their perimeter fences, are examples. But the essential approach to sentencing by looking at harm and culpability and with the three aims of sentencing in mind (punishment, deterrence and rehabilitation) remain in play. The motivation of an offender can go to increase or diminish culpability. It forms no part of a court’s function to adjudicate, even
sub silencio
, on the merits of controversial issues but it is well established that committing crimes, at least non-violent crimes, in the course of peaceful protest does not generally impute high levels of culpability.
33.
It is in this context that the observations of Lord Hoffmann in
Margaret Jones
have resonance. The case concerned many appellants who were said to have caused damage at military bases for which they were criminally responsible, unless there was legal justification for what they were said to have done. The issue in each appeal concerned the legal justification. The common feature of the appeals was that they raised the question whether the crime of aggression, if established in customary international law, was a crime recognised by or forming part of the domestic criminal law of England and Wales. The appellants’ argument was that they acted as they did because they wished to disrupt the commission of that crime, or what they believed would be the commission of that crime against Iraq, by Her Majesty's Government or the Government of the United States. They relied upon the defence that they acted reasonably to prevent crime. Those contentions failed, but Lord Hoffmann made important observations about protest and the criminal process in the course of his speech. They bear repetition:
“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.
90. These appeals and similar cases concerned with controversial activities such as animal experiments, fox hunting, genetically modified crops, nuclear weapons and the like, suggest the emergence of a new phenomenon, namely litigation as the continuation of protest by other means. (See, for examples,
R v Hill (Valerie)
(1988) 89 Cr App R 74
(nuclear weapons)
Blake v Director of Public Prosecutions
[1993] Crim LR 586 (Gulf War)
Morrow, Geach and Thomas v Director of Public Prosecutions
[1994] Crim LR 58 (anti-abortion)
Hibberd v Director of Public Prosecutions (
27 November 1996) Divisional Court, unreported
(
Newbury by-pass)
Hutchinson v Newbury Magistrates' Court
(2000) 122 ILR 499 (Trident missiles)
Nelder v Crown Prosecution Service
(3 June 1998) Divisional Court, unreported (fox hunting)
Lord Advocate's Reference No 1 of 2000 2
001 JC 143 (Trident missiles)
Director of Public Prosecutions v Tilly
[2002] Crim LR 128 (genetically modified crops)
Monsanto v Tilly
[2000] Env LR 313
(genetically modified crops).) The protesters claim that their honestly held opinion of the legality or dangerous character of the activities in question justifies trespass, causing damage to property or the use of force. By this means they invite the court to adjudicate upon the merits of their opinions and provide themselves with a platform from which to address the media on the subject. They seek to cause expense and, if possible, embarrassment to the prosecution by exorbitant demands for disclosure, such as happened in this case.
91. In
Hutchinson v Newbury Magistrates' Court
(2000) 122 ILR 499, where a protester sought to justify causing damage to a fence at Aldermaston on the ground that she was trying to halt the production of nuclear warheads, Buxton LJ said:
"There was no immediate and instant need to act as Mrs Hutchinson acted, either [at] the time when she acted or at all: taking into account that there are other means available to her of pursuing the end sought, by drawing attention to the unlawfulness of the activities and if needs be taking legal action in respect of them. In those circumstances, self-help, particularly criminal self-help of the sort indulged in by Mrs Hutchinson, cannot be reasonable."
92. I respectfully agree. The judge then went on to deal with Mrs Hutchinson's real motive, which ("on express instructions") her counsel had frankly avowed. It was to "bring the issue of the lawfulness of the government's policy before a court, preferably a Crown Court." Buxton LJ said:
"In terms of the reasonableness of Mrs Hutchinson's acts, this assertion on her part is further fatal to her cause. I simply do not see how it can be reasonable to commit a crime in order to be able to pursue in the subsequent prosecution, arguments about the lawfulness or otherwise of the activities of the victim of that crime."
93. My Lords, I do not think that it would be inconsistent with our traditional respect for conscientious civil disobedience for your Lordships to say that there will seldom if ever be any arguable legal basis upon which these forensic tactics can be deployed.
94. The practical implications of what I have been saying for the conduct of the trials of direct action protesters are clear. If there is an issue as to whether the defendants were justified in doing acts which would otherwise be criminal, the burden is upon the prosecution to negative that defence. But the issue must first be raised by facts proved or admitted, either by the prosecution or the defence, on which a jury could find that the acts were justified. In a case in which the defence requires that the acts of the defendant should in all the circumstances have been reasonable, his acts must be considered in the context of a functioning state in which legal disputes can be peacefully submitted to the courts and disputes over what should be law or government policy can be submitted to the arbitrament of the democratic process. In such circumstances, the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury. Evidence to support the opinions of the protesters as to the legality of the acts in question is irrelevant and inadmissible, disclosure going to this issue should not be ordered and the services of international lawyers are not required.
34.
Paragraph 89 echoes the understanding that the conscientious motives of protestors will be taken into account when they are sentenced for their offences but that there is in essence a bargain or mutual understanding operating in such cases. A sense of proportion on the part of the offenders in avoiding excessive damage or inconvenience is matched by a relatively benign approach to sentencing. When sentencing an offender, the value of the right to freedom of expression finds its voice in the approach to sentencing.
35.
The succeeding paragraphs emphasise the limits of an appeal to legal justification in the offending behaviour. But Lord Hoffmann’s
dicta
do not support the proposition that there is a bright line between custody and non-custody in such cases. It should not be overlooked that public nuisance is a serious offence, the commission of which would suggest that the protestor in question has not kept his side of the bargain adverted to by Lord Hoffmann.
36.
Miss Brimelow QC’s research suggests that peaceful protestors have not been imprisoned since 1932 for the commission of offences associated with their protest. That may well be right, but it reflects the operation of the consideration of the factors identified in
Margaret Jones
, rather than a hitherto unspoken rule of law. We have also considered
R v Jones (Annwen)
[2006] EWCA Crim 2942
. The appellants were convicted on their guilty pleas of obstructing a train contrary to
section 36
of
the Malicious Damage Act 1861
, which carries a maximum sentence of two years’ imprisonment. One appellant received a community order which was reduced to a conditional discharge and another a suspended sentence reduced to a community order. They caused disruption and inconvenience for a total of about seven hours. This case also demonstrates the intensely fact specific nature of sentencing in civil disobedience cases, both having regard to the offending and the offender, but nonetheless sensitive to the underlying context.
37.
The long-established recognition in the United Kingdom of the value of peaceful protest, echoed in Lord Hoffmann’s remarks, is a manifestation of the importance attached by the common law to both the right to protest and free speech: see, e.g.,
Hubbard v Pitt
[1976] 1 QB 142
at 174D and 178 per Lord Denning MR;
Bonnard v Perryman
[1891] 2 Ch 269
at 284 per Lord Coleridge CJ (sitting with Lord Esher MR. Lindley, Bowen and Lopes LJJ);
McCartan Turkington Breen v Times Newspapers Ltd
[2001] 2 AC 277
at 297 per Lord Steyn;
R v Shayler
[2003] 1 AC 247
at [21] per Lord Bingham;
Redmond-Blake v DPP
[2000] HRLR at [20] per Sedley LJ. In a free society all must be able to hold and articulate views, especially views with which many disagree. Free speech is a hollow concept if one is only able to express “approved” or majoritarian views. It is the intolerant, the instinctively authoritarian, who shout down or worse supress views with which they disagree.
38.
That importance of freedom of speech and freedom of association is reflected by the ECHR in articles 10 and 11, the first guaranteeing the right to freedom of expression, the second freedom of assembly. Both are qualified rights. Freedom of speech may be subject to “such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the prevention of disorder or crime, [or] for the protection of the reputation or rights of others.” A similar, although not identical, qualification applies to article 11.
39.
There is no doubt that direct action protests fall within the scope of articles 10 and 11: e.g.
Mayor of London (On behalf of the GLA) v Hall
[2011] 1 WLR 504
;
Mayor, Commonalty and Citizens of London v Samede
[2012] 2 All ER 1039
. From time to time the Strasbourg Court has considered the question of the proportionality of a sentence imposed for crime committed in the course of peaceful protest. The principles in play were recently restated in
Taranenko v Russia
(App. No. 19554/05). At [81] the court noted that in
Steel and others v the United Kingdom
(1999) 28 EHRR 603
short terms of imprisonment were proportionate in connection with interfering with a grouse shoot and breaking into a construction site to impede engineering works. At [85] the court recorded that in
Barraco v France
(App. No. 31684/05) a suspended sentence of imprisonment, together with a fine, was a proportionate sanction for a protest which resulted in the severe slowing-down of traffic on a motorway. Reference was made also at [83] to
Drieman and others v Norway
(App.No. 33678/96) which concerned direct action against whaling by Greenpeace where a fine was considered to be proportionate; and at [84] to
Lucas v the United Kingdom
(App. No. 39013/02) where detention for a few hours following arrest for wilful obstruction of the highway and then a fine was proportionate. At [87] the Strasbourg Court said:
“An analysis of the Court’s case-law … reveals that the Contracting States’ discretion in punishing illegal conduct intertwined with expression or association, although wide, is not unlimited. It goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether the penalty was compatible with Article 10 or 11. The Court must examine with particular scrutiny the cases where sanctions imposed by the national authorities for non-violent conduct involve a prison sentence.”
40.
Taranenko
concerned a group of protestors who on 14 December 2004 forced their way into a building used by the President of the Russian Federation and occupied and barricaded themselves into a room on the ground floor. Their original plan had been to meet officials, hand over a petition and distribute leaflets. The action they took was a reaction to the security guards’ attempts to stop them entering the building. Beyond pushing a guard out of the way, there was no violence. Once inside they waved anti-Putin placards from the windows, threw leaflets and chanted slogans calling for his resignation. They stayed for an hour and damaged furniture and the walls and ceilings. The applicant was arrested and charged with criminal damage and the attempted violent overthrow of the state (and later with participation in mass disorder). She was remanded in custody and many requests for release were refused. On 8 December 2005 she was convicted of the mass disorder offence and of criminal damage, although in respect of the latter it was not established that the applicant was personally responsible. The various defendants had voluntarily compensated the state for the damage they had caused. The applicant was sentenced to a suspended sentence of three years’ imprisonment.
41.
The Strasbourg Court, having reviewed the ruling of the court which convicted the applicant, note that her conviction was founded, at least in part, on the Russian court’s condemnation of the political message which the protestors were conveying.
42.
At [93] the court observed that the conduct of the applicant was “closer on the facts to
Steel, Drieman, Lucas and Barraco”
than to a case called
Osmani v the former Yugoslav Republic of Macedonia
(App. No. 50841/99). In that case, the applicant, a mayor, organised an armed vigil to protect the Albanian flag in defiance of an order of the Constitutional Court. He made a speech fomenting interethnic violence. Weapons were found in the town hall and there was a riot involving about 200 people during which police officers were injured. The original sentence of seven years’ imprisonment was severe but, as a result of an amnesty he served 15 months in prison. That could not be considered disproportionate. It continued:
“93. The above circumstances lead the Court to conclude that the present case is different from
Osmani and Others
because the protesters’ conduct, although involving a certain degree of disturbance and causing some damage, did not amount to violence. It is therefore closer on the facts to
Steel and Others, Drieman and Others, Lucas and Barraco
.
94. The exceptional severity of the sanction, however, distinguishes the present case from the cases of
Steel and Others, Drieman and Others, Lucas and Barraco
, where the measures taken against the applicants in comparable circumstances were considered to be justified by the demands of public order. Indeed, in none of those cases was the sentence longer than a few days’ imprisonment without remission, except in one case
Barraco)
where it amounted to a suspended sentence of three months’ imprisonment which was not, in the end, served. The court accordingly considers that the circumstances of the instant case present no justification for being remanded in custody for a year and for the sentence of three years’ imprisonment, suspended for three years.
95. The Court therefore concludes that, although a sanction for the applicant’s actions might have been warranted by the demands of public order, the lengthy period of detention pending trial and the long suspended prison sentence imposed on her were not proportionate to the legitimate aim pursued. The court considers that the unusually severe sanction imposed in the present case must have had a chilling effect on the applicant and other persons taking part in protest actions (see, mutatis mutandis,
Cumpǎnǎ and Mazǎre, cited above, § 116).
43.
The Strasbourg jurisprudence does not support the proposition that detention is necessarily disproportionate for the conduct with which these appeals are concerned. On the contrary, the Strasbourg Court has accepted as proportionate both immediate sentences of imprisonment and suspended sentences in cases where the conduct in question caused less harm and was less culpable. In this way, the ECHR marches with the common law. The underlying circumstances of peaceful protest are at the heart of the sentencing exercise. There are no bright lines, but particular caution attaches to immediate custodial sentences.
The sentence in these cases
44.
The judge noted that each of these appellants was of good character (or effective good character) and referred to the many letters of support setting out the positive nature of that good character, that is beyond the mere fact of absence of previous convictions. His conclusion that the custody threshold was passed, and that he could not suspend the sentences, rested upon three features. First, the widespread harm caused to many people as a result of the extended length of the protest. Secondly, his evaluation that these appellants were culpable because they persevered in their protest despite it being obvious that the impact was severe. Thirdly, that they were unrepentant and adhered to their underlying views and convictions.
45.
Custody is only appropriate if the court considers that the offence (alone or in combinations with one or more other offences) is so serious that neither a fine nor a community sentence can be justified;
section 152
Criminal Justice Act 2003
. That judgement must be made in the light of all the circumstances. In our view, having regard to the good character of these appellants and the underlying motivation for their criminal behaviour, even taking into account the widespread disruption for which they were responsible, the custody threshold was not crossed. Miss Brimelow QC developed detailed submissions on the precise extent of the disruption for which, either alone or combined with the coincident behaviour of others, these appellants were responsible (Ground 3). We consider that the judge, having heard all the evidence, was in an unrivalled position to evaluate that question. We are unpersuaded by an exercise of picking through bits and pieces of the evidence, that he was wrong.
46.
But we respectfully part company with the judge’s unqualified view that these appellants will offend again. Time, of course, will tell.
47.
In concluding that the appellants were likely to reoffend, the judge was unimpressed by their expressions of remorse and good intent for the future. It was in this context that he referred to the deeply held beliefs of the appellants, and the certainty that they were right: see paragraph 30, above. We do not read the judge’s remarks as penalising the appellants for their beliefs. That would be wrong. However, to the extent that it is necessary for the purposes of sentencing to make a judgment about the risks of future offending, underlying motivations can be of great significance.
48.
The appellants expressed regret for what they had done and two of them recognised that their actions, that is to say the extended duration of the protest with its widespread impact, were (we paraphrase) unreasonable and irresponsible. It was on that basis that they asked to be sentenced. The following extracts from the pre-sentence reports illuminate how they reacted.
49.
The report dealing with Mr Roberts notes the evidence “of the elderly who were unable to go out due to no buses, the emergency services, blood transport and patient transport that had to use alternative, longer routes ...”. It continues:
“He stated that after hearing the evidence from during the trial he felt guilt and remorse for their inconvenience and admitted he was naïve, not understanding the consequences of his actions at the time but has had time to reflect. … He asserts that prior to the verdict, he had already made a decision to move away from working with the protest group.”
50.
Mr Loizou’s pre-sentence report contains the following:
“He explained that he thought he was supporting the local community; as it was his understanding they are in the main against fracking in their area. He now accepts his assumptions here were based upon the attitudes of those on the protest likely to share his views. However, he does add that he often received ‘thumbs up’ from drivers who were able to get past the obstruction caused, adding to his feeling that he was doing something positive for the local Community.
Mr Loizou explained that he was disavowed of these views during his trial; whilst he had seen statements indicating the difficulties he caused, he explained that listening to exactly how various people had been impacted brought that home to him. It was apparent in interview that Mr Loizou regretted his actions and expressed remorse for those he harmed as a result of his behaviour.”
51.
The position with Mr Blevin was less clear-cut:
“He claims it never occurred to him how it might be negatively affecting anyone. … He assured me that he cares deeply and had he realised the negative impact of his behaviour he would have come down from the vehicle.
When challenged about his thought process retrospectively Mr Blevins informed me that although climate change is still important to him and he would still campaign to raise awareness, he would not put himself in this position again. Mr Blevins explained how upsetting it had been to hear during the trial how various members of the community had been affected. He tells me that this hadn’t been his intention and if there had been any other way he would have taken a different course of action. He justified his actions informing me that there were no other options available stating ‘conventional routes were not working and voices were being ignored’. Although he verbalises his remorse, his continued justifications call in to question the extent of this.”
52.
When these sentiments are added to the features already referred to, we are reinforced in our view that a custodial sentence was not called for in these cases. A community sentence, with a punitive element involving work (or perhaps a curfew) would have met the justice of the cases. As has often been remarked, a community sentence is a serious penalty. Moreover, if the terms of a community sentence are not complied with, the offender may be resentenced. No complaint could be made about that; and if the original sentence was appropriate there could be no legitimate complaint if non-compliance led to a custodial sentence. The same would be true were a suspended sentence appropriately imposed, a further offence committed, and the sentence then activated.
53.
A person with strongly held beliefs remains free to manifest them when subject to such an order of the court. There are many ways in which peaceful protest can be achieved without breaking the law.
54.
Despite our conclusion that a community sentence was the appropriate disposal in these cases, by the time the appeals came on for hearing, these appellants had spent three weeks in custody, the equivalent of serving a sentence of six weeks. In those circumstances, we concluded that it would not be appropriate now to impose a community order with a punitive element. The time in custody represented adequate punishment. The conditional discharge that we imposed introduced no additional active element of punishment but does provide some protection to the public against repeat offending.
55.
Ground two does not arise in view of our conclusion that the custody threshold was not crossed on the facts of this case. Ground three, to the extent that it arises, is touched on in paragraph 45 above.
56.
It was for the reasons which we have set out that we granted leave to appeal against sentence and allowed the appeals.
|
{"ConvCourtName":["Crown Court at Preston"],"ConvictPleaDate":["2018-08-22"],"ConvictOffence":["Public nuisance (common law)"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Preston"],"Sentence":["16 months’ imprisonment (Blevins and Roberts)","15 months’ imprisonment (Loizou)"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[31,26,36],"OffJobOffence":["Employed","Employed","Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["thousands of people"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["prolonged length of disruption","widespread harm caused to many people"],"MitFactSent":["good character","positive references","remorse expressed by some appellants","no previous convictions (for two appellants)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Immediate custodial sentence is never appropriate for a non-violent crime committed as part of peaceful protest","Custody threshold not crossed; community sentence appropriate","Sentence manifestly excessive given disruption caused by others"],"SentGuideWhich":["Sentencing Council definitive guideline","section 152 Criminal Justice Act 2003"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Good character and underlying motivation for criminal behaviour; even with widespread disruption, custody threshold not crossed; community sentence with punitive element would have met justice of the case"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
|
Neutral Citation Number:
[2017] EWCA Crim 1276
Case No:
201701962/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 15 August 2017
B e f o r e
:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE SWEENEY
MR JUSTICE HOLROYDE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
BENJAMIN BROOKS
- - - - - - - - - - - - - - - - - - - - -
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 Woodward
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
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.
MR JUSTICE HOLROYDE: On 13th February 2017, in the Crown Court at Preston, this appellant, a highly regarded doctor of previous good character, pleaded guilty to four offences against young girls. On 7th April 2017 he was sentenced to a total of 28 months' imprisonment and the usual ancillary orders were made. He now appeals against his sentence by leave of the single judge.
2.
The
Sexual Offences (Amendment) Act 1992
applies to protect the young girls who are the victims of the sexual offences in this case. Accordingly nothing may be published in any report during their respective lifetimes which would identify any one of them as the victim of any of these offences. In addition an order made pursuant to section 45 of the Criminal Evidence and Youth Justice Act 1999 in relation to the fourth complainant and we confirm the order made below. We will refer to each of the complainants solely by initials.
3.
We can deal comparatively briefly with the facts. The appellant was 27 at the time of the offences. He is now 28. He was a qualified doctor, working at a busy hospital in Blackpool. He was well regarded by all who knew him and worked with him. He had achieved a first class degree and in his medical training was said, by at least one of the senior doctors who supervised him, to be simply "outstanding". We have read many testimonials. They speak very highly of his positive good character and attainments. They also express very clearly the utter bewilderment felt by all who know him as to his commission of these offences, which they all regard as entirely out of character for the man they know and admire.
4.
The offences were as follows. At about 8.15 pm on 20th November 2016 and therefore during the hours of darkness, the appellant approached two girls, who were standing together on a street corner. We will refer to them as "C", aged 10 and "M" aged 12. He asked them their names and ages and invited them to walk up the street with him. They refused. He then took hold of C's clothing, pinching the skin of her chest, and asked: "Do you want to see my dick?" He then began to pull his trousers down. Both girls ran away in distress. They went into a nearby shop and tearfully asked to use the phone to call their parents.
5.
Evidence of the impact of this offence, charged in count 1 as an offence of sexual assault of a child under 13, contrary to
section 7 of the Sexual Offences Act 2003
, show that C had become very nervous. She was unwilling to go out on her own. For a time, she insisted on her mother’s being upstairs with her if she took a bath. She suffered nightmares. She began for the first time to get into trouble at school. She became freshly worried when she learned of the offence charged in count 6, to which we will come.
6.
Count 2, an offence of sexual assault, contrary to
section 3
of
the 2003 Act
, was committed on 27th November 2016, at about 6.50 in the evening and therefore again when it was dark. On this occasion the appellant approached two girls, to whom we will refer as "A" and "B", both aged 14, who were near a bus stop. He asked them for advice on which bus he needed to reach a particular destination. He then said that he was going to walk anyway and invited them to walk part of the way with him on the basis that he claimed to be new to the area. They refused and walked away. He followed them. He smacked A's bottom over her clothing. She screamed. The appellant ran off. The girls reported what had just happened to two passersby. One of them chanced to work at the same hospital as the appellant and recognised him.
7.
Only about 15 minute later that evening, the appellant committed a further offence of sexual assault charged in count 3. He approached two other girls, to whom we will refer as "M" and "J". He again asked for directions to his supposed destination. He went on to talk about phones and about banks, giving the girls the impression that he was stalling for time. Suddenly he put his hand down M’s top and inside her bra. He briefly touched one of her breasts. He told her that she had "nice boobs". The girls walked quickly away. They reported what had happened to their parents.
8.
The effect of the offences committed that evening were shown by the impact evidence to be as follows. In relation to count 2, A said that she felt jumpy and scared after the offence. For a time she did not go out at all. Unhappily, when she did go out with her friend B, they again saw the appellant (this seems to have been the occasion of count 6). A also mentioned that she became upset at school whenever she saw a particular teacher who happened to bear some resemblance to the appellant and who therefore reminded her of the incident.
9.
M, the complainant in count 3, also described being very upset. She became nervous about meeting her friends. She worried about what might have happened if she had been on her own and not, as was in fact the case, accompanied by her friend, J. She was shocked when she later learned that the appellant was a doctor. She said it made her wonder whether she could trust anyone in the future.
10.
Two days later, on 29th November, the appellant was arrested. He was released on police bail to return for interview on 28th January 2017. The final offence, charged in count 6 as an offence of intimidation, contrary to
section 51 of the Criminal Justice and Public Order Act 1994
, was committed whilst the appellant was on police bail and indeed the day before he was due to return to the police station.
11.
The victim of count 6 is B, who had made a witness statement about the assault on A. She saw the appellant in the street and immediately ran to the doorway of her father's home nearby. The appellant stood by the gate and called her by name. She ran away. She took shelter in a local shop and the police were called. As a result of that offence she said she felt scared, particularly because the appellant somehow knew her name. She suffered nightmares. She would not go out on her own and she was wary of strangers.
12.
When interviewed on the following day about these offences the appellant's initial reaction was to deny them. But within a matter of a very few days, he made his first appearance before the Crown Court and immediately pleaded guilty to the offences which we have summarised. He duly received full credit for those guilty pleas.
13.
We have also referred to the appellant's positive good character and to the evidence that his behaviour in committing these offences was wholly out of character. The learned judge was assisted by both a pre-sentence report and a psychological report, which sought to explain why such a man should have committed such offences. The clear picture which emerges from the reports is of the appellant being extremely and genuinely remorseful. It seems that, sadly, he had in recent years suffered a number of bereavements and other adverse events. He had been particularly affected by the deaths of persons close to him and by the terminal illness of his stepfather. He was concurrently under very great pressure of work. He was clearly working extremely long hours. He struggled with conflicting desires, on the one hand to pursue a planned relocation with his partner of some 5 years to Australia and, on the other hand, a desire to be near to his mother, in order to assist and comfort her through her husband's illness. The reports indicated that the appellant had simply tried to bottle up all these various emotional stresses, hoping that they would go away rather than seeking any professional help for them.
14.
The pre-sentence report mentioned what we regard as two troubling comments by the appellant. He said that before at least one of the offences he had been "battling with my head, on the one hand to commit an assault and on the other not to". He also expressed the feeling that if he had not been caught as he was, he might well have continued to offend in a similar way. Perhaps partly for that reason the author of the pre-sentence report assessed him as a medium risk of sexual re-offending, with a higher risk of harm to his victim as he did. The psychologist however felt that with appropriate therapeutic and other interventions, any risk of re-offending would be very low.
15.
Counsel relied on these reports and on the appellant's good character to submit that in all the circumstances the appropriate sentence would be a suspended term of imprisonment, with requirements of receiving appropriate counselling and therapy.
16.
In his sentencing remarks the learned judge fully recognised the many good aspects of the appellant's character. He also recognised the extremely heavy punishment which the appellant has brought upon himself: the loss of his reputation; the probable end of his medical career and in addition the loss of his relationship with his partner whom he had hoped to marry but who had ended the relationship as a result of these offences. But, concluded the learned judge, immediate imprisonment was necessary because of the profound effect of his offending on his young victims. Because these were different offences, on different occasions, against different victims, the learned judge concluded that consecutive sentences were appropriate.
17.
Giving credit for the guilty pleas he sentenced as follows: count 1, 6 months' imprisonment; count 2, 6 months' imprisonment consecutive; count 3, 12 months' imprisonment consecutive; count 6, 4 months' imprisonment consecutive. Thus he reached the total of 28 months' imprisonment to which we have referred.
18.
In his written and oral submissions to this court, for which we are grateful, Mr John Woodward submits, first, that the total sentence was far too long in the highly unusual circumstances of this case. In particular, submits Mr Woodward, the learned judge gave insufficient weight to the many points which could be made in the appellant's behaviour. Secondly, submits Mr Woodward, the sentence should not only have been shorter, but should properly have been suspended.
19.
In granting leave to appeal the learned single judge, May J, indicated that in her view the second of those grounds of appeal was doomed to failure because this was a case in which immediate imprisonment was plainly called for. She was however of the view that there were arguable grounds for appealing against the length of his sentence.
20.
We have listened with very great care to Mr Woodward's submissions. It is very sad to see a man with so many positive and commendable features of his character bringing disaster upon himself in this way. The likely ending of the medical career which he had single-mindedly pursued from a comparatively young age is a very heavy blow. Whatever the psychological mechanism which was here engaged, we have no difficulty whatsoever in accepting that the commission of these offences was so wholly out of character as to cause bewilderment to all who know the appellant.
21.
We regret however that we are driven to the conclusion that there is here no basis for challenging the learned judge's decision that immediate imprisonment was unavoidable. These were serious offences, committed against girls who were vulnerable because they were young and causing them significant harm.
22.
As to the length of the sentence, Mr Woodward advances really two points. Firstly, with specific reference to count 2, he challenges the judge's categorisation of that offence under the relevant Sentencing Guideline. Secondly, but more importantly in the context of the case as a whole, he challenges the totality of the sentence.
23.
Consecutive sentences were not here wrong in principle. We can well understand why the learned judge felt that all the sentences should be consecutive. We however, having reviewed the matter, take the view that more weight could and should have been given first, to the principle of totality, and secondly, to the very heavy consequences which the appellant has brought upon himself.
24.
We do not in any way diminish the seriousness of the offences. We do however seek to recognise that this is a young man who has done much good and who has brought upon himself consequences which will adversely affect his life for many years after any sentence the court imposes.
25.
In those circumstances, we have come to the conclusion that the sentence can be reduced to some degree. We quash the decision of the learned judge that the sentence on count 2 should be consecutive to other sentences and we order that it should run concurrently with the sentence on count 3. The effect of that alteration is that the total term of imprisonment is reduced from 28 months to 22 months. We are however not persuaded by Mr Woodward that any further alteration to the sentence can properly be made. We therefore allow the appeal to the limited extent we have mentioned.
|
{"ConvCourtName":["Crown Court at Preston"],"ConvictPleaDate":["2017-02-13"],"ConvictOffence":["Sexual assault of a child under 13 (section 7 of the Sexual Offences Act 2003)","Sexual assault (section 3 of the Sexual Offences Act 2003)","Intimidation (section 51 of the Criminal Justice and Public Order Act 1994)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance"],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Preston"],"Sentence":["6 months' imprisonment (count 1)","6 months' imprisonment consecutive (count 2)","12 months' imprisonment consecutive (count 3)","4 months' imprisonment consecutive (count 6)","Total: 28 months' imprisonment (original)","Total: 22 months' imprisonment (after appeal)"],"SentServe":["Consecutive","Concurrently"],"WhatAncillary":["usual ancillary orders"],"OffSex":["All Male"],"OffAgeOffence":[27],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["4"],"VicSex":["All Female"],"VicAgeOffence":[10,12,14,14],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony","Witness recognition"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["Medium risk of reoffending","High risk of harm"],"AggFactSent":["Offence committed while on bail","Victims were young and vulnerable","Significant harm to victims"],"MitFactSent":["Offender showed genuine remorse","Offender has no relevant previous convictions","Offender of positive good character","Offender suffered recent bereavements and emotional stress","Offender lost career and relationship as a result"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["Sentence was too long in the circumstances","Sentence should have been suspended","Insufficient weight given to mitigation","Error in categorisation under Sentencing Guideline","Totality principle not properly applied"],"SentGuideWhich":["Sentencing Guideline (not specified)"],"AppealOutcome":["Allowed and sentence reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["More weight should have been given to totality and to the heavy consequences suffered by the appellant"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Immediate imprisonment was unavoidable due to seriousness and harm to victims"]}
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No:
200700854/A2
Neutral Citation Number:
[2007] EWCA Crim 1357
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Wednesday, 2nd May 2007
B E F O R E:
SIR IGOR JUDGE
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE GOLDRING
MRS JUSTICE SWIFT DBE
- - - - - - - -
R E G I N A
-v-
BRIAN MAURICE HOGG
- - - - - - -
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 H SOUTHEY
appeared on behalf of the APPLICANT
- - - - - - -
J U D G M E N T
1.
MRS JUSTICE SWIFT: The applicant in this case seeks an extension of time in which to appeal and leave to appeal against a sentence which was imposed on 19th November 2002. The applications have been referred direct to the Full Court by the Registrar of Criminal Appeals.
2.
The applicant, who is now 64 years old, has 14 previous convictions for sexual offences. Between 1959 and May 1968, he was convicted of eight offences of indecent assault, with a further 17 offences taken into consideration. In April 1987 he was given a life sentence, subsequently varied on appeal to 10 years' imprisonment, for five offences of buggery with a boy under 16 and 5 years' imprisonment concurrent for an offence of attempted rape. Twenty-five further offences were taken into consideration on that occasion.
3.
On 12th December 2001, in the Crown Court at Maidstone, the applicant pleaded guilty to five offences of indecent assault on a male under 14 and three offences of indecency with a child. On 18th November 2002 he was convicted of two offences of rape and a further offence of indecency with a child.
4.
On 19th November 2002 he was sentenced as follows: for the two offences of rape, he was given a sentence of life imprisonment on both concurrent. He qualified by virtue of his previous conviction for attempted rape for an automatic life sentence. The view of the very experienced and highly regarded judge who heard the case was that, in any event, this would have been a case for a discretionary life sentence. For five offences of indecent assault, he received sentences of 5 years' imprisonment on each concurrent to each other and concurrent to the life sentence. For the three offences of indecency with a child, he again received sentences of 5 years' imprisonment on each concurrent and concurrent to the life sentence. For the offence of indecency with a child for which he was convicted, he received a sentence of 7 years' imprisonment concurrent. The total sentence was therefore a period of life imprisonment .
5.
The applicant's co-accused was a man named Jeremy Thorpe Wing, who also had convictions for sexual offences in respect of children. He lived at a house near Orpington in Kent. The house had a large garden and was equipped with computers, go-carts, kites, waterguns and other toys and the young boys who visited were given sweets and money and allowed to play with the various toys and equipment which we have mentioned. In fact the purpose of these attractions was to assist in grooming the boys for purpose of sexual abuse by Wing. Inside the house was fitted with a system of hidden video cameras to film the sexual activity that took place there.
6.
The allegations against this applicant concerned two boys. The first of these was a boy called J, who was 7 years old when the applicant first met him in August 1999. He was the son of a friend of Wing who regularly carried out handywork for him in the outbuildings of his house.
7.
From about the beginning of 2000, J would regularly spend time in Wing's house whilst his father was working outside. He was subjected to sexual assaults by Wing, many of which were recorded on video. Wing indecently assaulted him by touching his penis and anus and penetrated his anus digitally and with various objects, including vibrators. In addition, he had anally raped him. He encouraged J to perform sexual acts on him.
8.
All these matters came to light on 9th August 2001 when police officers executed a search warrant at Wing's home. The cameras and video films were found. While the police were there, J and his father arrived. The officers immediately recognised J as the boy depicted in one of the video films and he was examined and interviewed.
9.
The applicant lives in Cambridgeshire and was a frequent visitor to the house. He too indecently assaulted J by touching his penis and anus on many occasions. Those were the subject of two of the counts of indecent assault. He digitally penetrated J's anus on more than one occasion. This was the subject of two of the counts of indecency with a child. He admitted these offences. He was also convicted of one offence of raping J and one of inserting a vibrator into his anus. The latter formed the basis of the third count of gross indecency.
10.
The second boy concerned in these offences, L, was first taken to Wing's house in the summer of 2000, when he was 7 years old. He was a particularly vulnerable boy, described by his mother as very trusting. He had been statemented for special needs. He and his family lived in Cambridgeshire near to this applicant and were known to him. He introduced them to Wing and L visited Wing's house on about eight occasions, sometimes with adult members of his family, sometimes alone or with his siblings. Wing and the applicant took him swimming on two occasions. Video films seized from Wing's house showed Wing indecently assaulting L and digitally penetrating him. This applicant was also seen to indecently assault him. In addition he admitted indecent assaults on L in the car during the drive back to Cambridgeshire and at L's own home. Those were the subject of the three further counts of indecent assault. He was convicted of one offence of the anal rape of L.
11.
Wing pleaded guilty to 12 offences of indecency with a child, two offences of rape and one of taking an indecent photograph of a child and he too was sentenced to life imprisonment.
12.
In sentencing the applicant the judge observed that he was an evil and wicked man, who was committed, resourceful and an unrepentant paedophile. He had a depraved, deviant sexual interest in young boys who had no understanding of what he did to them or what he made them do. Together with Wing he had destroyed the innocence of these two boys.
13.
Although the applicant's involvement was less than that of Wing, he had contested the rapes and thought only of himself and not the children. That, said the judge, underlined the gravity of the conduct. He was a danger to young boys. He qualified for a life sentence because of his conviction for attempted rape in 1997, but in any event he satisfied the criteria for a life sentence for the instant offences. The judge went on to say this:
"Where discretionary life sentences or automatic life sentences are passed on defendants, as I have done here, I am required in normal circumstances under
section 82A of the Powers of Criminal Courts (Sentencing) Act 2000
to specify a minimum period before which each of you cannot be considered for parole. In my judgment, in this case such is the history of child abuse in each of your cases over such a long period as I have been told about, such is the danger, which in my judgment you present to young boys, that I regard it as inconceivable for any future Secretary of State will ever regard it as safe to release you back into the community. In these special circumstances I make no recommendation as to any minimum period after which you would be considered for parole."
14.
The grounds of appeal are that the life sentence imposed in this case was wrong in principle because a minimum term should have been imposed. Over 4 years had elapsed between the passing of the sentence and the filing of the notice of appeal. It is said that the applicant did not appeal initially as he was wrongly advised that a minimum term had been set in his case. In fact, of course, no minimum term had been set for the reasons given by the judge. In those circumstances, it is argued that it would be wrong not to permit this appeal to proceed despite the delay.
15.
Section 82A(4) of the Powers of Criminal Courts (Sentencing) Act 2000
permits a judge to impose a life sentence without setting a minimum term. It applies whether the life sentence is automatic or discretionary. The subsection provides that:
"If the offender was aged 21 or over when he committed the offence and the court is of the opinion that because of the seriousness of the offence or the combination of the offence and one or more offences associated with it no order made under subsection (2) above, the court shall order that the early release provisions shall not apply to offender."
16.
For the applicant, Mr Southey submits that the factor which determines whether or not a minimum term should be set is the seriousness of the offence or offences, not the risk posed by the offender. Issues of risk are addressed by the Parole Board when it comes to consider whether or not to release the offender at the expiration of the minimum term. He refers to the case of the
R v Hollies
(1995) 16 Cr App R(S) 463, in which Stuart-Smith LJ said this:
"There is thus a clear division of function. The judges are to decide the period which the prisoner should serve by way of punishment or deterrence. The Board must decide whether he still presents a danger to the public. If he does not, he must be released. That means that, save in cases of most exceptional gravity where the judge thinks the prisoner should remain a prisoner for the rest of his normal life, he should specify a period. It is clear that the exceptional cases which do not attract a mandatory life sentence will be rare indeed."
Mr Southey submits that, serious though the applicant’s offences were, they did not fall within that rare and exceptional category of case whose seriousness that justifies a whole life sentence.
17.
We accept Mr Southey's submissions. The imposition of a life sentence is designed to protect the public from the offender, whereas the period specified under
section 82A
is meant to reflect the degree of punishment, retribution and deterrence appropriate for the offence. In determining whether or not to impose a minimum term, the court is required by the terms of section 82A(4) to consider the seriousness of the offence or combination of offences. Only in a rare and exceptional case will it be appropriate not to impose a minimum term. Although the offences committed by this applicant were very grave, involving as they did the corruption and abuse of very young boys, we agree that they did not come within that rare and exceptional category. It seems to us, from the judge's remarks, that in deciding not to impose a minimum term he had in mind primarily the need to protect other young boys from the applicant in the future. We can well understand his concern in this regard. Nevertheless, that was not the appropriate criterion to be applied, and we are satisfied that a minimum term should have been specified on the facts of this particular case. That does not, of course, mean that the applicant will necessarily be released at the expiration of the minimum term. He will be kept in custody unless and until he is no longer considered to present a continuing risk.
18.
The applicant should not, in our view, be penalised because he was not immediately alerted to the true legal position as to his sentence. Accordingly, and despite the long time that has elapsed, we shall grant him the extension of time sought and give him leave to appeal against sentence. From henceforth, we shall refer to him as the appellant. How long then should the specified minimum term be?
19.
Mr Southey has realistically recognised that the minimum term must be a substantial one. He contends, by reference to the leading case of
R v Millberry & Ors
[2003] 2 Cr App R(S) 31, that the appropriate starting point would be one of 15 years for the notional determinate sentence, and given the aggravating factors in this case, he recognises that a notional determinate period of 16 years may be more appropriate, producing a specified minimum period of 8 years.
20.
Two boys were involved in these offences and both were abused over a substantial period. The offences were committed in co-operation with the co-accused, Wing. The applicant would travel to his home in the hope of having sexual activity with one of the boys. The applicant himself introduced one of the boys to his co-accused. He ingratiated himself with the boy's family and played an active part in grooming him. His victims were young and in one case particularly vulnerable. The applicant had a shocking record for sexual offences and had previously been sentenced to 10 years' imprisonment for offences of buggery. In relation to the offence of rape the mitigation of a guilty plea is not available to him.
21.
In all the circumstances, we consider that the appropriate notional determinate sentence is one of 20 years. The minimum term will be fixed at half that period. That is 10 years. The applicant will receive credit for the 465 days spent in custody on remand. To that extent the appeal will be allowed.
|
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|
Neutral Citation Number:
[2024] EWCA Crim 490
Case No:
2024/00651/A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM
MR JUSTICE TURNER
U20231322
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
14 May 2024
Before:
THE LADY CARR OF WALTON-ON-THE-HILL
THE LADY CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE EDIS
and
MR JUSTICE GARNHAM
- - - - - - - - - - - - - - - - - - - - -
REFERENCE BY HIS MAJESTY’S SOLICITOR GENERAL
UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988
Rex
v
Valdo Calocane
- - - - - - - - - - - - - - - - - - - - -
Deanna Heer KC
(instructed by
His Majesty’s Attorney General
) for the
Attorney General
Peter Joyce KC and Lucy Thandi
(instructed by
Bhatia Best
) for the
Respondent
Hearing date: 8 May 2024
-----------------------
APPROVED JUDGMENT
This judgment was handed down at 10.00am on Tuesday 14 May 2024 in Court 4 and released to the National Archives.
-----------------------
The Lady Carr of Walton-on-the-Hill, LCJ:
Introduction
1.
In the early hours of the morning of 13 June 2023, Valdo Calocane went out on the streets of Nottingham, having armed himself with knives. He attacked and killed Barnaby Webber and Grace O’Malley-Kumar, two students walking home from a night out. Just over an hour later, he attacked a school caretaker, Ian Coates, who was on his way to work, killed him and stole his van. He then drove to the city centre, where he deliberately drove the van, at speed, into another man, Wayne Birkett, causing him a serious brain injury. Minutes later he deliberately drove into two other victims, Sharon Miller and Marcin Gawronski, also causing serious injury. These were random attacks: none of his six victims were known to the offender.
2.
These offences understandably caused shock and concern throughout the country, and beyond.
3.
On 28th November 2023, in the Crown Court at Nottingham, the offender pleaded guilty to three counts of manslaughter, and three counts of attempted murder.
4.
On 24 January 2024, again at Nottingham Crown Court, the offender was sentenced by Turner J. The unanimous opinion of the medical experts retained by the prosecution and the defence was that the offender was suffering from paranoid schizophrenia at the time when he committed these offences. The judge sentenced the offender to a hospital and restrictions order, pursuant to ss. 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”) (“a hospital and restrictions order”), for each offence, to run concurrently.
5.
The Solicitor General seeks leave to refer these sentences to this Court under s. 36 of the Criminal Justice Act 1988 on the basis that they are unduly lenient. It is said that the judge failed to reflect sufficiently the multiple aggravating features of the offending when arriving at an appropriate minimum term of imprisonment under a life sentence. Further, the judge failed to take sufficient account of evidence to the effect that the offender’s culpability was not extinguished by his mental illness, and the extent of the harm caused. He was wrong not to include a penal element in the sentence. It is submitted that the overall seriousness of the case required the imposition of a life sentence of imprisonment with a hospital and limitation direction pursuant to s. 45A of the 1983 Act (“a hybrid order”).
The facts
6.
On 12 June 2023, the offender, who was then in London, inserted a new SIM card into his mobile telephone. At 19:00 he telephoned his brother, Elias Calocane, and told him:
“This is the last time I will talk to you. After this I will leave you alone…Disassociate yourself from me. If anything happens don’t come and see me in hospital…this is not mental illness, I am fine. I’m not ill but there is 2-way communication and 24 / 7 voices in my head, they are intelligent people and they are making threats…I will send you the files I sent to Mum at Christmas… I know what is happening is real.”
7.
The offender subsequently sent his brother some zipped files which included documents which referred to the offender hearing voices in his head and his belief that his brain was under surveillance and being controlled.
8.
That evening, the offender travelled by train from St Pancras station to Nottingham where he was seen alighting from a train at 23:30. CCTV footage shows him leaving the station dressed in a black top and trousers and wearing a black beanie-hat, pulled down so as to cover the top half of his face. He was carrying a holdall and a rucksack which was subsequently found to contain multiple weapons, including three knives and a metal scaffolding pole.
9.
At 03:03 on 13 June 2023 the offender turned off his mobile phone as he walked towards the area of Ilkeston Road where he hid in an alleyway.
Counts 1 and 2: Barnaby Webber and Grace O’Malley-Kumar
10.
Shortly before 04:00 two students, Barnaby Webber and Grace O’Malley-Kumar, both aged 19 years, were walking home along Ilkeston Road following an end-of-term night out in the city centre. They were almost home when the offender emerged from his hiding place and attacked them.
11.
Much of the attack was captured on CCTV footage. The offender took a knife from his bag and repeatedly stabbed Barnaby Webber, inflicting grave injuries which caused him to fall to the ground. Grace O’Malley-Kumar tried to intervene by pushing the offender away and into the road. However, the offender turned his attention to her and, during a fight which lasted over 30 seconds, he repeatedly stabbed her. Having done so, he returned to Barnaby Webber and continued his attack on him as he lay on the ground. The footage shows that, despite her injuries, Grace O’Malley-Kumar tried to follow him but her injuries were too severe and she collapsed. The offender then walked calmly away.
12.
Neighbours, alerted by screams outside, called the emergency services who arrived at the scene within minutes. They found Barnaby Webber and Grace O’Malley-Kumar lying unresponsive on the ground. Both were taken to hospital but their injuries were un-survivable. Grace O’Malley-Kumar was pronounced dead at 04:51. Barnaby Webber was pronounced dead at 05:20.
13.
Post mortem examinations were conducted. The cause of Barnaby Webber’s death was stab wounds to the chest and abdomen. He had suffered 10 stabbing injuries which caused damage to his liver, lung and intestines. A stab wound to the pelvis entered the left common iliac vein resulting in profuse bleeding. This wound, in combination with the others, resulted in death. Barnaby Webber had also suffered defensive injuries to his left arm and hand.
14.
The cause of Grace O’Malley-Kumar’s death was also stab wounds to the chest and abdomen. She had suffered 23 stabbing injuries together with bruising and abrasions. There were injuries to her liver, kidney, the left ventricle of her heart, the pleural cavity including the lungs, the 5
th
rib and 6
th
rib cartilage and the organs of the abdominal cavity She also suffered defensive injuries to her left arm and hand.
15.
Having killed Barnaby and Grace, the offender walked towards the city centre. At 04:47 he turned his telephone back on and phoned his brother, Elias. He said, ‘
This will be the last time I speak to you. Take the family out of the country
’. Elias asked him: ‘
Are you going to do something stupid?
’ The offender replied, ‘
It’s already done
’.
16.
At 05:01 the offender arrived at Seely Hirst House, a hostel for vulnerable homeless adult men, and tried to get into the building, firstly through a ground floor window and subsequently through a second floor window. However, he was confronted by a security guard and a resident, who punched him in the face, causing him to retreat. He initially walked away up the road but returned two minutes later. Having checked the road for witnesses, he struck a window repeatedly using the metal scaffolding pole from his backpack before walking away. His fingerprints were later identified on a window at Seely Hirst House.
Count 3: Ian Coates
17.
As the offender was trying to smash his way into Seely Hirst House, Ian Coates, aged 65 years of age, was driving past in his Vauxhall Vivaro van on his way to work as a caretaker at a nearby school. He stopped his vehicle within a few hundred yards of Seely Hirst House and was then attacked by the offender. This incident was not captured on CCTV footage. The offender was later to tell a consultant psychiatrist, Professor Blackwood, that he came across Ian Coates in his van, and stabbed him in the driver’s seat before taking the vehicle from him to continue his assault.
18.
A witness in another vehicle saw the offender stabbing Ian Coates multiple times. The offender then took Ian Coates’ van, leaving him for dead, and followed the witness a short distance before driving away in a different direction.
19.
Police and paramedics arrived to find Ian Coates lying unresponsive in the road, bleeding heavily. All efforts to save him were unsuccessful and he was pronounced dead at the scene at 05:52.
20.
Following post mortem examination, the cause of his death was given as stab wounds to the chest. Mr Coates had suffered 15 stab wounds together with abrasions and bruises, The stab wounds had caused internal injuries including to both ventricles of his heart and his right lung, which resulted in profuse bleeding. Injuries to his sternum and fractures to his ribs indicated that these wounds had been inflicted with severe force. He also had defensive injuries to his right thumb and left hand.
21.
The offender drove to the city centre where, by 05:15, there were multiple pedestrians on the pavements.
Count 4: Wayne Birkett
22.
Wayne Birkett, aged 59 years, was crossing Milton Street in the city centre and had almost reached the opposite pavement when the offender violently changed direction and deliberately drove at him, colliding with him from behind before driving away.
23.
Wayne Birkett’s body was thrown into the air before he landed on the pavement causing injury to his head. He was taken to hospital where CT scans revealed bruising to the brain. In addition, he had suffered fractures of the skull, fractures to the pelvis and a fractured rib. An X-ray revealed an injury to his right shoulder which had become separated from his collar bone. He was discharged to a rehabilitation unit for patients with brain injuries. Although the long term effects of his brain injury are difficult to predict, it is likely that it will have a significant impact upon him for many years. Common long-term complications include, seizures, headaches, changes in personality, depression, tiredness and difficulties with concentration and memory.
24.
About 5 minutes later, at 05:29, the van driven by the offender was spotted by the police as it travelled along South Sherwood Street towards Market Street. The officers activated the blue lights on their marked police car but the offender did not stop and instead accelerated away.
Counts 5 and 6: Marcin Gawronski and Sharon Miller
25.
At 05:30 Marcin Gawronski, aged 40 years, and Sharon Miller, aged 44 years, were walking to work. They were on a pedestrian central reservation in Market Street when the offender deliberately changed direction and drove into them at speed from behind, propelling their bodies on to the pavement.
26.
They were taken to hospital. Marcin Gawronski was found to have suffered a fractured rib, a cut to his head and pain over his left chest and right leg. He was admitted overnight for observations and discharged the following day with pain relief. Sharon Miller had fractures to two ribs, a broken toe and a suspected laceration of the spleen. There were large abrasions to her right arm and right thigh and she had pain in her right chest, hip and left foot.
Arrest
27.
The offender returned to the carriageway and drove towards Radford. By now the van had significant damage to the windscreen and the bonnet, resulting from the collisions with the pedestrian victims.
28.
Officers in a marked police vehicle followed the offender to Bentinck Road, where the offender stopped. He was found sitting in the driver’s seat holding a knife in his hand. When police officers deployed their Tasers, he dropped the knife into the footwell. At 05:35 he was arrested.
29.
The offender’s hands and clothing were bloodstained. Blood on his hands matched that of Ian Coates, and the blood of Barnaby Webber and Grace O’Malley-Kumar was found on his clothing. The knife was also stained with the blood of Grace O’Malley-Kumar and Ian Coates.
30.
A rucksack was recovered which contained a knife, a Gerber survival knife, and a length of scaffold pole.
31.
The van was examined. Although there was impact damage to the bonnet and windscreen, there were no other faults which could have caused or contributed to the collisions. Subsequently, a collision investigator, having considered the evidence, ruled out the possibility that either collision was anything other than deliberate.
32.
The offender was taken to Nottingham Custody Suite. He initially refused to engage and declined to provide samples for toxicology. At 16:00 he was assessed to be fit for interview in the presence of an Appropriate Adult but throughout subsequent interviews he made no comment to all questions.
The offender’s history, and the medical evidence that was placed before the Court
33.
The offender was born on 4 September 1991. He was therefore aged 31 at the time of the offences and is now aged 32.
34.
He was born in Guinea-Bissau and came to the United Kingdom with his family when he was 16 years old, settling in Wales. He left school in 2011 and worked as a labourer or cleaner. He moved to Birmingham and undertook a Higher Education course, gaining a place to study mechanical engineering at Nottingham University. He completed his course and obtained a class 2:1 degree in June 2022.
35.
The offender’s mental health problems do not appear to have started until 2019, and he has no previous convictions recorded against him.
36.
During the course of proceedings, the offender’s mental health was assessed by the following consultant forensic psychiatrists, whose reports were before the Court:
i.
Dr Leo McSweeney was instructed on behalf of the offender and provided reports dated 25 August 2023 and 12 January 2024;
ii.
Dr Mohammed Shaffiullha was instructed on behalf of the offender and provided a report dated 19 November 2023;
iii.
Professor Nigel Blackwood was instructed on behalf of the prosecution and provided reports dated 23 November 2023 and 22 January 2024.
37.
In addition, Dr Richard Latham was instructed on behalf of the prosecution to review these assessments, providing a report dated 23 December 2024. Dr Mirvis, the offender’s treating clinician at Ashworth High Secure Hospital, also provided a report prior to sentence, dated 14 January 2024.
38.
These reports provide a detailed history of the offender, which can be summarised as follows:
i.
On 23 May 2020 the offender presented at A&E, believing he was having a heart attack. He returned to his flat 13 hours later and knocked a door down to gain entrance to a neighbouring flat. He was arrested for causing criminal damage. An assessment under the 1983 Act by Liaison and Diversion psychiatric services concluded that he was psychotic, and suffering from paranoid delusions that his mother was being detained and harmed in a neighbour’s house, but that the risk to others was low, and that he should be referred in the first instance to the Crisis Team for review at home. The offender was released without charge.
ii.
Upon his return home an hour later he knocked down another door to a different flat. He was again arrested for criminal damage. Following a re-assessment, he was detained under the 1983 Act and admitted to Highbury Hospital on 25 May 2020. He was treated with an anti-psychotic medication and on 17 June 2020 he was discharged to the care of the Nottingham City Crisis Team. He was advised to take the medication for a minimum of 6 to 9 months, and to seek medical advice if he wished to stop taking it.
iii.
Between 14 and 31 July 2020 the offender was readmitted to Highbury Hospital under s. 3 of 1983 Act, having stopped taking his medication and forced his way into another apartment. He was diagnosed with paranoid schizophrenia and his anti-psychotic medication was restarted and increased. Thereafter he was managed in the community by the Early Intervention in Psychosis team. His medication was increased twice.
iv.
It was whilst the offender was at university that his brother, Elias Calocane, became aware that the offender was suffering from mental health problems, believing that he was being spied on by his housemates and by MI6 and that his family was under threat. Elias Calocane believes that the offender was prescribed medication but that he stopped taking it, leading to further declines in his mental health.
v.
In May 2021 the offender attended at MI5 at Thames House asking to be arrested. At this stage, the offender’s family had become concerned about his mental health again. Themes included voices telling him that his family members would die. This was not reported during a home visit review by medical staff on 10 August 2021. It is now apparent that the offender was, at that stage, actively concealing symptoms of psychosis.
vi.
Whilst the offender asserted that he was content to continue taking medication, it appears he was not in fact compliant. On 31 August 2021 he admitted that he had stopped taking his psychotropic medication and had no intention of continuing with his treatment. He set out his view that he had never been mentally unwell but that he was the victim of a conspiracy and the voices he experienced were the creation of mental health services.
vii.
The offender subsequently evaded contact with the community team, and a warrant under s. 135 of the 1983 Act was secured to gain entry to his property in order that an assessment could be conducted. The warrant was executed on 3 September 2021, on which occasion he assaulted a police officer. A bag of unused medication dating from February 2021 was discovered in the flat. He was charged with assaulting an emergency worker but subsequently failed to attend Court and a warrant was issued for his arrest. This warrant remained outstanding at the time of the offences on 13 June 2023.
viii.
The offender was admitted to inpatient services under s. 2 of the 1983 Act and managed between September and October 2021. Thereafter he had limited contact with his community team, appearing confrontational and missing appointments.
ix.
In mid-January 2022 the offender was involved in an altercation with a flat-mate. An assessment under the 1983 Act concluded that he could continue to be treated in the community; however, he did not engage adequately thereafter with the Home Treatment Team.
x.
On 27 January 2022, a further 1983 Act assessment was conducted at the offender’s flat, and he was admitted as an inpatient pursuant to section 2, where he was treated for 3 weeks. He was discharged on 24 February 2022 to the care of the City South team.
xi.
On 14 March 2022 the offender was reviewed in an outpatient clinic, on which occasion he presented well. Thereafter he attended the community service intermittently to collect his medication until early July 2022, but was noted to appear unkempt and to look suspicious.
xii.
In mid-July 2022 the offender was prompted to collect his medication, but claimed that he was not in the country.
xiii.
On 4 August 2022 the offender was not at home on a visit to his discharge address, and the resident stated that no one of that name lived there.
xiv.
In September 2022 the Mental Health Team responsible for the offender’s care lost contact with him and discharged him to the care of his GP.
xv.
On 1 May 2023 the offender started working in the Avarto Warehouse in Kegworth, Leicestershire. On 5 May 2023 he attacked two employees. Following that incident efforts were made to contact him to tell him that he was not allowed back on the premises, but he never answered. On Friday 9 June 2023 the offender contacted his recruitment consultant and demanded that the company delete all records relating to him: he was told that this could not be done. The offender said he would be in touch again on Monday 12 June 2023.
xvi.
On 1 November 2023 the offender was transferred from prison to Ashworth High Secure Hospital.
39.
The psychiatric opinion evidence was largely agreed and can be summarised as follows:
i.
The offender was suffering from a recognised mental condition, namely paranoid schizophrenia. He had been diagnosed with this condition prior to the offences and continued to suffer from it at the time of the offences and subsequently.
ii.
Although he was able to understand the nature of his conduct (although Dr Shaffiullha did not agree with that assertion), at the time of the offences, his recognised medical condition resulted in an abnormality of mental functioning, namely psychosis, which substantially impaired his ability to form a rational judgement and to exercise self-control.
iii.
His symptoms included persecutory delusional beliefs, hallucinations, thought alienation and disturbed behaviour.
iv.
His mental functioning explained the offences: had he not been experiencing symptoms of acute psychosis which grossly distorted his interpretation of reality, he would not have perpetrated the acts.
v.
There was no evidence to suggest that the offender’s mental illness was precipitated or exacerbated by illicit drug use.
vi.
There was no evidence of criminal behaviour by the offender prior to the onset of his mental illness. All his previous acts of violence and aggression appeared to be closely linked to psychotic episodes.
vii.
The offender’s insight into his mental health was limited. This was a symptom of his mental illness.
40.
As to disposal, those psychiatrists who expressed an opinion, namely Professor Blackwood and Drs McSweeney and Mirvis, agreed that a hospital order with restrictions was appropriate. The views they expressed, in summary, were as follows:
i.
The offender was suffering from a mental disorder, namely paranoid schizophrenia, which was of a nature and degree which made it appropriate for him to be detained in hospital for medical treatment pursuant to s. 37 of the 1983 Act. The required treatment was available at Ashworth High Secure Hospital.
ii.
The offender is dangerous. He posed a risk of grave harm to others which is strongly linked to his susceptibility to losing touch with reality in the context of psychotic episodes. Therefore, a restrictions order pursuant to s. 41 of the 1983 Act was required for public protection.
iii.
In Professor Blackwood’s opinion, whilst the harm caused by the offender was at the highest level, the offender’s ‘retained responsibility’ was nevertheless at the:
“… lower end of the spectrum. He retains some responsibility in that he was not insane at the time of the index assaults. However, there was substantial impairment of his ability to form a rational judgment and to exercise self-control, and the assaults would not have occurred but for his psychotic symptoms. The offending was in my view entirely attributable to his mental illness. His failure to comply with the prescribed oral anti-psychotic medication in (at least) the twelve months before the index offence was in my view not a culpable omission, but rather one determined by his lack of insight into his illness, an integral feature of the disorder.”
iv.
A ‘hybrid’ order would not provide the public with the same level of public protection as would a hospital and restrictions order:
a)
Since the offending was strongly linked to the offender’s paranoid schizophrenia, public safety was reliant on effective treatment, in this case, clozapine and therapeutic treatment.
b)
If effective, a hybrid order would result in the offender being transferred to prison to serve the remainder of his sentence. However, in a prison setting, the offender could not be compelled to receive treatment. Given his lack of insight, there was a real risk of relapse. Further, clozapine could be challenging to manage in prison.
c)
Release from prison is governed by the Parole Board and monitoring in the community would be conducted by a probation officer who may be less able to identify signs of relapse and whose recall powers are less responsive than the recall provisions following conditional discharge from a hospital order.
d)
A hospital and restrictions order would likely result in the offender remaining in hospital for many years. Discharge is determined by the Secretary of State or the First Tier Tribunal (Mental Health) (“the Tribunal”). A conditional release into the community would be under medical supervision allowing swift recall to hospital were the offender to stop complying with his treatment regime.
The proceedings, and the victim impact statements
41.
The offender was charged on 16 June 2023 and appeared before the Nottingham Magistrates’ Court on 17 June 2023, when his case was sent to the Crown Court. The Defendant gave no indication as to plea but indicated that the issue was ‘
fitness to plead
’.
42.
On 28
November 2023 the case was listed for a plea and trial preparation hearing when the offender was arraigned. He was charged with the murder of Barnaby Webber, Grace O’Malley-Kumar, and Ian Coates, and with the attempted murder of the other three victims. On counts 1 – 3 he pleaded not guilty to murder but guilty to manslaughter. On counts 4 – 6 he pleaded guilty. By that stage psychiatric reports were available from Dr McSweeney, Professor Blackwood and Dr Shaffiullha. As a result of concerns raised by members of the bereaved families, the prosecution applied for an adjournment to obtain a further report from Dr Latham, who was asked to review the psychiatric evidence.
43.
On 19 December 2023 the prosecution indicated that the offender’s pleas of not guilty to murder but guilty to manslaughter were acceptable. The matter was adjourned for sentence administratively.
44.
A
number of victim personal statements were put before the Court. The key points included the following:
i.
Emma Webber and David Webber (Barnaby Webber’s parents) spoke of their rage at the fact their son was stolen from them, their feelings of guilt that they could not protect him, the devastation that the offender had caused to their family and their determination to ensure that justice was done and that the offender was properly punished. Charlie Webber (Barnaby’s brother) described how he wanted to set the world on fire when he heard of his brother’s killing, such was his anger and grief. A family friend, Tom Yap, described how his life had been permanently changed by the offender’s actions. Emily Yap described how she had become scared and anxious about her safety and that of her friends and family, such that she couldn’t sleep and her relationship with her partner had broken down.
ii.
Drs Sanjoy and Sinead O’Malley-Kumar (Grace O’Malley-Kumar’s parents) described their absolute desolation and unfathomable grief at her loss. Her mother, a Consultant Anaesthetist, found that she could no longer perform her role in the operating theatre, knowing how her daughter had been “butchered”. Her father described his feelings of grief and his inability to accept any psychiatric evidence that reduced the offender’s responsibility for what he had done. James O’Malley-Kumar (Grace’s brother), Shashi Kumar (her grandfather), Sunil Kumar (her uncle), Catherine O’Malley and Emma Kumar (her aunts), Helen Prescott-Morrin (her teacher) and a number of family friends all spoke of their pride in Grace, who was also studying to be a doctor, and their inconsolable grief at the loss of someone so loved and with so much promise.
iii.
James Coates (Ian Coates’ son) explained how his father, having worked hard all his life, was only weeks away from retirement when he was killed. His partner, Elaine Newton, could no longer sleep such was her anxiety and she struggled to eat properly and function day to day. Susan Coates (his sister) said life had become a daily battle of emotions and vulnerability.
iv.
Wayne Birkett explained how he had lost his independence and was now fully dependent on his partner, Tracey Hodgson, being unable to carry out basic functions. He had lost his memory such that he was unable to recognise his family or recall his life before the incident. Only now was his memory starting to return. The pelvic injuries meant that he struggled to walk and suffered immense pain in his legs which interfered with his sleep. His normal life had been ruined and sometimes he felt like ending it. His partner had given up work to be his full-time carer. Financially, they had suffered. She described how Wayne Birkett’s personality had altered as a result of the brain injury, becoming childish and stubborn and suffering mood swings. Their life had completely changed as a result of the incident.
v.
Marcin Gawronski remained in hospital for 24 hours before being discharged and was off work for several weeks. Although he did not feel fully recovered, he returned to work because he could no longer afford not to. He did not feel safe in public anymore but anxious and scared that someone might just run him over. After the incident he struggled to sleep and suffered nightmares. He had been prescribed anti-depressants and had received counselling.
vi.
Sharon Miller remained in hospital for several days but following discharge, she had been housebound, not only due to the physical injuries but also the emotional impact of the attack upon her. She was too scared to go out alone and no longer worked. She was now dependent on benefits. She struggled to sleep, suffered nightmares and had lost her self-confidence.
45.
The prosecution submitted at the sentencing hearing that a sentence with a significant penal element was called for, and that the appropriate disposal was by way of a sentence of imprisonment for life with a hybrid order.
46.
It was submitted on behalf of the offender that a hospital order with restrictions was the appropriate disposal.
The sentencing remarks
47.
In his sentencing remarks, the judge described the offender’s actions as sickening crimes which shocked the nation and wrecked the lives of his victims. He described the offender as an intelligent man who had, in 2019, started to show symptoms of mental disorder. He said that he had considered the reports of five distinguished consultant psychiatrists and heard evidence from Professor Blackwood and Drs McSweeney and Mirvis but noted that he was not bound by their evidence. He referred to key parts of the reports. He concluded that the prosecution had been right to acknowledge that the offender’s mental health condition satisfied the requirements of the partial defence of diminished responsibility on counts 1 – 3, thus leading to the acceptance of a plea to manslaughter. The defence of diminished responsibility did not apply to attempted murder.
48.
The judge noted that it was the unanimous conclusion of the relevant experts that but for the offender’s schizophrenia he would not have committed these offences. He had no other motive for committing them. There was no evidence that the offender was liable to be violent prior to the onset of his condition. He had no relevant religious, ideological or political affiliations. He believed that voices, with the power to harm his family if he failed to comply, were controlling him. He remained under that impression and believed that he did not suffer from any mental disorder at all. The offender’s failure to take prescribed medication was as a consequence of his mental disease, rather than a rational choice. The preparatory acts identified by the prosecution were also governed by his delusions. It followed that, notwithstanding the extreme gravity of his crimes, the level of responsibility the offender retained was at the lower end.
49.
He noted that the starting point in the Sentencing Council Definitive Guideline on Manslaughter by reason of Diminished Responsibility
for a single offence was 7 years’ imprisonment (with a range of 3 – 12 years). He said that a very significant upward adjustment would be required to take account of the number of victims and the three offences of attempted murder: a life sentence would be appropriate. An appropriate minimum term of imprisonment would be thirty years before a reduction of one third to reflect the offender’s guilty pleas, and of a further third to reflect what would have been the date of eligibility for parole in respect of a determinate sentence. The minimum term of imprisonment would therefore have been 13 years and 4 months.
50.
The judge said that the offender was plainly dangerous. This factor needed to be reflected in the Court’s approach to sentence and provided relevant context to the appropriateness of a mental health disposal. It was undoubtedly the case that the offender was currently suffering from a mental disorder, namely paranoid schizophrenia, for which he required treatment. It was necessary and appropriate to make a hospital order. In considering the extent to which punishment was required, the court bore in mind the devastating impact of the offending. The judge noted that the diagnosis of treatment resistant schizophrenia meant that it was very likely that the offender would never be released.
51.
The sentencing options were limited to a hospital and restrictions order or a hybrid order. The judge reminded himself of the importance, where appropriate, of reflecting a penal element in the sentence but noted that, whichever sentence he passed, the offender was unlikely to be released in any event. The judge accepted the evidence of Professor Blackwood who concluded that, because the offender’s risk to others was driven by his psychotic illness, the risk he posed was best managed by forensic psychiatric services. Periods of leave and progress through the secure hospital system would be effected by his responsible clinician in close communication with the Secretary of State; any potential discharge to the community would be subject to the independent consideration of the Tribunal; any release would be subject to conditions, including compliance with medication, and monitoring by a forensic team; and any deterioration in the offender’s mental condition, which was the driver of the risk, would lead to a prompt recall to a psychiatric hospital. The regime under a hospital and restrictions order avoided situations in which the risk posed by the offender might increase, or his mental condition worsen, because of delays in recalling and re-hospitalising him.
52.
By contrast, a period of imprisonment risked non-compliance with medication, a deterioration in the offender’s mental state, and an increased risk to others. The Parole Board would be likely to follow the recommendation of the clinicians and Tribunal as to release. Monitoring would principally be by a probation officer: recall to prison, and subsequent transfer to hospital, might take some time.
53.
In these circumstances, the judge said that the regime which provided the greatest level of protection for the public was a hospital and restrictions order. Under a hybrid order the offender would not be supervised by a team of mental health experts reporting to the hospital and the Secretary of State, but rather by a probation officer who would not be trained to spot the subtle signs of mental health deterioration, or have the powers to intervene to arrest any such deterioration. In the event of a relapse in a prison environment the offender would present a real danger to prison officers and fellow prisoners.
54.
The judge concluded that the proper sentence was a hospital order and, because of the nature of the offences, the offender’s history, and the risk he posed, that order would be subject to a section 41 Restrictions Order.
The statutory framework
55.
The maximum sentence for the offence of manslaughter, and for the offence of attempted murder, is life imprisonment. Both are schedule 19 offences for the purposes of section 285 of the Sentencing Act 2020 (life imprisonment) and schedule 15 offences for the purposes of section 279 of the same Act (extended sentences).
56.
Where the offender suffers from a mental disorder, however, the court should consider whether a hospital order under the 1983 Act should be imposed instead. The potential options, in a case like the present, are a hospital order, pursuant to s. 37 of the 1983 Act accompanied, if appropriate, by a restrictions order under s. 41 of the same Act (ie a hospital and restrictions order), or a sentence of imprisonment with a hospital direction and limitation direction, pursuant to s. 45A of the 1983 Act (ie a hybrid order).
Hospital Order, s. 37 of the 1983 Act
57.
A hospital order may be imposed where an offender has been convicted of an offence punishable by imprisonment, other than murder.
58.
The court must be satisfied of the following before it can make such an order:
i.
Under subsection (2)(a): On the written or oral evidence of two doctors, at least one of whom must be approved under s. 12 of the 1983 Act, that the offender is suffering from mental disorder of a nature or degree which makes it appropriate for the offender to be detained in a hospital for medical treatment, and appropriate medical treatment is available;
ii.
Under subsection (2)(b): 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 the offender, that a hospital order is the most suitable method of dealing with the case;
iii.
Under subsection (4): On the written or oral evidence of the approved clinician who would have overall responsibility for the offender’s case, or of some other person representing the managers of the relevant hospital, that arrangements have been made for the offender to be admitted to that hospital within the period of 28 days starting with the day of the order.
Restrictions Order, s. 41 of the 1983 Act
59.
Pursuant to s. 41, where the court makes a hospital order, the court may also make a restrictions order where:
i.
At least one of the doctors whose evidence is taken into account by the court before deciding to give the hospital order has given evidence orally;
ii.
Having regard to the nature of the offence, the antecedents of the offender, and the risk of the offender committing further offences if set at large, the Court thinks it necessary for the protection of the public from serious harm for the person to be subject to the special restrictions which flow from a restrictions order.
60.
The effect of a restrictions order is to provide that the Secretary of State’s consent is required before an offender can be discharged, and the Secretary of State’s consent is required before an offender can be granted a leave of absence from hospital or moves hospitals (ss. 41(3)(c) and 42). The Secretary of State also has power to order an offender’s detention or return to hospital after release (s. 42). The responsible clinician must provide the Secretary of State with a report on the offender at least once a year (s. 41(6)). The offender may appeal to the Tribunal, which may order their release (ss. 70 and 73). Such an appeal may only be made once in every 12-month period.
Hybrid orders
61.
A hybrid order may be imposed by the Crown Court on an offender, over the age of 21, who has been convicted of an offence punishable by imprisonment (other than murder) if:
i.
The court is satisfied on the written or oral evidence of two doctors, at least one of whom must be approved under s.12, and at least one of whom must have given evidence orally, that the offender is suffering from mental disorder of a nature or degree which makes it appropriate for the offender to be detained in a hospital for medical treatment, and appropriate medical treatment is available;
ii.
The court has considered making a hospital order under s. 37 but has decided instead to impose a sentence of imprisonment;
iii.
The court is also satisfied, on the written or oral evidence of the approved clinician who would have overall responsibility for the offender’s case or of some other person representing the managers of the relevant hospital, that arrangements have been made for the offender to be admitted to that hospital within the 28 days starting with the day of the order.
62.
Under s. 45A, where the period of imprisonment is indeterminate, if a patient’s health improves such that his responsible clinician or the Tribunal notifies the Secretary of State that he no longer requires treatment in hospital under the 1983 Act, the Secretary of State will generally remit the patient to prison under s. 50(1) of the Act. On arrival in prison, the hybrid order will cease to have any effect whatsoever. Release will be considered by the Parole Board in the usual way, after the minimum term has expired. If a s. 45A patient remains in hospital beyond the expiry of the minimum term and the Tribunal notifies the Secretary of State that he is ready for conditional discharge, the Secretary of State may notify the Tribunal that he should be so discharged (s. 74(2)). In that case, the offender would be subject to mental health supervision and recall in the usual way. However, the Secretary of State would, in practice, refer the offender to the Parole Board.
63.
A key difference between a hospital and restrictions order, on the one hand, and a hybrid order, on the other, is that if an offender who is subject to a hospital and restrictions order recovers so that they no longer need to remain in hospital, they will be released into the community. In contrast, if an offender who is subject to a hybrid order recovers such that they can be discharged from hospital, they will be transferred to prison (at least before expiry of the minimum term). The other key difference is that, where an offender is under a hospital and restrictions order, the decision whether they will be released into the community will subject to the consent of the Secretary of State, after consultation with the responsible physician, whereas if an offender is subject to a hybrid order, and has been discharged from hospital, the decision about whether they should be released from prison will be a matter for the Parole Board.
The Sentencing Council Guidelines
64.
The Sentencing Council Definitive Guideline on Manslaughter by Reason of Diminished Responsibility requires the court to assess the level of responsibility that is retained by the offender for the offending, taking account of the medical evidence and all the relevant information available to the court. The court should take account of the extent, if at all, to which the offender’s actions or omissions contributed to the seriousness of the mental disorder at the time of the offence. The guidelines require the court to consider mental health disposals. In so doing, the court should consider all sentencing options, including a hybrid order, and should consider the importance of a penal element in the sentence, taking into account the offender’s level of responsibility. The court should take into account all relevant evidence, including the psychiatric evidence and the regime on release, and should review whether the sentence as a whole meets the objectives of punishment, rehabilitation and protection of the public in a fair and proportionate way.
65.
Before a hospital order is made under s. 37 (with or without a restrictions order under s. 41), the court should consider:
“whether the mental disorder can appropriately be dealt with by custody with a hospital and limitation direction under section 45A. In deciding whether a section 45A direction is appropriate the court should bear in mind that the limitation direction will cease to have effect at the automatic release date of a determinate sentence. If a penal element is appropriate and the mental disorder can appropriately be dealt with by a direction under section 45A, then the judge should make such a direction.”
66.
The Sentencing Council Definitive Guideline on Attempted Murder states that a case will fall into the Lesser Culpability category if the offender’s culpability is substantially reduced by mental disorder. The options of a hospital and restrictions order and of a hybrid order apply to those convicted of attempted murder as they do to those convicted of manslaughter.
67.
The Sentencing Council Overarching Guideline on Sentencing Offenders with Mental Disorders states that culpability may be reduced if an offender was at the time of offending suffering from a mental impairment or disorder, and if there is a sufficient connection between the offender’s impairment or disorder and the offending behaviour. A careful analysis of all the circumstances of the case and all relevant materials is required to determine the extent, if any, that the impairment or disorder be relevant to culpability.
The authorities
68.
This court has given guidance in a number of cases on the correct approach to be adopted in cases where the appropriate disposal is either a hospital and restrictions order or a hybrid order. Three cases are of particular assistance:
R v Vowles
[2015] EWCA Crim 45, [2015] 1 WLR 5131;
R v Edwards
[2018] EWCA
Crim 595, [2018] 4 WLR 64; and
R v Nelson
[2020] EWCA Crim 1615,
[2021] MHLR 219
.
69.
In
Vowles
, Lord Thomas, CJ said this:
“51.
It is important to emphasise that the judge must carefully consider all the evidence in each case and not, as some of the early cases have suggested, feel circumscribed by the psychiatric opinions. A judge must therefore consider, where the conditions in section 37(2)(a) are met, what is the appropriate disposal. In considering that wider question the matters to which a judge will invariably have to have regard to include
(1)
the extent to which the offender needs treatment for the mental disorder from which the offender suffers,
(2)
the extent to which the offending is attributable to the mental disorder,
(3)
the extent to which punishment is required and
(4)
the protection of the public including the regime for deciding release and the regime after release.
There must always be sound reasons for departing from the usual course of imposing a penal sentence and the judge must set these out.
52.
… a judge when sentencing must now pay very careful attention to the different effect in each case of the conditions applicable to and after release. … this consideration may be one matter leading to the imposition of a hospital order under section 37/41.
53.
The fact that two psychiatrists are of the opinion that a hospital order with restrictions under section 37/41 is the right disposal is therefore never a reason on its own to make such an order. The judge must first consider all the relevant circumstances, including the four issues we have set out in the preceding paragraphs and then consider the alternatives in the order in which we set them out in the next paragraph.
54.
Therefore…a court should, in a case where (1) the evidence of medical practitioners suggests that the offender is suffering from a mental disorder, (2) that the offending is wholly or in significant part attributable to that disorder, (3) treatment is available, and it considers in the light of all the circumstances to which we have referred, that a hospital order (with or without a restrictions) may be an appropriate way of dealing with the case, consider the matters in the following order:
(i)
As the terms of section 45A(1) of the MHA require, before a hospital order is made under section 37/41, whether or not with a restrictions order, a judge should consider whether mental disorder can appropriately be dealt with by a hospital and limitation direction under section 45A.
(ii)
If it can, then the judge should make such a direction under section 45A(1). ...
(iii)
If such a direction is not appropriate the court must then consider, before going further, whether, if the medical evidence satisfies the condition in section 37(2)(a) (that the mental disorder is such that it would be appropriate for the offender to be detained in a hospital and treatment is available), the conditions set out in section 37(2)(b) would make that the most suitable method of disposal. It is essential that a judge gives detailed consideration to all the factors encompassed within section 37(2)(b).”
70.
In
Edwards
, Hallett LJ, VP emphasised that:
“6.
The First Tier Tribunal (Mental Health) decides when the offender should be released when an order is made under ss.37/41. However, for section 45A orders the release regime differs depending on whether an offender is serving a determinate or indeterminate sentence of imprisonment.
7.
If a s.45A patient’s health improves so that his responsible clinician or the Tribunal notifies the Secretary of State (“SoS”) that he no longer requires treatment in hospital under the MHA, the SoS will generally remit the patient to prison under section 50(1) of the MHA to serve the rest of his sentence. On arrival in prison, the s.45A order would cease to have effect and the offender would be released from prison in the usual way.
8.
If there has been no improvement at the automatic release date, the limitation direction aspect of s.45A falls away. At that point, the patient remains in hospital but is treated as though they are subject to an unrestricted hospital order so that the point at which he is discharged from hospital is a matter for the clinicians, with no input from the SoS.”
71.
At [12] she stated that a “
level of misunderstanding of the guidance offered in Vowles appears to have arisen as to the order in which a sentencing judge should approach the making of a s.37 or a s.45A order and the precedence allegedly given in Vowles to a s.45A order
”. She continued:
“Section 45A and the judgment in Vowles do not provide a ‘default’ setting of imprisonment, as some have assumed. The sentencing judge should first consider if a hospital order may be appropriate under section 37 (2) (a). If so, before making such an order, the court must consider all the powers at its disposal including a s.45A order. Consideration of a s.45A order must come before the making a hospital order. This is because a disposal under section 45A includes a penal element and the court must have ‘sound reasons’ for departing from the usual course of imposing a sentence with a penal element. Sound reasons may include the nature of the offence and the limited nature of any penal element (if imposed) and the fact that the offending was very substantially (albeit not wholly) attributable to the offender’s illness. However, the graver the offence and the greater the risk to the public on release of the offender, the greater the emphasis the judge must place upon the protection of the public and the release regime.”
72.
At [14] she said:
“It follows that, as important as the offender’s personal circumstances may be, rehabilitation of offenders is but one of the purposes of sentencing. The punishment of offenders and the protection of the public are also at the heart of the sentencing process. In assessing the seriousness of the offence, s. 143 (1) of the Criminal Justice Act provides that the court must consider the offender’s culpability in committing the offence and any harm caused, intended or foreseeable.”
73.
In
Nelson
, Dingemans LJ said this:
“33.
…. The purposes of a hospital order are rehabilitation of the offender and protection of the public, it is not concerned with punishment.
34.
Further matters for the court to consider are the release regimes which will apply to the offender on release. A restrictions order under section 41 of the MHA gives the Secretary of State for Justice a role in the release and recall of offenders who have been sentenced under hospital orders. A restrictions order under section 41 of the MHA should not be passed just to mark the seriousness of the offence, but only where it is required to protect the public from serious harm. …
35.
Section 45A of the MHA permits, in effect, the combination of sentences of imprisonment with hospital and restrictionss orders where the sentence is not fixed by law. The evidence before us showed that section 45A MHA orders were particularly appropriate in two situations: the first was where, notwithstanding the existence of the mental disorder, a penal element to the sentence was appropriate; and the second was where the offender had a mental disorder but there were real doubts that he would comply with any treatment requirements in hospital, meaning that the hospital would be looking after an offender (who might be dangerous) who was not being treated. …
37.
Any court considering whether to impose a section 45A MHA hybrid order will need to make a careful assessment of the culpability of the offender, notwithstanding the presence of the mental disorder, in accordance with the guidance given in Vowles and Edwards. Practical guidance about how to do that is set out in the Guideline.”
Discussion
74.
This is a challenge to the decision of a highly experienced judge who was immersed in the procedural history and detailed evidence of the case. His decision was reached after two days of submissions and oral evidence from three appropriately qualified medical experts.
75.
It is accepted that the judge made no error of principle in his approach. As it was put fairly in the Solicitor General’s Reference: “
[it]is accepted that the Learned Judge approached the sentencing process in accordance with the relevant guidelines
”. Instead, the challenge is to the judge’s evaluative assessment of which option was appropriate.
76.
Here the choice for the judge was stark and binary: either a hybrid order or a hospital and restrictions order. It was not suggested by either party that a hospital and restrictions order would be wrong in law or as a matter of principle. Instead the parties advanced competing submissions as to whether one option was better than the other. For the prosecution it was said that a hybrid order was appropriate; the defence advocated a hospital and restrictions order.
77.
None of this is a promising platform for the Solicitor General, who faces the hurdle of establishing not only that the judge’s sentences were lenient, but that it was unduly so.
A sentence is unduly lenient
“…
where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate
” (
Attorney General's Reference No 4 of 1989
[1990] 1 WLR 41, Lord Lane CJ). In
R v Edwards
[2012]
EWCA Crim 2746
2012 WL 7092526
(at [19]) Hughes LJ com
mented that the scheme is designed to deal with cases where judges have fallen into “
gross error
”.
78.
The Solicitor General argues that in determining the offender’s level of retained responsibility the judge failed to give sufficient weight to the evidence that his culpability was not extinguished. However, it is plain that the judge recognised that the offender’s culpability was not extinguished; the weight he gave that factor reflected the level of retained responsibility as described by the psychiatric evidence before him.
79.
The Solicitor General submits that the judge erred in imposing hospital orders with restrictions “
since it was necessary to impose a sentence with a penal element
” and that “
the overall gravity of the offending was such that it required a penal element
”. However, as the authorities to which we have referred make clear, in sentencing an offender who satisfies the criteria in s. 37, the court has to have regard to both the need for punishment and the protection of the public.
80.
The need for punishment is a function of
the seriousness of the consequences of the offending and the level of responsibility which the offender bears for that offending. Here, as
the judge plainly recognised,
the consequences of the offending were of the greatest seriousness. But, as the expert evidence made clear, the offender’s mental condition was such that the level of responsibility he retained for that offending lay at the lower end of the scale. That being so, any need for punishment needed to be balanced carefully against the need to protect the public from the risk the offender posed. T
he Sentencing Council Guidelines
on Manslaughter by Reason of Diminished Responsibility make clear that in deciding to impose a hybrid order the court should consider not only whether a penal element is appropriate but also whether the mental disorder can appropriately be dealt with by such an order.
81.
The Solicitor General contends that there were a number of aggravating features which required an uplift from the starting point for a single offence. That is plainly correct. However, the judge acknowledged that there were multiple offences of manslaughter and attempted murder and that others were put at risk during the course of the offending.
82.
The Solicitor General suggests that the offender’s criminality was also aggravated by the fact that the offender planned the attack and purchased knives for the purpose. In our view, that submission is misconceived. The evidence was that these actions were
all part of his illness. During the oral evidence of Professor Blackwood, the following exchange with defence counsel took place:
“Q. When it's put that there are aggravating features of planning and so on, as you've heard, we're actually talking, are we not, about one psychotic episode in which all these other events took place?
A. Yes. All the features that were mentioned in terms of purchasing weapons, changing SIM cards, calling his brother, changing his shoes, discarding the holdall et cetera, all occur in the context of an active psychosis, yes.
Q. You've seen the documents, the sentencing notes for the prosecution and the defence. You've seen all the authorities that have been provided to the court. You've seen all the witness statements, all the assertions as to his conduct over time. It, in fact, comes down, does it not, to this: all those aggravating features that say make it worse are, in fact, part of one psychotic episode of intense severity?
A.
Yes.”
83.
In our judgment, the uplift to the starting point adopted by the judge was appropriate. In any event, the critical question is whether the final disposal adopted by the judge was one properly open to him. In our judgment, it clearly was.
84.
In determining the final disposal, the judge, as he recognised, had to consider whether a penal element was necessary. Because the offender’s level of retained responsibility was low, and in circumstances where the offending would not have taken place but for the offender’s schizophrenia, the judge was entitled to conclude that a penal element was unnecessary. That is so, despite the number of victims and the extent of the harm caused. The schizophrenia was the sole identified cause of the crimes: thus, for example, there was no history of independent offending (unrelated to the schizophrenia), no evidence of substance abuse, no evidence of any culpable failure to take medication or any motive for attacking these victims.
85.
The key factor in a case like this, when deciding whether or not a penal element is required, is the strength of the link between the offender’s impairment and the offending in question. Here, in the words of Professor Blackwood, at the time of the assaults the offender was “
in the grip of a severe psychotic episode…entirely driven by the psychotic process”.
86.
The judge properly took into account, first, that under the s.45A regime, the Parole Board would be likely to follow the release recommendation of the clinicians and Tribunal; secondly, that monitoring thereafter would be carried out principally by a probation officer rather than a mental health practitioner; and thirdly, that recall to prison, and subsequent transfer to hospital, might take some time. He reached what was the perfectly reasonable conclusion that a period of imprisonment, as might follow the making of a hybrid order, risked non-compliance with medication, a deterioration in the offender’s mental state, and a consequential increased risk to others.
87.
By contrast, as the judge said,
t
he ss. 37/41 regime avoided situations in which the risk posed by the offender might increase, or his mental condition worsen, because of delays in recall and re-hospitalisation. Such an approach, focussing on the question of public protection, was entirely in line with the comments in
Edwards
at [12] as set out above, namely “
the graver the offence and the greater the risk to the public…the greater the emphasis the judge must place upon the protection of the public
…”
88.
We would add this. The report of Dr Mirvis, as the treating clinician who has had most contact with the offender, is of particular significance. In it, he says that the correct diagnosis of the offender’s condition is “treatment-resistant schizophrenia”. He says that it has been only partially responsive to treatment and that it will be necessary to trial another drug, clozapine.
“
His illness appears to be partially responsive to first line antipsychotic treatment; he continues to report hearing voices on a daily basis despite being on the maximum dose of olanzapine for several months……. The establishment of antipsychotic medication has led to an improvement in his symptoms and presentation (including aggression towards others).
”
89.
Dr Mirvis then considered the difference in the release mechanisms between the two options open to the court. He says this:
“
If release was ever proposed into the community this would most likely be considered at a Mental Health Tribunal. If discharged this would typically be conditional. Mr Calocane’s illness is likely to be lifelong and require close review of his mental health for subtle signs of relapse, ongoing prescription of psychiatric medication and monitoring of his compliance. Under this arrangement he would be monitored in the community by a mental health team (often a specific community forensic one). In this scenario if Mr Calocane’s mental state deteriorated he could be reviewed promptly and recalled to hospital under s 37/41 (almost certainly to a secure mental health hospital).
”
90.
We take this to mean that the offender will always present an extremely grave danger to the public if he is ever released. That danger may be mitigated by medication if he is compliant with the treatment regime and if the medication is effective. Although the safeguards described by Dr Mirvis and provided by the mental health team are no doubt effective in managing many cases, the extreme violence perpetrated by this offender makes it very likely that, whichever of the two options had been adopted, he will spend the rest of his life in a secure hospital.
91.
This view is supported by Dr McSweeney who says:
“This is a chronic and enduring psychotic mental illness. His illness will never be ‘cured’, and he will require long term, very cautious management with antipsychotic medication and appropriate psychological and supportive interventions (almost certainly for the remainder of his life)….. The strong link between his mental disorder and offending makes the Section 41 Restrictions Order particularly apt for maintaining the protection of the public in the event of his conditional release (which I appreciate may be unlikely) from hospital in the future.”
92.
“
Very cautious management
” is, in our view, unlikely to involve this offender ever being managed in the community. Dr McSweeney appears to share this view. In his oral evidence he said that the offender would require treatment in a secure mental hospital for many decades to come and would need to take his medication throughout his life. He did not exclude the possibility of eventual release but made it clear that he would always require “the most intense management and monitoring”.
93.
In our judgment, the risk caused by any non-compliance with the medication regime or any failure of the medication to control the psychosis is so high that release into the community can properly be assessed as “
very unlikely
”. On this approach, it is even harder to label the hospital and restrictions order unduly lenient, since it will have the same effect as the only other available option.
Conclusion
94.
This was a sensitive sentencing exercise that was not straightforward. But there was no error, in the approach adopted by the judge. His conclusion that, on the facts of this case, a penal element was unnecessary and the better protection of the public required a hospital and restrictions order, rather than a hybrid order, was one properly open to him. We do not consider it arguable that the resulting sentences were unduly lenient. We refuse leave.
95.
It is impossible to read of the circumstances of this offending without the greatest possible sympathy for the victims of these terrible attacks, and their family and friends. The victim impact statements paint a graphic picture of the appalling effects of the offender’s conduct. Had the offender not suffered the mental condition he did, the sentencing judge would doubtless have been considering a whole life term. But neither the judge nor this court can ignore the medical evidence as to the offender’s condition which led to these dreadful events or the threat to public safety which the offender continues to pose.
|
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|
Neutral Citation Number:
[2003] EWCA Crim 3309
COURT OF APPEAL (CRIMINAL DIVISION)
KEENE LJ, RODERICK EVANS, COOKE JJ
Date: 13 NOVEMBER 2003
Before:
KEENE LJ
- - - - - - - - - - -
R
v
J
- - - - - - - - - - -
(Transcript: Smith Bernal)
- - - - - - - - - - -
Judgment
COUNSEL:
P Cosgrove QC and C Mitford for the Appellant; S Williamson QC for the Crown; David Auld & Co, Morpeth
KEENE LJ
(reading the judgment of the court):
[1] On 24 July 1989 after a six day trial in the Crown Court at Newcastle upon Tyne before Simon Brown J, this appellant was acquitted of the charge of murder but convicted of manslaughter. The next day he was made the subject of a hospital order under
s 37 of the Mental Health Act 1983
, with a restriction order under s 41 of the same Act. He appealed against conviction but that appeal was dismissed by this court, presided over by the Lord Chief Justice, Lord Lane, on 19 November 1990.
[2] On 27 August 2002 the Criminal Cases Review Commission ("the Commission") referred the conviction to this court under
s 9 of the Criminal Appeal Act 1995
because it was considered that there is a real possibility that the conviction would not be upheld. By virtue of s 9(2) that reference is to be treated for all purposes as an appeal against conviction.
[3] The conviction arose as the result of the discovery of the body of a woman, L, in her flat in Newcastle at about 6pm on Sunday 28 August 1988. She was found naked and face down on the bed in her bedroom, having been the subject of a violent attack. It was scarcely in issue between the pathologist who gave evidence at trial that she had first been strangled manually, then stabbed once to the chest, piercing her heart, and then finally been the subject of a series of blows (something like ten in number) to the back of the head with some axe-type instrument, probably something like the meat cleaver which was found nearby. A kitchen knife was also found near the body. It was obvious that she had been killed by somebody. The issue at trial was whether it was this appellant.
[4] There was, as the trial judge put it, not a shred of forensic evidence linking the appellant to the crime and, as the prosecution very frankly put it at trial, no evidence at all against him, save for a series of confessions made by him during interviews by the police on the Monday, the day following the discovery of the body.
[5] It was accepted at trial that the appellant was mentally subnormal. A report by a clinical psychologist, Dr Paul Smith, assessed his verbal intelligence as being below the bottom one per cent of the population and his general memory as being extremely poor. He suffered, as the trial judge put it, from arrested or retarded development, and there was evidence that he had a mental age of eight-and-a-half years; he was in fact 49 at the time. The trial judge also described him to the jury as a highly suggestible person, someone who was very ready and anxious to say whatever he thought the police would like him to say. There was also evidence that his suggestibility would mean that once he had produced a particular version of events in interview, he would be likely to adhere to the same broad pattern of description.
[6] For those reasons, and for others to which we shall come, the judge gave the jury a warning to treat the confessions with great caution.
[7] The appellant had a simple job helping stallholders in the market in Newcastle to set up their stalls in the morning and to clear them away in the evening. There was no doubt that he knew the deceased. She was a distinctive figure, suffering, as she did, from a medical condition which caused overeating and weight gain. She frequented a local cafe on a regular basis, but her physical size made her someone who could readily be recognised by those who saw her. This was of relevance in the light of evidence given by a number of witnesses.
[8] There was a degree of disagreement as to the time of her death between the pathologists. Dr McTaggart, called by the Crown, put the time of death as having been between 9pm on the Friday and 3am on the Sunday night, but most probably, he said, about 9am on the Saturday. Dr Sunter, called by the defence, put it as having been between 9am on the Saturday and 3am on the Sunday, his best estimate being at about midnight on the Saturday night.
[9] A considerable number of witnesses testified to seeing the victim, L, alive on the Saturday afternoon or even later. At least six of them referred to seeing her at the local cafe during that period. Two of them, a woman and her grandson, both worked at the cafe and gave evidence that they came on shift at 5pm on the Saturday afternoon and saw L at about that time, and again for a period of time after 6.30 or 7pm. The owner of a fish and chip shop said that he saw her at some time that evening between 7pm and midnight, although he could not be more precise than that, and a taxi clerk testified that she saw L walking towards the bus station at about 10:45 or 11pm.
[10] The relevance of this evidence was twofold. First, the appellant in his confessions said that he had killed the victim at 11am on the Saturday, although he sometimes did refer to this as being 11 o'clock in the afternoon. However, since he began work extremely early in the day, there seemed to be no suggestion that he meant anything other than 11am. Secondly, and of greater significance, there was considerable evidence that the appellant had had no opportunity to visit the deceased's flat from about 6.30pm on the Saturday evening. It was indeed the Crown's case that she had met her death before then, earlier on the Saturday when the appellant did have such an opportunity. But if these various witnesses were right and were reliable, then L had still been alive until after the time when, realistically, the appellant could have killed her.
[11] What weighed against this evidence, both when the appeal was heard and no doubt also powerfully in the minds of the jury, were the appellant's confessions and, in particular, the detail contained in them. It was the Crown's case, accepted by the jury, that no one but the killer could have made these confessions in the form in which they were made. We turn, therefore, to the circumstances surrounding those confessions, dealing with them first as the evidence stood at the time of trial.
[12] The appellant turned up on the Monday morning, 29 August, outside the block of flats where the deceased lived. He rang the intercom and called out her name in a distressed manner. The police were already there and an officer came and spoke to him. The officer told the appellant that CID officers would like to speak to him. As a result he went with police officers to the police station, arriving there at 9.35am. Between that time and 11am he was in discussion with two officers: Acting Detective Sergeant Thornton and Detective Constable Dunn. As the judge reminded the jury, all the police involved with the appellant had themselves been fully briefed about the details of the killing at a 9am briefing and so these two officers knew those details. The post-mortem had taken place during the night. No record was made of these discussions between the officers and the appellant during the period 9.35am to 11am. He was not under caution, and no appropriate adult was present.
[13] At 11 o'clock that morning the same two officers began taking a witness statement from the appellant. In it he described having met the deceased about six months earlier, since when he had visited her in her flat about once a week when she would masturbate him. He said that the last time he had been in the flat was on Thursday. He described his movements on the Saturday, not referring to any visit then to the flat. He made no admission as to killing L in this statement, which the officers finished taking at 12.25. According to the evidence of the officers at trial, it was only on completing this statement that they realised he could not read or write. The trial judge summarised the officer's evidence as to their appreciation of his mental abilities at this stage as follows:
"They realised he was not intellectually acute. Quite the contrary, that he was obviously relatively simple. He, for instance, could not tell them his date of birth. He could not even tell them his age. He said he thought he was about 45 or 50 years old, but they regarded him as streetwise at least and able therefore to tell them his story."
Despite that, the witness statement in its heading gives his age as 49 and his date of birth as 25 February 1939. How and why that was done is something to which we shall come.
[14] Acting DS Thornton's evidence was that he then decided to clarify certain points, particularly as to the precise nature of the sexual relationship between the appellant and the deceased. This questioning to clarify began at 12.40pm. The appellant then became very agitated and began to shout. Both officers gave the same evidence at trial, to the effect that the appellant said that he had only fucked her once and that about a week before he had buggered her. He added, "Look, I've told you what happened, can we leave it at that?"
[15] DS Thornton then said this, according to his evidence:
"Mr J, L has been murdered. You realise that, don't you? Obviously we are trying to get to the truth of this matter. I feel, we both feel, that you are not telling us all you know."
According to the officers, the appellant then shouted out:
"Look, I grabbed her by the neck. She said Eli was better than me."
At that stage the officers cautioned him for the first time and began a formal record of interview. They recognised that it was incumbent upon them to tell him that he might obtain legal advice if he wished, but they did not tell him that. Acting DS Thornton's evidence was that he was too excited by the thought that he was about to be told about a murder, and he forgot to advise the appellant as he should have done.
[16] The trial judge noted that the police, in any event, ought not to have interviewed the appellant or, indeed, taken even the witness statement from him in the absence of an independent adult, because he was mentally handicapped. But, said the judge, the police did not regard him as such. They did not have the benefit of the medical evidence available at trial.
[17] We would add at this point that at trial there was an application by the defence to exclude the formal interviews, in which the appellant confessed to the killing, because of these several breaches of the Codes of Practice, in particular of Code C. There was a voir dire during which reliance was placed upon
s 76 of the Police and Criminal Evidence Act 1984
(
PACE
), but we do not have a transcript of that. It is, however, clear that the judge ruled that the evidence of the confession was admissible. According to the Commission's Statement of Reasons for the reference, there is a handwritten note in the CPS files indicating that the judge decided that, despite the breaches of
PACE
, the evidence should go to the jury because of their vividness and their similarity to the way in which the killing was actually carried out.
[18] That is a reference to what the appellant is recorded as having said in his first four interviews, all of which took place on that Monday. None of those interviews were tape-recorded but were recorded in manuscript and subsequently read over to the appellant. The first of those interviews lasted from 12.50pm to 1.15pm, a period of 25 minutes, and is brief and dramatic. For that reason it is convenient to read it in full. The questions were put by Acting DS Thornton:
"Q. Do you understand what I have just said?
A. It means the court will know.
Q. That is right, what you tell me I'll record. You have just said you want to tell the truth?
A. I, I killed L.
Q. Why was that?
A. Because she was laughing at me because I couldn't have a fuck with her. She had been wanking me off and I couldn't fuck her.
Q. What did you do?
A. I grabbed her by the throat. She passed out and I stabbed her.
Q. What did you use?
A. A knife. I took her into the bedroom and stabbed her. I put her on her stomach and used a little axe.
Q. Where did you get the axe from?
A. It's L's I think. I only hit her once or twice with it.
Q. Where did you stab her?"
In fact, the appellant then indicated to the officer where he had stabbed her, indicating the left breast.
"Q. What did you do then?
A. I washed my hands and left."
The record then indicated that the appellant started to cry and the interview was terminated.
[19] It was the description of the sequence of the attacks - that is to say the strangling, the stabbing and then the blows to the back of the head, plus such detail as stabbing to the left breast, and putting the victim on her stomach - which were of such critical importance in the case, because they accorded with the evidence of what had actually happened. Those details had not been made public at that stage.
[20] Two more senior officers then interviewed the appellant at 1.30pm. Again, his right to legal advice was not explained to him and no appropriate adult was in attendance. He gave a broadly similar account to that given in his first interview, though now he said that he had lost his temper because L had said, "Eli had a better one" than him, and he demonstrated the stabbing as having been to her abdomen. He also initially described leaving her on the couch in the living room rather than in the bedroom, but changed that when his version was challenged by the police. He also described her as wearing a brown overall, although, as indicated already in this judgment, she was found naked.
[21] Immediately after this interview, at 2.38pm, the appellant was arrested on suspicion of murder. According to the arresting officer, he replied:
"I didn't mean to hurt her. Will I get bail?"
At that point the custody record was opened. The appellant was now informed of his right to a solicitor but initially declined, and then, after a short time, changed his mind and requested one.
[22] His third interview took place in the presence of a solicitor, but with no appropriate adult present. It began at 5.50pm. The appellant responded to the first question: "Q. Did you kill her?" by saying, "No, no, sir." But on further questioning he repeated his earlier confession, saying that he had gone to L's flat at about "11 in the afternoon", in the daytime not when it was dark. This time he described hitting her with the chopper in the living room and said, on being pressed, that he was sure that it was there.
[23] His fourth interview took place between 7pm and 8.15pm on that Monday, again in the presence of a solicitor. This time he said that he had been mistaken earlier in saying that he had got angry because she had asked him to fuck her and he could not. He had got angry because she would not let him fuck her. As in the third interview, he described hitting her with the chopper on the couch in the living room and not the bedroom. But when the police officer told him that the blood marks showed that the chopper was used in the bedroom, he said that it had been in the bedroom. He was told that L had not been wearing a brown housecoat when found and he agreed that she must have taken it off. He again said that he had seen her at about 11am on the Saturday.
[24] Finally, he was interviewed the following day, 30 August, in the presence of a solicitor, and this time he denied killing her. He said that he had been out all day grafting with the barrows and that "the two detectives made him say that", in other words say that he had killed her. He was then charged. Since that time he has consistently denied killing the deceased.
[25] We have dealt with this sequence of interviews in some detail because they lie at the heart of this case. Despite the changes in the accounts given by the appellant, and despite some discrepancies between those accounts and what was known to have happened, the description of the three separate attacks and their sequence was obviously regarded by the jury as very compelling. The trial judge very properly summarised for them the main discrepancies between the appellant's account and the known facts-the number of blows with the chopper, the time of killing, and such matters as where the knife had been left-but the jury must have been impressed by the appellant's knowledge of the basic details of the killing. Acting DS Thornton had told the jury that none of the details known to the police were discussed with the defendant before the recorded interviews began, and the jury must have accepted his evidence. As the Court of Appeal said in rejecting the appeal:
"If that information which he retailed to the police had not been fed to him by the police, then it seems inevitable that he must be the killer."
Patently, he could not have invented such details. As Mr Cosgrove, on behalf of the appellant, puts it: that remained the prosecution's trump card throughout.
[26] Consequently, despite the appellant's mental subnormality and high suggestibility, and despite the numerous breaches of Code C, the conviction was upheld on the appeal. The Court of Appeal Criminal Division paid tribute to the careful directions given by the trial judge.
[27] On behalf of the appellant, Mr Cosgrove relies upon the crucial part played by the confessions, upon the appellant's mental handicap and his suggestibility, upon the breaches of Code C and on the time spent by the two officers, Messrs Thornton and Dunn, with the appellant before even a witness statement was taken. He also draws attention to the length of time taken for the first interview, 25 minutes, during which, according to the record, only eight questions were asked and answered. All of that happened, he points out, with no solicitor and no independent adult present. Emphasis is also placed on the evidence of those witnesses who testified that they had seen the victim L alive after the time when the appellant said he had killed her. In particular, he has emphasised that four of those witnesses gave evidence that she was alive after the time when the appellant had any opportunity of killing her. He had a solid alibi from about 6.30pm on the Saturday.
[28] However, Mr Cosgrove rightly recognises that all those were matters known to the jury at the time, and indeed to the judge on the voir dire. The principal plank of his case on this appeal rests upon the emergence of new evidence identified by the Commission which, it is said, casts doubt upon the credibility of the two officers who conducted the initial and crucial interview. Their credibility was vital, because they had had the knowledge and the opportunity to feed the basic details, even inadvertently, of the killing to the appellant. They gave evidence at trial that they had not regarded the appellant as mentally handicapped, even though he could not tell them his age or date of birth. It is to their veracity in that respect that it is said the new evidence goes.
[29] At the forefront of the appellant's case is a document which has come to light since the trial and the subsequent appeal, namely a computer printout from a system used by the Northumbria police, known then as the Criminal Intelligence System. We shall refer to it as the "CIS printout". It is dated 29 August 1988, the Monday when the appellant was first at the police station, and it bears the time marking 11.11, which would be shortly after the two officers started taking the appellant's witness statement.
[30] It does not appear to be in dispute that it was printed out at a local police station and not at the headquarters of the force. It is marked "Printed for the use of officer 2165". That officer was DS Dunn, one of the two who first questioned the appellant at the police station. Marked on the printout in block capitals against the entry "warnings" is the word "MENTAL". It also gives the appellant's date of birth as 25/02/39, although subsequently someone has amended that in manuscript to 25/04/39. The significance of that is that the earlier date is incorrect, yet it is that incorrect date which appears on the witness statement taken from the appellant between 11am and 12.25pm. The true date was discovered somewhat later when his birth certificate was obtained.
[31] Mr Cosgrove submits that this document should have been disclosed at trial and that, if it had been, it would have provided the defence with powerful material for attacking the credibility of the two officers, Thornton and Dunn, which was central to the case. It would have cast doubt on their assertion that they did not realise that he was mentally handicapped. Moreover, if there was doubt as to their credibility, it might well have led to a different ruling from the trial judge as to the admissibility of the confessions.
[32] We have had the benefit of hearing from DC Dunn (now DS Dunn) in the witness box on this appeal. It seemed to us to be right, once we decided to admit the fresh documentary evidence as satisfying
s 23 of the Criminal Appeal Act 1968
, to hear from DS Dunn on these matters. He was duly called by the Crown and cross-examined on behalf of the appellant.
[33] His evidence was that he had been based at another police station in Newcastle at this time, but had been brought in to assist in this inquiry. He had attended the briefing that morning, but could not recall anything about it. All he could remember about the conversation with the appellant that Monday, between 9.35am and 11am, was that they had talked about who the appellant knew, whether he had known the deceased, and what he had been doing. DS Dunn did say that the details of the briefing would not have been discussed with the appellant, and then he asserted that they were not discussed. He could not remember there being any break between 9.35am and the time when the appellant's first formal interview finished at 1.15pm, although he frankly admitted that he could not really recollect it now. We comment that that is scarcely surprising after an interval of some 15 years.
[34] His evidence was that he and DS Thornton had regarded the appellant as slow but no more. DS Dunn was asked about the CIS printout, as to which he said that he could not say when he initiated it, or indeed whether he had initiated it. He raised the possibility in his evidence-in-chief that some other officer at the police station might have sought the information on his or her own initiative, using DS Dunn's service number, because he was involved in the interview.
[35] We find that last suggestion impossible to accept. This was not his police station, whereas DS Thornton, who was the more senior officer of the two, was based there and, as DS Dunn acknowledged, would have been better known to the other officers there. Had the printout been obtained as a result of some independent initiative on the part of another officer at this police station, the natural thing to have done, if not using their own number, would have been to use that of DS Thornton, not that of DS Dunn. Moreover, we heard evidence from DCS Christopher Machell, who told us that the officer's number put into the computer would be that of the officer who requested the information or generated the request. In those circumstances, we reject the possibility that the printout was not initiated by DS Dunn.
[36] As he accepted, it was normal practice to fill in the personal details of a witness making a statement at the outset, and he said that there was no reason why that should not have happened here. That means that very soon after the officers started taking the witness statement from the appellant at 11am, they would have discovered that they did not have the details of the appellant's date of birth or his age because he could not provide them. DS Dunn agreed that one would find that information out by looking on the computer. That, of course, is what in fact happened at, or very shortly before, 11.11am.
[37] DS Dunn did not recall either officer leaving the interview room during the period they were with the appellant, and he asserted that they had no reason to do so. But there clearly was a reason, in that the appellant could not give them his date of birth. The officer could not even remember which interview room they were using, and since it would require only a few moments to go and get a colleague to make the necessary inquiry of the computer, it seems to us highly likely that he did leave the room for that very brief period and for that purpose. He could not recall when he had seen the printout and suggested that he might not have seen it during the whole inquiry. The gist of his evidence before us was that he had not seen it prior to the first formal interview with the appellant which began at 12.50pm.
[38] We have to say that we find that very difficult to believe. Someone in that police station printed out those details at 11.11am for the use of DC Dunn (as he then was) and it would have been natural to have brought the printout into the two officers in the interview room. But, in any event, there is another document which DS Dunn accepted would have been filled in while he and DS Thornton were with the appellant, and that is a personal descriptive form. Indeed, DS Dunn said that the sooner that form was filled in the better. That too bears the incorrect date of birth of the appellant and a reference to the police national computer, so it is to be inferred that someone brought that information into the interview room during that time, or went out from the room and obtained it.
[39] The evidence points strongly, in our judgment, to the CIS printout having been in the hands of the interviewing officers before the first formal interview. At the very least, there was powerful evidence that that is probably what happened. If that is so, then the word "MENTAL" on the form would have been difficult to miss, even on a casual skimming of the document. DS Dunn accepted in cross-examination that that word was a warning to any officer reading it, and that it would have alerted an officer to problems about the mental capacity of the person in question, and that a prudent officer would have taken steps to have had a responsible adult present.
[40] This casts a very different light on the failure, which in fact occurred, to ensure that a responsible adult was present. The judge and the jury at trial seem to have accepted that there was no good reason why the officers should have suspected the appellant to have been mentally handicapped. Had they had such a suspicion, then, by virtue of Code C para 1.4, they would have been obliged to treat him as mentally handicapped with all that would then follow from that.
[41] It seems to this court that, had the trial judge and jury had this CIS printout, then it is likely that they would have concluded that it was at least probable that these two interviewing officers did at least suspect that the appellant was mentally handicapped. That would have meant that there was a much more flagrant breach of the Code than was apparent at trial.
[42] On behalf of the Crown, Mr Williamson QC acknowledges that he can do little to seek to persuade the court to find that this conviction is safe. He does emphasise the very clear directions given by the trial judge to the jury, and emphasises that the failings on the part of the officers, in terms of the breaches of Code C, were recognised at trial and indeed were referred to on the original appeal. But Mr Williamson very frankly accepts that he faces substantial difficulties, at the very least at the stage of the voir dire that took place, had this fresh evidence been available at that time.
[43] We accept Mr Cosgrove's submission that the credibility of the two officers, DS Thornton and DS Dunn, was crucial to this case. If the jury had had reasons to doubt their credibility, then the detailed descriptions of the killing given by the appellant may well have been less compelling as evidence of his guilt. It is to be remembered that there was considerable evidence suggesting that the appellant could not have carried out the killing at the time when it seemed to have taken place. But one does not get into the position of applying the test in
Pendleton
[2001] UKHL 66
,
[2002] 1 All ER 524
and asking whether this evidence, if given at trial, might reasonably have affected the decision of the trial jury to convict. There is an antecedent issue, which is that of the admissibility of the confessions in the first place. Under s 76 of
PACE
, if a confession may have been obtained:
". . . in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond a reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."
Section 76
(2 ).
[44] The words "notwithstanding that it may be true" are important and have been repeatedly said by this court to show that what the court is concerned with on admissibility is the reliability of the confession, given the circumstances in which it was obtained, and not its veracity: see
Kenny
[1994] CLR 284 and
Cox
[1991] CLR 276. The proposition was well put by the then Lord Chief Justice, Lord Taylor, in the case of
Paris
[1993] 97 CAR 99, at 103:
"What matters is how the confession was obtained, not whether or not it may have been true."
The circumstances in which this confession was obtained must, in any event, have been close to those requiring its exclusion: it was one made by a mentally subnormal man, with very high suggestibility, without a responsible adult present, with no solicitor present for the first two interviews and without him being told that he could have legal advice. It must, in our view, have been a finely balanced decision at trial to rule that this evidence was admissible.
[45] Under s 76 the onus would have been on the Crown to show beyond a reasonable doubt that the confession had not been obtained in circumstances which were likely to render it unreliable. Had the trial judge had this additional evidence available to him and, in particular, the CIS printout, it seems to us that he would undoubtedly have decided to exclude the confession evidence from going before the jury. That would have been bound to have tipped the scales. Had that been his ruling, there would, as we indicated earlier, have been no case against the appellant.
[46] It follows that one is bound to conclude that this conviction is unsafe and we do so conclude. The conviction will, therefore, be quashed.
DISPOSITION:
Judgment accordingly.
|
{"ConvCourtName":["Crown Court at Newcastle upon Tyne"],"ConvictPleaDate":["1989-07-24"],"ConvictOffence":["Manslaughter"],"AcquitOffence":["Murder"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Newcastle upon Tyne"],"Sentence":["Hospital order under s 37 of the Mental Health Act 1983 with a restriction order under s 41 of the same Act"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[49],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Learning/developmental"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony","Pathologist evidence","Police testimony","Confession evidence"],"DefEvidTypeTrial":["Alibi claim","Expert report/testimony","Witness testimony"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender has learning difficulties","Offender is highly suggestible"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction unsafe"],"AppealGround":["Fresh evidence undermining credibility of police officers; confession should have been excluded under s 76 PACE; breaches of Code C; mental handicap and suggestibility of appellant"],"SentGuideWhich":["s 37 of the Mental Health Act 1983","s 41 of the Mental Health Act 1983","s 76 of the Police and Criminal Evidence Act 1984","s 9 of the Criminal Appeal Act 1995","s 23 of the Criminal Appeal Act 1968"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Fresh evidence (CIS printout) showed police likely knew of appellant's mental handicap, making breach of Code C more flagrant; confession likely inadmissible; without confession, no case against appellant; conviction unsafe"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
|
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2023] EWCA Crim 1543
CASE NO 20223708/B4
Royal Courts of Justice
Strand
London
WC2A 2LL
Friday, 1 December 2023
Before:
LORD JUSTICE WILLIAM DAVIS
LADY JUSTICE WHIPPLE DBE
HIS HONOUR JUDGE WATSON
(Sitting as a Judge of the CACD
REX
V
ROMAIN LAPIERRE
__________
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Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
MISS M NELSON KC
appeared on behalf of the Applicant
_________
J U D G M E N T
1.
LADY JUSTICE WHIPPLE: This is a renewed application for leave to appeal against sentence. On 2 December 2022, following a trial at the Central Criminal Court before his Honour Judge Kay KC, the applicant was sentenced by the same judge to custody for life with 28 years as a minimum term for murder, with a sentence of nine years' detention in a young offender institution to be served concurrently for robbery.
2.
The facts are set out in the Criminal Appeal Office summary. It is sufficient to record the following brief details. The robbery occurred in the late evening of 30 June 2021. The applicant was part of a group. A taxi was called. The applicant got into the back of the taxi, put his arm across the front of the driver's neck and pressed a Rambo-style knife to the driver's throat demanding the car key. Another member of the group reached through the driver's window and took the driver's mobile phone. The taxi was blocked in by others. The driver got out of his vehicle and handed over the key.
3.
The murder occurred in the early hours of the following morning. The group, including the applicant, travelled in the stolen taxi via other addresses to a house where the 16-year-old victim, Cameron Smith lived with his mother. Cameron Smith was at that address. The group wore face coverings and were armed with machetes or Rambo knives. The group knocked on the front door before the door was kicked in. The moment they got into the house the knife attack started. The victim ran upstairs to his mother's bedroom where he and his mother tried to keep the group out but some of the group forced their way in and the attack continued. The applicant was one of two individuals attacking Cameron Smith. The applicant inflicted the fatal wound. That wound cut through a loop of bowel and two major blood vessels. The wound was 11 centimetres in length and was said to have required at least moderate force.
4.
At the time of these offences the applicant was two weeks short of his 19th birthday (his date of birth is 16 July 2002). The murder was in revenge for the killing of a member of the applicant's own gang which had taken place on 30 June 2021.
5.
The judge's starting point in setting the minimum term for sentence was 25 years. As aggravating factors the judge held that the applicant had intended to kill his victim, that there was a significant degree of planning and premeditation, including the robbery. He noted that the group wore balaclavas and masks and had turned their phones off. The applicant was, he said, the ringleader of the group. The murder itself was vicious and heartless. The judge noted the applicant's extensive antecedents, namely 14 convictions for 26 offences including offences for robbery and knife possession as well as drugs.
6.
The judge thought there were no mitigating factors other than age. If anything the applicant was "mature beyond his years". The judge took account of the applicant's ADHD and unstable upbringing but held that those factors could provide little mitigation.
7.
The court had a pre-sentence report before it relating to a previous offence (report dated 22 June 2020). It set out details of the applicant's background and life difficulties.
8.
The judge imposed custody for life with a minimum term of 28 years, less time spent on remand, with the sentence of nine years' detention for the robbery to be served concurrently.
9.
Miss Nelson KC represented the applicant at trial, sentence and on this renewed application. In her written grounds of appeal, she submitted that the sentence imposed was manifestly excessive for the following reasons. First, the judge erred in finding there was an intention to kill. Secondly, the judge failed to take proper account of the applicant's age and other mitigation. Thirdly, the judge failed to take proper account of totality.
10.
We thank Miss Nelson for her oral submissions this morning which have been clearly expressed and helpful. She presses on us that when considering whether there was an intention to kill the pathologist said that there was at least moderate force used by contrast with the judge's reference to considerable force. She argues that the confession by the applicant to his father should not have been taken into account because it was quite possibly a confession made in anger. She says that the mixed verdicts returned on the other co-defendants should have been taken into account as tending to show that there was no intention to kill. Her over-arching submission is that there was an intention only to cause grievous bodily harm.
11.
So far as the factors going to mitigation are concerned, she stresses this applicant's difficult life history with ADHD and ODD. She notes his early years spent without paternal support and in care. She argues that his previous antecedents are a reflection of the circumstances of his childhood and past exploitation.
12.
All of these points were considered and rejected by the single judge. We too reject them. Dealing with the first ground, it was plainly open to the judge to conclude that there was an intention to kill. The nature and extent of the injuries and the circumstances of this attack provide plentiful evidence of that. That conclusion is entirely consistent with the pathologist's view going to the force used (described by the pathologist as moderate). The judge was entitled to use a different word, “considerable” to describe the force of the fatal stab wound. More broadly we look at the overall circumstances of this attack, as the judge did. The fact that the conviction was by a majority verdict does not diminish the weight of the evidence that was before the judge, nor do the verdicts in relation to other defendants impact on the verdict as it was returned as against this applicant. We cannot accept Miss Nelson's submission that the intention was short of an intent to kill.
13.
We deal with the second and third grounds together, namely mitigating factors and totality. The facts of this offending are striking in their brutality. On any view an increase above the 25-year start point was necessary. The murder was pre-planned and co-ordinated. The attack took place in the deceased's own home and in front of the deceased's own mother, indeed in her bedroom. The attack itself was sustained and brutal. Further, the previous robbery at knifepoint was a very serious aggravating factor and it was the applicant who used the knife to threaten on that occasion. The robbery forms part of a sequence of events that culminate in this terrible murder. The applicant had many previous convictions, some of which very relevant; that stood as significant aggravation. But for the mitigation in this case, we conclude that the minimum term could reasonably have exceeded 30 years for a mature adult offender.
14.
There was mitigation for the applicant in his young age but the judge did not consider that he lacked maturity. That was very much an assessment for the trial judge to make. The judge thought if anything the opposite was true and this was an individual who was mature for his years. It is of course right to note that this applicant had a very troubled upbringing and he had been looked after from the age of 12 and at the time of offending he was a care leaver. All this was before the judge. We conclude that the judge was entitled to consider that those factors carried relatively little weight in the exercise overall. We are not persuaded that there was a failure by the judge to take account of totality or of mitigating factors.
15.
We agree with the single judge that the minimum term imposed was not manifestly excessive, even arguably, and we refuse leave to appeal against sentence.
16.
MISS NELSON: My Lords, may I apply, I think I have to, for a representation order.
17.
LORD JUSTICE WILLIAM DAVIS: You can apply. We will rise very briefly to consider that.
(Short adjournment)
18.
LORD JUSTICE WILLIAM DAVIS: Miss Nelson, thank you very much for your attendance but I am afraid we cannot give you a representation order.
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{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2022-12-02"],"ConvictOffence":["Murder","Robbery"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["Custody for life with 28 years minimum term for murder","9 years' detention in a young offender institution for robbery"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[18],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[16],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Intended to kill","Significant degree of planning and premeditation","Group wore balaclavas and masks","Phones turned off","Applicant was ringleader","Vicious and heartless murder","Extensive antecedents including robbery, knife possession, drugs","Robbery at knifepoint prior to murder"],"MitFactSent":["Young age (two weeks short of 19)","ADHD","Unstable upbringing","Time in care from age 12","Care leaver at time of offence"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is manifestly excessive"],"AppealGround":["Judge erred in finding intention to kill","Judge failed to take proper account of applicant's age and other mitigation","Judge failed to take proper account of totality"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge was entitled to conclude intention to kill","Nature and extent of injuries and circumstances provided evidence of intent","Mitigating factors and totality were considered","Minimum term imposed was not manifestly excessive"]}
|
Neutral Citation Number:
[2010] EWCA Crim 2000
Case No.
2010/01682/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Tuesday 22 June 2010
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE HOLMAN
and
THE RECORDER OF NOTTINGHAM
(
His Honour Judge Michael Stokes QC
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
------------------------------
R E G I N A
- v -
CHRISTOPHER DAVID PINCHES
------------------------------
Computer Aided Transcription by
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165 Fleet Street, London EC4
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------------------------------
Mr T Evans
appeared on behalf of the Appellant
Mr N Gedge
appeared on behalf of the Crown
------------------------------
J U D G M E N T
LORD JUSTICE MOSES:
1. The issue in this appeal against conviction, which is brought with the leave of the single judge, raises the hoary question of the propriety or otherwise of a judge nudging a jury to a conclusion by giving a
Watson
direction. Those experienced in managing court cases, and in particular managing jurors, are familiar with this problem. There are those strongly opposed to any such nudge and those who remain of the view that provided no "undue pressure" is placed upon a jury, there will be occasions on which it is appropriate for a judge to exercise his discretion to give such a direction.
2. This was a case where there had already been a trial at which the jury had been unable to reach a conclusion. On the retrial it was apparent that the jury again were having difficulty until such a time as the judge gave them a
Watson
direction. Thereafter, after about fifteen minutes, the jury, which had hitherto appeared to be unable to agree upon a verdict, then reached a conclusion and convicted the appellant by a majority of 11:1.
3. The retrial took place in February 2010 at Cardiff Crown Court before His Honour Judge Bidder and a jury. The jury reached their verdict on Monday 22 February 2010, having started to deliberate at 11.15am on Friday 19 February. Since the appeal relates to the management of the jury by the judge, it is unnecessary to detail the facts of the allegations made against the appellant.
4. It suffices to say that the offence arose out of a dispute between the complainant and his friends who, on the afternoon of 9 June 2009, were drinking on a river bank at Bridgend alongside the Tesco car park. The appellant arrived in his car with his brother in the passenger seat. As a result of the altercation, the prosecution case was that the appellant had deliberately driven his car at the complainant, Daniel Norman, in order to cause him serious bodily harm. In circumstances where the jury could not agree, the appellant was acquitted of that offence.
5. The second count alleged unlawful violence so as to cause the complainant to fear for his safety.
6. The defence was that the complainant had started the altercation by punching the appellant in the face, throwing cans of beer at his car and shattering the car window, and that the appellant had done no more than defend himself and drive to get out of the way.
7. The complainant's evidence was that he feared that the appellant's brother would get out of the car and punch the driver's window in such a way as to smash it, and that the car had then been driven by the appellant at him and had knocked him to the ground.
8. Other witnesses gave differing accounts, apportioning blame on the one hand to the complainant and on the other to the appellant. The witnesses were inconsistent. Independent witnesses had blamed the complainant for inciting the violence and suggesting that there should be a fight. Small wonder, therefore, that the first jury could not agree and the second jury had great difficulty.
9. As we have indicated, the jury retired on Friday 19 February after a trial which had lasted four days. At 2.36pm they had indicated by note that they were unlikely to reach a verdict. A majority direction was given at 3.10pm. Twenty-five minutes later, the jury reported that they were still deadlocked and were unlikely to reach a verdict in relation to either of the counts. The judge sent them home for the weekend.
10. On Monday 22 February, at 11.25am, the jury sent a note. The judge informed counsel of its effect, namely that in relation to the first count:
"The jury cannot come to a majority decision".
However, the jury also reported:
"However, in relation to the second count we are closer to a decision but need confirmation if we can consider count 2 if no decision is made on count 1."
There was then some discussion which led to the jury being discharged in relation to count 1 after the question was asked:
".... if I were to give you more time, do you consider that there is a realistic prospect that you might reach a verdict on count 1 upon which at least ten of you are agreed?"
The foreman replied: "No".
11. Following a discussion, not all of which has been recorded due to the sophisticated digital recording system, the judge indicated that he proposed to give a
Watson
direction in relation to which Mr Evans, who appeared before us and who appeared for the appellant at trial, objected. Mr Evans submitted that it was obvious that the jury were having difficulty and that it was obvious why they were having difficulty. He suggested either that they should be left, or at best asked (although this was not recorded) whether there was any prospect of reaching a verdict.
12. The judge said that he proposed to wait until about 2.30pm. However, at 2pm the jury sent another note. It reads:
"The jury have still not come to a majority decision on count 2. It is still the same ratio now as it was when we commenced this morning."
The judge indicated that he proposed to give a
Watson
direction and Mr Evans repeated his earlier objection.
13. The judge then gave the
Watson
direction. He used the words that judges are instructed to use if they should decide to give such a direction: see
R v Watson
[1988] QB 690
, 87 Cr App R 1. He said:
"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 the 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, ten of you cannot reach agreement, you must say so."
Following that direction the jury again retired. They took two or three minutes to reach the jury room. At about 2.30pm (about fifteen minutes later) they returned with a verdict of 11:1.
14. The question which arises is whether the verdict is unsafe as a result of undue pressure imposed upon the jury in consequence of that direction.
15. It is difficult to identify from reported cases in which objection has been made to giving of a
Watson
direction, any principle by which judges managing juries who appear to be exhibiting difficulties in reaching a conclusion, as to when they should or should not give a
Watson
direction. This is not surprising because it is a matter peculiarly left to the good management skills of the trial judge. The trial judge is in the best position to asses whether or not to give such a direction. Many judges nowadays will not do so. However, the fact remains that there is no authority for the proposition that judges should never give a
Watson
direction. It remains open to them to deploy that method of reminding the jury of their responsibilities, and in those cautious terms suggesting that by give and take they might reach a conclusion. The terms must be cautious because the overriding principle is that pressure must not be placed upon a juror to reach a verdict contrary to that which their conscience and assessment of the evidence dictates.
16. It is important, however, to note that in the cases to which we have been referred --
R v AB
[2006] EWCA Crim 786
,
R v McCann
[2009] EWCA Crim 819
and
R v Dublin
[2007] EWCA Crim 3240
-- it was plain, and there was recorded, the belief by the jury that they would be unable to reach a conclusion. Notwithstanding that information, in those cases the judges gave a
Watson
directions. In both
Dublin
and
AB
the decision of the judge to give such a direction was upheld, and in
McCann
it was not said that it was outwith the range of reasonable conclusion.
17. We must stress that the trial judge is in the best position to decide whether or not to give such a direction. This court cannot interfere with that assessment of what justice requires unless the trial judge's decision was outwith the range of reasonable conclusion.
18. In
McCann
Scott Baker LJ observed that, notwithstanding the jury's indication that they could not reach a conclusion and the giving of the
Watson
direction, they deliberated for a further one hour and twenty-two minutes. By way of contrast, Mr Evans points out that in this case the jury returned after scarcely any opportunity for further discussion. They seem to have returned to their jury room and at least two of them appear to have changed their minds. Although that causes some of the members of this court some disquiet, not sufficient disquiet to say that it was not open to the judge to give the
Watson
direction. True it is that he was faced with a case in which the jury had plainly had difficulty, just as their predecessors had had difficulty in reaching a conclusion. But their note did not suggest that there was no possibility of reaching a conclusion, namely that they had not shifted from a position which was described as being closer to reaching a conclusion on count 2.
19. In those circumstances we take the view that whilst
Watson
is good law and remains open to judges to deploy that method of persuading a jury to a conclusion, it cannot be said that this judge was plainly wrong in deciding to do so. Accordingly, whilst the members of this court differ in their approach as to whether
Watson
should ever be deployed, it cannot be said that the judge was not entitled to give the direction he gave. There is no basis for saying that it imposed what the Vice-President in
AB
at paragraph 22 described as "undue pressure" in the instant appeal.
AB
was a very different case where there were specific grounds for suggesting the lack of safety of the verdict, particularly the heat in the Cardiff jury room on that day, coupled with further difficulties as to the failure of the judge to indicate that a note had been received from the jury.
20. In those circumstances, whilst we wish to record the excellence of the submissions advanced by Mr Evans on behalf of the appellant, we dismiss the appeal.
_____________________
|
{"ConvCourtName":["Cardiff Crown Court"],"ConvictPleaDate":["2010-02-22"],"ConvictOffence":["unlawful violence so as to cause the complainant to fear for his safety"],"AcquitOffence":["deliberately driving his car at the complainant, Daniel Norman, in order to cause him serious bodily harm"],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"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":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["verdict is unsafe as a result of undue pressure imposed upon the jury in consequence of a Watson direction"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["trial judge is in the best position to decide whether or not to give such a direction; no basis for saying that it imposed 'undue pressure'; judge was not plainly wrong in deciding to give the Watson direction; no basis for saying the verdict was unsafe"]}
|
No: 200903407 A4
Neutral Citation Number:
[2009] EWCA Crim 2689
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 9 December 2009
B e f o r e
:
LORD JUSTICE HUGHES
(Vice President of the CACD)
MRS JUSTICE RAFFERTY
MR JUSTICE HEDLEY
- - - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 55 OF 2009
(JOHN ROY SHIRLEY)
- - - - - - - - - - - - - - - -
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(Official Shorthand Writers to the Court)
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Mr D Hislop
appeared on behalf of the
Attorney General
Mr D Penny
appeared on behalf of the
Offender
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE HUGHES: Her Majesty's Attorney General seeks leave to refer under
section 36
of the
Criminal Justice Act 1988
sentences totalling six and a half years imposed on a 23 year-old after he had pleaded guilty to three different robberies: one of them had been committed in the home of the victims; the other two had been committed armed with an imitation firearm. We give leave.
2.
These three robberies were committed within a week. They were plainly a short course of serious offending. On 4 February 2009, with an accomplice, the defendant committed a targeted robbery at about a quarter to nine in the evening at the home of a couple in their 60s, in a village outside Oxford. When the householder opened the front door, he was confronted by two men in balaclavas, one of whom was armed with a large meat cleaver. The two men forced their way in. One of them hit the householder in the face sufficiently hard to knock him down and to cause a cut, which bled. They demanded money. They said that the couple must have it because they were retired. It is plain that they had selected a house where the occupiers might be expected to have valuables. It is also plain from that remark that they knew the sort of couple who lived there, so some research must have been done.
3.
They forced the couple to hand over their wallets, including their bank cards, and they demanded to be given the PIN numbers. Bravely, the husband of the couple gave a number, but a false one, for the card which he had handed over. Thereafter, one of the offenders, it would seem to have been this defendant, set off to the cash machine taking the cards with him, but left his companion guarding and detaining the couple in their home. The time that they had to wait for his return must have been, to put it mildly, a very uncomfortable one for the couple, who knew that what was likely to happen was that an angry robber might return, frustrated at the cash machine. That is what happened. The defendant returned, but to his credit there was at that stage no further violence. He collected his accomplice and left, though they pulled out the wires of the telephone to prevent the alarm being sounded as they went.
4.
Two days later, on 6 February 2009, this defendant, this time alone but armed with a firearm, robbed a service station at about 8 o'clock in the evening. He was disguised by a wig and a scarf, although at one point his face was captured on a close circuit television camera, which he must have missed. He escaped with the contents of the tills -- not a large sum, but about £100. The experience for the sole cashier must have been extremely frightening.
5.
Three days after that, on 9 February, he repeated that offence, this time at a corner shop just outside Oxford at about half past 6 in the evening. The shopkeeper was there. A friend of his was also present. The defendant was again armed with a pistol. He jabbed the pistol in the shopkeeper's face and cut his face by doing so. When the shopkeeper reacted, he hit him two or three times on the head and knocked him to the floor, and then he used the butt of the gun to strike him again a further two or three times on the head. The defendant escaped with the contents of the till, such as they were. The shopkeeper was left cut, bruised and generally battered.
6.
The gun had been a working air pistol, correctly classified as an imitation firearm, but having the appearance of a lethal handgun. It is perhaps true that where an imitation gun is used, it can properly be said that although the victim cannot know that it is not a real pistol and so it is equally effective and frightening, at least no lethal injury is likely to be caused if it goes off. In fact, this gun, as the judge rightly observed, was a working air pistol, and it could have indeed caused serious injury if it had been loaded; whether it was or not is not known.
7.
The defendant was 23. He was not a man of good character. He had been convicted something over 15 times previously. His convictions included having an offensive weapon when he was 16, committing a robbery (unspecified) when he was just 17, aggravated taking of a motor vehicle when he was 18, and a series of offences of assaulting a police constable (or constables) when he was 21. He had in the past served three custodial sentences, one of 18 months and two of four months, all before he was 20. Latterly he had been convicted about a year before these sentences for theft, and had served a fourth short custodial sentence of two months.
8.
He was arrested not long after the offences at the home of a friend, hiding in the loft. When interviewed, he declined to answer any questions at all. He pleaded guilty at the first opportunity, and that was and is a matter of importance. It could properly be said that the evidence against him was very strong because it included the recovery of (1) the gun with his DNA on it, (2) a mobile phone identified as belonging to the couple robbed in the first offence, (3) a wig as worn in the second robbery, and (4) traces of the blood of the shopkeeper who had been injured in the third robbery. The judge was, we think, entitled to give full recognition by way of allowance and reduction for plea of guilty. Strong evidence such as that would certainly not deter some people from contending that, for example, the person responsible was the occupant of the house where all these things were found, rather than himself. We proceed on the basis that the judge was quite entitled to treat this as an early plea of guilty calling for the conventional recognition.
9.
The sentence which the judge imposed was as follows. For counts 2 and 3, the invasion of the home of the first couple, five years' imprisonment, which is the equivalent of seven and a half years had there been a trial. For the next two robberies committed with the gun, the judge passed in each case sentences of four years and 18 months' consecutive for the firearms offence, making five and a half years. He made the four-year sentences concurrent to the five years on counts 2 and 3, but the two sentences for the firearms offences (18 months and 18 months concurrent to one another) were consecutive to that, and in that way, the total arrived at was a sentence of six and a half years. As the judge observed himself, that is the equivalent of something like ten years after trial.
10.
The submission on behalf of the Attorney General is that that is unduly lenient. The Attorney makes two complaints. First, he contends that the judge erred in principle in not making further enquiries with a view to deciding whether or not the defendant met the criteria of the dangerous offender provisions in
sections 224
and following of the
Criminal Justice Act 2003
. It is rightly not suggested that the judge overlooked that question. It is plain that a judge of this experience certainly did not do so. What happened is that he reached a summary conclusion on the material available to him, and felt able to pass a swift sentence on the occasion when the pleas were tendered.
11.
The material before the judge on this question was limited to the nature of the present offences and the criminal history of the defendant. The Crown was unable to place before the judge, although he enquired about it, any information at all about the previous conviction for robbery. It had certainly been some six years earlier, but one would have expected there still to have been a record of it, and it was plainly material. Nor did the Crown put before the judge any information about any of the other convictions, including in particular the assaults on police constables which might, depending on their facts, have demonstrated a volatility of temperament, and conceivably have been drug related, so perhaps to have given rise to further material relevant to the question of dangerousness.
12.
We think that some judges would, when dealing with a man in his early 20s with the kind of record that this man had, have thought it wise to seek a pre-sentence report in case there was in the background additional reason to fear a danger to the public in future, particularly had there turned out to be significant evidence of drug misuse of a kind likely to give rise to unpredictable and worrying behaviour. However, in the absence of any information placed before him by the Crown, we take the view that the judge was entitled to say that there was insufficient material on which he should have concluded either that there was or that there might be a significant risk not of harm, because that is not the test, but of death or serious personal injury arising from further offences committed by this man. He was also entitled to take the view that he was catering for public protection by passing a determinate sentence of some length on a young man, and there is of course, absent signs of real danger, merit in a promptly imposed sentence. The time lapse between offence and sentence is often much too long.
13.
Accordingly, in the absence of any additional material from the Crown, we think that the judge was entitled to proceed as he did without concluding that the risk of danger ought further to be investigated.
14.
The next question is whether the determinate term is significantly too low. As has been pointed out on previous occasions, the guidelines issued by the Sentencing Guidelines Council do not give either a starting point or a range for robberies in people's homes. They do identify this group as a class in passing, and at page 15 of the Guidelines is a brief mention of a category amongst them justifying very much higher sentences of the order of 13 to 16 years after trial. The case there referred to by the Council is
R v O'Driscoll
[1986] 8 Cr App R (S) 121
. That was an example of a significantly worse offence than this. Not only was the householder a man of 80, targeted in his own home, he was tortured by his assailants. He was struck several times so severely as to fracture both his skull and his leg, and a lighted gas poker was held to his face to force him to comply. A sentence of 15 years after trial was upheld and was clearly justified. Offences of robbery in the home cover a very much wider spectrum than that.
15.
In
Attorney General's Reference Nos 38 to 40 of 2007 (Crummack)
[2008] 1 Cr App R (S) 56
, this court suggested one approach to a robbery in the victim's house, which was nowhere near the
O'Driscoll
kind of offence. The approach which the court suggested might in appropriate cases be adopted was to look at the Sentencing Guidelines range for small shop or street robberies and to increase it for the added factor of invasion of the victim's home. In that case, where the victim knew the principal attacker, and where although a metal bar and a rolling pin had been carried, the sole actual force used was a single punch to push the victim back into a chair, this court thought that a sentence of about seven and a half years after trial was appropriate.
16.
That needs to be read alongside
R v Purcell
[2009] 1 Cr App R (S) 21
at 113, which is rather nearer the present case. There a sentence in that case of imprisonment for public protection, but a sentence based upon a notional determinate term after late plea of 11 years, was upheld and was clearly justified by the circumstances of the offence. Cases referred to in the course of that decision of
Dunn
,
Marcus
and
Hunter
are in or approach the same kind of range.
17.
In the present case, if the robbery of the couple in their 60s had stood alone, we are sure that this is worse than
Crummack
and nearer
Purcell
. After trial, this would not call for a sentence of about seven and a half years; it would call for a sentence of the order of nine or ten years. But it is not either an
O'Driscoll
offence. It does not get to 13.
18.
Accordingly, at that point the judge's sentence is somewhat below the right range. Whether alone it would be so far out of line as to justify alteration on an Attorney's Reference we need not decide, because what we are absolutely clear about is that the judge fell into error in adding in effect only 18 months for the two further robberies committed with a firearm.
19.
Of course, it is neither the law nor good sentencing practice simply to add up individual sentences where several offences in a series have been committed. But the overall sentence does have to recognise that there is a series and not an isolated offence, otherwise, apart from anything else, the isolated offender is unfairly dealt with.
20.
Each of the second and third robberies fell within the two years to seven years range given by the Sentencing Guidelines Council -- small shops, lone cashiers, robberies of that kind. To such a sentence had to be added a significant increment for the use of a convincing firearm. Moreover, there were two of them, not one. The defendant was not of good character, and the third robbery involved not merely the threat of violence, but significant, though not grave, actual violence -- a number of blows to the head, including those delivered with the butt of the gun. Whether sentences for those offences is best structured by raising the robbery tariff on account of the seriously aggravating feature of the gun, or alternatively by passing a consecutive sentence for the gun, does not matter. But these were robberies, we are satisfied, which if either had stood alone by itself, and had only been one, would have called for sentences of the order of eight, perhaps nine, years after trial.
21.
Taken together, it follows that all these offences were simply not sufficiently met by an overall term of six and a half years. The notional term after trial could not fail to be significantly into double figures. Ten years was not enough.
22.
This was a series of offences committed over a very short period. For that reason, and in order to avoid a total sentence which would be too long, we shall substitute concurrent sentences on each of the counts of robbery, taking into account in respect of each of the latter two robberies, the use of the firearm. We bear in mind that we are significantly raising the sentence of a comparatively young man. We quash the sentences passed by the judge, and we pass on each count of robbery a sentence of nine years' imprisonment, all concurrent to one another. Since we have taken the firearms into account already, there is no separate penalty upon the firearms counts.
|
{"ConvCourtName":[""],"ConvictPleaDate":[""],"ConvictOffence":["Robbery","Possession of an imitation firearm"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first opportunity"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["For counts 2 and 3 (home invasion robbery): 5 years' imprisonment (equivalent to 7.5 years after trial)","For each of the next two robberies with a gun: 4 years and 18 months' consecutive for the firearms offence, making 5.5 years","Four-year sentences concurrent to the five years on counts 2 and 3","Two sentences for the firearms offences (18 months and 18 months concurrent to one another) consecutive to that","Total: 6.5 years (original sentence)","On appeal: 9 years' imprisonment on each count of robbery, all concurrent to one another (firearms taken into account, no separate penalty)"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[23],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["multiple victims (couple in 60s, shopkeeper, cashier, shopkeeper's friend)"],"VicSex":[],"VicAgeOffence":[60],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","DNA match (on gun)","Victim property found (mobile phone)","Physical evidence (wig, blood of shopkeeper)"],"DefEvidTypeTrial":["Offender declined to answer questions in interview"],"PreSentReport":[],"AggFactSent":["Offence committed in victim's home","Use of weapon (meat cleaver, imitation firearm)","Targeting vulnerable victims (elderly couple)","Series of offences over short period","Actual violence (blows to head, injuries to victims)","Not of good character, previous convictions"],"MitFactSent":["Plea of guilty at first opportunity"],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Judge erred in not making further enquiries regarding dangerous offender provisions","Determinate term is significantly too low","Insufficient recognition of series of offences and aggravating features"],"SentGuideWhich":["Sentencing Guidelines Council (robbery guidelines)","Criminal Justice Act 2003 sections 224 and following","Criminal Justice Act 1988 section 36"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":["Judge failed to sufficiently increase sentence for series of robberies and aggravating features","Insufficient total sentence for seriousness and number of offences"],"ReasonDismiss":[""]}
|
No:
2007/04750/C2
Neutral Citation Number:
[2008] EWCA Crim 134
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Wednesday, 16th January 2008
B E F O R E:
LORD JUSTICE HUGHES
MR JUSTICE UNDERHILL
SIR CHRISTOPHER HOLLAND
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
-v-
JASON ROGER WILSON
- - - - - - - - - - - - - - - - - - - - -
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 P Smith
appeared on behalf of the
Appellant
Mr B Williamson
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE HUGHES: While this appellant was being tried for an offence of unlawful wounding, one or more of the jurors spotted that his name also appeared on the court list for mention later in the week. One of the jurors, in the presence of another, asked the usher in charge of the jury a question about that listing. It was a case in which the appellant's bad character was in evidence at the trial. The judge was asked to discharge the jury, but concluded as a matter of discretion that he should not do so, although the Crown supported the appellant's application. In this appeal the question is in effect whether the judge was entitled so to conclude, en route to the question whether the conviction is unsafe.
2.
The charge of unlawful wounding on which the appellant was being tried arose from an altercation late at night. The injured party, who was a man called Andrew Martin, together with his girlfriend, was visiting the flat of the appellant, whom they knew quite well. Quite late on an argument broke out between the two men. It apparently had to do with how some damage had on a previous occasion come to be occasioned to the appellant's fish tank.
3.
By the end of the ensuing struggle, the visiting Mr Martin had a series of rather unpleasant looking cuts, albeit in the end fortunately superficial, principally to the top of his head, but also elsewhere. Martin's case was that he had been attacked by the appellant using a hammer, a knife and a wooden stick or pole. By contrast, the appellant's case was that it had been Martin who was the aggressor. Martin, he said, had brandished a knife and, said the appellant, he had done no more than to act in reasonable self-defence when under attack. In other words, the short issue for the jury was whether the Crown had disproved self-defence. A great deal depended, as we have rightly been reminded, on the credibility or impact of the evidence of the two principals, plus the complainant's lady companion.
4.
Independently of that allegation, the appellant was being prosecuted for an allegation, framed originally as assault occasioning actual bodily harm, which had involved the use by him of a metal bar in the street against a different victim and about five months earlier than the incident we have just described.
5.
The two indictments were listed, for reasons which in this case made perfectly good sense, for the same week at the Crown Court. There ensued the kind of discussions between counsel out of court which are helpful to the administration of justice. As a result of it, the assault occasioning actual bodily harm count, the metal pole in the street case, was listed for trial on the Monday, with the possibility of the wounding count involving Mr Martin following the next day, on Tuesday. That proved to be wise planning. On the Monday, the Crown added a count charging affray to the assault occasioning actual bodily harm indictment. The appellant pleaded guilty to it and the Crown accepted that that was a realistic disposal of that case.
6.
The result of that was that the unlawful wounding trial, which is our present concern, began the following day, Tuesday. The other indictment, now properly described as the affray, remained in the list to follow, because of course eventually the appellant would have to be sentenced upon it. It was shown in the list with a different number, inevitably, to that of the trial with which we are concerned. It was referred to in the list not as an appearance "for sentence", but as "for mention".
7.
In this Crown Court, as in many others nowadays, the list is displayed on a television or computer monitor screen in a number of places, which include the jury assembly area. We think we should say, however, that the issues which arise remain exactly the same as they always used to be when the list was pinned up in typed form on court notice boards.
8.
At the end of the first day of the trial, the Tuesday, the Crown case was almost completed. The judge was alerted by the jury usher to a question which had been asked by one of the jurors in the presence of a second. The juror concerned had spotted from the monitor in the jury assembly area that the appellant appeared twice on the list, and that the second entry had a different number to the case which they were trying. He asked the jury usher why. The usher, very sensibly, replied in a non-committal fashion, saying in effect that sometimes judges liked to list things in that way. The usher then did exactly the right thing and alerted the judge to the conversation that the juror had initiated. The judge also did exactly the right thing and told counsel.
9.
The following morning, counsel for the appellant applied to discharge the jury. Counsel for the Crown, as he has told us out of caution, supported the application.
10.
It emerged, and as we understand it is now common ground, that the jury trying the appellant was part of a panel of jurors which had also been at court on the Monday. On that day the list had shown the appellant as listed for trial on both indictments, with two different numbers. It follows that it is possible, but no one knows, that one or more jurors who eventually formed the trial jury had been conscious of that, and could have deduced, or perhaps been told on the Monday, that the reason why they were not needed was because the appellant that they had been going to try had pleaded guilty. As to that one simply does not know. This Crown Court is not a large one. There are two courts, as we understand it. So it is possible, at least, that the jurors might, if they had been alert and if they had been interested enough to notice the names of those who were appearing, have known that on the Monday as well.
11.
Whether to discharge a jury is a question for the judgment and discretion of the trial judge. This court will not substitute its own view on balance, though, if the judge's decision was one which was not properly open to him, it may well follow, though it will not necessarily do so, that the conviction will as a result be unsafe.
12.
It is common ground that the test to be applied in such circumstances is that of the reasonable apprehension of bias: see the well-known case of
In re Medicaments (No 2)
[2001] 1 WLR 700
. The question on that test is whether a fair-minded and informed observer would conclude that there is a real possibility or a real danger, those two things being the same, that the jury would be biased.
13.
Next, where inadmissible material is inadvertently disclosed to a jury and it is capable or more than one reasonable interpretation by jurors, that test ought to be applied on the basis of the most damaging reasonable interpretation. For that see
R v Docherty
[1999] 1 Cr App R 274
.
14.
As to those principles, the judge directed himself correctly. The question for us is whether he nevertheless got it plainly wrong and arrived at a conclusion which was not properly open to him.
15.
In ruling against the application to discharge the jury, the judge adverted seriatim to a number of points which he enumerated. First, he observed that since television screens of this kind had been installed, this was a situation which arose in this Crown Court routinely and no doubt in others. Secondly, he observed that the list was also published these days on the internet and the jury could find it there if they chose to look. Thirdly, he pointed out that the recent expansion of the class of persons eligible to serve on juries to include legal professionals means that juries are likely to have more knowledge of, as he put it, the intricacies of the law than traditionally was to be expected. Fourthly, he said that there was no evidence that the juror had gone any further than making the non-committal enquiry which he had or than accepting the non-committal reply. Next and fifthly, he directed himself that it would be wrong to treat the jury as if it would not pay proper attention to the directions which were given to it. Sixthly, and as it seems to us principally, he concluded that in this case it beggared common sense to say that the jury was not going to know quite enough about the appellant's bad character in any event for it to make any difference.
16.
If the matters in this case had stood only on the first four of those propositions, we think we should have had some little doubt about the soundness of the judge's ruling. As to point 1 and 2, the fact that jurors might find out inadmissible material if they choose to look, for example, on the internet is not, as it seems to us, a sufficient reason to ignore plain proof that they have in fact been confronted with such material. We will say a little more about the general practice of the publication of lists at the end of this judgment.
17.
Next, as to point 3, we are not for ourselves clear what is the relevance of the possibility that a jury might nowadays include lawyers and other legal professionals. If it means that such people might be more likely to notice material such as the material spotted in this case, then that is the same that point we have already dealt with. If it means that potential jurors of that kind can more safely be relied upon to clear their minds of irrelevant information, that may well be so, but it still leaves open the problem of what to do if there is a real risk that there are others who cannot.
18.
As to the judge's fourth proposition, that seems to us to be at some risk of not applying the
Docherty
principle of erring on the side of assuming the worst.
19.
The judge was, however, as it seems to us on very much firmer ground when he came to his last two and, as it seems to us, decisive propositions. The judge expressly invited submissions from counsel as to whether, given what had happened, he should confront the jury with the enquiry and give them an explicit direction about its irrelevance. He received the answer from counsel for the appellant that he preferred this not to be done, on the grounds that it would draw too much attention to it.
20.
For our part, we entirely understand the dilemma with which counsel was faced unexpectedly. With hindsight, our view is that it would have been very much better if the issue had been tackled face on by the judge, whatever the submissions made on behalf of the appellant. It was plainly at least possible that one or more jurors might work out that the appellant faced some other charge. The better course, as it seems to us, would have been to say either that they should pay no attention to something which might well have an explanation in the technology, or that whether he faced another charge or not was entirely irrelevant to the question which they had conscientiously sworn to try, namely whether he had done what was alleged in this case.
21.
That said, given the submission that was made on behalf of the appellant, what the judge actually did was to accede to it. We do not criticise him for that, albeit that with hindsight we would have preferred it if it had been done otherwise. The direction which the judge gave was a firm one:
"As I told you at the beginning of the case and I repeat now, you must decide this case only on the evidence which has been placed before you. The evidence in this case is, as I have told you, what you see and hear when sitting as the jury of twelve together in court. That is all. There will be no more evidence ..."
And then he added these words:
"... you must not speculate about what other evidence there might have been or upon matters which have not been canvassed in court."
22.
Indeed, he went on effectively to repeat much of that. That, as we recognise, was undoubtedly a firming up of what otherwise might be regarded as a more or less standard direction. It was a sensible tailoring of the direction to the needs of the individual case. It must have sent to any juror who had made the enquiry about the listing the very clear message that they were to concentrate on this case and this case only, and not worry about anything else that there might be.
23.
Moreover, and as it seems to us very importantly, this was a case, as the judge went on to reason, where the jury, as by then he knew, was inevitably going to know that the appellant had several previous convictions for violence. There had been an application by the Crown on the first day of the trial, sensibly not right at the beginning of the trial but during the first day to admit evidence of bad character as evidence of propensity to offend as charged; that is to say, under gateway (d) of section 101 of the Criminal Justice Act. Among a long list of other convictions, the appellant had five, between 1998 and 2006, for assault or violence of one kind or another. He had two, additionally, for possession of bladed articles in a public place, those relating to a sword on one occasion and a lock knife on the other. All that evidence was admitted by the judge as evidence of propensity under the new
Criminal Justice Act 2003
provisions.
24.
We ought to add that, as it seems to us, if it had not been admitted under gateway (d), this was a case where the appellant's case entirely depended on an attack on the complainant's character. His assertion was that he had been attacked by the injured man, that the injured man had brandished a knife and, moreover, said the appellant, "Here was a man attacking me, who I understood to be on bail for an assault on someone else." On the appellant's behalf, counsel had either made, or signalled that he was about to make, an application to adduce the bad character of the complainant. In those circumstances, if the appellant's bad character had not been admitted under gateway (d), as it seems to us it would inevitably have been admitted under gateway (g): see section 101(1)(g) and section 106(2).
25.
On behalf of the appellant, Mr Smith's submission about that is that the bad character evidence which the judge had admitted did not include the evidence of the affray which he had admitted on the Monday of that week. Says Mr Smith, once you take the interpretation of the listing information at its most damaging, the effect of the judge's decision not to discharge the jury was to admit by the back door evidence of the affray which he had declined to admit by the front.
26.
The difficulty about that is that the judge had only declined to admit the affray as part of the appellant's bad character only because, firstly, it had not been included in the Crown's written application and, secondly, he took the view that as yet the facts of that case had not been finally determined. In fact we are told that they were uncontroversial and perfectly plain. In other words, this was not a case where the judge had decided that there would be unfairness to the appellant in admitting the evidence of Monday's affray. He simply had not extended his leave to the Crown to adduce bad character evidence to that for those particular reasons.
27.
As it seems to us, the fact that the appellant's bad character for violence was squarely before the jury is highly relevant to the question of whether a reasonable, objective observer would apprehend a real danger that the jury would be biased by either knowledge or suspicion that there was some other unspecified charge pending, and it is that which was the inference that might be drawn from the listing information which two of the jurors had spotted. We have some doubt about whether the judge's conclusion would be right in the absence of the fact that this bad character evidence was before the jury in any event. However, since it was, we are absolutely satisfied that the judge's decision was open to him and indeed right.
28.
The remaining theoretical possibility that a jury might conclude that there was something worse pending does, as it seems to us, reinforce the desirability of the judge facing the issue with the jury. But we do not believe that any reasonable impartial observer would conclude that a jury which know of the history of violence which we have already outlined would be unfairly prejudiced (that is to say biased) by knowledge or suspicion that he had some other unspecified charge pending.
29.
For that reason, this appeal is dismissed. We are satisfied that this conviction is safe.
30.
We add only this. We are conscious that the publication of lists in the Crown Court is now done by electronic means. We are conscious that the same list has to be published both to the public at large and to professionals, who may need to have their attention specifically drawn to the name of an individual whose case is before the court. It is not for us to attempt to analyse the software which is used, but we draw attention to the fact that the problem which occurred in this case is one against which care ought to be taken. Where a defendant who is on trial also has to be listed for other different matters, care should be taken that the list in the form accessible by jurors does not reveal that fact. Precisely how it is done is for those who have charge of the listing of cases. In the past it was invariably done by reference to the subsequent case on an acceptable list by initial or number alone. Precisely how it is done we do not dictate, but we make it clear that the problem which arose in the present case is one which ought to be capable of being avoided and steps should be taken to ensure that it is.
31.
Thank you both very much indeed.
______________________________
|
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|
Neutral Citation Number:
[2018] EWCA 2634 (Crim)
2017/04318/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 30
th
October 2018
B e f o r e:
LORD JUSTICE GROSS
MR JUSTICE MARTIN SPENCER
and
HIS HONOUR JUDGE KATZ QC
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
_________________
R E G I N A
- v -
RHYAN ALEXANDER THOMAS
____________________
Computer Aided Transcript of Epiq Europe Ltd, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
__________________________
Mr C J W Smyth
appeared on behalf of the Appellant
Mr K Barker
appeared on behalf of the Crown
______________________
J U D G M E N T
(Approved)
_____________________
Tuesday 30
th
October 2018
LORD JUSTICE GROSS:
I shall ask Mr Justice Martin Spencer to give the judgment of the court.
MR JUSTICE MARTIN SPENCER:
1.
This is a case to which the provisions of the
Sexual Offences (Amendment) Act 1992
apply. No matter relating to the victims of these offences shall during their lifetime be included in any publication if it is likely to lead members of the public to identify those persons as victims of these offences. This prohibition shall apply unless waived or lifted in accordance with
section 3
of
the 1992 Act
.
2.
On 7
th
September 2017, in the Crown Court at Swindon, the appellant was sentenced to a determinate sentence of seven years' imprisonment, followed by a consecutive extended sentence of thirteen and a half years, comprising a custodial element of eleven and a half years and a period of extended licence of two years. In addition, a Sexual Harm Prevention Order was made under
section 103 of the Sexual Offences Act 2003
until further order, and a restraining order was made under
section 5 of the Protection from Harassment Act 1997
until further order.
3.
The appellant appeals against sentence by limited leave of the single judge.
4.
The facts of this matter were as follows. On 17
th
October 2016, TH, who was then 18 years of age, contacted the police and stated that she had been in a sexual relationship with the appellant which had started when she was 15 years old. The appellant would have known her age because TH was a friend of the appellant's sister. The sexual activity involved the penetration of TH's mouth and vagina by the appellant with his penis. That constituted counts 2 and 3 of the indictment (Sexual activity with a child, contrary to
section 9(1)
and (2) of the
Sexual Offences Act 2003)
.
5.
TH had tried to bring the relationship to an end, but the appellant refused to allow that. He stated that the relationship would not stop, that he would not let her go and that she was his. The appellant threatened to smash her mother's car and smash her windows if TH told anyone about the relationship. The appellant turned up at the family home on occasions at 4am and made so much noise that TH felt compelled to go with the appellant in order to stop him disturbing her family. The appellant tried to prevent TH from communicating with others. He smashed her phone on two occasions. He spat and projected snot at her and on one occasion urinated on her. The appellant assaulted TH, causing her to wet herself on one occasion. There was also considerable telephone data evidence which further demonstrated his coercive and controlling behaviour toward TH. As part of that controlling and coercive behaviour, the appellant had threatened to damage the property of TH and members of her family. This constituted count 1 on the indictment (Controlling or coercive behaviour in an intimate relationship, contrary to section 76(1) and (11) of the
Serious Crime Act 2015)
.
6.
The appellant was arrested and in October 2016 he was remanded in custody. While he was in custody, he arranged for numerous messages to be sent to TH asking how much money it would take for TH not to go to court and to withdraw her evidence. That was count 9 of the indictment (conspiracy to do acts tending and intended to pervert the course of public justice, contrary to common law).
7.
On 25
th
October 2016, the police interviewed a further complainant, DS. She informed the police that she had begun a sexual relationship with the appellant when she had been 15 years of age. She did not tell the appellant her age and the appellant never asked. She informed the police that the appellant had made threats towards their unborn child, she having fallen pregnant by him, and had threatened to damage DS's mother's car. The appellant was arrested and bailed.
8.
On the same day that the appellant was bailed, someone threw a rock through the window of the house of DS's mother and smashed the windows of the mother's car.
9.
There was a great deal of telephone evidence of the appellant's controlling behaviour towards DS and of his harassing conduct towards her.
10.
A police investigation failed to discover the identity of the offender who caused the damage to the property of DS's mother, but the pattern had been such that a proper inference could be drawn that the damage was caused by or at the instigation of the appellant. This was count 7 of the indictment (Putting a person in fear of violence, contrary to
section 4 of the Protection from Harassment Act 1997)
.
11.
CP was a prospective witness in the ongoing investigations in relation to the appellant. On 12
th
November 2016 a brick was thrown through the window of a house, narrowly missing a baby who had been asleep in a crib at the time. That house had been mistaken for the home of CP's mother who resided in the same street. Similar damage was caused to CP's maternal grandmother's home. Mobile phone and cell-site evidence, including locations where the appellant was held on remand, was obtained by the police. Both the appellant and his sister were charged with the offence of conspiracy to commit criminal damage, contrary to common law (count 8).
12.
A further complainant, SN, was interviewed by the police on 14
th
February 2017. SN told the police that she had met the appellant through Facebook when she had been 13 years of age and had had vaginal sexual intercourse with him. That was count 10 of the indictment (Sexual activity with a child, contrary to
section 9(1)
and
9(2)
of the
Sexual Offences Act 2003)
. The appellant would have known SN's age because it had been made clear on her Facebook profile. When SN had tried to end the relationship, she too had been subjected to constant harassment and intimidation by the appellant.
13.
In a Victim Personal Statement, TH indicated the effects of the appellant's controlling behaviour on her. They were psychologically extreme. At one point, she came very close to taking her own life. As the learned judge said, what should have been some of the happiest years of her life became a complete misery. She felt that she had been subjected to humiliation and degradation, which was what the appellant had wanted to achieve. She said that, psychologically, she still bears the scars and will do so for many years. The judge found that the effect of the appellant's behaviour on her might never disappear completely, and its effects had affected more than just TH. The judge said that he also took into account the effect on her family.
14.
The relationship with DS mirrored that with TH in many ways. In his sentencing remarks the learned judge said this:
"You sought to cause her fear of violence as much as you could, and of course it is the fear of violence that you have created, rather than any particular violence in itself, that you have pleaded guilty to and for which you must be punished. But again, so far as she is concerned, your behaviour was sustained and persistent, and I have read what she says about the effect upon her. In many ways, what she says mirrors what [TH] says. She was completely overborne by you. She is the mother of your child, and I bear very much in mind what I have heard about your reaction to her becoming pregnant and how you behaved during her pregnancy."
15.
As we have said, SN was only 13 years of age when the appellant began a sexual relationship with her. The learned judge said:
"This is another relationship characterised by your violence, lack of respect, aggression, abuse and intimidation, and it seems to me that you show no sign at all of understanding the feelings of any of the three partners that you abused."
16.
The learned sentencing judge found that the appellant was dangerous in relation to the specified offences under the
Sexual Offences Act 2003
. The sentence imposed was structured in such a way that for the offences in relation to counts 1, 2 and 3 on the indictment, the learned judge aggregated the terms of imprisonment so as to reach a sentence which he considered to be appropriate to reflect the seriousness of the overall offending for those offences. He then attributed the aggregate sentence to one of those counts, namely count 2.
17.
The sentences in relation to counts 1, 2 and 3 were individually, after a one-third discount to reflect credit for the pleas of guilty, two and a half years, four and a half years, and four and a half years respectively – a total of eleven and a half years' imprisonment, to which was added an extended licence period of two years, making the total of thirteen and a half years imposed in relation to count 2.
18.
That extended sentence was ordered to be served consecutively to a determinate term imposed for the other offences. The determinate term of seven years' imprisonment comprised two and a half years for the offence charged in count 7 and a consecutive term of four and a half years on count 10, together with concurrent sentences of three years' imprisonment on each of counts 8 and 9. Thus, the custodial sentence imposed was one of eighteen and a half years, with a two year extension.
19.
On behalf of the appellant, in a conspicuously clear and coherent Advice on Appeal which was supplemented today by equally clear and coherent oral submissions, Mr Smyth argues that there was no adequate basis upon which the judge could find that the appellant was dangerous and that the overall sentence was not just manifestly excessive, but, as he said, outside the parameters of normal sentencing for offending of the kind in question. He points out that if full credit for the guilty plea has in fact been given, then the sentences are equivalent to a total custodial term of almost 28 years' imprisonment after trial, which he argues goes to emphasise that, in reality, no proper credit for the guilty plea has been given and there has been no proper regard to the principle of totality.
20.
In addition, Mr Smyth argues that the Sexual Harm Prevention Order is in large part unnecessary, that it is disproportionate and, in some respects, insufficiently precise.
21.
For the respondent, Mr Barker, to whom we are grateful for attending at short notice and who represented the Crown in the court below, argues that the court should look at these offences in the context of seriously manipulative relationships. He points to the actions of the appellant in turning up, for example, at 4am, demanding sex with TH and taking steps to prevent disclosure, which has led to psychological harm. He submits that the judge was right to regard these as serious offences and was right to categorise the appellant as dangerous. He submits that concurrent sentences were not appropriate because of the perversion of the course of public justice and that the learned judge was right to mark the separate nature of those offences by the imposition of consecutive sentences and for that reason he structured the sentence in the way that he did, following the determinate sentence with the extended sentence.
22.
Mr Barker referred the judge to
R v Joyce and Pinnell
[2010] EWCA Crim 2848
, in which the Court of Appeal Criminal Division endorsed the procedure whereby the court can follow a determinate sentence with a consecutive extended sentence. It was in the light of that referral by Mr Barker that the judge structured the sentence in the way that he did.
23.
Despite the eloquence of Mr Smyth's submissions, we disagree with his arguments in relation to dangerousness. However, we do agree that the overall sentence was too long and manifestly excessive for these offences and, furthermore, that the Sexual Harm Prevention Order should be significantly curtailed.
24.
Starting with the finding of dangerousness, we agree with the learned judge's assessment where he said:
"It is quite clear to me that the public need to be protected from you. These offences, your antecedents and everything I have heard about you quite obviously establishes that there is a significant risk of your causing serious psychological harm to others either by sexual abuse or violence or both".
25.
We regard as artificial the way in which Mr Smyth has sought to distinguish the offences in relation to the counts other than the specified counts and to draw that distinction for the purposes of section 229 of the Act. In our view, his submission is wrong in relation to the suggestion that the reference to such specified offences is by reference to those charged, as opposed to others. In our view, that judge was right to have regard to the risk of the appellant committing other specified offences in the future and he was entitled to use the specified offences as (in the words of Mr Smyth) a “tag".
26.
From all that we have heard and read about the appellant, we regard his behaviour as such as fully to merit the finding of dangerousness which the judge made and therefore to justify an extended sentence. In our view, this is a man who preys on underage girls significantly younger than himself and then uses intimidation, sexual abuse and violence on them. The age disparity between him and the victims – for example, the age disparity of over ten years between SN, who was only 13, and the appellant, who is in his mid-twenties, is more than a sufficient disparity to justify the finding of dangerousness.
27.
However, we agree that the overall period of custody was too long and outside the usual parameters for this type of offending. We also agree that, although the structure of the sentence was generally appropriate, in making the sentences in relation to the harassment of SN consecutive to each other and to those in relation to TH, passing a determinate sentence, followed by the extended sentence, the sentencing judge failed to take sufficient account of the principle of totality in relation to the overall sentence passed.
28.
Although we could have adopted the same sentencing structure as the learned sentencing judge did, we consider that the simpler and more straightforward approach is to take one single extended sentence for one of the specified offences on an aggregated basis. Like the sentencing judge, we take count 2 for that purposes and make all the other sentences concurrent.
29.
The sentence on count 2 will remain at thirteen and a half years, of which the custodial element will be eleven and a half years and the period of extended licence two years. The other sentences will all remain the same, but will be concurrent with each other and concurrent with the sentence on count 2. This reduces the custodial element of the sentence from eighteen and a half years to eleven and a half years. In our view, this sentence adequately reflects the totality of the offending. In substituting this sentence, we wish to emphasise that, normally, an offence of conspiracy to pervert the course of justice would in principle merit a consecutive sentence, as was imposed by the learned judge. The course which we have taken in this case should not be regarded as derogating in any way from that principle.
30.
We turn to the Sexual Harm Prevention Order. The terms of the SHPO imposed were as follows:
“a) The defendant shall not allow any child under the age of 16 years to enter and / or remain at his place of dwelling being the address at which the defendant resides unless the parent or legal guardian of that child is aware of the defendants’ previous convictions and is present at all times
b)
The defendant shall not approach, engage in conversation or associate with, either by himself or through a third party, or by any means whatsoever, including by use of the internet, any female child under the age of 16 years, unless the parent or legal guardian of that child is aware of the defendant's previous convictions and is present at all times and the parent or legal guardian themselves has not been convicted of a sexual offence or an offence of violence.
c)
The defendant shall not undertake any activity or employment (either voluntary or paid) where a female child under the age of 16 years is also engaged in that activity or employment.
d)
The defendant shall not use any device capable of accessing the internet unless (i) it has the capacity to retain and display the history of internet use and (ii) he makes the device available for inspection on request by a police officer.
e)
The Defendant is prohibited from deleting the history of internet use from any device capable of accessing the internet.
f)
The defendant shall not enter any social network sites or chat rooms without the prior approval of the police or probation service.
g)
The defendant shall not create or use any email account unless he advises the police of all his accounts details, including his email addresses and passwords.
h)
The defendant shall not knowingly go to or remain at any address at which any person under the age of 16 years or vulnerable person resides or visits whilst that child is present at the address.
i)
The defendant shall not reside at any address that is situated within 500 metres of any secondary school with pupils between the ages of 11-16.
j)
The defendant shall not reside at any address that is situated within 500m of any establishment that has regular and organised activities attended by children between the ages of 11-16. These include, but are not limited to, youth organisations such as the scouts and military cadets. The suitability of any such establishment shall be decided by a police officer.”
31.
In relation to Sexual Harm Prevention Orders generally, we draw attention to the principles as set out in previous decisions of this court in
R v McLellan
[2017] EWCA Crim 1464
and
R v Parsons
[2017] EWCA Crim 2163
. Both are decisions over which my Lord, Gross LJ presided.
32.
In
McLellan
the court made the following observations at paragraph 25:
"i) First, there is no requirement of principle that the duration of a Sexual Harm Prevention Order should not exceed the duration of the applicable notification requirements. … it all depends on the circumstances.
ii)
Secondly … a Sexual Harm Prevention Order may be made when the court is satisfied that it is necessary for the purpose of protecting the public or any particular members of the public from sexual harm from the defendant… As with any sentence, a Sexual Harm Prevention Order should not be made for longer than is necessary.
iii)
A Sexual Harm Prevention Order should not be made for an indefinite period (rather than a fixed period) unless the court is satisfied of the need to do so. An indefinite Sexual Harm Prevention Order should not be made without careful consideration or as a default option. Ordinarily, as a matter of good practice, a court should explain, however briefly, the justification for making an indefinite Sexual Harm Prevention Order, though there are cases where that justification will be obvious.
iv)
All concerned should be alert to the fact that the effect of a Sexual Harm Prevention Order of longer duration than the statutory notification requirements has the effect of extending the operation of those notification requirements: an indefinite Sexual Harm Prevention Order will result in indefinite notification requirements… Notification requirements have real, practical consequences for those subject to them; inadvertent extension is to be avoided."
33.
In
Parsons
this court underlined the following at paragraph 5 of the judgment:
"i) First, as with Sexual Offences Prevention Orders, no order should be made by way of a Sexual Harm Prevention Order unless
necessary
to protect the public from sexual harm as set out in the statutory language. If an order is necessary, then the prohibitions imposed must be
effective
; if not, the statutory purpose will not be achieved.
ii)
Secondly and equally, any Sexual Harm Prevention Order prohibitions imposed must be
clear
and
realistic
. They must be readily capable of simple compliance and enforcement. It is to be remembered that breach of a prohibition constitutes a criminal offence punishable by imprisonment.
iii)
Thirdly, … none of the Sexual Harm Prevention Order terms must be oppressive and, overall, the terms must be proportionate.
iv)
Fourthly, any Sexual Harm Prevention Order must be tailored to the facts. There is no one size that fits all factual circumstances."
34.
Bearing these points and principles in mind, we consider that there is force in some of the criticisms made by Mr Smyth of the Sexual Harm Prevention Order made in this case. Taking account of those criticisms, and accepting or rejecting them as appropriate, we substitute the Sexual Harm Prevention Order which has been circulated in advance of this judgment and which now reads as follows:
“(a) The appellant shall not allow any female under the age of 16 years who is not a relative to enter and/or remain at his place of dwelling being the address at which the appellant resides unless the parent or legal guardian of that child is aware of the appellant's previous convictions and is present at all times.
b)
The appellant shall not undertake any activity or employment (either voluntary or paid) where a female under the age of 16 years is also engaged in that activity or employment.
c)
The appellant shall not use any device capable of accessing the internet unless (i) it has the capacity to retain and display the history of internet use and (ii) he makes the device available for inspection on request by a police officer.
d)
The appellant is prohibited from deleting the history of internet use from any device capable of accessing the internet.
e)
The appellant shall not enter any chat room without the prior approval of the police or Probation Service.
f)
The appellant shall not create or use any email account unless he advises the police of all his accounts' details, including his email addresses and passwords.
g)
The appellant shall not knowingly go to or remain at any residential address at which any female under the age of 16 years resides or visits whilst that child is present at the address unless the parent or legal guardian of that child is aware of the appellant's previous convictions and is present at all times.”
34.
The Sexual Harm Prevention Order will be for a period of fifteen years. The custodial term which the appellant will serve will be between seven and eight years and therefore the Sexual Harm Prevention Order will be effective for between seven and eight years after his release from his sentence of imprisonment and we consider that to be proportionate, given the age at which he will be released.
35.
The restraining order shall remain in effect indefinitely, as imposed in the court below.
36.
This appeal is accordingly allowed as we have indicated.
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|
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|
Neutral Citation Number:
[2017] EWCA Crim 36
Case Nos:
2015/05296/B1, 2015/04461/C1, 2010/06000/C1,
2015/04828/C1, 2016/01497/C1, 2016/01722/C3,
2015/04130/B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON A REFERENCE FROM THE CRIMINAL CASES REVIEW COMMISSION AND ON APPEAL FROM THE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
09/02/2017
Before:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
and
MR JUSTICE GOSS
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
Respondent
- and -
(1) Verna Sermanfure Joseph
(2) Alexandra Dorina Craciunescu
(3) VCL
(4) NTN
(5) Dong Nguyen
(6) AA
Appellants and applicants
- and –
Anti-Slavery International
Interveners
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Henry Blaxland QC
and
TomWainwright
for the
Applicant Joseph
Henry Blaxland QC
and
M Brewer
for the
Appellant VCL
Tom Wainwright
for the
Appellant NTN
Tom Wainwright
for the
Applicant Dong Nguyen
Shahida Begum
for the
Appellant AA
(instructed by
Philippa Southwell
of
Birds Solicitors)
Jessica Russell-Mitra
for the
Applicant Craciunescu
John McGuinness QC
and
Ben Douglas-Jones
for the
Respondent
Shu Shin Luh, Maria Moodie, and Felicity Williams
(instructed by
Zubier Yazdani
of
Deighton Pierce Glyn)
for
Anti-Slavery International,
as
Interveners
Hearing dates: 23 and 24 November 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
Lord Thomas of Cwmgiedd, CJ, Hallett LJ and Goss J:
INTRODUCTION
1.
From 2000, a series of international conventions were agreed to deal with the scourge of trafficking in humans for the purposes of exploitation. These conventions imposed on the United Kingdom obligations in respect of those trafficked. In 2009, on the ratification of one of the Conventions, the Government established a National Referral Mechanism and, within the Home Office, what were named the Competent Authorities to determine whether those who claimed to have been trafficked for the purposes of exploitation had in fact been trafficked. In 2015, Parliament made comprehensive provision in respect of human trafficking by the enactment of the
Modern Slavery Act 2015
(
the 2015 Act
) which was brought into force as regards the material provisions on 31 July 2015.
2.
Until
that Act
there was no statutory provision which transposed into the law of England and Wales the obligations of the United Kingdom under the international conventions towards those victims of human trafficking for the purposes of exploitation who committed crimes in England and Wales where there was a nexus between the crime committed and the trafficking. In cases where the defence of duress was not likely to be applicable, it was left to the judiciary (utilising the flexible nature of the common law in a series of decisions in 2011-2013) and to the Crown Prosecution Service (CPS) (through the exercise of their independent prosecutorial discretion) to develop a legal regime for England and Wales in which the international obligations as they successively developed were given effect in the domestic law of England and Wales.
3.
For those within the scope of
the 2015 Act
, the law is clearly set out in s.45 and Schedule 4. S.45 sets out the conditions which have to be satisfied for a defence to arise respectively for adults and children where there is a nexus between the trafficking and the crime committed. The offences to which the defence do not apply are set out in Schedule 4. For the future,
the 2015 Act
will therefore provide the legal framework.
4.
However, as
the Act
was not drafted to provide retrospective protection, the regime that has been developed by the courts will, subject to the issue we consider at paragraphs 24 and following, continue to apply to those not within the scope of
the Act
who face charges, but who claim there is a nexus between the crime with which they are charged and their status as victims of trafficking for the purposes of exploitation.
5.
We understand there is a considerable degree of optimism that the status of a person who claims to be a victim of such trafficking will be resolved through close cooperation between the CPS and the Competent Authority, as we explain at paragraphs 38-40. There will, however, remain cases to be resolved where either the claim to be a victim of such trafficking has only been made after conviction or where there is an issue as to the nexus between the offence and the trafficking or where the crime is so serious that it would nonetheless be in the public interest to prosecute the trafficked person.
6.
In these conjoined appeals and applications the Court has heard together a series of appeals made by applicants who, save in the third appeal, have been designated by the Competent Authority as victims of human trafficking sometime after their convictions for a range of offences. The objective was to enable the court to try and resolve issues on the guidance given in the case law in respect of those who do not have the benefit of
the 2015 Act
. We would emphasise at the outset that each case is very heavily fact specific.
7.
Anti-Slavery International, a charitable organisation founded in 1839 to combat the different forms of slavery then prevalent, intervened by way of written submissions to argue that this court should reassess the approach in the law developed by the courts and the CPS and should redefine the law of duress to bring it into line with
the 2015 Act
; we are grateful for the submissions which we consider at paragraphs 24 and following.
I: GENERAL PRINCIPLES
8.
It is first necessary to provide a very brief summary of the international conventions.
International Conventions and the EU Directive
9.
In 2001, following UN General Assembly Resolution 55/25 of 15 November 2000, the UN Convention against Transnational Organised Crime was agreed at Palermo in December 2000. Annex II to the Convention was the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, usually called the Palermo Protocol. It was ratified by the UK on 9 February 2006.
10.
Its stated purpose was to prevent and combat trafficking in persons and to protect and assist victims of trafficking. A particular importance of the protocol is its definitions in Article 3:
“(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) "Child" shall mean any person under eighteen years of age.”
11.
The Palermo Protocol was complemented in the EU by EU Framework Decision (2002/629/JHA) on combatting trafficking in human beings (replaced in 2011, as set out at paragraph 14, by a Directive).
12.
It was also followed by a Council of Europe Convention on Action against Trafficking in Human Beings which was agreed in Warsaw in May 2005. This convention was ratified by the UK on 17 December 2008 and came into force in respect of the UK on 1 April 2009. It adopted in Article 4 the same definition of trafficking in human beings as the Palermo Protocol. Article 26 entitled “Non-punishment provision” provided:
“Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.”
The Council of Europe Convention was accompanied by an Explanatory Report.
13.
In 2010 the Strasbourg Court decided in
Rantsev v Cyprus and Russia
(2010) 51 EHHR 1, that Article 4 of the ECHR contained a procedural obligation similar to that in respect of Article 2 and therefore required effective means be in place in States to provide practical and effective protection of the rights of victims of trafficking (see paragraphs 282-289).
14.
On 5 April 2011, the EU promulgated Directive 2011/36/EU on preventing and combatting trafficking in human beings. This has had direct effect from 6 April 2013.
i)
Recital 14 of the Directive provided:
“Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities such as the use of false documents, or offences under legislation on prostitution or immigration, that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in.”
ii)
Article 2, paragraphs 1-4 provided:
“
Offences concerning trafficking in human beings
1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable:
The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
2. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved.
3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.
4. The consent of the victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 have been used.”
iii)
Article 8 of the Directive provided:
“
Non-prosecution or non-application of penalties to the victim
Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.”
The establishment of the Competent Authority at the Home Office.
15.
0n 1 April 2009, with the coming into force of the Council of Europe Convention, the UK Government created the National Referral Mechanism with Competent Authorities being responsible for making what are described as conclusive decisions on whether a person has been trafficked for the purposes of exploitation. The Competent Authorities are a Unit within the National Crime Agency and units or hubs within the Home Office Immigration and Visa Section.
16.
Each Competent Authority operates under Guidance issued by the Home Office; the current version, version 3, was issued on 21 March 2016. The guidance is very detailed. It sets out the process by which the Competent Authority first makes a decision that there are reasonable grounds to conclude that the person may be a victim of trafficking and then makes a conclusive decision. Conclusive decisions are made by Executive Officers or Higher Executive Officers on the basis of a balance of probabilities, making every effort to secure all available evidence, including evidence from the police, interviews with the person claiming to be a victim (though these are not always necessary), information from the person or his or her representative, and the general information and intelligence it has available to it in relation to trafficking. Negative decisions are reviewed by a Senior Executive Officer.
The CPS Policy and Guidance
17.
The CPS developed its first policy to give effect to the international obligations of the UK, which we have set, out in December 2007; it related to those charged with immigration offences and to the prosecution of young offenders who might be trafficked victims; the policy in respect of the latter highlighted theft and cultivation of cannabis as offences likely to be committed by child trafficked victims.
18.
Detailed guidance implementing this policy was given on 31 January 2008; that was revised on 4 February 2009. A further policy was issued in May 2011. On 31 July 2015, a new policy was introduced to deal with those under
the 2015 Act
as well as those outside its scope.
The establishment of the principles through the common law: 2010 -2013
19.
In parallel with the development of these policies after the coming into force of the Council of Europe Convention, this court has heard a number of appeals relating to the position of victims of trafficking for the purposes of exploitation who commit crimes. The most significant have been:
i)
R v M(L), B(M) and G(D)
[2010] EWCA Crim 2327,
[2011] 1 Cr App R 12
(Hughes LJ, Owen and Thirlwall JJ).
ii)
R v N, R v Le
[2012] EWCA Crim 189
,
[2013] QB 379
(Lord Judge CJ, Royce and Globe JJ).
iii)
R v L(C), N, N & T
[2013] EWCA Crim 991
[2013] 2 Cr App R 23
(Lord Judge CJ, Moses LJ and Thirlwall J).
20.
The judgments in these cases established the legal regime in domestic law to give effect to the international obligations we have set out:
i)
The obligation under Article 26 of the Council of Europe Convention is given effect in England and Wales through (1) the common law defences of duress and necessity or (2) guidance for prosecutors on the exercise of the discretion to prosecute (which has been revised from time to time) or (3) the power of the court to stay a prosecution for abuse of process (see
R v M(L), B(M) and G(D), 2010
at paragraphs 7-12)
ii)
In a case where (a) there was reason to believe the defendant who had committed an offence had been trafficked for the purpose of exploitation, (b) there was no credible common law defence of duress or necessity but (c) there was evidence the offence was committed as a result of compulsion arising from trafficking, the prosecutor has to consider whether it is in the public interest to prosecute. (See:
R v M(L), B(M) and G(D), 2010
at paragraph 10.)
iii)
The court’s power to stay is a power to ensure that the State complied with its international obligations and properly applied its mind to the possibility of not imposing penalties on victims. If proper consideration had not been given, then a stay should be granted, but where proper consideration had been given, the court should not substitute its own judgment for that of the prosecutor (see
R v M(L), B(M) and G(D), 2010)
at paragraph 19).
iv)
Where this court concludes that the trial court would have stayed the indictment had an application been made, the proper course is to quash the conviction, (see
R v M(L), B(M) and G(D), 2010)
at paragraph 17).
v)
The obligation under Article 26 does not require a blanket immunity from prosecution for victims of trafficking. Various factors should be taken into account in deciding whether to prosecute; if there is no reasonable nexus of connection between the offence and the trafficking, generally a prosecution should proceed. If some nexus remained, then prosecution would depend on various factors including the gravity of the offence, the degree of continuing compulsion and the alternatives reasonably available to the defendant. Each case was fact specific. (See
R v M(L), B(M) and G(D), 2010
at paragraph 13-14).
vi)
The distinct question for decision in the case of a trafficked defendant is the extent to which the offences with which he is charged (or of which he has been found guilty) are integral to or consequent on the exploitation of which the person was a victim (see
R v L(C), N, N & T, 2013,
at paragraph 33). The court made clear such a decision is a fact sensitive one:
“We cannot be prescriptive. In some cases the facts will indeed show that he was under levels of compulsion which mean that, in reality, culpability was extinguished. If so, when such cases are prosecuted, an abuse of process submission is likely to succeed. That is the test we have applied in these appeals. In other cases, more likely in the case of a defendant who is no longer a child, culpability may be diminished but nevertheless be significant. For these individuals prosecution may well be appropriate, with due allowance to be made in the sentencing decision for their diminished culpability. In yet other cases, the fact that the defendant was a victim of trafficking will provide no more than a colourable excuse for criminality which is unconnected to and does not arise from their victimisation. In such cases an abuse of process submission would fail.”
vii)
The reason why the criminality or culpability of a trafficked person is diminished or extinguished does not result merely from age but in circumstances where there has been no realistic alternative available to the person but to comply with the dominant force of another individual or group of individuals (see
R v L(C), N, N & T, 2013
at paragraph 13).
viii)
The decision of the competent authority as to whether a person had been trafficked for the purposes of exploitation is not binding on the court but, unless there was evidence to contradict it or significant evidence that had not been considered, it is likely that the criminal courts will abide by the decision (see
R v L(C), N, N & T , 2013
at paragraph 28).
21.
As a consequence of experience and the decisions of the courts and the successive changes to CPS guidance, the present policy of the CPS, as expressed in 2015, in respect of those not within the scope of
the 2015 Act
is to require the prosecutor to consider three broad questions on a fact specific basis in each case where the defence of duress does not arise on the evidence:
i)
Is there credible evidence that the defendant falls within the definition of trafficking in the Palermo Protocol and the Directive?
ii)
Is there a nexus between the crime committed by the defendant and the trafficking? In the case of adults it is necessary to assess whether the defendant had been compelled to commit the crime by considering whether the offence
“was a direct consequence of, or in the course of trafficking/slavery and whether the criminality is significantly diminished or effectively extinguished because no realistic alternative was available but to comply with the dominant force of another”.
iii)
Is it in the public interest to prosecute? There will be some crimes that it will be in the public interest to prosecute.
22.
The policy makes clear that in the case of children the position in relation to the second question is different. As we set out at paragraph 37 below, it is a sufficient nexus if the offence is a direct consequence of the trafficking. It is not necessary to show compulsion.
Should the courts redefine the approach in the light of the
Modern Slavery Act 2015
?
23.
As we have already mentioned,
s.45
of
the 2015 Act
provides for a substantive defence. It is in these terms:
“
(1) A person is not guilty of an offence if—
(a) the person is aged 18 or over when the person does the act which constitutes the offence,
(b) the person does that act because the person is compelled to do it,
(c) the compulsion is attributable to slavery or to relevant exploitation, and
(d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.
(2) A person may be compelled to do something by another person or by the person’s circumstances.
(3) Compulsion is attributable to slavery or to relevant exploitation only if—
(a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or
(b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.
(4) A person is not guilty of an offence if—
(a) the person is under the age of 18 when the person does the act which constitutes the offence,
(b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and
(c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.
(5)For the purposes of this section—
“relevant characteristics” means age, sex and any physical or mental illness or disability;
“relevant exploitation” is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking.
(6)In this section references to an act include an omission.
(7)Subsections (1) and (4) do not apply to an offence listed in Schedule 4.”
24.
In the submission made to the court by Anti-Slavery International, as interveners, it was urged that the court should take the opportunity of these appeals to re-assess the approach the courts have taken to victims of trafficking. It is said that it is no longer appropriate or in compliance with the international obligations of the United Kingdom, in cases where the evidence does not establish duress, to rely on the approach set out in
R v M(L)
, namely what is described as dependency on the use of prosecutorial discretion and the abuse of process jurisdiction.
25.
The court, it was submitted, should develop the common law defence of duress in line with the international obligations of the UK so that it applies to victims of trafficking in a manner consistent with the UK’s international obligations under Article 26 of the Council of Europe Convention, Article 3 of the Palermo Protocol and Article 4 of the ECHR. To achieve that result those who could not avail themselves of the defence under
s.45
of
the 2015 Act
because it was not in force at the material time should be put in the same position as those who can rely on
s.45
. Such a development of the law of duress should not be a general development but one strictly confined to cases involving victims of trafficking. It was right to do so, because the courts should develop the common law so that it reflected the international obligations of the UK.
26.
Furthermore, it was submitted that the questions which arose in each case as to whether the defendant was a victim, whether there was a nexus and whether there had been compulsion should be determined by a jury. It was no longer appropriate to rely on prosecutorial discretion and a review by the court, as set out in the cases decided in 2010-2013 which we have summarised. The court should therefore develop the common law in relation to duress in relation to victims of trafficking only so that it was aligned with the international conventions. The present law operated in a way which meant that the remedies provided by the court came after the conviction and often after service of the sentence. A detailed and closely argued submission urged the court to redefine the concept of compulsion so that it was sufficiently broad to encompass the means of trafficking set out in the Palermo Protocol and the Convention.
27.
We do not accept the submission. In our judgement the principles in the case law to which we have referred at paragraphs 19-20 were established by the courts in a way which ensured that the domestic law of England and Wales was in accordance with the obligations under the international conventions: see in particular paragraph 7 of
R v M(L).
28.
The present law of duress is clear. Its scope and limits are set out in cases of the highest authority. Parliament has considered the position. It enacted
s.45
without providing for retrospective protection. In the circumstances it would require instances of clear injustice to justify a court amending the law of duress as applicable to victims of trafficking who were not able to take advantage of
the 2015 Act
. We have seen no evidence of such instances. The individual cases that were the subject of the decisions in 2010 to 2013 and the appeals and applications being heard by us show that the law operates in practice in a way entirely consistent with the UK’s international obligations. We accept that the cases that the court has to consider are cases where the issue as to trafficking often has arisen after the conviction. Changing the law of duress would not alter that type of case. A court cannot grapple with the issue until it is raised; in some of the cases we are considering it was not raised until after conviction. What has changed is a greater understanding of the position of victims and the need in such cases to investigate. We see no reason to develop the law of duress in the way suggested.
29.
In
R v van Doo
[2012] EWCA Crim 1717
, this court expressed the provisional view that the defence of duress should not be expanded in a case involving the case of a credible victim of trafficking; and that it would not be right to alter the ingredients of the defence so that a threat of false imprisonment would suffice (see paragraph 24(iv), 33, 54-56 of the judgment). As we have set out, our view accords with this provisional view.
30.
As we have rejected the contention that the existing approach should be abandoned and a new approach adopted for cases not covered by
the 2015 Act
, it is necessary to deal with three general issues that have arisen on these appeals before turning to the facts of the appeals.
i)
The relevance of the gravity of the offence.
ii)
The position of a child victim.
iii)
The relationship between the Competent Authority and the CPS.
The gravity of the offence committed.
31.
As has been made clear in the decisions to which we have referred there will be graves crimes where, taking into account all the circumstances, it is in the public interest to prosecute. The decision is always fact sensitive. The first appeal (see paragraphs 61-66) and the second appeal (see paragraph 98) are cases where the crimes committed were serious drug trafficking offences and prosecution was, in all the circumstances, in the public interest.
The position of a child
32.
In the third case, on a reference from the Criminal Cases Review Commission, one of the issues which arose related to the relevance of compulsion in respect of a child trafficked for the purposes of exploitation. In the judgment of this court in
R v L(C), N, N & T, 2013
there is extensive discussion of the position of children and the evidential requirements in relation to trafficking and the nexus between trafficking for the purposes of exploitation and the crime committed. The court had to consider if the crime alleged was consequent upon and integral to the trafficking of which he was a victim.
33.
It was suggested that both the CPS and the court in
R v N, R v Le
had misunderstood the law on the basis that, at paragraph 90 of the judgment, the Court asked the following question which suggested that in the case of a child compulsion had to be shown:
“whether the circumstances in which this defendant was working at the time of his arrest represented a level of coercion and compulsion that should have led to a decision that he should not be prosecuted.”
34.
This paragraph in the judgment was in the section dealing with the examination of the circumstances of N, the other appellant. It was neither in the section on general principles nor in the section relating to the appeal of the appellant in this further appeal. We shall return to this issue in the course of consideration of the third case at paragraph 124 below.
35.
The law is, in our view, clear. Once it is established that a child is a victim of trafficking for the purposes of exploitation, the relevant consideration is whether there is a sufficient nexus between the trafficking for the purposes of exploitation and the offence; it is not necessary to go so far as to show there was compulsion to commit the offence required in the case of an adult. It is clear from the definitions in the Palermo protocol and the Council of Europe Convention (which we have set out at paragraphs 9 and 12 above) and paragraph 76 of the Report on the Convention (to which we have also referred at paragraph 12 above), that once it is shown that a child had been trafficked for the purpose of exploitation, what has to be shown is that the offence has been committed as a direct result of the trafficking for the purposes of exploitation. It is not necessary to prove compulsion.
36.
The 2009 CPS guidance was not explicit in the passage referring to child trafficked victims involved in theft or the cultivation of cannabis:
“Prosecutors should be alert to the possibility in such circumstances a young offender may actually have been a victim of trafficking and committed the offences under coercion.”
It did not make clear there has been no need to establish coercion in the case of a child who had been trafficked for the purpose of exploitation if a direct nexus could be shown between the offence and such trafficking. The 2011 guidance was more explicit when it stated:
“if new information or evidence supports the fact that the child or youth has been trafficked and had committed the offence whilst in a coerced situation, there is a strong public interest to stop the prosecution. However there must be consideration of whether the criminality is as a direct consequence of their trafficking situation.”
37.
The 2015 guidance sets out more clearly that what has to be established is that the commission of the offence is direct consequence of the trafficking for the purposes of exploitation and that it is not necessary to establish compulsion. The 2015 makes the position clear by simply stating:
“When considering whether to prosecute a child victim of trafficking/slavery, prosecutors will only need to consider whether or not the offence is committed as a direct consequence of, or in the course of trafficking/slavery”
The relationship between the Competent Authority and the CPS
38.
As we have set out at paragraph viii), the decision of the Competent Authority does not bind the court.
39.
Where there is an issue as to whether a person is a victim of trafficking for the purposes of exploitation whilst a prosecution is being considered or is in progress, the CPS and police are able to refer to the Competent Authority the case of a person in respect of whom there may be evidence of that person being a victim of trafficking. Provision is made in the Guidance to the Competent Authority for cooperation with the police and CPS in all cases before the conclusion of the prosecution. We were told that the cooperation has been developed so that during the procedures for considering prosecution every effort is made to reach a common view on whether the evidence points to the person being a victim of trafficking. That is plainly of the greatest importance, as the cogency of the evidence which may be relied on by the Competent Authority must be subject to thorough forensic examination when the CPS is considering the question of nexus and whether it is in the public interest to prosecute.
40.
However, in respect of a person claiming after conviction to be a victim of trafficking, there is no clear guidance on or process in respect of co-operation with the CPS or in obtaining court documents. These appeals have shown that it would desirable for much clearer guidance and processes to be developed between the CPS and the Competent Authorities in cases where the claim to be a victim of trafficking is made after conviction. It is important to appreciate a court will bear the Competent Authority’s conclusion very much in mind but will examine the question of the cogency of the evidence on which the Competent Authority relied and subject the evidence to thorough forensic examination. It does not follow from the fact than an individual ‘fits the profile’ of a victim of trafficking that they are necessarily the victim of trafficking. A careful analysis of the facts is required including close examination of the individual’s account and proper focus on the evidence on the nexus between the trafficking and the offence with which they are charged. The second, third and sixth appeals illustrate the issues that can arise (see in respect of the second appeal paragraphs 87-94 and 96-97, in respect of the third appeal paragraphs 115-116 and 122 and the sixth appeal paragraphs 157 and 160).
41.
We turn to deal with the specific appeals.
II: SPECIFIC APPEALS
(1)
R v VERNA SERMANFURE JOSEPH
Introduction
42.
On 15 September 2005 the applicant was convicted at the Crown Court at Manchester before Poole J and a jury of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug of Class A (cocaine). She was sentenced to 9 years’ imprisonment. An application for leave to appeal against sentence was refused by the Single Judge in 2005 and not renewed. This is her first application to appeal against conviction for which she needs an extension of time of approximately 10 years and 1 month.
The applications for leave and an extension have, in accordance with the practice of the court, been referred to the Full Court.
43.
She has served her sentence.
Factual background
44.
The applicant was a resident of St Lucia. On 8 February 2005 she arrived at Manchester airport on a flight from St Lucia. As she was passing through the green ‘nothing to declare’ channel at customs she was stopped by an official who asked to examine her baggage. She stated she had packed the suitcase herself, that she understood that it was illegal to bring drugs into the UK, and that nobody had asked her to bring anything into the UK for them. The applicant produced a key from her handbag to enable the officer to unlock her suitcase. Amongst the items in the case were four wine bottles. They contained 5.13 kg of liquid in which was dissolved a total of 2.12 kg of cocaine at 100% purity. The estimated street value of the drug was £271,658.
45.
On the same day as the applicant’s flight, two other women, including a Channel Lizell Cornibert (hereafter referred to as Ms Cornibert), were arrested at St Lucia airport and were found to be in possession of large quantities of drugs.
46.
In interview, the applicant claimed that the purpose of her trip to the UK was to confront the father of two of her children. She had decided to come to the UK some months before and was planning on staying with an uncle. She provided an address for the uncle which did not exist. She said that she had been asked to carry the wine bottles by a friend, Ms Cornibert, who was on the same flight but who had exceeded her baggage allowance. She said Ms Cornibert was unreliable and a user of drugs. She claimed to have misunderstood the customs officer’s question when she had denied that she was carrying anything for anyone else. She denied knowing that the bottles contained drugs.
The trial in 2005
47.
The defence case at trial was duress. Her case was that she was the mother of eight children one of whom, Marcia, was aged fourteen. The father of her youngest two children was Antoine Jean Marie, also known as ‘Stone’. She claimed that on 24 October 2004 armed members of a gang known as the “Graveyard Crew” called at her house looking for Stone. They returned many times. One morning, Stone rang her and told her to meet him. When she was with him, she received a call from a friend who told her that the gang had trashed her house and shop and had kidnapped Marcia. She returned home immediately. She informed the police of the kidnapping and also made a plea for the return of her daughter on a radio broadcast. The gang returned her daughter that evening. The applicant went to stay at a relative’s house where she thought she would be safe but gang members found her, kidnapped her and held her at gunpoint. They drove her to a house where they tied her to a chair and started to torture her in an attempt to get her to reveal Stone’s whereabouts. They stubbed cigarettes out on her and pulled her toes and ears with pliers. They pushed a gun into her mouth. They starved her for sixteen days and raped her.
48.
On the tenth day they captured Stone, brought him to the house, and beat and tortured him whilst she watched. On the sixteenth day they cut off his toes. Later that day Stone escaped. The men panicked and returned her home. They warned her not to do anything stupid and told her that she must not go into town or to any government building or to the police. She was told that they had men watching her.
49.
Subsequently the men contacted her by phone and told her that she was responsible for paying Stone’s debt of $25,000. They threatened to kill her and her children if she did not pay and do as they said. She did not have the money and she reported the threats to the police.
50.
Some time later, the men arranged a meeting. They explained that she had to go to England and that when she got to the airport in St Lucia someone would give her a bag which she had to take to England. She knew that the bag would contain drugs. She had no choice but to agree because she was scared they would kill her and her children. They told her that if she took the drugs to England she and her children would be free.
51.
She was not surprised to see someone called Ms Cornibert at the airport as she knew her to be associated with the gang. Ms Cornibert handed her the bag which had four bottles in it. Ms Cornibert accompanied her to the departure gate and told her not to do anything stupid. Ms Cornibert then turned back to immigration. The applicant believed that Ms Cornibert was on the flight, but she did not see her. At Manchester she did not tell customs about the drugs because she was scared and did not know what the gang would do to her family. She denied that she had concocted her story whilst on remand.
52.
Members of her family and friends provided statements which in summary confirmed that there was a gang in St Lucia known as “the Graveyard Crew” which was capable of serious violence and murder. DC Brett of the Royal St Lucia Police said that on 26 October 2004 information was received that the applicant’s daughter had been kidnapped by a number of men from the Graveyard Crew. The gang consisted of about ten people and were connected mainly with drugs and guns. He had never had any previous dealings with the applicant. Her daughter was released after Stone had made a call to the gang. The applicant appeared frightened and would not leave the police station. He then became aware that both she and her boyfriend had been kidnapped. He only saw her once after that in connection with another matter to which she was a potential witness but she was too fearful to make a statement.
53.
DC Raymond also a St Lucian officer stated that he had been told by the applicant’s former boyfriend, Stone, that the reason she had been kidnapped was because she had gone to Trinidad for some drugs in 2004 which she was meant to bring back to St Lucia. The drugs had gone missing and this had provoked the gang. The applicant’s passport showed that on 14 October 2004 she had entered Trinidad and Tobago.
Sentencing remarks
54.
Although the jury by their verdict rejected the defence of duress, the judge accepted when sentencing that the applicant was used by others much higher up the chain of command and that she was subjected to horrific treatment by the gang members. However, she had been badly treated because she had voluntarily associated with the gang, had become involved in drug smuggling and then fallen out with them. He noted that the applicant had opportunities, which she did not take, to report matters to the authorities both in St Lucia and the UK. He reduced the sentence of twelve years which the offence merited to one of nine years to reflect her lower level of culpability.
Grounds of Appeal
55.
Two grounds formed the basis of the application for leave to appeal that:
i)
There was fresh evidence that demonstrated that the applicant was the victim of trafficking which, taken together with the judge’s sentencing remarks, showed that she was under such a level of compulsion that her culpability for her offending was extinguished;
ii)
Had the material been available at the time, either it would not have been in the public interest to prosecute or submissions for the proceedings to be stayed as an abuse of process would have succeeded.
Fresh evidence
56.
There were two items of fresh evidence upon which the applicant sought to rely - the decision of the Competent Authority and a psychological report from Dr Amanda Jones.
57.
In a letter dated 3 September 2015, from Angie McIlveen and Sharon Gallagher of the Home Office UK Visas and Immigration Department, the Competent Authority confirmed that, following a decision in August 2014 that there were reasonable grounds to believe that the applicant was a potential victim of human trafficking, the Competent Authority has concluded that, on the balance of probabilities, the applicant was a victim of human trafficking. The Authority stated it had borne in mind objective evidence of the prevalence of human trafficking in St Lucia, the applicant’s own account of her involvement in drugs smuggling, a clinical forensic report on her physical injuries consistent with her account of physical trauma when kidnapped and psychological reports upon her.
58.
In a psychological report dated 10 March 2015 Dr Amanda Jones stated that, from a psychiatric diagnostic point of view, the applicant suffered from post-traumatic stress disorder, panic disorder and recurrent depressive episodes. Dr Jones opined that the Applicant presents as someone who has “endured considerable loss and trauma”.
The applicant’s submissions
59.
In submissions made on the applicant’s behalf by Mr Blaxland QC and Mr Wainwright, we were invited to conclude that there was “compelling evidence that the applicant was a credible victim of trafficking” and should not have been prosecuted. Although Mr Blaxland QC, when pressed, conceded there may be some offences which were so serious that even a victim of trafficking must expect to be prosecuted, he did not accept that smuggling a significant quantity of Class A drugs into the United Kingdom was one of them. He dismissed as unreliable the evidence that suggested the applicant willingly involved herself in the gang’s drugs smuggling activities and as unrealistic the Crown’s assertion that the applicant could have sought the help of the authorities in St Lucia. He contended that the level of criminality established was not such as to deprive the applicant, a victim of trafficking, of the protection to which she was entitled, given the severity of the compulsion to which she had been subjected. Had the Crown chosen to proceed with the prosecution despite the evidence which had since become available, the court would have been bound to intervene and stay the proceedings as an abuse of process.
60.
The Crown, acknowledging the decision of the Competent Authority that the applicant was a credible victim of trafficking, made clear that was insufficient and what was required was, as set out in the policy it had developed as summarised at paragraphs 17-18 and 21, the necessary nexus between the trafficking and the offence. There was insufficient evidence of compulsion which would significantly diminish or extinguish the criminality of the applicant, given the high level of criminality involved in smuggling the substantial quantity of cocaine; the decision to prosecute on all the evidence now available was in the public interest and therefore justified.
Conclusion
61.
Although the Council of Europe Convention and Directive were not part of the international obligations of the UK at the time of the offending in 2005, it was rightly accepted by the Crown that the protection afforded to the applicant by the Palermo Protocol, Article 4 of the ECHR and the Code for Crown Prosecutors, should be treated as materially the same as the protection outlined in the passages from the authorities to which we have referred at paragraphs 19 and 20 above and the CPS policy summarised at paragraph 21 above.
62.
We note that Recital 11 of the Directive refers to the exploitation of a person to commit among other crimes, pick-pocketing, shop-lifting, drug trafficking and similar activities which are subject to penalties and imply financial gain. We also note that drug trafficking is not one of the crimes listed in Schedule 4 to
the 2015 Act
.
63.
However, we cannot dismiss an offence of importing Class A drugs into this country or the applicant’s involvement in drugs smuggling as lightly as Mr Blaxland QC invited us to do. Class A drugs bring death and misery to the streets of the UK and those who involve themselves willingly in the supply chain must face the consequences of their actions. A distinction must be drawn between the individual put under some kind of pressure to become involved in drugs smuggling and the genuine victim of human trafficking. The circumstances of the former can be fairly and adequately reflected in the court’s assessment of their role in the offending and the sentence imposed.
64.
Even if we accepted the fresh evidence without reservation and took fully into account the fact that the applicant had been subjected to serious violence and sustained serious injuries, which was not in dispute at the trial or subsequently, it is important to determine why she was subjected to such violence and sustained such injuries when determining the issue of nexus between the alleged trafficking and the offence. The objective evidence suggests that this applicant did involve herself willingly in smuggling Class A drugs. Her first drugs trip was to Trinidad and Tobago in October 2004; it was only when that operation went wrong that she and Stone faced the wrath of the gang. Several months then passed between the kidnaps and torture (which ended at the latest in mid-November 2004) and her being sent to the UK in February 2005. Although as is made clear in the international and European conventions, it must be appreciated that a victim of trafficking may find it difficult to report what has happened, in the circumstances of this case which we have set out, it was not unrealistic or unreasonable to expect her to report the gang’s demands to the police in the same way as she reported the kidnaps and subsequent threats.
65.
It follows that, in our judgement, the applicant has failed to establish a sufficient nexus between her becoming involved in a very serious offence and her ill treatment to justify not proceeding with the prosecution. The judge properly reflected the reduced culpability by the reduction in sentence he made. The decision to prosecute was justified and fully in accordance with the applicable legal regime.
66.
In the light of those circumstances, the Competent Authority’s decision that the applicant is a credible victim of human trafficking is not such as to “diminish significantly” or “effectively extinguish” the high level of criminality involved in the international smuggling of Class A drugs. Public policy dictated that she be prosecuted.
67.
We add only this. The fresh evidence in the form of the conclusions of the psychologist and the Home Office officials appears to have been based almost entirely on the applicant’s own account. No attempt seems to have been made by any of those involved to test that account. It is not for us to advise officials in the Home Office how to investigate the credibility of a person claiming to be a victim of trafficking; that is a matter for them. However if an expert’s report is relied on for the purposes of an appeal before this court, the expert should remember their duty to the court and not simply proffer an opinion on an applicant’s credibility without exploring areas of possible inconsistency.
68.
For all those reasons, we refuse the applications for an extension of time and for leave to appeal against conviction.
(2)
R v ALEXANDRA DORINA CRACIUNESCU
69.
On 13 September 2010 at the Crown Court at Isleworth before HH Judge McDowall and a jury the applicant was convicted of being knowingly concerned in the importation of cocaine and sentenced to ten years’ detention. She did not appeal against conviction; her application for leave to appeal against sentence was refused by the Single Judge on 8 February 2011.
70.
She seeks an extension of time of over 4 years and 11 months to apply for leave to appeal against conviction and applies for leave to appeal. Her applications have been referred to the Full Court by the Registrar. She also seeks leave to renew her application for leave to appeal against sentence and the necessary extension of time.
71.
She was released on licence in 2015.
Factual background: her case at trial
72.
The applicant was a Romanian national born on 21 September 1989; she had a child in Romania. She arrived in the UK in November 2009. On 30 or 31 March 2010 she travelled by airplane from the UK to Brazil. When she returned to Heathrow airport on 15 April 2010 her luggage was found to contain two packages which, on analysis, contained 1.16 kg of pure cocaine with an approximate street value of £220,000. The notes of the advice of those representing her at the interview with Customs showed that they raised with her the question of whether she had been forced to carry the cocaine. The note records the advice that it was the best time to put such a case and advance such mitigation. A ‘no comment’ interview then took place.
73.
The applicant pleaded not guilty, claiming that she did not know that she was carrying the cocaine. Her case was that after coming from Romania she had worked at two cafes in London and earned approximately £1,000 a month. She had gone to Brazil to visit Adam, a man she had met online on a dating website; she had paid for the ticket herself. He had persuaded her to stay for longer and agreed to pay the extra cost of her ticket home. While she was there he bought her two handbags, each worth about £5, as gifts. He had assisted her with packing them. She maintained that he must have placed the drugs inside. She did not allege she had been trafficked. Despite attempts by those presently representing the applicant in accordance with the practice set out in
McCook
[2014] EWCA Crim 734
, it has not been possible to ascertain anything from her previous legal team who represented her at the trial; her counsel has died and her solicitor is untraceable.
74.
In imposing the sentence of 10 years, the judge stated he took into account her young age, her previous good character and the fact she was the single mother of a child.
Her subsequent claim she was trafficked
75.
In February 2013 the applicant claimed in conversations with the prison authorities that she had been trafficked into the UK. She was referred to the Poppy Project. Acting on her behalf they referred the applicant in May 2013 as a potential victim of trafficking to the Competent Authority. The referral was based on the applicant’s account of her background and the events leading up to the offence.
76.
Her account was that her mother had died when she was 14, that her father had then sexually abused her; she moved in with a friend but had a child by the friend’s brother when she was 18. Her friend’s boyfriend whom she has refused to identify and we therefore identify as RX offered to pay for her travel to London for her to work in a café or as a cleaner. She arrived in Luton airport on 14 November 2009; RX collected her and arranged for her to work in cafes; she earned £300 a week, but was only allowed by RX to keep £20. He also took her passport.
77.
In January 2010 he tried to pressure her to travel to French Guyana to bring drugs back for him, but she refused. In March 2010 he asked her to go to Brazil for the same purpose and, following threats that she would lose her job and never see her son again and physical abuse, she relented.
78.
She was driven to Heathrow airport by her trafficker and another man and was given her passport, plane tickets, $1,000 in cash and the address of a hotel to stay in. While in Brazil an associate of her trafficker took the money from her and acted as her minder until the drugs were delivered. She was told what to say if caught returning through customs, and did so because she was afraid for her safety and that of her family in Romania. The account given at trial was what she had been told to say. She had said nothing about trafficking as she feared RX would carry out the threats he had made.
79.
The Competent Authority determined on 5 August 2013 that there were reasonable grounds to believe that the applicant had been trafficked. The Poppy Project subsequently provided further submissions on 23 August 2013 in the form of an expert report. The content of this report was based on the Project’s general expertise in trafficking and the applicant’s own account of events.
80.
On 11 October 2013 the Competent Authority responded by letter explaining their considerable reservations about the evidence presented that the applicant had been trafficked. These ranged from apparent internal contradictions in the applicant’s account to highlighting reasonable alternative courses of action available to her. The letter noted that the applicant had failed to disclose this information at trial and that no medical evidence had been provided to explain this omission. The Competent Authority also requested documentary evidence to corroborate her account, such as the name of the cafes in London where she claimed to have worked, details of the plane tickets and the hotel in Brazil where she stayed, and information about her alleged trafficker.
81.
On 10 July 2014 the Poppy Project responded on her behalf to these matters, providing details of the applicant’s medical record and prison patient record, and an expert report dated 6 November 2013 from Dr Fleetwood, a criminologist. The latter report described how, in general terms, the applicant’s account conformed to the experiences of other victims of trafficking. No other documentary evidence was provided to corroborate her account.
82.
On 31 October 2014 the Competent Authority made a conclusive determination that the applicant was a victim of trafficking. The letter stated:
“In light of the representations received from the Poppy Project and Dr Fleetwood, and having regard to other factors, including the fact that you were only 20 years of age when you were arrested and that you have (or had) anxiety and fear related mental health issues, it has been accepted that on the balance of probabilities that you have provided a substantially truthful account and that you were a victim of human trafficking.”
However, the letter further concluded that the circumstances of the trafficking no longer existed; the applicant did not qualify for leave to remain in the UK. On 21 April 2015 the Home Office decided to deport the applicant.
83.
In a report dated 28 July 2015 Professor Katona, a psychiatrist, diagnosed the applicant as suffering from PTSD, and concluded that this was consistent with her being a victim of trafficking; he opined that remaining in the UK would improve her prospects of recovery and there would be a worsening of her PTSD if retuned to Romania.
The grounds of appeal and the fresh evidence
84.
It was contended on the applicant’s behalf that the fresh evidence of the applicant’s trafficking, particularly the conclusive determination by the Competent Authority, should be received, as well as evidence in support from Dr Fleetwood and Professor Katona. She had been trafficked twice – from Romania to the UK and then her trafficker had exploited her by using her to transport cocaine back from Brazil. On the basis of that evidence it was clear that the applicant would not have been prosecuted.
85.
It was submitted in the alternative that, although on the facts before the trial judge no issue could be taken with the sentence, the new evidence did not sufficiently reflect the reduction in culpability that should flow from the new evidence.
86.
We heard evidence
de bene esse
from Dr Fleetwood and Professor Katona.
The evidence of Dr Fleetwood
87.
Dr Fleetwood was a lecturer in criminology at the University of Leicester who had specialised in research into international drug trafficking and the involvement of women in trafficking cocaine. Her opinion was that the applicant’s account of being a drug mule as a result of being subject to exploitative practices and threats was entirely consistent with her knowledge and research. There was some material to suggest an emerging trend of trafficking women for use as mules. Mules did not report themselves, particularly when subject to threats.
88.
The Crown submitted that the report of Dr Fleetwood was irrelevant to the appeal; it amounted to hearsay which was intended to bolster the credibility of the applicant and to establish, in the opinion of Dr Fleetwood, that the applicant’s account was plausible and credible and should be accepted. We agree. The report was highly speculative and of no relevance to the appeal. It is for the jury (or this court on appeal) to assess the credibility of the account given, not an expert. Speculation has no part to play.
The evidence of Professor Katona
89.
Professor Katona is a very experienced psychiatrist having been Dean of the Royal College between 1998 and 2003 and is currently an Emeritus Professor at the University of Kent and at University College London. He examined the applicant on 22 June 2015.
90.
He rated her mental distress as severe, her depressive symptoms as moderate and her symptoms of trauma as severe. He diagnosed her as suffering from PTSD with depressive symptoms secondary to that. The PTSD was caused by her traumatic childhood experiences in Romania and her more recent experiences of enforced work and trafficking. He considered that her clinical presentation was consistent with her being a victim of trafficking. Her past experiences had made her vulnerable to trafficking and explained why she would not reveal details of trafficking to the police and her lawyers at the time of her arrest and trial; there was therefore a plausible reason why she had not disclosed matters until later. He stressed in his evidence that it was not for him to express a view on credibility.
91.
In the course of his evidence he said that the applicant had told him that she had been diagnosed with PTSD whilst in prison, but he had not cross checked this to the prison records as he had not obtained access to them.
92.
The Crown submitted that the evidence of Professor Katona was irrelevant as it did not assist in the determination of the issue in the appeal to have evidence that the applicant was found to suffer from PTSD years after the offence.
The submissions
93.
It was submitted on behalf of the applicant that the level of criminality was not so high to deprive the applicant of protection given the severity of the compulsion. The court should take into account her PTSD and her fear of reprisals and should conclude that this explained why she had not raised her trafficking status at the time of arrest and trial. The evidence of Dr Fleetwood and Professor Katona showed her level of vulnerability and the ease with which she could be subject to compulsion. Someone in her position with the relevant characteristics would have had no alternative to offending; her trafficker had used his power over her. The nexus between the trafficking and the offence was established particularly through the continued hold of the trafficker over her and the steps taken by the trafficker to stop her doing anything but comply with his demands. If the Crown wished to rely on the matters raised by the Competent Authority in their letter of 11 October 2013 to which we have referred at paragraph 80, then the Crown should have investigated the matters.
94.
The Crown acknowledged the Competent Authority’s decision, but did not concede that the applicant was a victim of trafficking; she had lied when arrested by customs, she had lied to her lawyers and had lied in her evidence at trial. In any event her status under the determination of the Competent Authority was not such as significantly to diminish or effectively to extinguish the very high level of criminality in smuggling the quantity of cocaine into the UK so that she should not have been prosecuted. Furthermore, the nexus of compulsion was not sufficient to warrant a decision not to prosecute; there was insufficient evidence to show that she was compelled to commit the offence. Public policy dictated she be prosecuted.
Conclusion
95.
The Council of Europe Convention but not the Directive was applicable at the time of the offending in 2010. It was, however, rightly accepted by the Crown that the protection afforded to the applicant was materially the same as the protection outlined in the passages from the authorities to which we have referred at paragraphs 19 and 20 above and the CPS policy reflecting that case law as summarised at paragraph 21 above.
96.
It is clear from the medical records that the applicant had many discussions in the course of mental health reviews in the first three years of her sentence where she discussed issues relating to her health, her time in Romania, her family and son and abuse before the age of 14. In the light of the fact that these records had not been reviewed by Professor Katona, we do not consider it possible to conclude she was suffering from PTSD at the time of the offence.
97.
We therefore approach the issues on the basis that the evidence of Professor Katona was of very limited value in relation to her mental state at the time when she committed the offence and that the evidence of Dr Fleetwood was irrelevant as it was speculative and directed at bolstering the credibility of the applicant which was a matter for the jury or the court.
98.
We have serious doubts as to the credibility of the applicant’s account, but it is not necessary for us to determine the appeal on that basis. The essential question for us is whether the prosecutor (or the court on the consideration of a stay) would have concluded it was in the public interest to prosecute the applicant. We have no doubt that it was. The offence related to a very substantial quantity of Class A drugs where, as we have explained at paragraph 63 in respect of the first applicant, the harm caused is so significant. The evidence did not in our view show a nexus, let alone a sufficient nexus, between the trafficking and the commission of the offence; there was no real evidence of compulsion. The circumstances were not such as to “diminish significantly” or “effectively extinguish” the high level of criminality involved in the international smuggling of Class A drugs. Public policy dictated that she be prosecuted.
99.
We would add that we do not accept the applicant’s submission that it was for the Crown on an appeal where there has been a conviction to investigate all the facts relating to the claim by the applicant in relation to her claim that she was a victim of trafficking and in particular the matters raised by the Competent Authority which cast doubt on her claim. We have set out at paragraph 40 our concerns in respect of the relationship between the Competent Authority and the CPS in cases where the claim to be a victim of trafficking has arisen subsequent to conviction. It is to be hoped that this concern can be addressed, but the court will continue to apply to these appeals and applications the ordinary applicable principles. Nor will this court require the CPS to go beyond what is its ordinary duty in such cases.
100.
As to her application for an extension of time to renew her application for leave to appeal against sentence, nothing in the further information now before us in any way leads us to conclude that the sentence passed was manifestly excessive. We refuse the application.
(3)
R v VCL
Introduction
101.
On 20 August 2009, the appellant and a number of co-accused pleaded guilty at the Crown Court at Peterborough before HH Judge Coleman to producing a Controlled Drug of Class B (cannabis). On 19 January 2010 he was sentenced to 20 months detention in a young offenders’ institution. On 26 May 2011 the Single Judge refused his applications for leave to appeal against conviction and sentence and these were renewed to the Full Court.
102.
On 20 February 2012 the Full Court (Lord Judge CJ, Royce and Globe JJ) in the decision in
R v N, R v L
to which we have referred at paragraphs 19 and following granted the appellant permission to appeal, but dismissed his appeal against conviction. His appeal against sentence was allowed to the extent of reducing his sentence to 12 months’ detention
103.
The appellant appeals against conviction on this occasion upon a reference by the Criminal Cases Review Commission made in April 2016 under
s.9
of the
Criminal Appeal Act 1995
.
Factual background
104.
On 6 May 2009 police attended 105 Milton Road, Cambridge, a four bedroom house. They discovered it had been converted into a factory for the cultivation of cannabis plants. The appellant’s fingerprints were found on light bulbs in two of the rooms at the property. The value of the cannabis plants found was estimated at £130,000. The appellant was arrested with others. The others subsequently pleaded guilty either to offences of conspiracy to produce cannabis or producing cannabis; the sentences imposed were 5 and 6 years for the more serious offence and a range of 2 years to 21 months for the less serious offences (see paragraph 95 of the earlier judgment of this court).
105.
The appellant was found to be in possession of £100 in cash and a mobile telephone with credit. The appellant’s role was said by the Crown to be that of “gardener”, tending the cannabis plants. The house had not been secured in such a way he could not leave.
106.
In interview the appellant (who was accompanied by an appropriate adult and a legal representative) declined to answer questions. He gave a prepared statement to the effect that he had been trafficked from Vietnam and arrived in the UK seeking his adoptive father but had lost his contact details. Other Vietnamese nationals found him wandering the streets and took him in. He was aware there were cannabis plants at the address but he did not realise growing cannabis was illegal. He was provided with groceries on a weekly basis.
107.
His claim to be 15 years of age was not accepted. A finding of fact that the appellant was at least 17 years old was made by the District Judge in the Magistrates’ Court and the case sent to the Crown Court. However, the possibility that the appellant was the victim of trafficking was noted by various agencies and by his lawyers. Nonetheless, he decided to plead guilty which he did on 20 August 2009. He declined to apply to withdraw his plea when subsequently advised by counsel to do so. Counsel decided to seek an adjournment in the hope that a report from the Social Services might persuade him to change his mind. The Crown Court judge was also concerned and agreed to await the report.
108.
In the meantime, the CPS reviewed their decision to prosecute and concluded on 14 October 2009 there was no credible evidence he had been trafficked.
109.
The Competent Authority (in this case the UKBA) then issued on 15 October 2009 a reasonable grounds letter to the effect that the appellant may have been trafficked. On 16 October 2009 the case went back before the Crown Court judge who tested the decision to proceed with the prosecution. The case was again adjourned. Negotiations continued. In November 2009 the Crown Prosecution Service and the appellant’s lawyers were informed that the Competent Authority had concluded the appellant was a victim of trafficking. The Chief Crown Prosecutor nonetheless confirmed at a hearing on 15 December 2009 the decision to continue with the prosecution at a hearing on 15 December 2009. The appellant, fully and fairly advised, decided not to make an application to vacate the plea.
110.
At the sentencing hearing on 19
January 2010, the Crown explained why they considered the appellant was not a trafficked person, the circumstances in which the appellant had been arrested and his inconsistent accounts. Although the appellant had developed over the months an account of mild pressure or threats, the assessment by the Competent Authority provided information that the appellant was clear that his family in Vietnam was not under threat, there were no debts owed to anyone in Vietnam and he had not been abused prior to his arrest. There was no reason to revise their assessment that it was in the public interest that the appellant be prosecuted.
The decision of this court on the appeal in 2013
111.
The court concluded (see paragraphs 94-113 of the judgment) that the Crown and the judge had taken meticulous care in examining all the available evidence. As to the submission that there should have been an application to vacate the plea and an application to stay, even if the judge had allowed the applications to be made, the court had unhesitatingly concluded that the inevitable outcome would have been that the decision to continue the prosecution was fully justified.
112.
The sentence was reduced to 12 months detention on the basis of the appellant’s age.
Grounds of Appeal
113.
On present known facts it was not in the public interest to prosecute the appellant. He should be permitted now to vacate his guilty plea. That would then permit a re-consideration of the decision to prosecute.
114.
The Crown, if it had applied the law correctly, would not have continued with the prosecution. It had misdirected itself in the original proceedings by importing a requirement of force/coercion into the issue of trafficking of a child. The appellant was a child and force or coercion was irrelevant to their consideration. Similarly, as we have already set out at paragraphs 33 and following, it was contended the court had in the earlier appeal misunderstood the law. It was submitted that the appellant’s account that he had been invited to come to the UK by his “foster father” to improve himself was true; on arrival he had no contact with the supposed foster father. It was clear he had been deceived. It followed under the definition in the Council of Europe Convention applicable to a child that he had worked in the cannabis factory as a direct consequence of the trafficking. That was sufficient. It was not necessary to prove that he had been compelled.
Fresh evidence
115.
There was also an application to call fresh evidence pursuant to
s.23
of the
Criminal Appeal Act 1968
in respect of the reports of Dr Dene Robertson, a consultant psychiatrist at the Bethlem Royal and Maudsley Hospitals dated 30 October 2013 and 24 June 2016 in which he concluded that for practical purposes the appellant should be considered as suffering from Asperger’s syndrome and, for a variety of reasons, was likely to have been socially naïve and vulnerable to exploitation.
116.
It was contended that had this diagnosis been available to the appellant’s lawyers at the time, it would have affected the advice they gave to the appellant. It would have been admissible in support of his defence. It was relevant to the extent of his vulnerability and to his credibility. It was contended that the fresh evidence from Dr Robertson supported the conclusion reached by the Competent Authority that the appellant was a victim of trafficking.
The submissions on the appeal
117.
In addition to the submission made in relation to the issue of compulsion, the appellant has re-asserted the submissions rejected by the court on the last occasion that if an application should have been made to vacate the plea, it should have succeeded and the prosecution abandoned. It was contended that this court had on the previous appeal wrongly focussed on the fairness of the process that took the appellant to the Crown Court and the process at the Crown Court as opposed to the true question of whether it was in the public interest to prosecute.
118.
A challenge was also made to the findings of the court on the last occasion to the effect that the appellant was not a prisoner in the cannabis factory, as such findings were not justified by the evidence. To all intents and purposes the appellant was a prisoner. He had nowhere to go and was isolated. No key to the property was found and police officers had to break in. The fact the appellant was left with a telephone and cash did not bear the significance the court on the previous occasion had thought. It was described by counsel to us as being common place for traffickers to provide equipment so as to keep in touch with their workers.
119.
The Crown maintained that it had been right to continue with the prosecution. Neither it nor the Court had misunderstood the law. The court had been correct in its assessment of the facts. The fresh evidence from Dr Robertson added nothing material to the issue before the court.
Conclusion
120.
This same ground of appeal albeit differently expressed was at the heart of the appeal on the last occasion in 2012. As we have set out, the court held that the decision to prosecute was amply justified. This is not a case therefore where the court or a defendant’s lawyers have missed the opportunity to review an offender’s status as a possible victim of trafficking and the nexus with the offence. This was an issue explored with great care and in great detail at the Crown Court and by this court.
121.
It would require a compelling piece of fresh evidence or line of argument to persuade us to re-tread well-trodden ground. In the appellant’s case, there is in truth very little by the way of fresh evidence or fresh argument. The Home Office’s determination that the appellant has been trafficked was before the Crown Court and the Court of Appeal.
122.
The only “fresh evidence” is the medical report that the appellant is on the Asperger’s spectrum and is socially naïve. The submissions to us have made what can be made of that evidence, but we bear in mind the observations of this court in the earlier appeal at paragraph 86(c) as to the limited assistance given by expert reports that rely so heavily on the account given by the applicant where it differed from earlier accounts. In our judgement, neither the medical report nor its support for the Home Office’s conclusion is enough to undermine the appellant’s plea of guilty or the court’s conclusions on the last occasion that the decision to prosecute in the public interest was amply justified.
123.
The appellant, who was very nearly an adult, stayed in a house as a gardener of cannabis plants. He was not a prisoner, he had a significant quantity of cash (for no obvious reason) and he had access to a telephone. His explanation of his presence at the house was unsatisfactory and his account of how he got there far from consistent. On those facts, it was open to the Crown to decide that the prosecution should continue as the relevant nexus in the case of a child victim of trafficking had not been established.
124.
We reject the assertion that the Court on the last occasion applied the wrong test as to the nexus required in the case of a child. The judgment begins with a clear statement of all the relevant principles in relation to trafficking including the relevant principles as far as child victims are concerned. The court did not proceed on the basis the appellant had to establish compulsion before his plea could be vacated. As we have pointed out at paragraph 33 above, the paragraph in which reference is made to compulsion and which is the subject of criticism did not relate to this appellant. In paragraph 90 of its judgment on the earlier appeal the court was addressing a particular issue in relation to the co-accused as we have explained. The Crown and this court on the last appeal considered the nexus between the trafficking and the offence on the correct basis; it did not suggest that there had to be evidence of compulsion.
125.
We are satisfied therefore that the appellant’s criminality or culpability was not extinguished or significantly reduced to such a level he should not have been prosecuted in the public interest. The appeal is dismissed.
(4)
R v NTN
126.
On 21 February 2005 in the Crown Court at Liverpool the applicant pleaded guilty to Producing a Controlled Drug of Class C (namely Cannabis) contrary to
s.6(2)
of the
Misuse of Drugs Act 1971
(Count 2). On 13 May 2005 he was sentenced to 15 months’ detention in a Young Offenders’ Institution.
127.
His applications for an extension of time of approximately 10 years and 9 months in which to apply for leave to appeal against conviction and sentence and to produce fresh evidence, namely the finding of the Immigration and Asylum First Tier Tribunal that he had been a victim of trafficking, have been referred to the full court by the Registrar.
Factual background
128.
The applicant is a Vietnamese citizen. He first became known to the UK authorities in April 2004 when, accompanied by a Mrs Le Vuong, he attended Bexley Social Services and applied for asylum with Mrs Le Vuong as his sponsor. He was registered with the Refugee Council. His application for asylum was refused, although he was granted discretionary leave to remain in the UK until his 18
th
birthday.
129.
On 15
October 2004 the applicant was arrested in a private house in Beechwood, Wirral. The premises had been converted into a cannabis factory. A large hydroponics system had been set up and a number of the rooms contained cannabis plants. A total of 400 plants with a value in excess of £80,000 were found.
130.
On 21 February 2005, the day the case was listed for trial, the applicant pleaded guilty. There was a dispute about his age. He gave his date of birth as 26 October 1988. In reliance upon the evidence of a forensic dental expert, who considered him to be aged between 18 and 21 years, the sentencing Judge found that he was 19 years’ old. He sentenced him on the basis that he had been smuggled into the UK in about April 2004 and had been forced to work in a Chinese restaurant in Kent. He had escaped, reported to the UK authorities and had been refused asylum at the end of June 2004. Thereafter, he had been seized by a gang and brought to the Wirral where he had been made to work in the cannabis factory, his job being to water the plants and make sure the equipment was working properly and for which he was fed in return. He had been “….used and manipulated by an unscrupulous gang…”, acting out of fear of what would happen if he did not, and had made no money. The sentence also took account of his age, lack of previous convictions and low risk of reoffending.
The decision of the First Tier Tribunal in 2014 on his application for asylum
131.
In 2012 the applicant made a fresh application for asylum, in part on the basis that he had been trafficked into the UK. It was refused by the Home Office on 23 January 2014. The Competent Authority had considered and rejected his possible trafficking status. However, on 10 August 2014, the First Tier Tribunal (Immigration and Asylum Chamber) (the Tribunal), after hearing evidence including from the applicant himself, allowed his appeal and made a number of findings of fact to a standard of the balance of probabilities, including that:
i)
The Crown Court reliance on evidence of dentition to determine the applicant’s age was no longer used. His date of birth had been found by Bexley Social Services, the Home Department, Wirral Social Services and Wirral Young Offending Team to be 26 October 1988 (making him 16 years of age at the date of sentence).
ii)
He was an orphan. His mother had been Chinese. He was sent to an orphanage at the age of 13 and had left Vietnam on 28 March 2004, when he was aged 15, being taken to China to work and to find members of his family.
iii)
He was taken to the UK by air and lorry, entering on 5 April 2004. He was then taken by Chinese men to a restaurant, where he was told he would have to work for two to three years to pay for the cost of his travel to the UK. He was beaten. He managed to escape and found a Vietnamese woman, Mrs Le Vuong, who took him to the authorities with whom he lived until he was found by members of the gang who had put him to work in the Chinese Restaurant. They took him to the Wirral where he was put to work in the cannabis factory. He was told he would have to work there for about a year, was given a mobile phone, £20 a week for food, monitored weekly by gang members and warned that he would be beaten if the plants were not growing well.
132.
The Tribunal specifically addressed the issues that had caused the Competent Authority to find the applicant not to have been a trafficking victim and the apparent inconsistencies in his account. It found that there were no material inconsistencies and the Competent Authority had erroneously found that he was not a victim of trafficking. The Tribunal concluded he was a victim of trafficking.
The application for leave to appeal
133.
This finding is the fresh evidence upon which the applicant seeks to rely in support of his application for leave to appeal. The Crown does not oppose the application for the evidence to be admitted.
134.
On behalf of the applicant it is submitted he was the victim of trafficking and there was such a clear nexus between his being trafficked and his employment at the cannabis factory that his culpability was extinguished. Alternatively, the sentence was manifestly excessive in light of the fresh evidence that demonstrates his culpability was significantly diminished.
135.
The Crown accepted that the Tribunal decision supported the assertion that the applicant was the victim of trafficking to China and into the UK, having been transported, transferred, harboured or received for the purpose of exploitation, and that he was exploited through debt bondage. He was a child at the point he was trafficked. Even if he was not, the means of trafficking were present, namely, the threat or use of force, coercion through debt bondage, abduction, the abuse of power and the abuse of a position of vulnerability. Although an element of compulsion was accepted in the Crown Court, he was not recognised as a potential victim of trafficking. The Crown agreed that his culpability, as was recognised in the sentencing remarks, was significantly diminished if not extinguished by the direct nexus between the trafficking and the offence, whereby it would not have been in the public interest to prosecute him or maintain the prosecution against him.
Conclusion
136.
We grant the applications to extend time and admit the fresh evidence. There is powerful evidence that the applicant was both a child victim of trafficking and fell to be treated as such and his offending was committed when he was still a child by reason of the offence being directly connected to his having been trafficked. On the basis of all the facts now known we are satisfied that the prosecution would not have been pursued. We therefore allow his appeal and quash his conviction.
(5)
DONG NGUYEN
137.
On 9 July 2014 in the Crown Court at Peterborough the applicant pleaded guilty to a single count of producing a controlled drug of Class B, namely cannabis. On 3 September 2014 he was sentenced to 2 years’ imprisonment and appropriate ancillary orders relating to forfeiture and destruction of the drugs and related paraphernalia and the payment of the statutory surcharge were made.
138.
His applications for an extension of time of 19 months and 2 weeks in which to apply for leave to appeal against conviction and sentence and to produce fresh evidence, namely evidence that he was a credible victim of human trafficking, have been referred to the full court by the Registrar.
Factual background
139.
The applicant is 46 years of age and a citizen of Vietnam. On 27 June 2014 he was arrested in a raid on a residential address in St Paul’s Road, Peterborough which had been converted into a cannabis factory. 368 cannabis plants and some cuttings were seized. The applicant was the sole occupant and in the loft, which was itself part of the factory. In interview he said that he had paid $23,000 to come “here” and had been at the property for two months. He found out after his arrival that the plants were cannabis and wanted to leave but was told that he would be found and killed. Therefore, he remained at the address. He was told that he would be paid £1,000 per crop. He was paid £300-£400 for food when he first arrived. He had a key to the property but was told he could only leave once a month.
140.
Neither the Police nor his legal adviser took any step to refer him via the National Referral Mechanism to a Competent Authority for his status as a possible victim of trafficking to be explored. He pleaded guilty on 9 July 2014 at the Preliminary Hearing in the Crown Court; he was represented by an ‘in house’ solicitor advocate. Sentence was adjourned. On 28 July 2014 a first responder under the National Referral Mechanism contacted the applicant’s Solicitors who were, thereby, made aware of the National Referral Mechanism being invoked. On 3 September 2014 it was agreed by the applicant’s legal representatives and the Crown that the Crown Court should proceed to sentence. He was sentenced on the basis he was “a gardener” and of previous good character.
Finding by the Competent Authority
141.
On 16 September 2014, the Competent Authority found there were reasonable grounds to believe that he was a credible victim of trafficking. On 15 January 2015, the Competent Authority found the grounds to be conclusive.
142.
The basis of the applicant’s application for leave to appeal his conviction is that in the light of the fresh evidence he was a victim of trafficking, the offence was committed as a result of compulsion arising from being trafficked into the UK and then re-trafficked internally at such a level that his culpability for his offending was extinguished. Had this material been available at the time, either the public interest would have determined that the matter should not have been prosecuted or a submission for the proceedings to be stayed as an abuse of process would have succeeded. Alternatively, leave to appeal against sentence is sought on the basis that the fresh evidence demonstrates his culpability was significantly diminished and his sentence was manifestly excessive.
The failure of the applicant to attend or contact the court
143.
However, he has failed to maintain contact with his solicitors, who were last in communication with him in January 2016. He did not attend the hearing in this court. We have been provided with no explanation as to why his solicitors have lost contact with him. There is no evidence that he has been re-trafficked. He is a mature man in his mid-40s.
144.
His absence prevents the court from being assisted on a number of key questions in our minds such as whether he came here as an economic migrant, whether he had a key to the house, the extent to which he was ‘imprisoned’ and whether he said he wished to return to Vietnam. Important issues cannot be resolved.
145.
Accordingly, we declined to hear these applications and adjourned them
sine die
. Should he still be in this country and he comes to the attention of the Police then this court is to be notified forthwith so that these applications may be then heard as speedily as possible.
(6)
AA
146.
On 15 January 2010 in the Crown Court at Northampton the applicant, AA, having pleaded guilty to one offence of possession of false identity documents with intent and one offence of fraud, was sentenced to concurrent sentences of 6 months’ imprisonment for each offence. Appropriate forfeiture and destruction orders were made and a recommendation was made that she be deported. She was released from custody on 12 March 2010.
147.
Her applications for an extension of time of approximately 66 months and 27 days in which to apply for leave to appeal against conviction and sentence and to produce fresh evidence comprising documents from her immigration file have been referred to the full court by the Registrar.
The factual background
148.
On 9 October 2009 police and immigration officers conducted a search of 4 Pemberton Street, Rushden, Northamptonshire in respect of a matter not unrelated to the applicant. They found a counterfeit Zimbabwean passport in the name of “Natasha Khumalo” which bore a photograph of AA. A photocopy of a Ugandan passport in the name of AA was also found.
149.
She was not present at the address but was contacted by telephone and stated that she was in London and that the authorities would not be able to trace her. Enquiries established that she had used the counterfeit Zimbabwean passport together with a false National Insurance card to obtain employment in the name “Natasha Khumalo” at an NHS Care Home for the elderly in Rushden, thereby committing the offence of fraud. The Home Office held a record of the Ugandan passport in the name of AA that they considered to be genuine.
150.
On 11 December 2009 she was arrested and identified herself as AA. She was interviewed the same day and admitted the offences. She stated that she did not know her true identity, she did not want to be returned to Uganda as she did not know anyone there; she had entered the country by lorry in 1999 and had paid for the Ugandan and Zimbabwean passports.
Her plea and sentence
151.
She pleaded guilty to the offences at the Preliminary Hearing in the Crown Court. The sentencing Judge stated the authorities were clear and the custody threshold had been crossed, but a long period of imprisonment was not necessary.
Subsequent events
152.
On 21 January 2010, at a time she was being held in immigration detention, AA claimed in an interview that her real name was Alexandra Mimi and she had indefinite leave to remain in the UK. The UKBA found no trace of such an application. On 4 March 2010 she was served with a notice of Liability for Deportation. She responded with a statement, received by the Home Office on 11 March 2010, in which she stated that her first memories were when she was aged 5 or 6 in Holland and that she had been subjected to domestic servitude until she was 13. She was smuggled into the UK in 1999 to work as a slave. She worked under false aliases for up to 14 hours a day, was locked up, provided with one meal a day and was raped.
153.
She extricated herself and, in 2005, went to reside with a friend. Upon the advice of her friend she acquired a false Zimbabwean passport, national insurance number and birth certificate. She frequently changed jobs due to immigration issues. On the advice of her friend she acquired a Ugandan passport for €1200 and an application for indefinite leave to remain was made using the Ugandan passport.
154.
Her claim for asylum was refused in June 2010 on the ground that she was AA, a Ugandan national, born on 5 May 1986. She appealed the Home Office decision. Medical reports from Dr Charmain Goldwyn, a doctor with expertise in interpreting scars and PTSD, referred to the presence of scars consistent with her having been subjected to the violence she had described in her asylum claim. On 20 December 2011 an appeal against the deportation order was allowed on Article 3 and 8 grounds by the First Tier Tribunal. She did not give evidence on account of her fragile mental health. On appeal on 16 April 2012 the Upper Tribunal found that the First Tier Tribunal had erred in law and set aside the original decision; a rehearing before the Upper Tribunal was ordered. On 3 October 2013 she was diagnosed as suffering severe depression with psychotic symptoms. On 18 October 2013 the Upper Tribunal held the rehearing and on 24 October 2013 the Upper Tribunal dismissed her appeals under Articles 3 and 8. AA did not give evidence; the Upper Tribunal found her account to be inconsistent.
155.
AA instructed fresh solicitors who made further representations to the Home Office, submitting medical evidence pertaining to her mental health and a report from a psychotherapist and anti-trafficking consultant, Mirjam Thullesen, dated 20
February 2015. AA gave her an account that was consistent with what she had said in her statement of March 2010. Her account of trafficking was deemed plausible and contained a significant number of trafficking indicators which suggest that she is very likely to have been trafficked. The assessment was based on her verbal account as well as her behaviour during assessment and comparison with other accepted victims. Her failure to disclose that she had been trafficked until after her arrest was said not to render her account unreliable.
156.
The Competent Authority reconsidered the case and concluded, on 15 July 2015, that she was a victim of trafficking and she was no longer liable for removal on the ground that the circumstances which gave rise to her status no longer pertained. Her solicitors are to be instructed to seek revocation of the deportation order and make a fresh claim. She has been granted discretionary leave to remain for 30 months.
The application to this court
157.
The fresh evidence in respect of which leave is sought is the expert trafficking report of Mirjam Thullesen, the letter of Stephen Miller of the Competent Authority dated 26 May 2015 stating that there were reasonable grounds to conclude she had potentially been the victim of trafficking and the letter of Adam Brown of the Competent Authority dated 15 July 2015 concluding that she had been trafficked.
158.
AA’s case is that the indictment ought to have been stayed as an abuse of process as evidence has become available which establishes that, at the time of her arrest and prosecution, she was a victim of trafficking and that the offences with which she was charged were committed under compulsion as a direct consequence of her being a victim of trafficking. Despite there being sufficient indicators at the time, which should have alerted the police, defence, the Crown and the court to the fact that she was a victim of trafficking, no inquiry was made by any party. As a consequence, the Crown failed to take into account relevant considerations in the exercise of its discretion to prosecute and the court failed to consider whether the indictment should be stayed. She has been assessed by an expert, received a positive reasonable grounds decision and a conclusive grounds decision. She has been consistent about her trafficking experiences, expanding on them as she has become more comfortable and there is considerable medical evidence that supports her account.
159.
The Crown acknowledged that there are strong indicators of human trafficking and there is evidence that she was at or before the point of the offences a credible victim of human trafficking. There is also evidence that a nexus of compulsion existed between the alleged trafficking and the alleged offending. The Crown notes the presence of some anomalies and inconsistencies. However, the Competent Authority has, since July 2015, carefully assessed and weighed the evidence, considered the decisions of the First Tier Tribunal and the Upper Tribunal, had the benefit of expert evidence and found there are conclusive grounds to believe the applicant was a credible victim of human trafficking. Her evidence was neither heard not tested at the hearing before the Upper Tribunal. She raised her account at the outset without legal advice. In all these circumstances, the Crown did not oppose the applications or seek to say that the convictions are safe, conceding that had consideration been given to her status, it would or might well have resulted in a decision not to prosecute her.
Conclusion
160.
We have considered the case with great care. We admit the fresh evidence in the form of the letter of the Competent Authority, but not the report of Mirjam Thullesen. We grant the extension of time. Applying the principles to which we have referred earlier, we have concluded, not without very considerable hesitation, that this is a case in which, on a review of all the admissible material now available to us, she should have been treated as a credible victim of human trafficking and there was a sufficient nexus of compulsion between her being trafficked and the commission of the offences to justify the conclusion that, on investigation, the Crown would have decided not to pursue the prosecution. In reaching that conclusion, we have taken into account the present position of the CPS and the principle set out at paragraph viii) above. We therefore allow her appeal and quash the conviction.
|
{"ConvCourtName":["Crown Court at Manchester","Crown Court at Isleworth","Crown Court at Peterborough","Crown Court at Liverpool","Crown Court at Peterborough","Crown Court at Northampton"],"ConvictPleaDate":["2005-09-15","2010-09-13","2009-08-20","2005-02-21","2014-07-09","2010-01-15"],"ConvictOffence":["Fraudulent evasion of the prohibition on the importation of a controlled drug of Class A (cocaine)","Being knowingly concerned in the importation of cocaine","Producing a Controlled Drug of Class B (cannabis)","Producing a Controlled Drug of Class C (cannabis)","Producing a controlled drug of Class B (cannabis)","Possession of false identity documents with intent","Fraud"],"AcquitOffence":[""],"ConfessPleadGuilty":["No","No","Yes","Yes","Yes","Yes"],"PleaPoint":["","","","on day of trial","at Preliminary Hearing","at Preliminary Hearing"],"RemandDecision":["No"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court at Manchester","Crown Court at Isleworth","Crown Court at Peterborough","Crown Court at Liverpool","Crown Court at Peterborough","Crown Court at Northampton"],"Sentence":["9 years’ imprisonment","10 years’ detention","20 months detention in a young offenders’ institution (reduced to 12 months on appeal)","15 months’ detention in a Young Offenders’ Institution","2 years’ imprisonment","6 months’ imprisonment (concurrent on two counts)"],"SentServe":["Single","Single","Single","Single","Single","Concurrent"],"WhatAncillary":["","","","","forfeiture and destruction of the drugs and related paraphernalia; statutory surcharge","forfeiture and destruction orders; recommendation for deportation"],"OffSex":["All Female","All Female","All Male","All Male","All Male","All Female"],"OffAgeOffence":[41,20,17,16,46,23],"OffJobOffence":["Unemployed","Employed","Unemployed","Unemployed","Unemployed","Employed"],"OffHomeOffence":["Fixed Address","Temporary Accommodation","Temporary Accommodation","Temporary Accommodation","Temporary Accommodation","Temporary Accommodation"],"OffMentalOffence":["Had mental health problems","Had mental health problems","Has learning difficulties","Other","Other","Had mental health problems"],"OffIntoxOffence":["No","No","No","No","No","No"],"OffVicRelation":["Stranger"],"VictimType":["Organisation","Organisation","Organisation","Organisation","Organisation","Organisation"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Physical evidence (drugs found), defendant's statements, expert reports, witness statements"],"DefEvidTypeTrial":["Defendant's account, expert reports, psychological/psychiatric reports"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["offence involved significant quantity of Class A drugs","offence involved significant quantity of Class A drugs","involvement in cannabis production","involvement in cannabis production","involvement in cannabis production","use of false documents"],"MitFactSent":["offender subjected to violence and trauma","offender young age, previous good character, single mother","offender young, possible victim of trafficking","offender young, possible victim of trafficking","offender possible victim of trafficking","offender possible victim of trafficking, mental health issues"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction unsafe"],"AppealGround":["fresh evidence of trafficking status; insufficient consideration of nexus between trafficking and offence; public interest in prosecution not properly considered"],"SentGuideWhich":["Modern Slavery Act 2015 s.45 and Schedule 4; Council of Europe Convention; Palermo Protocol; CPS policy"],"AppealOutcome":["Dismissed","Dismissed","Dismissed","Allowed & Conviction Quashed","","Allowed & Conviction Quashed"],"ReasonQuashConv":["","","","Powerful evidence that applicant was a child victim of trafficking and offence was directly connected to trafficking; prosecution would not have been pursued","","Applicant should have been treated as a credible victim of human trafficking and there was a sufficient nexus of compulsion between trafficking and the offences; prosecution would not have been pursued"],"ReasonSentExcessNotLenient":["","","","","",""],"ReasonSentLenientNotExcess":["","","","","",""],"ReasonDismiss":["insufficient nexus between trafficking and offence; high level of criminality; public policy dictated prosecution","insufficient nexus between trafficking and offence; high level of criminality; public policy dictated prosecution","decision to prosecute was amply justified; no compelling fresh evidence","","",""]}
|
Neutral Citation Number:
[2013] EWCA Crim 590
Case No:
2012/5691/D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 22 March 2013
B e f o r e
:
LORD JUSTICE TREACY
MR JUSTICE SAUNDERS
HIS HONOUR JUDGE MILFORD QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
Between :
R E G I N A
v
RASHPAL KAUR
- - - - - - - - - - - - - - - - - - - - -
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 P Brunt
appeared on behalf of the
Applicant
Mr M Jackson
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE TREACY: On 1st May 2012 in the Crown Court at Wolverhampton, Rashpal Kaur was convicted of a number of offences. On 5th October 2012 she was sentenced to 32 months' imprisonment. She was convicted on all 22 counts of the indictment. Eighteen counts were for offences contrary to section 111A(1)(a) of the Social Security (Administration) Act. Three counts related to converting criminal property under section 327(1) of the Proceeds of Crime Act 2002 and there was one count of perverting the course of justice. The applicant was convicted of 17 counts relating to obtaining housing benefit and council tax benefit between 2003 and 2007. The applicant had represented and failed to declare that she was not a single parent and that she was related to her landlord. She had also failed to notify the local authority of her bank and building society accounts and the monies passing through them. Something like £270,000 had passed through her accounts. Two counts related to the completion of benefit claim forms for a friend. Two counts related to a claim for carer's allowance in 2009 when she failed to declare that she was employed, and the count of perverting the course of justice related to the production of a false document to the local authority in order to try to undermine a witness against her. In general terms the defence to the charges was a denial of any dishonest behaviour or the deliberate submission of any false information.
2.
The trial began on 16th April 2012. The prosecution witnesses were fully cross-examined on behalf of the applicant. The applicant gave evidence in chief on 24th April, apparently without difficulty, setting out her defence count by count and giving details in relation to specific counts. On the following day she failed to attend court. A doctor's note was submitted. It stated that she was unable to attend due to anxiety and depression. The proceedings were adjourned.
3.
The court reconvened on the following day, 26th April. The applicant attended court and was cross-examined for most of the day. The prosecutor had not completed cross-examination and anticipated continuing to test the applicant's account with detailed questions based on the substantial paperwork available in this case. However, this never happened because on the following day, 27th April, the applicant did not attend court and a further doctor's note was submitted. It stated that the applicant was suicidal and unable to attend court. The judge adjourned proceedings for the day and over the weekend. The court resumed on 30th April 2012. The applicant did not attend court. The judge ruled that the trial must proceed. In so ruling the judge accepted, on the basis of the material provided to him, that the applicant was unfit and would continue to be unfit for the foreseeable future. The prosecution urged the judge to continue with the case. The defence said that the applicant would be prejudiced. The judge ruled that the case should proceed. He said that the applicant would not be prejudiced. She had given all her evidence in chief. She had been cross-examined on most of the counts on the indictment. The judge recognised that the defence might wish to raise some matters in re-examination, but said he had to take a pragmatic approach and be fair to both sides. The trial had reached a stage at which he considered it ought to continue. The party who was going to be prejudiced was the Crown who would not be able to continue its cross-examination. Accordingly, the trial proceeded.
4.
The judge explained the applicant's absence to the jury in terms which made it plain that her absence was for good reason and that they should not hold it against her. There is no complaint about the way he dealt with that.
5.
Subsequent to the trial a psychiatric report has been obtained from a registrar in forensic psychiatry. The applicant seeks to rely on it as fresh evidence. The report is from Dr Anis Ahmed and dated 10th August 2012. It confirms that the applicant was suffering from a moderate, recurrent, depressive disorder. In our view, it does not materially add to the information available to the judge who accepted that the applicant was suffering from a mental condition which meant that she was unable to continue to attend the trial. We have read the report de bene esse. It is capable of belief and would have been admissible at the trial. We consider that in the circumstances it could not reasonably have been obtained at the time of the trial. However, it does not seem to us that Dr Ahmed's evidence would afford any ground for allowing the appeal because it does not materially add to the information available to the judge. It merely confirms it. Accordingly, there is no need for us to receive the statement as fresh evidence.
6.
As part of Mr Brunt's submissions to us this morning he has drawn attention to paragraph 38 of Dr Ahmed's report in which this applicant reported to Dr Ahmed that she found it difficult to cope with the number of allegations against her and that her she was unable to remember evidence as she felt that her memory was failing. That of course is a self-report which is passed on to the court through the report of Dr Ahmed. We have considered that, bearing in mind that it is a self-report from this applicant and bearing in mind that the judge was in a position to consider the applicant's evidence as given in chief and in cross-examination, and in the knowledge that a medical report had been submitted indicating the difficulties under which she was said to be labouring. In the circumstances we are not persuaded that the matter highlighted by Mr Brunt is something which affects the position or which would lead us to admit Dr Ahmed's report into evidence.
7.
The grounds of appeal assert that the applicant was genuinely ill and thus that the judge wrongly exercised his discretion to continue the trial since her absence was involuntary. The correct course, Mr Brunt urges, would have been a discharge of the jury with a retrial at a later date. Thus the applicant could have given her evidence in full and in particular would have had the opportunity to give clarifying evidence by way of re-examination. The Crown submits that the judge's ruling was correct. The applicant had been able to set out her case in full. It was the Crown who was prejudiced by her absence as it could not put the counter-case to her evidence based on the available documents. It was not unfair to the applicant to continue with the trial.
8.
The leading authority in this area is
R v Anthony Jones
[2002] 2 Cr.App.R 9
. In that case the House of Lords held that a judge had a discretion to start or continue a trial in a defendant's absence. Such discretion was to be exercised with great caution and with close regard to the overall fairness of the proceedings. A defendant inflicted by involuntary illness or incapacity would have much stronger grounds for resisting the continuation of the trial than a person who had voluntarily chosen to abscond. In the case of involuntary illness, it would rarely if ever be right to exercise a discretion in favour of continuing the trial, at any rate until the defendant was represented and asked that the trial should begin. In exercising the court's discretion, fairness to the defendant was of prime importance but fairness to the prosecution should also be taken into account. The judge should have regard to all the circumstances.
9.
A checklist of relevant matters was approved. Applying those to this case: the applicant's absence was involuntary; a short adjournment would not have assisted; a retrial would have been needed; the applicant continued to be represented by competent counsel with full instructions; there was no danger of the jury misinterpreting the reason for the applicant's absence or holding it against her. The events in the trial went back over many years but delay would not of itself be significant because much of the evidence was documentary. The trial was a substantial one and had no doubt been expensive to run. It had nearly reached its conclusion.
10.
All of those factors are uncontroversial. The only matter of controversy relates to unfairness. The applicant says she was prejudiced because she was not available for re-examination. The Crown says it was prejudiced because it was not able to test significant parts of the applicant's account in cross-examination.
11.
The question for us is whether the judge's decision was wrong and whether it had the result of making the applicant's trial unfair and subsequent conviction unsafe. Whilst the judge has a discretion, this court is able to examine the exercise of that discretion and will intervene if it appears that the judge's conclusion was clearly wrong or not reasonably open to him or may have resulted in injustice to the applicant. The situation confronting the judge was different to that which would have faced him had the applicant been ill at the start of the trial. By the time the applicant was absent from the trial it had advanced very substantially. The applicant had been able fully to test the prosecution evidence and to put forward her own explanations in evidence in chief. The judge was in a good position to assess the competing arguments as to prejudice. He clearly felt that the balance came down in favour of the Crown in terms of prejudice suffered. The judge was conscious of the involuntary nature of the applicant's absence and notwithstanding that concluded that the trial should continue.
12.
We do not consider that his ruling is one which can be impugned as wrong in the way contended for. He had a difficult ruling to make, but it was one which was properly open to him in all the circumstances. We therefore grant leave to appeal in relation to conviction as the matter was plainly arguable, but we dismiss the appeal.
13.
We turn then to sentence. It is argued that 32 months was simply too long for a woman of 44 without previous convictions and who has not committed a crime requiring public protection. The offending took place over a six year period. It covered three types of benefit or allowance and three different addresses. The applicant obtained around £27,000 of public money to which she was not entitled. During that time, some £270,000 passed through her bank or building society accounts, so there was no question of hardship being involved. The judge accurately described it as a professional fraud. In addition, there was a fraud for the benefit of a friend of hers and, having seen the Crown's evidence against her, she attempted to pervert the course of justice. The judge correctly identified the category of offence under the relevant Sentencing Guidelines Council's guideline for fraud carried out on multiple occasions in a professional manner over a significant period of time. The starting point of two years in that category is based on £60,000 obtained. This appellant obtained a lesser sum. The judge accordingly reduced the starting point to a term of 20 months within the range which starts at 18 months in order to cover the false claims for benefit. He added four months consecutively for the offences relating to the applicant's friend, and eight months consecutively to those sentences for the separate offence of perverting the course of justice. We do not consider that the sentences can properly be criticised in the circumstances. The available medical evidence confirms that the applicant's mental state would not have inhibited her ability to provide correct and truthful information to the authorities at the material time.
14.
There is, in our judgment, no arguable basis for interfering with this sentence. Accordingly, we refuse leave and the sentence application is dismissed.
|
{"ConvCourtName":["Crown Court at Wolverhampton"],"ConvictPleaDate":["2012-05-01"],"ConvictOffence":["Offences contrary to section 111A(1)(a) of the Social Security (Administration) Act","Converting criminal property under section 327(1) of the Proceeds of Crime Act 2002","Perverting the course of justice"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Wolverhampton"],"Sentence":["32 months' imprisonment"],"SentServe":["Consecutive"],"WhatAncillary":[],"OffSex":["All Female"],"OffAgeOffence":[44],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Documentary evidence"],"DefEvidTypeTrial":["Applicant gave evidence in chief","Doctor's notes regarding mental health"],"PreSentReport":[],"AggFactSent":["Offence committed over six years","Multiple types of benefit/allowance","Three different addresses","Professional fraud","Attempted to pervert the course of justice"],"MitFactSent":["No previous convictions"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["Judge wrongly exercised discretion to continue trial in applicant's involuntary absence","Sentence was too long for a woman of 44 without previous convictions"],"SentGuideWhich":["Sentencing Guidelines Council's guideline for fraud carried out on multiple occasions in a professional manner over a significant period of time"],"AppealOutcome":["Conviction appeal dismissed","Sentence appeal dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge's ruling was properly open to him in all the circumstances","No arguable basis for interfering with sentence","Available medical evidence confirms applicant's mental state would not have inhibited her ability to provide correct and truthful information to the authorities at the material time"]}
|
Case No:
200804978D1
Neutral Citation Number:
[2009] EWCA Crim 2878
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 18 December 2009
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE NICOL
HIS HONOUR JUDGE SCOTT-GALL
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
PAUL JAMES BRAND
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr H Baker
appeared on behalf of the
Appellant
Miss J Treharne
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE ELIAS: On 4 April 2008 at the Crown Court at Cardiff, before HHJ Hopkins QC, the appellant was convicted of theft. The jury failed to agree a verdict in respect of two counts of kidnapping and rape. The co-accused, Lee Chapman, was found not guilty at this trial on the count of kidnapping. That was the only count he faced.
2.
On 12 August 2008 at the Crown Court at Newport, before HHJ Morris, the appellant was retried and he was unanimously convicted both of kidnapping and rape. He was then sentenced on 30 September as follows: on count 1, which was the kidnapping charge, two years' detention in a Young Offender Institution; consecutive to count 2, which was the rape charge, seven years' detention in a Young Offender Institution; and on count 3, for theft, he was given 15 months' detention in a Young Offender Institution concurrent. So the overall sentence was nine years' detention in a Young Offender Institution. Allowance was made for days spent on remand, and a sexual offences prevention order was made requiring him to advise the Public Protection Team of any vehicle he owned or had access to as a driver. He now appeals against conviction by leave of the single judge.
3.
The facts are essentially as follows. On 13 October 2008, the complainant went out to Newport with friends. She had a lot to drink, became separated from her friends and began to walk home at about 4 o'clock in the morning. She was picked up in a car by the appellant, who was the driver, and Lee Chapman, who was in the back seat. She had apparently recognised the two men from having seen them at one of the bars earlier in the evening. The three of them then agreed to drive around in the vicinity of Newport. There was evidence that the car stopped on two occasions, but there is some dispute as to precisely what happened on these occasions. The complainant said, however, that Chapman, sitting in the back, had been abusive. He had asked her to give them both a "blow job" and threatened she would be taken to Wentwood Forest, a place known because there had been a recent murder. She said she had at one stage kissed the appellant. She wanted him to take her home. He was asking her on a number of occasions for sex, and he tried to put her hand on his crotch. Instead of being taken home, she was driven against her will to Llanwern Village, a lonely spot outside Newport. She was feeling scared. Eventually they came to a dark unlit lane, where the car was reversed and stopped. Her case was that she was dragged from the car, the appellant grabbing her hair and her right arm, pulling her from the vehicle. He took her to the back of the car, pushed her to the ground, and then had sex with her. She was compliant because she was scared.
4.
After the rape which she alleged had taken place, she went to get back in the car. Chapman meanwhile had stayed in the car. However, as she tried to get back in, the appellant pushed her out of the car and the two men drove off. She fell over, injured her knee and that caused bleeding. She was very shocked. She walked away and did not at this stage have her handbag, which she said she left in the car. She stopped a motor vehicle driven by a Mr Probert, and explained to him what had occurred. The police were called, and she was taken for interview and medical examinations and so forth.
5.
The appellant's case was that she had at all times been in control of things. She had wanted to drive around. She had wanted to have sex with him, and had suggested at the spot that they should have sex. She had had her handbag with her at all times, and indeed he said that he was intending to take her back in the car, but that after they had had sex, she tried to get in the passenger door but it was locked. She lost her temper. She shouted and screamed at him for locking her out, and she was kicking and hitting the car repeatedly with her handbag. He noticed when driving away that she had fallen over. He said that he returned at that point to tell the complainant that he would take her home, but she refused.
6.
When the police went to his house, they discovered a mobile phone that was hers, but not the handbag. She said that she had left the mobile phone in the car, but he had never seen the handbag and had done nothing with it. The jury heard evidence from a number of parties: one of these was a young woman called Hayley Williams. She had apparently read in the newspapers about this event and had gone to the police. She said that she had received telephone calls from the appellant on the day before this incident. She had met him at a club outside Newport about a week before. She said she had received both telephone calls and text messages from him. He had asked her where she was and where she lived. She said she had hung up. He told her in one call that he and his friend, Lee Chapman, would come and take her out and do dirty things to her, and then there was a threatening call in the evening at around 7 or 8 o'clock, when he said:
"I'm going to take you and I am going to fuck you and me and Chapman are going to take you away and kidnap you."
7.
She said he made a later call at about 10 o'clock in which he apologised, and she also said that she had made a call to a friend of hers, Jason Baker, at about 8.30. Her mother also gave evidence, and she indicated that Hayley had been very upset by these telephone calls. She had heard her telling a caller to "Fuck off", and she reproved her daughter because of the bad language. Hayley had also told her that a man had said that he would come and "shag Hayley", and that he and another boy were going to come up and get her.
8.
The question arose before the judge as to whether two pieces of evidence should be admitted. The first was the telephone records of Hayley Williams and her evidence about the conversation she had with the appellant. The second was whether the jury should hear of the conviction for theft at the first trial before HHJ Hopkins. The issue of whether the telephone records should be admitted had been considered at the first trial before HHJ Hopkins. At that point the issue was treated as a question of admissibility under section 78 of PACE. The appellant had submitted that the material should not be admitted because it was inherently unsafe. The records showed, it was said, that, contrary to the assertion that she had made in interview, it was she who had telephoned the appellant first and not the other way round. In addition, she rang him on a number of occasions which she had not admitted. Perhaps most importantly, there was no record of the telephone call at 8 o'clock in the evening that was supposed to contain the threat of kidnap and rape. There was no record of the 10 o'clock phone call relating to the apology, and there was no record of the phone call made to Jason Baker. Furthermore, she had said that she had kept a record of the telephone calls that the appellant had made to her.
9.
The judge on that occasion considered that the evidence should not be admitted, but the issue arose again at the second trial. The Crown submits that there were in fact a number of features which changed between the two trials, and which could perfectly sensibly explain why HHJ Morris took a different view to HHJ Hopkins. In particular, Miss Treharne for the Crown points out that by then it had become clear that in fact the first contact had been made by the appellant and not the other way round, as had been originally thought. He had telephoned Hayley very early in the morning. Second, there were text messages which were consistent with what the witness had been saying about unpleasant texts being received at around lunchtime. Third, there was evidence that, on occasions, the appellant used the phone of Lee Chapman, and that he did use 141 in order to conceal his identity. There was also evidence of two unidentified calls which were made in the evening roughly at the time given by Hayley Williams, which could be the relevant phone calls and could account for the fact that the appellant's phone number had not been recorded on her telephone.
10.
In any event, we should say that, in our view, the judge at the second trial had to reach his own independent view as to whether this evidence was admissible. The argument advanced before him was essentially the same as had been advanced before HHJ Hopkins. It was said that the records simply did not bear out the evidence which this witness sought to give. It was accepted that it was potentially important evidence by the second trial. In fact, it had been recognised that it was bad character evidence and would be admitted under
section 101
D of the
Criminal Justice Act 2003
. Indeed, the submission is that it is potentially so important that this was why it ought not to have been admitted, and the judge ought to have excluded it under
section 101(3)
of
that Act
, which provides that the evidence should not be admitted "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".
11.
The judge accepted that there was potential difficulty with this evidence, but he noted that the witness had given very clear, strong and unambiguous evidence that these conversations had taken place as she alleged. She could not explain why they were not recorded in her telephone, but she remained adamant that what she was saying was the truth. In these circumstances, the judge considered that it was a matter which ought to go to the jury. It was for them to assess the potential reliability of this evidence, and to consider whether, notwithstanding the apparent contradictions between her statement and the records, the jury could still rely upon what she was saying. In our judgment, this was a proper conclusion open to the judge.
12.
The appellant's state of mind was obviously highly material, and we think that the judge was entitled to conclude that, notwithstanding some of the difficulties with this evidence, it ought to be left to the jury. It plainly had significant probative value. It would be prejudicial if it were untrue, but that was a matter for the jury to consider, and the judge summed up this element of the evidence fairly to them, and told them that they had to be cautious in the way in which they approached this evidence.
13.
Accordingly, we do not think that there is any error here such as to cast doubt on the verdict.
14.
We turn to the question of the conviction with respect to the theft. The judge appears to have considered that the prosecution were seeking to adduce this as bad character evidence. That seems to be the way in which this issue was addressed at the time. We are quite satisfied, however, that the conviction in relation to this theft was not bad character evidence. That is defined in
section 98
of
the 2003 Act
in the following way:
"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 ..."
15.
In this case, there can be no doubt in our view that the question of conviction for theft fell clearly within the terms of paragraph (a). It has to do with the alleged facts of the offence with which the defendant is charged. It was plainly highly material to the question of who to believe in relation to the handbag and whether it had remained within or without the car. It was also material to the wider question of credibility, and to the state of mind of the parties immediately after the rape had taken place.
16.
The judge, in summing-up with respect to this aspect of the evidence, told the jury that the conviction was relevant "only to that issue of how she was behaving in Llanwern Village, their respective states of mind at that time and their respective credibilities as a witness". Mr Baker points out that it would not be directly relevant evidence as to the question of consent itself. We accept that, but that is not how the judge dealt with it. We think he dealt with it fairly. It was plainly admissible in the normal way because it did not constitute bad character under
section 98
. It was plainly relevant evidence. The only basis for excluding it would have been under section 78, and Mr Baker in effect realistically accepted that there would be no proper basis on which it could be excluded under that section.
17.
Accordingly, the appeal against conviction fails.
(Submissions in relation to sentence follow)
18.
LORD JUSTICE ELIAS: This is an appeal against sentence. We have just dealt with the facts of the case in dealing with the appeal against conviction. The only issue, it seems to us, is whether it can be said that the sentence of nine years here is manifestly excessive. Mr George submits this it is; that the appropriate sentence in the relevant guidelines stipulates as a starting point eight years, where the rape is accompanied by an aggravating feature. He submits the only aggravating feature here was the abduction of the victim. Accordingly, he says that eight years would have been the appropriate sentence, and that the judge was not justified in imposing nine.
19.
We disagree. We think it is too simplistic to say that abduction was the only aggravating feature. There were other aspects about this particular rape which made it very unpleasant. In particular, the woman was taken to a dark place where she was abandoned. There was another man in the car which would have heightened to some extent her concerns. The rape was committed in his presence, albeit that he was sitting in the back of the car. The question we have to bear in mind is not whether we would have imposed the sentence of nine years, but whether it could be said to be manifestly excessive. We do not think it can. It is true the judge reached this figure by two consecutive sentences of seven years for the rape and two for the kidnap, but nothing, in our view, turns on that. We might have been minded to give a single sentence, but there is nothing wrong in deciding to mark out the kidnap element separately.
20.
There was, in addition, the point that there was a theft of the bag. So for these reasons, we do not think it can be said that this sentence was excessive. It is within the range and comfortably within the range laid down in the guidelines.
|
{"ConvCourtName":["Crown Court at Cardiff"],"ConvictPleaDate":["2008-04-04"],"ConvictOffence":["Theft"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Newport"],"Sentence":["2 years' detention in a Young Offender Institution (kidnapping)","7 years' detention in a Young Offender Institution (rape)","15 months' detention in a Young Offender Institution (theft)"],"SentServe":["Consecutive","Concurrently"],"WhatAncillary":["sexual offences prevention order requiring him to advise the Public Protection Team of any vehicle he owned or had access to as a driver"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["one"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Victim testimony","Telephone records","Testimony of Hayley Williams","Testimony of Hayley's mother","Physical evidence (mobile phone)"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":[],"AggFactSent":["Victim was taken to a dark place and abandoned","Another man was present in the car during the rape","Theft of the bag"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["Improper admission of telephone evidence","Improper admission of prior theft conviction as bad character evidence","Sentence manifestly excessive"],"SentGuideWhich":["relevant guidelines for rape (starting point eight years where rape is accompanied by aggravating feature)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge properly admitted telephone evidence as a matter for the jury","Theft conviction was not bad character evidence under section 98 of the 2003 Act","Sentence was within the range laid down in the guidelines and not manifestly excessive"]}
|
Neutral Citation Number:
[2006] EWCA Crim 1654
Case No: 2005 02160 B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
SITTING AT THE MIDDLESEX GUILDHALL, LONDON
His Honour Judge Martineau
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
11th July 2006
Before :
LORD JUSTICE LONGMORE
MRS JUSTICE GLOSTER
and
HIS HONOUR JUDGE DIEHL QC
(sitting as a Judge of the Court of Appeal, Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Respondent
- and -
HILDA GONDWE DA SILVA
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
ROSSANO CIFONELLI Esq
for the
Appellant
RICHARD MILNE Esq
for the
Respondent
Hearing dates : 19th May 2006
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Longmore :
1.
On 2nd March 2005 in the Crown Court at the Middlesex Guildhall, the appellant, Hilda Gondwe Da Silva, was convicted of assisting another person to retain the benefit of criminal conduct knowing or suspecting that that other person was or had been engaged in criminal conduct contrary to
section 93A(1)(a)
of the
Criminal Justice Act 1988
(counts 14 and 15 on the indictment). She was acquitted on counts 1 to 10 which charged her jointly with her co-accused husband of obtaining money transfers by deception. Her husband, Mario Da Silva, was convicted of obtaining money transfers by deception (counts 1 to 13). She appeals on one ground only with the leave of the Full Court, namely whether the judge should have given to the jury (as he did) a dictionary definition of the word “suspecting” and then (as he did) have added a further gloss to that definition.
2.
In summary the facts were these. AMT is a company which runs coffee-bars. The coffee-bars at King’s Cross Railway Station were managed by the co-accused who was responsible for submitting employee time sheets to head office upon which employee wage payments were based. Between 7th June 2001 and 21st July 2003, on ten occasions, sums of money representing the wages of three different people, “ghost workers”, were transferred directly into one of two bank accounts operated by the appellant at the Halifax. The Crown alleged that three individuals, two of them sisters, had been employees of the company but at the material times had not worked at all. It was further alleged that the appellant had given encouragement and assistance to the co-accused knowing that the wages were being received dishonestly.
3.
As an alternative against the appellant, count 14 alleged that between 11th November 2001 and 2nd September 2003 knowing or suspecting that her husband was or had been engaged in criminal conduct or had benefited from it, she entered into or was otherwise concerned in an arrangement which involved the deposit and withdrawal of sums into and from her bank account facilitating his retention or control of proceeds of his criminal conduct. The sums of money covered by count 14 related to the wages of the sisters. Count 15 was a similar offence in respect of a second bank account for the period June 2001 to September 2003. The sums of money here related to one Daniella Mateus. These two counts charged offences, as we have said, against
section 93A(1)(a)
of
the 1988 Act
. That sub-section provides:-
“. . . . if a person enters into or is otherwise concerned in an arrangement whereby –
(a)
the retention or control by or on behalf of another (“A”) of A’s proceeds of criminal conduct is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise)
. . . . . . . . . . . . . . . . . . . .
knowing or suspecting that A is a person who is or has been engaged in criminal conduct or has benefited from criminal conduct, he is guilty of an offence.”
4.
The judge observed to the jury that if they concluded the appellant knew her co-accused husband had engaged in criminal conduct or had benefited from it, they would convict her as a participant in the principal offence. If they acquitted her, however, of the first 10 counts of the indictment and moved on to consider counts 14 and 15 of the indictment, he only needed to direct them about the question whether the Crown had proved that she suspected her husband was engaged in criminal conduct or had benefited from it.
5.
He then said this:-
“So, probably, ‘knowing’ will not arise and what will arise instead is ‘suspecting’, which is a very different state of mind to knowing. To suspect something, you have a state of mind that is well short of knowing that the matter that you suspect is true. It is an ordinary English word. Members of the jury, if the Crown can show that the defendant said to herself, ‘I suspect that this money is the proceeds of criminal conduct, but it may be, on the other hand, that it is not’, that would fall within the definition of ‘suspicion’. The dictionary definition, which I direct you is relevant, to the meaning of the word, is this. The dictionary definition of ‘suspicion’: ‘an act of suspecting, the imagining of something without evidence or on slender evidence, inkling, mistrust’. Therefore, any inkling or fleeting thought that the money being paid into her account 9950 might be the proceeds of criminal conduct will suffice for the offence against her to be proved.”
6.
The passage to which exception is taken, and in relation to which leave to appeal has been given, is the passage where the judge referred to the (Chambers) dictionary definition which he directed the jury was relevant and then added the concept “fleeting thought” to the word “inkling”. The Full Court, granting leave, thought that it was arguable that the judge should not have given that dictionary definition to the jury and that in so doing he introduced a gloss or qualification to the ordinary English word of suspecting or suspicion which was uncalled for and indeed potentially misleading. The court added that it might be the case that, whatever view the court hearing the appeal took about the direction that was given, they would nevertheless conclude that the evidence against the applicant was sufficiently strong for there not to be any doubts about the safety of her convictions on counts 14 and 15. That however is another matter.
7.
Mr Cifonelli, who appeared for the appellant, sought to extend the ground on which he was given leave to appeal by arguing that the word “reasonably” ought to be read before the word “suspecting” in the statutory wording or (which comes to the same thing) the word “on reasonable grounds” ought to be read in after the word “suspecting”. He submitted that it was impossible to suppose that Parliament intended that a facilitator should be guilty of an offence if he or she suspected that the relevant other person was or had been engaged in criminal conduct but had no reasonable grounds for that suspicion.
8.
We regard this as an impossible argument. This court could not, even if it wished to, imply a word such as “reasonable” into this statutory provision. To do so would be to make a material change in the statutory provision for which there is no warrant. This is all the more the case when one sees that the draftsman is aware of the difference between “suspecting” and “having reasonable grounds to suspect” and on occasion uses the latter phrase in preference to the former word. Thus in
section 93C
which deals with “concealing or transferring proceeds of criminal conduct”, we see sub-section 2 which provides:-
“A person is guilty of an offence if, knowing or having reasonable grounds to suspect that any property is . . . . another person’s proceeds of criminal conduct, he
(a)
conceals or disguises that property; or
(b)
converts or transfers that property . . . .”
In the light of this express reference to “reasonable grounds” for suspicion in
section 93C
of
the 1988 Act
, it is impossible, in our judgment, to read in similar words in 93A(1) when the words are just not there.
9.
Mr Cifonelli sought to explain the distinction between the two sections historically by saying that
section 93A
of
the 1988 Act
(originally inserted into
the 1988 Act
by the
Criminal Justice Act 1993)
was modelled on section 24 of the Drug Trafficking Act 1986, whereas
section 93C
(likewise inserted by the
Criminal Justice Act 1993)
was modelled on
section 14 of the Criminal Justice (International Cooperation) Act 1990
(which was later re-enacted in the
Drug Trafficking Act 1994)
. The argument appeared to be that Parliament had not thought about the matter carefully enough at the first stage of the confiscatory legislation in 1986 but by 1990 had come to realise that suspicion on its own was inappropriate and therefore provided for such suspicion to have reasonable grounds. The court should therefore interpret the provisions deriving from the 1986 Act in a similar way. Ingenious as the argument may be, that is not an appropriate approach to statutory construction. Whatever the ultimate derivations of the various provisions of the 1998 Act may be, they must be construed as a whole and it is impossible to ignore the fact that one section provides for reasonable grounds for suspicion whereas the section with which this case is concerned (
section 93A
) does not. It seems, to us, that these considerations are also supported by the speeches in
R v Saik
[2006] UKHL 18
,
[2006] 2 WLR 993
.
10.
Finally on this point we would observe:-
(1)
the
Proceeds of Crime Act 2002
, which is now the governing statute, likewise sometimes uses the words “suspects” as in eg section 328(1) (the equivalent of
section 93A
), section 330(2)(a) and section 331(2)(a) and, at other times, the phrase “reasonable grounds for suspecting” in eg sections 330(2)(b) and 331(2)(b);
(2)
Mr Cifonelli’s concern about inappropriate convictions is unlikely to arise in practice since, if a potential defendant in fact has no reasonable grounds to suspect that the facilitated person is or has been engaged in criminal activity, it is unlikely that a prosecution will be taking place and, if it does, extremely unlikely that a jury will decide that a defendant has a suspicion when no reasonable ground exists for entertaining such a suspicion.
11.
We turn then to the ground on which leave was granted. This raises three questions:-
(1)
Was the judge entitled to assist the jury by giving any definition and in particular a dictionary definition of the ordinary English word “suspect” or “suspicion”?
(2)
Is the dictionary definition given by the judge the correct way to interpret the word “suspecting” in
section 93A
?
(3)
Did the judge’s introduction of the concept “fleeting thought” (not part of the dictionary definition cited by the judge) constitute a misdirection?
12.
The judge could not, in our judgment, have been criticised if he had declined to define the word “suspecting” further than by saying it was an ordinary English word and the jury should apply their own understanding of it. Of course, the danger with saying nothing is that the jury might actually ask for assistance about its meaning and, if they did, the judge would have to assist as best he can. This judge, however, volunteered to assist the jury in relation to the word “suspecting” and we certainly do not consider that he can be criticised for doing so. The mere fact that a word is an “ordinary English word” within
Cozens v Brutus
[1973] AC 854
does not prevent a judge assisting a jury with its meaning, see
R v Gillard
(1988) 87 CAR 189, 194. If he does so assist the jury, it needs hardly be added, he must do so correctly.
13.
If a judge justifiably decides to assist the jury about the meaning of a word, the dictionary definition is, in the absence of judicial authority, likely to be a sensible starting place. There is no English authority in a criminal context to which we were referred on the meaning of “suspect” or “suspicion”; definitions given in civil cases are sometimes in the context of “reasonable suspicion” of eg the police in relation to the commission of an offence, rather than in the context of simple “suspicion”. Thus in
Hussien v Chang Fook Kam
[1970] AC 942
, in which the Privy Council decided that reasonable suspicion was not the same as
prima facie
proof, Lord Devlin said at page 948:-
“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end.”
14.
This dictum was followed in a similar context by the Court of Appeal in
Holtham v Commissioner of the Police of the Metropolis
, Times, 28th November 1987. This definition would not have been particularly helpful to the jury in the present case since the appellant was not, of course, making any investigation but the first part which refers to a “state of conjecture or surmise” gives a general indication of the general meaning of “suspicion”.
15.
In the civil context of blind eye knowledge, and dishonest accessory liability for breaches of trust, the authorities indicate that the suspicion has to be “clear” or “firmly grounded”. They show that, in civil cases of this type, there is a requirement that the suspicion must be of a certain strength. Thus in
Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd (“The Star Sea”)
[2001] UKHL 1
,
[2003] 1 AC 469
, a case of alleged blind eye knowledge of unseaworthiness, Lord Scott stated the following at paragraph 116:-
“In summary, blind-eye knowledge requires, in my opinion, a suspicion that the relevant facts do exist and a deliberate decision to avoid confirming that they exist. But a warning should be sounded. Suspicion is a word that can be used to describe a state-of-mind that may, at one extreme, be no more than a vague feeling of unease and, at the other extreme, reflect a firm belief in the existence of the relevant facts. In my opinion, in order for there to be blind-eye knowledge, the suspicion must be firmly grounded and targeted on specific facts. The deliberate decision must be a decision to avoid obtaining confirmation of facts in whose existence the individual has good reason to believe. To allow blind-eye knowledge to be constituted by a decision not to enquire into an untargeted or speculative suspicion would be to allow negligence, albeit gross, to be the basis of a finding of privity.”
In other words, a vague feeling of unease was not sufficient, nor was gross negligence; see also paragraph 25 per Lord Hobhouse. The suspicion had to be firmly grounded and targeted on specific facts Likewise, in
Barlow Clowes International Ltd v Eurotrust International Ltd
,
[2005] UKPC 37
,
[2006] 1 All ER 333
, a case against an alleged money launderer based upon the defendant’s dishonest assistance in a breach of trust, the Judicial Committee stated that it was sufficient, on the facts of that case, that the defendant “entertained a clear suspicion” that there had been a misappropriate of monies; see paragraph 28 of the judgment, and also paragraph 19, where the rubric “solid grounds for suspicion” was approved.
16.
What then does the word “suspecting” mean in its particular context in
the 1988 Act
? It seems to us that the essential element in the word “suspect” and its affiliates, in this context, is that the defendant must think that there is a possibility, which is more than fanciful, that the relevant facts exist. A vague feeling of unease would not suffice. But the statute does not require the suspicion to be “clear” or “firmly grounded and targeted on specific facts”, or based upon “reasonable grounds”. To require the prosecution to satisfy such criteria as to the strength of the suspicion would, in our view, be putting a gloss on the section. We consider therefore that, for the purpose of a conviction under
section 93A(1)(a)
of
the 1988 Act
, the prosecution must prove that the defendant’s acts of facilitating another person’s retention or control of the proceeds of criminal conduct were done by a defendant who thought that there was a possibility, which was more than fanciful, that the other person was or had been engaged in or had benefited from criminal conduct. We consider that, if a judge feels it appropriate to assist the jury with the word “suspecting”, a direction along these lines will be adequate and accurate.
17.
The only possible qualification to this conclusion, is whether, in an appropriate case, a jury should also be directed that the suspicion must be of a settled nature; a case might, for example, arise in which a defendant did entertain a suspicion in the above sense but, on further thought, honestly dismissed it from his or her mind as being unworthy or as contrary to such evidence as existed or as being outweighed by other considerations. In such a case a careful direction to the jury might be required. But, in our view, before such a direction was necessary there would have to be some reason to suppose that the defendant went through some such thought process as set above. The present case was not a case where any such direction could be thought to be necessary.
18.
That leaves the question whether the judge’s direction by reference to the meaning of the Chambers’ dictionary meaning of suspicion with the addition of the phrase “fleeting thought” constituted a misdirection. Neither counsel could tell us the source of the judge’s direction but it is noteworthy that HHJ Martineau adopted exactly the same approach as the leading work on the topic. In Mitchell, Taylor and Talbot on Confiscation and Proceeds of Crime one finds that the authors say (at para. 9.022 of the edition current at trial), referring to
section 50 of the Drug Trafficking Act 1994
(the drugs equivalent to
section 93A
),:-
“Since suspicion is a word of ordinary English, it may be helpful to consider the dictionary definition of suspicion.”
They then cite the 7th edition of Chambers and continue:-
“Suspicion is a word in daily usage, it should be given its ordinary meaning. Thus any inkling or fleeting thought that the property might be the proceeds of drug trafficking will suffice for this section. This wide, all-encompassing section emphasises, yet again, the draconian effect of the legislation.”
19.
It is difficult to criticise the judge for giving a direction authorised by the leading text-book but we think, with respect, that using words such as “inkling” or “fleeting thought” is liable to mislead. If they are to be used, it would normally be advisable to add the qualification we have mentioned in paragraph 17 above. Most cases can be more conveniently dealt with solely by reference to the suggested direction in paragraph 16. We are, therefore, driven to the conclusion that there was here, through no fault of the judge, a misdirection of a technical kind. It is not, however, a misdirection which causes us to have any doubt as to the safety of the conviction.
20.
The Crown had a good prima facie case. The appellant chose to remain silent when she was interviewed about her joint participation with her husband in relation to counts 1-10 of the indictment. Her case at trial (as was that of her husband) was that her husband told her that he had had an instruction from his area manager that he should make a bank account available for staff workers who could not obtain a bank account of their own. There was no evidence of that apart from that of the co-accused husband (whom the jury disbelieved). The appellant did not herself give evidence. We are satisfied that the convictions are safe and the appeal will be dismissed.
21.
We regret the delay in issuing this judgment but the court wished to assimilate the arguments made to the Civil Division of this court in
K Ltd v National Westminster Bank Plc
in which the judgment will be delivered shortly.
|
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|
2019/01195/C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Neutral Citation Number:
[2020] EWCA Crim 465
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 24
th
March 2020
B e f o r e:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE MARTIN SPENCER
and
THE RECORDER OF SHEFFIELD
(
His Honour Judge Jeremy Richardson QC
) (
Sitting as a Judge of the Court of Appeal Criminal Division
)
___________________
R E G I N A
- v -
KIM JOHN ALLISON
___________________
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WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
__________________________
Non-Counsel Application
______________________
J U D G M E N T
Tuesday 24
th
March 2020
LADY JUSTICE RAFFERTY:
I shall ask Mr Justice Martin Spencer to give the judgment of the court.
MR JUSTICE MARTIN SPENCER:
1.
On 19
th
February 2019, in the Crown Court at Exeter before His Honour Judge Evans, the applicant was convicted of stalking involving serious alarm or distress, contrary to
section 4
A(1)(b) of the
Protection from Harassment Act 1997
(count 1) and acting in breach of a restraining order, contrary to
section 5(5)
of the
Protection from Harassment Act 1997
(counts 2, 4 and 5). On 22
nd
March 2019, he was sentenced to five and a half years' imprisonment.
2.
The applicant now renews his application for an extension of time in which to apply for leave to appeal against conviction, following refusal by the single judge.
3.
The facts are set out in the Criminal Appeal Office Summary and need not be repeated.
4.
Six matters have been raised by the applicant as potential grounds of appeal:
1.
The judge erred in allowing in bad character evidence in relation to the applicant's previous convictions;
2.
The judge erred in summing up the evidence to the jury as he did, not highlighting the weak nature of the prosecution case;
3.
The judge erred in allowing the prosecution to rely on extraneous material during their closing speech;
4.
The judge should have dismissed the case at the end of the prosecution case because there was no evidence upon which a jury properly directed could convict;
5.
The judge allowed the prosecution to rely on evidence of the applicant's internet history and searches, which was not relevant to the allegations; and
6.
Disclosure was requested in the Defence Statement, which was provided late or not at all.
5.
In refusing leave to appeal, the single judge said:
"You advance no arguable grounds of appeal. You criticise counsel who represented you and have waived privilege. The more I read into your trial, the more it becomes apparent that you were represented professionally and skilfully. The evidence against you was overwhelming and your conviction entirely safe. You can have no complaint about the bad character evidence, which was properly admitted. The judge's direction to the jury concerning the character evidence was exemplary. You say that the judge should not have permitted evidence to be given of your internet history and searches. This is nonsense. This was highly probative evidence. Your complaint about disclosure does not bear proper examination. The summing-up was accurate and to the point and you were properly warned about the consequences of not giving evidence. There was a minor error in the bad character schedule, but the overall nature of the offending was highly relevant and the safety of your conviction is not affected."
6.
We wholly agree with the single judge's reasons. It is unnecessary for us to elaborate on them.
7.
In correspondence with the court, the applicant has raised a further matter. He seeks to rely on the paperwork submitted by the complainant in civil proceedings by way of a medical report and claim form which, he says, contradicts the account which she gave during the trial. This appears to relate, for example, to the account given by the complainant about the way the applicant's harassment had affected her ability to go out and play bridge or attend yoga.
8.
In our view, there is nothing in this which could potentially affect the safety of the conviction. This new point is equally unmeritorious. The renewed application is accordingly refused.
9.
In refusing leave to appeal the singe judge stated:
"You should beware of a loss of time order."
Furthermore, he initialled the part of the form indicating that, in the event that the application was renewed before the full court and was unsuccessful, the court will certainly consider a loss of time order.
10.
The Vice-President of the Court of Appeal Criminal Division observed in
R v Gray and Others
[2014] EWCA Crim 2372
that:
"The only means the court has of discouraging unmeritorious applications which waste precious time and resources is by using the powers given to us by Parliament in the Criminal Appeal Act
1968 and the
Prosecution of Offences Act 1985
."
11.
Section 29
of the
Criminal Appeal Act 1968
provides:
" (1) The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject."
12.
Duly warned, the applicant has, nevertheless, persisted with this renewed application. Because we consider that this application for leave to appeal is wholly without merit, and for the reasons stated in
Gray
, namely the waste of precious time and resources entailed by this application, we make a loss of time order. We order that 28 days of the applicant's time in custody pending his renewed application shall not count towards his sentence. __________________________________
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
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________________________________
|
{"ConvCourtName":["Crown Court at Exeter"],"ConvictPleaDate":["2019-02-19"],"ConvictOffence":["stalking involving serious alarm or distress, contrary to section 4A(1)(b) of the Protection from Harassment Act 1997","acting in breach of a restraining order, contrary to section 5(5) of the Protection from Harassment Act 1997"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Exeter"],"Sentence":["five and a half years' imprisonment","loss of time order: 28 days not to count towards sentence"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["bad character evidence","internet history and searches","prosecution case evidence"],"DefEvidTypeTrial":["defence statement regarding disclosure","paperwork submitted by complainant in civil proceedings (medical report and claim form)"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction"],"AppealGround":["judge erred in allowing in bad character evidence","judge erred in summing up the evidence to the jury","judge erred in allowing prosecution to rely on extraneous material during closing speech","judge should have dismissed the case at the end of the prosecution case","judge allowed prosecution to rely on evidence of internet history and searches","disclosure was provided late or not at all","contradictory paperwork from complainant in civil proceedings"],"SentGuideWhich":["section 4A(1)(b) of the Protection from Harassment Act 1997","section 5(5) of the Protection from Harassment Act 1997","section 29 of the Criminal Appeal Act 1968"],"AppealOutcome":["Dismissed","Loss of time order: 28 days"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["no arguable grounds of appeal","evidence against applicant was overwhelming","conviction entirely safe","bad character evidence properly admitted","judge's direction to jury concerning character evidence was exemplary","internet history and searches were highly probative evidence","complaint about disclosure does not bear proper examination","summing-up was accurate and to the point","applicant was properly warned about consequences of not giving evidence","minor error in bad character schedule did not affect safety of conviction","new point regarding civil proceedings paperwork is unmeritorious","application for leave to appeal is wholly without merit","waste of precious time and resources"]}
|
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 202300295/A5
Royal Courts of Justice
Strand
London
WC2A 2LL
Neutral Citation:
[2024] EWCA Crim 339
Friday 22 March 2024
Before:
LADY JUSTICE MACUR
MR JUSTICE GOOSE
HIS HONOUR JUDGE PATRICK FIELD KC
(Sitting as a Judge of the CACD)
REX
V
NICHOLAS CASEY CODD
__________
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)
_________
MS J GREENHALGH
appeared on behalf of the Applicant.
MR A EVANS
appeared on behalf of the Crown.
_________
J U D G M E N T
(Approved)
1.
LADY JUSTICE MACUR: On 9 January 2015, the applicant was sentenced in the Crown Court to 20 months’ imprisonment and made subject to a Sexual Offences Prevention Order (“SOPO”) for a period of 10 years. The facts of his offending leading to that sentence are irrelevant for the purpose of this appeal.
2.
On 12 January 2019, the applicant pleaded guilty, before the Magistrates’ Court, to five offences of breach of a Sexual Offences Prevention Order, contrary to section 103(1) and (3) of the Sexual Offences Act 2003, and two offences of failure to comply with notification requirements, contrary to section 91(1)A and (2) of the Sexual Offences Act 2003. He was committed to the Crown Court for sentence, pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. Again, the particulars of the breaches laid against the applicant are now irrelevant for the purpose of this application.
3.
On 8 March 2019, he was sentenced in the Crown Court to 18 months’ imprisonment concurrent on all offences. The statutory surcharge was imposed and the SOPO was revoked and an “SHPO” (a Sexual Harm Prevention Order) was imposed for a period of 10 years and included additional conditions to those imposed in the original SOPO.
4.
The five breach offences each correctly described in the SOPO were charged as
“contrary to section 103(1) and (3)”
of the Sexual Offences Act 2003, when they should have been charged as
contrary to section 113
of the Sexual Offences Act 2003, since on 8 March 2015 section 113 of the Sexual Offences Act 2003 was repealed by section 113 and paragraph 3(1) of Schedule 5 of the Anti-Social Behaviour, Crime and Policing Act 2014. At the same time, paragraph 2 of Schedule 5 introduced sexual harm prevention orders by inserting sections 103A-103K into the Sexual Offences Act 2003, the breach of which would be an offence contrary to section 103L of the Sexual Offences Act 2003.
5.
On 24 March 2022, the applicant was charged with a breach of the SHPO contrary to section 103(1) of the Sexual Offences Act 2003 and remanded in custody. Again, the particulars of the breaches laid against the applicant are now irrelevant to this application. He was committed to the Crown Court in advance of the plea and trial preparation hearing. The designated judge alerted the prosecution to potential flaws in the proceedings, indicating that a sexual harm prevention order cannot be imposed for breach offences, since they do not fall within Schedules 3 and 5 of the Sexual Offences Act.
6.
The case was listed before the Recorder of Manchester on 1 July 2022. The prosecution conceded that the Order was unlawful and offered no evidence, leading to the applicant’s immediate release from custody. That is, the inevitable conclusion to be drawn was that the judge, in March 2019, had no power to revoke the SOPO. New counsel were instructed (Miss Greenhalgh) and thereafter sought permission to appeal the sentence passed in March 2019.
7.
The sole ground of appeal, conceded by the prosecution in a Respondent’s Notice, is that there was no power for the Crown Court to make the sexual harm prevention order, which might only have been made if the applicant had been convicted of an offence listed in Schedule 3 or 5 of the Sexual Offences Act 2003. Neither breaches of a SOPO nor failing to comply with the notification provisions are so listed. It was said that the court could only vary the SOPO if application was made by the applicant or by a prescribed Chief Officer of Police, pursuant to section 108(1) and (2) of the Sexual Offences Act. However, it was noted that the applicant did not submit that the charging error was other than a mere technical defect which did not render the charges a nullity.
Determination
8.
We extend time in which to make this application, for it is in the interests of justice to do so. As rightly indicated in the grounds of appeal and conceded in the Respondent’s Notice, as originally enacted, a breach of a SOPO was an offence contrary to section 113 of the Sexual Offences Act 2003. On 8 March 2015, section 113 of the 2003 Act was repealed by section 113 and paragraph 3(1) of Schedule 5 of the Anti-Social Behaviour, Crime and Policing Act 2014. Transitional provisions provided by section 114 of that Act, provided that for a period of 5 years from the commencement date, that is a period of 5 years from 8 March 2015, any breach of a SOPO, made under section 104 of the 2003 Act (as was the SOPO in this case) would still be an offence contrary to section 113 of that Act. If the SOPO remains in force after 8 March 2020 (as here), section 103L of the 2003 Act would have effect. The charges in this case were brought before 8 March 2020; it follows that the applicant should have been charged with the offences contrary to section 113.
9.
A legal error made in the formulation of charges, whether arising from a drafting or administrative error which causes no prejudice or embarrassment to the defendant, will not result in those charges being invalid or a nullity (see
R v Stocker
[2014] 1 Cr App R 18, at paragraphs 42 and 45) and
R v Sheldrake
[2023] EWCA Crim 95, at paragraph 16. That notwithstanding, the judge in March 2019 had no power to revoke the SOPO, as indicated above. An application to discharge a SOPO must, in accordance with the Criminal Procedure Rules 31, be made by either the defendant or a Chief Officer of Police (see
R v Hamer
[2017] 2 Cr App R(S) 13 at paragraph 21;
R v Ashford
[2020] 2 Cr App R(S) 57 at paragraph 18 and also
R v Keywood
[2021] EWCA Crim 1692).
10.
We give leave. We allow the appeal. We quash the Order revoking the SOPO and the substitution of the Sexual Prevention Harm Order. Therefore, the SOPO will be revived (see
R v Keywood
(supra)). If appropriate, it will of course be open to a Chief Officer of Police or by the Director General of the National Crime Agency to make applications to the Magistrates’ Court for a Sexual Harm Prevention Order against a qualifying offender, who has acted in such as to give reasonable cause to believe that it is necessary for such an Order to be made (see section 103A(3)-(7) of the Sexual Offences Act 2003). To that extent, this appeal succeeds and we may therefore release Miss Greenhalgh and Mr Evans, but thanks for your attendance.
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":["Magistrates’ Court"],"ConvictPleaDate":["2019-01-12"],"ConvictOffence":["Breach of a Sexual Offences Prevention Order contrary to section 103(1) and (3) of the Sexual Offences Act 2003","Failure to comply with notification requirements contrary to section 91(1)A and (2) of the Sexual Offences Act 2003"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court"],"Sentence":["18 months’ imprisonment concurrent on all offences","Statutory surcharge"],"SentServe":["Concurrent"],"WhatAncillary":["SOPO revoked","SHPO imposed for 10 years with additional conditions"],"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":["Sentence is unlawful"],"AppealGround":["No power for the Crown Court to make the sexual harm prevention order (SHPO) as the offences were not listed in Schedule 3 or 5 of the Sexual Offences Act 2003"],"SentGuideWhich":["section 103(1) and (3) of the Sexual Offences Act 2003","section 91(1)A and (2) of the Sexual Offences Act 2003","section 113 of the Sexual Offences Act 2003","section 3 of the Powers of Criminal Courts (Sentencing) Act 2000","section 108(1) and (2) of the Sexual Offences Act 2003"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["No power for the Crown Court to revoke the SOPO and substitute a SHPO; only possible if convicted of an offence listed in Schedule 3 or 5 of the Sexual Offences Act 2003"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
|
No.
2009/02718/B1
Neutral Citation Number:
[2009] EWCA Crim 2347
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 8 October 2009
B e f o r e:
LORD JUSTICE RIX
MR JUSTICE McCOMBE
and
MR JUSTICE BURNETT
- - - - - - - - - - - - - - -
R E G I N A
- v -
LEE STUART JAMES
- - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Mr A Houston
appeared on behalf of the Appellant
Miss J Brennan
appeared on behalf of the Crown
- - - - - - - - - - - - - - -
J U D G M E N T
Thursday 8 October 2009
LORD JUSTICE RIX:
1. This is an appeal in which it is said that the judge was wrong to leave the case to the jury and then compounded that mistake by admitting evidence of bad character.
2. The appellant is Lee James, who is now aged 33. On 7 May 2009, in the Crown Court at Winchester, before His Honour Judge Longbotham and a jury, he was convicted by a majority of 10:2 of a single count of burglary and was sentenced to four years' imprisonment. He appeals against conviction by leave of the single judge.
3. The victim of the burglary, Joan Chambers, who was 96 years of age gave evidence at the trial. She was said to be possibly the oldest person ever to give evidence at a trial and did so in a spritely fashion. She lived alone at 27 Carter's Meadow, a private sheltered housing estate for retired and elderly people in Andover. On 24 July 2008, at around 11am the landscape gardener for the development, Lionel Randall, noticed a man "sidle" in and out of 27 Carter's Meadow very quickly, without touching the door. This conduct raised his suspicions. His evidence was that he followed that man on foot to the local Tesco store a few minutes away along Charlton Road, although he conceded that he lost sight of him a couple of times for a few seconds on each occasion. However, for the reasons we shall describe, this case does not turn on any question of continuity of observation.
4. Mr Randall's evidence was that he saw that man enter Tesco's. He followed him in and within a short space of time he observed him in the check-out queue between another person in front and a person behind. He then left the store and peered through a window at the man in the check-out queue in order to try to have a better view of his face. By and large he had been following him from behind. He asked the Tesco staff to retain the CCTV recording. Footage recorded between 11am and 11.30am was later seized by the police. The first seven minutes of that footage was before the jury, the parties having satisfied themselves that there was nothing relevant after that time which it was necessary to show to the jury. There was a formal admission that the timings on the CCTV recording were 15 seconds fast (that is 15 seconds fast as against the speaking clock). The following day Mr Randall provided to the police a description of the man he had seen.
5. The police began by arresting a gentleman whom they had to release because it was the wrong person. He was wearing a black shirt whereas, as we shall explain, Mr Randall's description was of someone in an essentially white shirt.
6. However, on 15 August 2008 (about three weeks after the burglary) the appellant was arrested. In his interview that day he denied the burglary. He was vague about his whereabouts that morning and of what he had been wearing. When shown stills from the CCTV recording, he said of the man in the check-out queue standing between two other people that he looked like him, but he was not sure whether it was him. He confirmed that he was willing to stand on an identification parade. Unfortunately, no such parade was held on the basis that, when asked if he would be able to recognise the man he followed at an identification parade, Mr Randall said that he doubted that he could. The judge was to hold that that was a breach of the Code, of which the jury were told and which they were asked to take into account.
7. However, having dealt with the question of a formal identification in that way, one week before the trial the police asked Mr Randall to look at the CCTV footage and say whether he could identify the man on the footage as the man he had followed. The judge ruled that evidence to be inadmissible to be put before the jury. We say nothing more about it.
8. The prosecution case was that the man whom Mr Randall saw enter 27 Carter's Meadow and whom he followed to Tesco was the appellant; that inside Mrs Chambers' home he had stolen a £20 note and a £10 note which she had left on a tray in the kitchen; and that Mr Randall's observations and descriptions of the man that he followed were supported by the appellant's use of a £20 note at the check-out in Tesco's.
9. The defence case was that the jury could not be sure either that there had been anything stolen from Mrs Chambers' home at all, or that the person whom the appellant accepted was himself and could be seen on the CCTV and in stills taken from it, was the man whom Mr Randall had followed from the allegedly burgled premises.
10. The details of Mr Randall's following of the man whom he saw enter Mrs Chambers' home do not matter because as will become apparent the critical point on this appeal is a timing point relating to the fact that the CCTV footage obtained from Tesco's started at 11am and did not go back before that time. On the following day Mr Randall gave to the police an initial description of the man he followed. It was noted in an officer's notebook as follows:
"A white male, mid-twenties or thirties, small beard, short fair hair, white top, possibly with a motif, and jeans, about 6ft tall, medium build, approximately 12 stone."
In evidence Mr Randall said this:
"Approximate age between 25 and 35, height 5ft 10ins to 6ft, build about mine, medium build, weight about 12 to 13 stone, about the same as me, fair hair, I think fairly short, a well-groomed person. Summertime perhaps changes people's hair, it was a little bit fair, not a big beard, about a month's growth or to six weeks, depending on how fast the beard grew, fairly certain he had a beard. Clothing, upper, it was a white top, light coloured, could have been white or off-white, some form of motif or writing on the front and the midriff, generally hanging out all the way round. Lower clothing, light coloured jeans, very light blue, as I remember it."
There had also been a reference to a red motif on the white or off-white top. Mr Randall said that he was sure that the person he saw in the check-out queue at Tesco's was the man that he had followed from 27 Carter's Meadow into Tesco's.
11. The timing of the Tesco's evidence is as follows. The CCTV footage shows the man whom at trial the appellant accepted was himself in the check-out queue and at the payment desk at between 11.00 and approximately 11.01.13 that morning. The Tesco receipt which was given to the appellant for his purchase of a top-up Orange mobile phone card was timed at 11am. The Orange receipt time of that purchase was 11.04am. Mr Randall checked his watch on the way to Tesco when he was following his suspect. His watch recorded 11.03am. Mr Randall was proud of the timing of his watch, but we know from the evidence in the case that he was three or four or so minutes fast of the Tesco CCTV timing, and we know that that CCTV timing was accurate to within 15 seconds of the proper time.
12. Although the appellant is seen in the check-out queue in a position between two other people, as described by Mr Randall in his evidence, and was also seen there on the CCTV looking around and looking to his right, as Mr Randall had described in his evidence that the man he had followed to Tesco had done, there is nothing on the Tesco CCTV footage to show either the appellant or Mr Randall entering Tesco. Mr Randall's evidence was that he followed the appellant into the store. It follows that both Mr Randall and the appellant must have entered the store before 11am. That is consistent with the fact that the CCTV shows the appellant already in the queue at 11am.
13. The timing point is therefore this. It is common ground that throughout the whole of the half hour from 11am to 11.30am there was no one else, apart from the appellant, on the Tesco CCTV footage who was in any other way a candidate for Mr Randall's description. Mr Randall said in his evidence that there was no other person of similar appearance inside the store when he was there. If, therefore, in circumstances where Mr Randall was not permitted to identify before the jury the appellant on the CCTV footage as the man whom he had followed, the appellant's submission, clearly put on his behalf by Mr Houston who represents him today as he did at trial, that it was possible that the police had made a mistake in bringing proceedings against the appellant based upon Mr Randall's description, was right, it follows that there must have been another person of like appearance at Tesco's very shortly before 11am. The hypothesis is that Mr Randall arrived shortly before 11am, before the CCTV footage began, saw another person of like appearance to the person described who was in fact the person that he had followed, and that that other person was in and out of the store before the 11am footage began. Given Mr Randall's timing on his watch and allowing for the possibility that it was a few minutes fast, all this would have had to have happened within a very short time before 11am. On this hypothesis, the suggestion is that the appellant was then mistakenly taken to be that person who had come and gone a few minutes earlier.
14. It is submitted on the appellant's behalf that in these circumstances, where the absence of CCTV footage for the period immediately before 11am did not provide watertight evidence confirming Mr Randall's evidence, the general case presented upon Mr Randall's evidence was so weak that it should have been withdrawn from the jury at the half-time submission of no case to answer; or, in any event, if just strong enough to meet the test of a case to answer, was still a case sufficiently weak as to make it improper to admit, or necessary to exclude on the ground of fairness, the evidence of the appellant's previous convictions.
15. What was that evidence? One was a conviction for a burglary in 2001 of a small complex occupied by an elderly female. Another was a conviction in 2002 when the appellant entered through an unsecured patio rear door and stole a handbag from inside a dwelling house. A third was in 2005 when the appellant gained entry by an insecure kitchen door which had been left ajar to allow air circulation and he removed two handbags from the kitchen. The Crown submitted that these previous convictions displayed similar features to the opportunistic burglary which had occurred at Mrs Chambers' premises when entry had been obtained through an open door and two notes totalling £30 had been taken from the kitchen just within.
16. In his submissions to us, as to the trial judge, that this was a case which was unfit to go before the jury, Mr Houston said that there was no admissible direct identification evidence; that the appellant had been deprived of the benefit of a proper video identification parade; that there was a difference in timing between Mr Randall's 11.03am and the Tesco's 11am; that the appellant appeared clean shaven in the CCTV stills (although today before us Mr Houston accepted that it was very difficult to tell from the CCTV stills whether the appellant was clean shaven or had a beard); that the shirt that the appellant was wearing was not a white tee-shirt, as originally described, but a football shirt which had a very visible splash of gold on the back of it together with some blue piping, neither of which was described by Mr Randall (and we were informed that in cross-examination he said that he had seen neither gold on the back nor blue piping); that the red writing on the front of the shirt was originally described as a "motif" and only described as "writing" in evidence and was one of the matters which indicated that Mr Randall's evidence had been affected by his viewing of the CCTV one week before trial; and that other aspects of such subconscious influence could be found in his description of the top clothing originally as a "tee-shirt" and only as a "football shirt" at trial. It was also submitted that there was no CCTV footage showing the appellant entering the store followed by Mr Randall and that there was no CCTV preserved before 11am, which meant that there was no secure knowledge that immediately before 11am there was not some other person entering the store who might have fitted the description given by Mr Randall. It is also said that there was no clear sign on the CCTV footage of Mr Randall outside the store peering through the window as he had described.
17. We have considered these points very carefully, but we have concluded that the only one of those points which is of real (if any) assistance to Mr Houston is the fact that there is no CCTV evidence before 11am. Once 11am is reached, it was common ground that there was no other candidate for Mr Randall's suspect whom he had followed from Mrs Chambers' to Tesco's. So the hypothesis must be that in the minute or minutes immediately before 11am there was another person who fitted that description. It is upon that basis that Mr Houston submits that the case was so weak as to amount to no proper case to answer.
18. Having carefully considered that and Mr Houston's other points, we have concluded that that is not a sufficient basis upon which to say that the judge erred in allowing the case to go before the jury. In truth, there was no evidence at all that the court was concerned with a time before 11am. At most it must have been only a minute or so that could be in question, given Mr Randall's confidence in his watch (fast as it may have been by three or four minutes). Therefore what has to be hypothesised is that in the time immediately before 11am there had to be someone else of similar general appearance to the appellant, wearing clothes of similar appearance, using Tesco, there at virtually the same time as the appellant, and who went not only into the store followed by Mr Randall immediately before 11am, but had also left the store immediately before 11am and the beginning of any CCTV recording, and had thus avoided all appearance on any CCTV camera and had also avoided being seen by Mr Randall, whose evidence was that the man whom he had followed and seen in Tesco was the only man of that description whom he had seen throughout. We also bear in mind that for the whole of the next half hour, from 11am to 11.30am, it is common ground that the appellant was the only person in Tesco who in any way fitted Mr Randall's description.
19. In those circumstances we consider that it is mere speculation to say that there was some other person whom Mr Randall followed and for whom the appellant, standing in the Tesco queue at 11am and 11.01am, was wrongly arrested as a suspect. In truth, for all the slight discrepancies between Mr Randall's original description and his evidence at trial, and for all the slight discrepancies between Mr Randall's descriptions at any time and the appellant's actual appearance or clothing, the descriptions were reasonably fair descriptions of the appellant. In any event, once the 11am point is taken, considered and dealt with, the Crown's case, so far from being so weak as not fit to go before the jury, becomes a strong and powerful case. It is the case of a suspect followed from the scene of the crime into Tesco's, where he is seen in the way described by Mr Randall, at the right time, behaving in the way in which Mr Randall described in his evidence, and making a brief purchase at a store which was not his local supermarket store, as was established by other evidence.
20. The next question is whether the bad character evidence of previous convictions should have been admitted in these circumstances. If Mr Houston had been right to submit that this was a case not fit to go before the jury, then the question of the admission of that evidence would not arise. There may be cases, however, where although a case is fit to go before the jury, it nevertheless remains a weak case and as such would fall within the dictum of the Vice President (Rose LJ) in the leading case of
R v Hanson
, where he said that weak cases should not be bolstered by the admission of bad character evidence. We remain faithful to that important observation.
21. However, for the reasons which we have already given, once speculation about another person of the same description entering Tesco's, followed by Mr Randall, immediately before 11am, is capable of being seen as speculative hypothesis, the case becomes not a weak case which just passes the threshold of a case to answer, but a strong case. It is a case we consider in which the judge was entitled in his discretion to admit the previous convictions as evidence of bad character.
22. Of course, there remain all the dangers and difficulties of a case which involved description. However, no complaint is made of the directions which the judge gave. The judge gave careful directions concerning the caution which the jury must bring to their deliberations. He identified all the difficulties in the descriptions and the discrepancies which were relied upon. Moreover, in dealing with the bad character, he emphasised not once but three times that the jury were only to consider the bad character evidence as possibly (subject to their view) giving some support to the Crown's case if they had already concluded that they could safely rely upon Mr Randall's evidence. The judge repeatedly emphasised to the jury that they were only to go on to consider the further evidence of the appellant's previous convictions if they were sure that Mr Randall was both a truthful and a reliable witness. He also gave a proper and accurate explanation of why they were looking at the bad character evidence. Again, no complaint is made of the judge's directions in this regard.
23. In sum, this was a case which was properly fit to go before the jury and a case which, however it might ultimately be described, was not that kind of weak case which in our judgment Rose LJ had in mind in his observations in
Hanson
. For all these reasons this appeal must be dismissed.
|
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|
Case No: 201203251 B1, 201301484 B1,
201203253 B1, 201203252 B1
Neutral Citation Number:
[2014] EWCA Crim 1243
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
26 April 2012 at the Central Criminal Court
before His Honour Judge Wide QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20/06/2014
Before :
LORD JUSTICE PITCHFORD
MRS JUSTICE NICOLA DAVIES DBE
and
THE RECORDER OF CARDIFF (Her Honour Judge Eleri Rees)
- - - - - - - - - - - - - - - - - - - - -
Between :
Sean Ferdinand
Lij McSween
Mohammed Hashi
Sean Hutton
1
st
Appellant
2
nd
Appellant
3
rd
Appellant
4
th
Appellant
- and -
Regina
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
MFR Holland QC
(instructed by
Needham & Partners - Solicitors
) for the
1
st
Appellant
H C Grunwald QC
(instructed by
CLP - Solicitors
) for the
2
nd
Appellant
M Birnbaum QC
(instructed by
Mackesys - Solicitors
) for the
3
rd
Appellant
B Richmond QC
(instructed by
Sonn MacMillan Walker - Solicitors
) for the
4
th
Appellant
N P Moore
(instructed by
CPS - Crime Appeals Unit
) for the
Respondent
Hearing date: 22 May 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pitchford:
Introduction
1.
On 26 April 2012, following a trial at the Central Criminal Court before His Honour Judge Wide QC, each of the appellants was convicted by the jury of count 1, charging them with the murder on 20 April 2011 of Milad Golmakani, and count 2, on the same occasion, the attempted murder of Zain Salah Uddin. On the same day the appellants Sean Hutton, Sean Ferdinand and Mohammed Hashi were sentenced to detention for life for murder with a minimum term of 22 years. Concurrent terms of 17 years detention were imposed for the offence of attempted murder. For the offence of murder Lij McSween was detained at Her Majesty’s pleasure with a minimum term of 19 years; for the offence of attempted murder he was ordered to serve 14 years detention in a Young Offender Institution. Although making no practical difference to the period to be served, the latter sentence should have been announced as a period of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. We shall order the appropriate correction.
2.
Lij McSween was born on 15 August 1994. He lived at Maitland Park Road, London NW3. He was aged 16 years 8 months at the time of the alleged offences (“the relevant time”). He was represented at trial and in the appeal by Mr Grunwald QC. Sean Hutton was born on 5 May 1992. He lived at Malden Road, London NW5. He was aged 18 years 11 months at the relevant time. At trial and in the appeal he was represented by Mr Richmond QC. Sean Ferdinand was born on 30 June 1992. He lived at Gilbey’s Yard, London NW1. He was aged 18 years 10 months at the relevant time. He was represented at trial and in the appeal by Mr Holland QC. Mohammed Hashi was born on 21 January 1993. He lived at Agricola Place, Enfield. He was aged 18 years 3 months at the relevant time. He was represented at trial and in the appeal by Mr Birnbaum QC.
The grounds of appeal
3.
The appellants Lij McSween, Sean Hutton and Sean Ferdinand have leave from the single judge to pursue grounds 1 and 2, each of which concerns the decision of the trial judge to admit in evidence the hearsay statements of Bajrmshame Hashani. It is contended that the judge had insufficient evidence on which to make a finding that Ms Hashani was “unfit to be a witness because of her bodily or mental condition” for the purpose of section 16(2)(b) of the Criminal Evidence Act 2003; secondly, that the effect of the judge’s decision was unfairly to permit the prosecution to undermine the credibility of its own witness, whose statement of evidence in the form provided by section 9 of the Criminal Justice Act 1967 had already been read to the jury by agreement.
4.
The appellants McSween and Ferdinand advance further grounds of appeal 3 and 4 that have been referred to the full court by the single judge. It is contended that the prosecution, without the leave of the trial judge, elicited from Sean Hutton during cross-examination that the night before the murder of Milad Golmakani he had been in the Pimlico area of London dealing in class A drugs. It is submitted that in so doing the prosecution adduced bad character evidence whose effect was to undermine an understanding between the prosecution and defence that evidence of motive would not be introduced, to the unfair prejudice of the cases of McSween and Ferdinand.
5.
The appellant Ferdinand seeks to renew ground 5, namely that the judge in his summing up misdirected the jury as to fact when summarizing the evidence in his case and failed when so invited to make a full or adequate correction.
6.
The appellants Ferdinand and McSween seek leave to rely upon a new ground of appeal (that we shall call ground 6), namely that the fresh evidence of an eye witness, Milos Charlesworth, should be admitted in the appeal pursuant to section 23 of the Criminal Appeal Act 1968. Should the evidence be admitted it would cast doubt upon the identification of the appellants’ group as that which attacked and wounded Milad Golmakani and Zain Sala Uddin. It therefore affects the position of all four appellants.
7.
The appellant Hashi challenges his conviction on the ground (which we shall call ground 7) that the expert evidence of a consultant podiatric surgeon, Mr Barry Francis, was flawed so as to render unsafe the jury’s conclusion that Hashi was present and participating in the attack on the victims.
8.
Finally, Lij McSween’s application for leave to appeal against the minimum term of 19 years imposed in respect of count 1 has been referred to the full court.
The cases at trial
9.
At 4.30 pm on 20 April 2011 Milad Golmakani, Zain Salah Uddin and several other youths of various ages had congregated in and in the vicinity of the fenced basketball and games court alongside Sandbourne House, Abbey Road Estate, Kilburn in north London. At the same time a taxi summoned by the appellant Hutton arrived and parked at Boundary Road, on the adjoining Rowley Estate. At 4.33 pm CCTV cameras captured four young men, including Hutton, walking from Boundary Road towards the basketball court. Their route took them alongside Stevenson House to Langtry Walk. All four were wearing dark jackets with hoods. It was the prosecution case that the four men captured on CCTV were the appellants. During their walk along Langtry Walk Hutton left the group and returned to the taxi to instruct the driver, Mr Gurhey, to drive the car closer to the basketball court. Hutton’s purpose was, the prosecution contended, to facilitate the escape of the group from the scene of an attack that he knew was imminent. Between 4.36 pm and 4.39 pm CCTV captured the remaining three members of the group walking along Langtry Walk, across Abbey Road and, thence, into Abbey Road Estate. They emerged into the area outside the basketball court through a passageway under Sandbourne House. Meanwhile Mr Gurhey and Hutton travelled in the taxi to a position on Abbey Road at the entrance to the estate. Hutton left the taxi and, at 4.42 pm, followed his three companions into the estate.
10.
The prosecution was unable to assign specific roles to any one of the appellants save for Hutton who had ordered the taxi and made preparations for the group’s escape. It relied upon the inference that anyone proved to have been a member of the hooded group entering Abbey Road Estate at 4.40 pm did so for the purpose of carrying out, with knives, a murderous attack on the deceased and others. Witnesses described a group of men wearing jackets with their hoods up entering Abbey Road from the direction of Sandbourne House. They chased Milad Golmakani and Zain Salah Uddin out of the basketball court and attacked them with knives. Mr Golmakani suffered fatal wounds. It is probable that two knives at least were used to inflict Mr Golmakani’s wounds. Mr Salah Uddin, while stabbed from behind in the area of his right shoulder, was able to run from the estate and was captured on CCTV doing so at 4.43 pm. At the same time four men were seen on CCTV returning to the taxi as Mr Gurhey was making a turn. At Hutton’s instruction the taxi took the group to the vicinity of St Mary’s Church in Primrose Hill. At the youth centre a barbeque commenced at 4.00 pm.
11.
Hutton and McSween admitted that they were members of the group captured on CCTV entering and leaving the Abbey Road Estate. Their case was that they had visited the Estate looking for a man called ‘Smokey’ from whom to make a purchase of cannabis. They claimed that they were accompanied by two youths known only to them as ‘Toothpick’ and ‘Iceman’, and not by Ferdinand and Hashi. McSween gave evidence that he was the first to enter the Estate. As he approached the basketball court a group of five or six males approached from his left and attacked him. He was punched to the face. Someone aimed a blow with a knife. McSween claimed that he put up his hand in a defensive manner and the knife made contact causing a cut that bled profusely. He immediately ran back to the taxi in the direction from which he had entered the estate. As he ran McSween left a trail of blood spots subsequently analysed to establish his identity. Ferdinand’s fingerprints were lifted from the rear passenger window of the taxi. His defence at trial was alibi. He said he had been attending the barbeque at St Mary’s Church youth centre. Ferdinand said that the discovery of his fingerprints was mere coincidence; he had used the same taxi firm, Fleet Cars, on many previous occasions and it was not possible to date a fingerprint. The prosecution also relied on cell site evidence to establish the movement of Ferdinand’s mobile phone towards and away from the scene of the attack at the relevant times. Ferdinand and Hutton both claimed in evidence that this too was coincidence. At Hutton’s request Ferdinand had lent his phone to Hutton at about 1.30 pm and Hutton returned it at about 5 pm at St Mary’s Church youth centre. The cell site evidence established only Hutton’s and not Ferdinand’s movements. Hashi advanced no positive case at trial and did not give evidence.
Evidence of eyewitnesses
12.
Witnesses described a group of youngsters of different ages congregating in and around the basketball court; some were playing football, others were standing or sitting around. Zain Salah Uddin said that he was playing basketball. He saw a couple or a few people come towards “the pitch” from the passageway through Sandbourne House. They had hoods up and the strings of their hoods were pulled so that he could not see their faces. He saw Milad (street name ‘Dirty’) and ‘Antics’ start to run, so he did too. Zain slipped and as he was getting up he was stabbed. He could hear Milad screaming. He looked across and saw “hoodies” standing over him. Zain ran to Boundary Road where he was given assistance.
13.
Connor McGovern noticed Dirty and Antics leaving the pitch as people were coming from the direction of Sandbourne House. Connor ran with Yassir Bashira in the same direction as Zain towards the Sandbourne House passageway. Ryad Hassan said he was playing football when he heard one of his friends shout. He saw someone coming from the direction of the Sandbourne House passageway. This person had his head covered with a hood and he was wearing a bandana over his nose and mouth. He was wearing a dark top, possibly black. Ryad also ran away. Yassir Bashira said he heard a shout and ran. Men were approaching from the passageway, he thought five or six of them. They were wearing masks or bandanas and had their hoods up. In his statement Yassir had said that the men were wearing black hooded tops or jackets. When recalled to give further evidence, he said that the tops were red, green and white. The judge permitted the prosecution to treat the witness as hostile. He claimed that his memory varied as to the colour of the men’s clothing. When he made his statement he had genuinely been trying to remember.
Bajrmshame Hashani
14.
Ms Hashani, a local resident, was giving assistance to the dying Milad Golmakani when the police and ambulance personnel arrived at the scene. She was treated as a significant witness. On 21 April 2011 DC Kohli visited her at her home and took notes of their conversation. On 22 April Ms Hashani attended the police station where she took part in a recorded interview which, with breaks, lasted from 11.30 am to 4.35 pm. The transcribed record of interview was served on the defence as unused material. On 21 February 2012 Ms Hashani signed a witness statement that had been prepared for her from the transcripts of interview. It was served with a notice of additional evidence and Ms Hashani was made a fully bound witness. On 19 March 2012 counsel for the prosecution, Mr Moore, sent an email to defence counsel with a running list of witnesses for trial. Ms Hashani was marked as a witness to call although it was noted “NB: cannot attend, unwell”. On the following day the prosecution served statements from Ms Hashani’s general practitioner, Dr Patel, and DC Larson, who had made a recent visit to the witness.
15.
Mr Moore informed this court that early in the trial he had run out of ‘live’ witnesses and was using the time available to read the statements of witnesses who were not required to attend. In the course of this process he learned that the defence was content for the statement of Ms Hashani to be read. Therefore, he read an edited version of the statement to the jury. In that statement Ms Hashani described the incident as follows:
“On Wednesday the 20 April 2011 between 4.10 pm and 4.20 pm I left my home address and walked through the Abbey Road estate to go to the shops. As I was walking out of the estate I went past the stadium on my right hand side. I would describe this as a small play area with a fence round it where they play football. As I’ve gone past this stadium I saw the victim who was later stabbed playing football inside the stadium with about 15 to 16 other youths. I would describe the male who died as being mixed race, abut 20 years old, he’s got shoulder length, what I would call locks. I am not sure whether they were plaited or twisted but he had a small beard on his chin and he had a short sleeve t-shirt which was white without any logos on it and it was short in length showing his midriff and he had light blue or white jeans on. I walked past him and went to do my shopping. About 20 minutes later I returned with my shopping and stopped by a barrier that is there to stop cars from driving onto the estate. As I was stopped, I could see to the left of me the stadium and from there I could see 3 youths armed with knives chasing the victim and his friends. Initially they’re chasing them inside the stadium and then they chase him out the stadium and catch up with him. They chase the victim and 3 of his friends out the stadium, the 3 friends manage to run away but they manage to surround the victim, and while they’re chasing them inside the stadium and out the stadium they’re shouting and swearing at him. They shouted out to his 3 friends that ran away, “come back, we’re gonna do the same to you right”. The 3 suspects then surround the victim and as soon as his friends had run one suspect stabbed to the front and because the other 2 guys were behind him so he could not escape. He stabbed him in the heart area, once or twice and I think they did about 3 times in the back. I just said, “stop stop”.
The victim then staggers about the place and collapses. Upon stabbing him the 3 suspects then run off in the passage way that runs parallel to the children’s playing area, which is on my left and they were laughing as if they had not done anything. In the play area there are 4 children swings in this play area and that’s the only children’s play area on the estate. I went over to the victim and I asked him if he would like some water as he was shouting for help and an ambulance. I left him and walked back to my home to get some water and was only a couple of minutes. I came back with 2 bottles of water, opened one of the bottles of water and while he’s lying down I helped him drink some by pouring it into his mouth initially he drank. It was quite sudden but he then lost consciousness and lies on the floor. I saw that he had stab wounds at the back and front. After a while the police and the ambulance arrive so I left and went back to my flat.”
16.
Ms Hashani described the appearance of the three attackers as follows:
“I would describe the 3 suspects as: The second one to run out of the stadium was a dark skinned black male about 5’10” – 5’11” tall, slim build. He had his hood up so I could not see his hair. He was wearing a red or plum hooded top. It had a logo which was black and white, capital letters across the chest. He had light blue jeans on which he wore quite low like most of the youths do nowadays. They were baggy jeans but didn’t have any distinctive logos or any marks on them that I remember. I cannot remember what sort of footwear he had on. He had a knife in his right hand and the blade of the knife came out the bottom of his hand. When he surrounded the victim he stood, sort of behind the victim. I drew a picture of this knife which I exhibit as BH/1. I think the blade was about 10 inches in length. I didn’t actually see him stab the victim but he was stood behind him making movements with the knife. After that he ran off past the children’s playground.
The second suspect was directly behind the victim as they ran out of the stadium. I would describe him as a black male, about 16-17 years old, dark skinned and he was wearing a grey/grey hooded top. I couldn’t see his hair because he had the hood up but on the back of the hooded top he had a black and white football logo and dark jeans. He was carrying a knife in his right hand and the blade of that knife was coming out the top of his hand. I cannot remember the blade but it had a silver handle. I saw him stab the victim in the area by the heart as he stood in front of the victim and thrusted the knife twice with a trusting motion. He then ran off towards the passageway past the children’s playground and as he did it looked like blood on the knife.
The final suspect was the third person to come out the stadium. I would describe him as a male, mixed race, very fair skinned. He was about 16-17 years old with a white hooded top, with the hood up and he had small letters across the front of the hoody where the pockets are which is across the stomach. He had light blue jeans but nothing distinctive. He had the knife held in his left hand but I cannot describe it. He was stood behind the victim to the right. I saw him making movements with the knife in his hands towards the victim’s back.
I was left shocked and scared by the incident and was trembling.”
17.
Almost as soon as Mr Moore had finished reading the statement he realized that there was now before the jury an unchallenged description from an eyewitness of the clothing worn by the attackers that was in some, but not all, respects inconsistent with the clothing of the group of men to be seen in the CCTV recording making their way to the scene of the attack. Having read, or re-read, the contents of the interview transcripts Mr Moore resolved to make an application to the trial judge for leave to adduce further hearsay statements made by Ms Hashani. His purpose was to introduce into the evidence of Ms Hashani her expression of uncertainty as to whether she was able to provide any description of the attackers. There has been some disagreement at the Bar as to the precise sequence of events but there is no doubt that shortly after Ms Hashani’s statement was read to the jury Mr Moore realized he had acted mistakenly and in haste.
18.
At the commencement of Ms Hashani’s statement but omitted from the evidence read to the jury was the following
caveat
:
“The contents of this statement constitute a summary of an interview conducted by DC KOHLI, DC POULTON with an interpreter Albert PRETESHI at Kilburn police station on 22/04/2011 between 1130 hours and 1645 hours. This statement does not purport to be complete and, for completeness and accuracy, it must be read in conjunction with the interview transcripts, exhibits TK/1A, TK/2A, TK/3A, TK/4A, and TK/5A.”
19.
In her interviews Ms Hashani had given a coherent and consistent account of the nature of the events she had witnessed (as at paragraph 15 above). However, when asked to describe the attackers she said:
“I don’t remember [the] three of them at all. I only remember his [Milad’s] friends because the other guys all had hoodies on…Only his friends I saw well. I only know that…they were black.”
DC Kohli informed Ms Hashani that they needed to go through each one individually so that she could describe how he looked, what he wore and anything else the witness could remember. Ms Hashani responded:
“I don’t remember at all because I was so confused and upset….I would like to finish as soon as possible…I just know they were black boys with hoodies.”
DC Kohli asked Ms Hashani to concentrate on any one of the attackers and describe his hoody. She replied:
“I don’t remember because I was in shock. I was trembling.”
DC Kohli asked whether “it” was a dark or a light coloured hoody. Ms Hashani replied:
“No, all dark hoody; one was like red or plum, dark but they were all dark hoodies.”
Ms Hashani said that the one wearing the red or plum coloured hoody was about 5’10” in height and the others were taller. He was wearing baggy jeans. They were all skinny and aged 16 or 17 years. By a series of questions DC Kohli was able to elicit the descriptions that later appeared in Ms Hashani’s witness statement (as at paragraph 16 above). In some respects the descriptions matched the appearance of the young males who could be seen in the CCTV recording. However, some of the specific features of colour and marking of the upper clothing of the attackers was inconsistent with Ms Hashani’s words “they were all dark hoodies” and the appearance of the group recorded in Langtry Walk.
20.
On 26 March 2012 the prosecution served an out of time application to adduce Ms Hashani’s statements in interview as to the extent to which she could describe the attackers, under section 116(2)(b) of the Criminal Justice Act 2003. The judge acceded to the application but required that some 24 pages of the interview were read to the jury, including those passages to which we have made express reference, in order that the jury should appreciate the full context in which Ms Hashani’s descriptions emerged.
Evidence of movement
21.
It was not in dispute that the four appellants were friends. McSween, Hutton and Ferdinand lived in the same general area and Hashi was a regular visitor. The prosecution case was that they met up in Malden Road at about 2.50 pm on 20 April 2011, close to Ferdinand’s home, and remained together until about 3.50 pm when Hutton called the taxi to take them in search of their victims. The prosecution relied on CCTV footage of a group of four young men recorded in Malden Road at 2.30 pm – 2.50 pm, in Ferdinand Street/Chalk Farm Road at 2.50 pm – 3.15 pm and in the Rowley Estate at 4.33 pm – 4.40 pm. McSween and Hutton accepted that they were present at the relevant times. They were referred to as Suspect 3 and Suspect 4 in the evidence. During the course of the trial it was accepted that those referred to as Suspect 1 and Suspect 2 were also present on each occasion. The issue for the jury was whether Suspect 1 was Ferdinand and Suspect 2 was Hashi. Hashi did not contest that he too was seen at the youth centre at around 5 pm.
22.
At 1.25 pm Hashi was captured by a CCTV camera in Mare Street, Hackney driving a Vauxhall Corsa motor car taken without the consent of the owner. He subsequently pleaded guilty to the offence and later admitted at trial that he was the person to be seen in the CCTV recording driving the vehicle. He was wearing a grey coloured T shirt over a white undershirt. The white rounded neck band of the white undergarment could be seen protruding above the rounded neck of the grey T shirt. On the front of the grey T shirt was a diagonal, oblique block capital logo in white spelling the word ‘
NIKE
’. From a distance the logo bore the appearance of a block of white colour on a grey background. At 3.13 pm CCTV captured a group of four men walking in Ferdinand Street. Two of them were admittedly McSween and Hutton. A third was said to be Ferdinand but that depended primarily on inference from the fingerprint and cell site evidence, the telephone traffic and the conclusion that, despite his denial, he was carrying his own mobile phone. The judge directed the jury that the CCTV recording was of insufficient quality to attempt a facial identification and, while the jury could use the CCTV evidence to examine general consistency or inconsistency with build and height, they were forbidden from undertaking any exercise in facial identification. The head of the fourth man could not be seen in the recording but he was wearing garments that bore close similarity with the image of Hashi seen in the admitted CCTV recording of the Vauxhall Corsa: the white collar band of an undershirt could be seen protruding above the outer garment on which was to be seen a diagonal block of white in the same position as the ‘
NIKE
’ logo shown in the earlier film.
23.
A consultant podiatric surgeon, Mr Barry Francis, gave evidence that he had compared the walking gait of the person he referred to as ‘Suspect 2’ in CCTV footage recorded in Malden Road at 2.50 pm with a person recorded by CCTV in the Rowley Estate at 4.35 pm and with an admitted CCTV recording of Hashi in police custody on 27 April 2011. Mr Francis identified several features of walking gait that were common to Suspect 2 and Hashi, and he found no differences that could distinguish them. The prosecution asserted that it was safe to conclude that Suspect 2 in all four recordings was Hashi; accordingly that he was one of the attackers who entered Abbey Road Estate at 4.40 pm.
The alibi evidence
24.
Ferdinand and Hutton asserted that some time before 3 pm on 20 April 2011 they met in Malden Road and smoked cannabis together. Hutton needed a phone because his own was running low on battery charge. Ferdinand lent Hutton his phone. Ferdinand said that at the time of the attack he was at the barbeque in St Mary’s Church youth centre. Hutton entered the centre after the taxi had driven him to the vicinity and he returned Ferdinand’s phone. A youth worker, Dayne Ayok, gave evidence that he saw Ferdinand at the barbeque at, maybe, 3.15 pm to 3.30 pm. It was common ground that the police entered the centre at about 5 pm. Mr Ayok said he had seen Ferdinand some half to three quarters of an hour before they arrived, and again at about the time the police had arrived. Jason Allen was the manager of the youth centre. Although he saw Ferdinand at the barbeque he could not say at what time. The other three appellants had also attended. The barbeque had ended at about 9 pm.
25.
On 20 April 2011 Ferdinand was subject to electronic monitoring by means of a tag. It was agreed that at 12.50 pm he left his home and returned at 3.02 pm. He left again at 3.05 pm and did not return until 5.08 pm. He left at 5.10 pm and returned at 5.16 pm. He left at 5.27 pm and returned at 5.38 pm. He left at 5.40 pm and did not return until 9.02 pm. Ferdinand explained his absence from the barbeque just after 5 pm by saying that he had left to smoke cannabis. He returned some 40 minutes later. He accepted that he had made calls on his phone to McSween shortly after 5 pm. That was, he said, because Hutton had told him “something had happened” to Lij.
The issues before the jury
26.
Thus, the jury’s task was to reach a conclusion whether those who entered the Abbey Road Estate from Langtry Walk comprised the group who chased and attacked the victims Golmakani and Salah Uddin and, if so, whether a joint enterprise to carry out a murderous attack on those victims with knives was established. If it was, the jury next had to consider whether Ferdinand and Hashi were Suspects 1 and 2 in that group. In Ferdinand’s case the issue was whether his admitted association with his co-accused, the presence of his fingerprints and the movements of his phone established his presence and participation at the scene of the attack. In Hashi’s case the issue was whether the CCTV material established that he was present and participating. It follows from the verdicts returned that the jury rejected McSween’s account of the nature of the incident in which he was involved, rejected Ferdinand’s evidence of alibi, and found that Ferdinand was Suspect 1 and Hashi was Suspect 2.
Grounds 1 and 2: evidence of Bajrmshame Hashani (McSween, Hutton and Ferdinand)
27.
The appellants rely upon the adversarial nature of a criminal trial. There was evidence from Ms Hashani and others that a single group of hooded youths entered the area of the basketball court and attacked Milad Golmakani. This was inconsistent with the account given by McSween who claimed that he was set upon by a separate group that approached him from the opposite direction. On the other hand, Ms Hashani had given a description of the clothing worn by the attackers which in some respects cast doubt on the prosecution case that those who attacked Golmakani were the same group as those who could be seen in the CCTV film approaching Abbey Road Estate along Langtry Walk. The defence reached the conclusion that although Ms Hashani’s evidence tended to establish a joint enterprise they had ground to gain from the inconsistency revealed by Ms Hashani’s descriptions of clothing and, for this reason, it was agreed that the evidence of Ms Hashani should be read, despite its capacity also to undermine the case for McSween. Mr Grunwald QC, on behalf of McSween, assured the court that had the prosecution not adduced the evidence of Ms Hashani he would certainly have called her during the defence case. It was submitted on behalf of Hutton by Mr Richmond QC that once agreement had been reached between the prosecution and the defence for the reading of the evidence of the witness, the prosecution should not have been permitted to undermine that evidence. To do so immediately created unfairness to the defence. Had the defence known in advance of the prosecution’s
volte face
it would not have agreed to the reading of the evidence in the first place.
28.
The overriding objective is that criminal cases should be dealt with justly, which includes the requirements that the prosecution and the defence should be dealt with fairly, that the Article 6 ECHR rights of the defendant should be recognized and that the interests of witnesses should be respected (CrimPR, Rule 1).
29.
In our judgment, the fact that the prosecution had read the evidence of Ms Hashani created no automatic prohibition against its subsequent application to adduce further evidence. The objective of the rules of evidence in a criminal trial is not to create a windfall forensic advantage for one side or the other but to do justice. It seems to us that in the absence of
agreement
by the prosecution as to the accuracy of Ms Hashani’s descriptions, her expressions of doubt as to her ability to provide accurate descriptions were undoubtedly admissible. If the jury were denied access to the context in which Ms Hashani’s descriptions were given they may have been misled as to their reliability. Whether the prosecution should be permitted to succeed in its further application seems to us to depend upon the circumstances, including the stage that the trial had reached, and the ability of the trial judge to avoid unfair prejudice to any defendant. We accept, as the trial judge clearly did, that Mr Moore made an error in failing to appreciate, before reading Ms Hashani’s statement to the jury, the capacity of the witness statement to mislead. We accept that there were proper grounds, subject to fairness to the defence, on which the prosecution should have been permitted to correct that error.
30.
In the ordinary course, had the application to adduce further evidence succeeded, the witness would have been called by the prosecution to give evidence in person. The prosecution would not have been permitted to cross-examine its own witness. Mr Moore would have been limited to asking the witness for her own assessment of her ability to give an accurate description, if necessary enabling the witness to refresh her memory from her previous statements, including the recorded interview. As Mr Richmond QC correctly observed, had the witness expressed the same reservations in evidence as she did in interview as to her ability to provide descriptions, there was available to the defence the ability to ‘bolster’ the credibility of those descriptions by reference both to the statement and to the interview. We have read the interviews in their entirety and we acknowledge that there was available to the defence the cogent argument that, while Ms Hashani was at first most reluctant to commit herself to a description of individuals, she was able with some fluency and without expressions of doubt to describe the
clothing
that the attackers were wearing. It was on the witness’s description of clothing that the defence relied for its attempt to undermine the prosecution case. In our view, had the prosecution applied to call Ms Hashai to give evidence in person there would have been strong grounds for allowing it. It was a matter for the jury to assess the extent to which the witness’s descriptions were reliable and the further evidence would assist them in that regard. However, the prosecution asserted that Ms Hashani was unfit to give evidence.
31.
The judge concluded that there was nothing in section 116 of the Criminal Justice Act 2003 that prohibited the application made by Mr Moore. Section 116 provides in its relevant parts:
“116 Cases where a witness is unavailable
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—
(a)
oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter;
(b)
the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
(c)
any of the five conditions mentioned in subsection (2) is satisfied.
(2) The conditions are—
(a) ….
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) - (e) …”
In
Riat and Others
[2012] EWCA Crim 1509
(Hughes LJ, Vice President, Dobbs and Globe JJ) this court reviewed the operation of the hearsay provisions of the Criminal Justice Act 2003 in the light of decision of the Supreme Court in
Horncastle & Others
[2010] 2 AC 373
;
[2009] UKSC 14
. The court re-iterated the default position that hearsay evidence is inadmissible unless admitted through a gateway provided in section 116 or admitted in the interests of justice under section 114 (or the evidence is admitted under one of the common law exceptions preserved by section 118). Hearsay evidence is not to be “nodded through”. It is a specific requirement of admissibility under section 116(2)(e) (witness absent through fear) that the evidence should satisfy the interests of justice test and that consideration is first given to the use of special measures to enable the witness to give evidence in person. In other cases the discretion remained to exclude evidence under section 78 of the Police and Criminal Act 1984 (“PACE”) and in making the appropriate judgement of unfair prejudice the court should use as an
aide memoire
the factors to be considered under section 114(2).
32.
In our judgment the trial judge was right to conclude that the only pre-conditions to admissibility of hearsay evidence under section 116 are those stated in section 116(1). It seems to us that the questions for the judge were whether (1) the test of unfitness to give evidence was met and (2) the admission of the evidence would be unfairly prejudicial to the defendants in the circumstances in which the application had arisen.
33.
The judge found that the lateness of the application did not of itself create any prejudice to the defence. We agree. The judge was provided with a statement made by Ms Hashani’s general practitioner, Dr Patel, on 7 December 2011. Ms Hashani (aged 37 at the date of trial) suffered poorly controlled epilepsy. She was diagnosed with depression in May 2009. She was prescribed anti-depressant medication and her condition improved. She relapsed in January 2010 and attended surgery at regular intervals having suffered increasing panic attacks and epileptic fits. After a consultation in July 2010 Ms Hashani was referred to the neurology department at St Mary’s Hospital, Paddington. Her anti-depressant and anti-epileptic medication was increased. In April 2011 Ms Hashani reported back to the surgery that she had witnessed a gang-related stabbing. She was anxious, unable to sleep and was worried about reprisals and increasing fits. In July 2011 she was suffering four fits a day and her medication was again increased. A similar picture presented in October 2011 when Dr Patel noted that Ms Hashani, who had other medical problems, was noticeably upset and low. Dr Patel concluded:
“…I believe that Ms Hashani suffered from significant anxiety/depression prior to this incident and has continued following. My concern as her GP is that she may not be able to deal with the stress of giving evidence at court psychologically. I feel if she was to give evidence, it would cause significant stress/anxiety and, therefore, have a detrimental effect on her both prior to her attendance at court and afterwards.”
34.
DC Larson gave evidence. He had visited Ms Hashani on three occasions. In August 2011 Ms Hashani appeared to be weak and her voice was shaky. She was about to attend hospital and asked DC Larson to return on another occasion. The officer made a number of subsequent calls and visits but was unsuccessful in making contact. He next saw Ms Hashani on 9 November 2011. He wanted to discuss with Ms Hashani her attendance at court. She became very distressed and appeared to panic at the prospect. She told DC Larson that she was not well enough to attend court and collapsed by her front door. DC Larson helped her up and they sat together on the stairs. She was pale, unwell and upset. Ms Hashani explained that she recently undergone heart surgery and her health in general had deteriorated. She felt unable to leave the house and had been advised to avoid stressful situations. On 29 November 2011 Ms Hashani made a witness statement in which she said that she had recently undergone a serious heart operation. She was unable to leave the house. She had been advised that stress may put a strain on her heart or trigger epileptic fits. On 21 February 2012 DC Larson made his last visit to the witness. On this occasion he had visited to ask Ms Hashani to confirm and sign her witness statement of the same date. She was nervous and shaking. Ms Hashani told DC Larson that the very thought of giving evidence was causing her stress. It was her view that she was not well enough to attend. The officer formed a personal view that Ms Hashani was unfit to attend to give evidence. The judge concluded:
“It is plain in my judgment, and I am sure, that she is unfit to attend as a witness.
He found that the medical and other evidence he had heard persuaded him that the use of special measures would not overcome Ms Hashani’s unfitness to give evidence.
35.
It is contended on behalf of the appellants McSween, Hutton and Ferdinand that the material before the judge did not entitle him to find that the witness was unfit to attend trial. The last visit by the officer had been made three weeks before the trial. Dr Patel’s report, which expressed fear of possible consequences and not an unconditional diagnosis, was out of date by the time of trial, which commenced on 19 March 2012. The judge failed, it is submitted, to give adequate consideration to the question whether the stress of giving evidence could be alleviated by the use of special measures, including the use of a remote video link if necessary.
36.
The appellants undertake the burden of demonstrating that the judge’s decision was wrong. We recognise that the medical evidence was dated December 2011. However, it established a long term and ongoing condition that caused Dr Patel to fear for the consequences of an attempt to persuade the witness to give evidence. It was Dr Patel’s view that the process of giving evidence
would
have a detrimental effect on her patient’s physical or psychological condition. The evidence of DC Larson was to the effect that he had observed no improvement in the witness’s condition between August 2011 and February 2012. Indeed that was the view expressed to him by the witness herself. While DC Larson was not medically qualified he was aware of the rigours of a criminal trial and it is our view that the judge was entitled to place reliance upon his evidence when considering the issue whether it was possible there had been an improvement since December. We note that the witness was not at that time expressing reluctance to attend through fear of facing the defendants, the problem that special measures are primarily designed to meet. Nonetheless, the judge did consider whether special measures could provide an environment in which the risk to the witness’ health could be reduced, but he concluded that, by reason of the nature of her condition, they would not. It has not been demonstrated to us that the judge was wrong to find that the witness was unfit to give evidence, whether with the assistance of special measures or not.
37.
It is contended on behalf of the appellants that the judge should have exercised his residual judgment to exclude the evidence under section 78 of PACE 1984. By permitting the prosecution to adduce further written evidence from the witness the defence had been deprived of the opportunity to cross-examine to effect so as to restore the credibility of her descriptions of the attackers. Although section 116(4) of the Criminal Justice Act 2003 expressly applied only to cases in which the witness was said to be absent through fear, the judge cautiously and rightly, in our view, applied the interests of justice test to the judgment of prejudice under section 78. He noted that there was nothing in the material that the prosecution sought to adduce that was contrary to the affirmative case of any defendant. The evidence of a joint attack by a group was confirmed by at least one other witness. As to the descriptions given by Ms Hashani, the judge noted that her witness statement made specific reference to the interview as providing the complete and accurate account of her evidence. The judge did not regard the admission of the evidence as tantamount to cross-examination of the witness on the credibility of her evidence. It was, he said, merely placing before the jury the whole of her account and not just part of it; it was difficult to see how that process could involve unfairness to the defendants.
38.
We do not take as laconic a view of the issue of unfairness as did the judge. We acknowledge that the absence of the witness was capable of creating unfairness to the defence in the light of the previously made decision to permit the prosecution to read her statement. However, such unfairness as might be generated arose only from the capacity of the further evidence to diminish a submission available to the defence at the close of the evidence, to the effect that an eyewitness had given an apparently reliable account which had the capacity, depending on the jury’s view, to cast doubt on aspects of the prosecution case. There are, it seems to us, two reasons why no unfairness was done to the appellants in the result. The first is that the judge was correct to rule that the witness was unfit to attend. Had the prosecution, in the first place, received the judge’s leave to read Ms Hashani’s account under section 116(2)(b) instead of seeking agreement from the defence to read only the statement, the appellants could not have resisted the application to read both the witness statement and the interviews, the former of which expressly adopted the latter. The appellants were not, therefore, placed in any worse position than they would have been if there had been no agreement to read the statement. Secondly, we have referred already to the capacity of the interviews to support the defence case that, far from undermining Ms Hashani’s description of the
clothing
worn by the attackers, the manner in which the evidence emerged demonstrated its reliability. Defence counsel were able to make the very submissions to the jury that they had always intended. The only adjustment required was an examination of the interviews to show how those descriptions had emerged.
39.
In his summing up the judge reminded the jury that Ms Hashani’s statement had been read by agreement between the prosecution and the defence but that the interview had been introduced in evidence on the application of the prosecution under a different legal provision: the jury, when assessing the effect of Ms Hashani’s evidence, should bear in mind that they had not seen the witness and that her evidence had been untested by cross-examination. Having summarised Ms Hashani’s statement and interviews the judge directed the jury that they should decide the importance to be attached to her evidence. They should consider in particular whether, with regard to her description of the colour of clothing, she was mistaken or confused or whether, bearing in mind the burden and standard of proof, she may be right. Mr Holland QC argued that in light of the circumstances in which the interview had been admitted in evidence the judge should have emphasised the disadvantage to the defendants of the absence of the witness. It seems to us that had the judge descended to particulars the appellants’ position could not have been improved and may only have served to confuse. The judge made it plain to the jury that in deciding whether to act upon the descriptions given by Ms Hashani the burden was upon the prosecution to demonstrate that she was mistaken. In our judgment, the judge’s decisions under section 116 and section 78 were properly made and no unfair prejudice to the appellants resulted.
Grounds 3 and 4: cross-examination of Sean Hutton (McSween and Ferdinand)
40.
At the commencement of trial the prosecution indicated that it did not propose to introduce evidence that the victims and the defendants were members of opposing gangs in north London and, therefore, evidence of motive. If, on the other hand, the defence sought to introduce evidence that the victims may have had enemies other than the defendants the prosecution would seek to adduce evidence of gang membership. The defence, acting on that assurance, did not seek, by cross-examination or otherwise, to introduce evidence of motive.
41.
Cell site evidence showed that on the night before the killing of Milad Golmakani Sean Hutton had been in the Pimlico area, London SW1, and had remained there until the early hours of the morning. While Sean Hutton was giving evidence a discussion took place between Mr Moore and Mr Richmond QC during which Mr Moore indicated his intention to ask questions of Hutton as to his movements in Pimlico. Mr Moore was informed that Hutton would say he had been dealing in class A drugs. There was no objection from Mr Richmond to this line of questioning. There were two purposes behind Mr Moore’s questions: Hutton and McSween claimed that they went to some trouble to find Smokey, a person they did not know, in an area some two miles distant from their homes, in order to make a purchase of cannabis. Mr Moore wished to suggest that if Hutton had access to class A drugs it was unlikely that he had any need to go to the lengths he did to purchase cannabis from a stranger. He would have ready access to drugs from trusted suppliers. Secondly, Mr Moore wished to demonstrate that if Hutton was a dealer in class A drugs it was improbable that he would allow the battery on his mobile phone to run low on charge or that he would take the risk of using another’s person’s mobile phone to deal in drugs. Both these points, if well made, tended to undermine the account given by Hutton and McSween as to their purpose in seeking out a man in the Abbey Road Estate, and Ferdinand’s and Hutton’s account that Hutton needed to borrow Ferdinand’s phone.
42.
When the evidence emerged in cross-examination Mr Holland QC sought the discharge of the jury. The judge rejected the application. It is now argued on behalf of the appellants Ferdinand and McSween that the cross-examination of Hutton was improper. It took place without consultation with counsel for the defendants and without application to the trial judge. It is submitted that the prosecution had in effect resiled without notice from its undertaking not to introduce evidence of motive. The defence cases had been conducted in reliance upon the undertaking given. Had it been anticipated that the prosecution would act as it did the defence would have been conducted differently. Asked by the court to explain the connection between Mr Moore’s cross-examination of Hutton and motive, Mr Holland QC suggested that the jury might jump to the conclusion that the visit by the group of four to Abbey Road Estate had something to do with Hutton’s class A drug dealing the night before.
43.
Section 101(1) of the Criminal Justice Act 2003 defines the circumstances in which evidence of bad character may be introduced in evidence. Section 101(1)(a) provides that such evidence may be admitted when
all
parties consent to its admission. In the present case the prosecution did not seek the consent of the other parties, only counsel for Hutton; neither did the prosecution make an application to HHJ Wide QC for leave to introduce the evidence under one of the other gateways available. Mr Moore accepted that this was an oversight on his part. It is accepted that had the application been made, as it should have been, the other defendants would have had the opportunity to make submissions which might have affected the merits of the application. This is a most unsatisfactory state of affairs. As Mr Holland QC’s application to the judge demonstrates, the failure to follow the requirements of the statute could have led to serious consequences for the continuation of the trial.
44.
We are satisfied, however, that had the application been made to the judge there would have been strong grounds for the admission of the evidence under section 101(1)(d). The evidence was relevant to important matters in issue between Hutton and the prosecution, namely his purpose in being at the Abbey Road Estate and his explanation for the movement of Ferdinand’s phone to that part of London. There was no objection from the defendant whose case was immediately affected. If the judge had so concluded the evidence would have been admitted subject to its effect upon the fairness of the proceedings generally under section 78 of PACE 1984.
45.
As to Mr Holland QC’s first submission, we fail to understand how Mr Moore’s questions could, without more, have had any effect upon the undertaking not to introduce evidence of motive. In our judgment, the argument that the jury might conclude that drug dealing in Pimlico was the explanation for the killing in Kilburn does not bear examination. The judge dealt with the complaint made on behalf of Ferdinand by requiring an explicit admission from the prosecution. It was as follows:
“Cannabis is a class B drug.
Mr Hutton’s involvement in dealing class A drugs is only relevant in this case to the use of his own telephone and his explanations as to why he was purchasing cannabis on 20 April 2011.
There is no suggestion, and it is is no part of the prosecution case, that Mr Hutton’s activities in dealing class A drugs has any other relevance to his case or to the alleged offences on the indictment.”
The judge emphasised the importance of those admissions in the course of his summing up. We accept that the process by which the evidence was introduced was unsatisfactory but we do not accept that the answers given by Hutton created any unfair prejudice to the cases of the other defendants.
Ground 5: misdirection of fact (Hutton)
46.
The jury heard evidence that two police officers, PC Robson and PC White, were in the Primrose Hill area at about the time when Mr Gurhey deposited his passengers not far from St Mary’s Church youth centre. They saw three people wearing hooded jackets who appeared to be running away from them, so they gave pursuit. They ran to the youth centre and the officers entered behind them. They made a search but could not find the people they had followed. At 4.59 pm Lij McSween was to be seen on a CCTV recording cycling over a railway bridge near Chalk Farm tube station. Ferdinand’s case was that he was already at the barbeque when the police arrived. The prosecution case was that he was one of the three individuals who ran into the church followed by the police. McSween in the meantime had separated from the other three with the intention of seeking treatment for his injured hand. Ferdinand gave evidence that he walked home from the barbeque shortly after the police left at about 5.00 pm. He wanted to smoke cannabis. The judge reminded the jury of the evidence of Mr Baxter, the cell site expert, that between 5.41 pm and 5.47 pm, when on Ferdinand’s account he had recovered his phone from Hutton, Ferdinand appeared to be moving west towards the church at a time when Ferdinand had said he did not leave his block. The judge then referred the jury to cell site evidence that, the prosecution had argued to the jury, suggested that Ferdinand had moved to the west of St Mary’s Church. Mr Holland QC interrupted the judge’s summary of the evidence (transcript 19 April page 86) to remind him that Ferdinand’s evidence was that he was moving west during this period, towards St Mary’s church, not that he was at home (see also paragraph 25 above). The judge acknowledged that Mr Holland was “absolutely right”. After further discussion in the presence of the jury, during which Mr Holland submitted that the cell site evidence did not support an assertion that Ferdinand was west of the youth centre rather than moving from his home towards the youth centre, the judge repeated that Mr Holland was “absolutely correct”. He continued, “That is a point very well made and I am grateful to you”. The jury heard all of these exchanges and in particular the judge’s endorsement of Mr Holland’s submissions.
47.
Mr Holland again raised the matter with the judge at the lunch adjournment. Mr Baxter had given evidence that the call sequence was consistent with Ferdinand’s phone moving westwards towards and to St Mary’s Church. The prosecution had argued that it was also consistent with it moving west of St Mary’s church. Mr Baxter had never been asked for his opinion whether a call that picked up the Centre Heights mast was inconsistent with Ferdinand’s case, but that now appeared to be the submission made by the prosecution to the jury. Mr Holland sought from the judge a specific correction. The judge offered to remind the jury that there was no evidence of the area covered by the Centre Heights mast. Mr Holland responded, “That is as much jam as I can ask for, even if I cannot have the cream”. As soon as the jury returned, the judge was as good as his word. He added, “the safest thing to do is to ignore it and that is what I direct you to do”. At the end of the day Mr Holland QC again rose, in the absence of the jury, to suggest that the judge in making his further correction had neglected to refer to the sequence of calls that was consistent with Ferdinand’s evidence as to his movements. The judge emphasised that if he had misunderstood Mr Holland’s point he was anxious to correct the error. On 23 April, while summarising Ferdinand’s evidence the judge repeated his warning to the jury that they should not use the cell site evidence to reach any conclusion that Ferdinand moved to the west of St Mary’s church at about 5.40 pm.
48.
It is contended that the only satisfactory way of issuing a correction to the jury was for the judge to deal with the whole sequence of calls numbered 187 to 193 again, to rehearse the effect of the evidence concerning two masts, Dawnay and Centre Heights, and by that means demonstrating that the cell site evidence could not and did not establish that Ferdinand’s evidence as to his movements was wrong. In our judgment that is precisely the effect of the judge’s adoption of Mr Holland’s submissions. The jury were specifically directed, in conclusion, that they could not use the cell site evidence to the effect for which Mr Moore had attempted to use it in his final speech. In our view, despite Mr Holland’s concerns the judge’s correction of a false point could hardly have been clearer and no misdirection or unfairness is established.
Ground 6: fresh evidence (all appellants)
49.
The appellant Ferdinand, with the support of the appellant McSween, seeks leave to adduce in the appeal the evidence of Milo Charlesworth. If admitted his evidence affects the cases for each of the appellants. The court heard the oral evidence of the witness with a view to reaching a decision whether it should be admitted under section 23 of the Criminal Appeal Act 1968.
50.
Milo Charlesworth was born on 14 May 1995 and was therefore aged 15 years at the time of Milad Golmakani’s death. Mr Charlesworth said that he lived in Paddington but would visit the Abbey Road Estate frequently. He associated with a group called Sin City. There was trouble with a rival group, Queen’s Crescent, to which Ferdinand was affiliated. He knew Mr Golmakani as ‘Dirty’. Mr Charlesworth gave evidence that he went to the estate on 20 April 2011 to see his friend Yassir Bashira. He entered alone on a bicycle through a gate to the south of the basketball court. Mr Charlesworth was able to identify the gate from a plan and photographs used in the course of the trial. He saw Yassir, Milad and Vincent Kamara. A commotion was already taking place. His friends were trying to escape from a group of three attackers. From a distance of 10 – 15 metres he saw that the three attackers were 20 – 30 years of age and of black, west African appearance. They were wearing colourful clothing. He had seen Ferdinand in some YouTube videos and was 100% sure that Ferdinand was not one of them. He saw roundhouse swings towards those who were trying to escape. At first Mr Chamberlain was himself like a rabbit in the headlights. He heard screams and then he left for his own safety.
51.
When cross-examined on behalf of McSween Mr Chamberlain said that Ferdinand’s solicitor had shown him photographs of the four appellants. He was sure that McSween was “not there, because of his skin colour”. When asked questions by Mr Moore Mr Chamberlain claimed that he had not discussed what he had seen with anyone before he had come forward a few weeks ago. That was because people did not come out after the incident. None of his friends told him that they were witnesses and he did not discuss the forthcoming trial with any of them. Asked why he had now chosen to come forward, Mr Chamberlain said that he had converted to Islam, turned his life around and could not sleep with the knowledge that he knew the appellants had not attacked his friends. Mr Chamberlain was the only witness to claim that the attack on Milad Golmakani had taken place on the far side of the basketball court from the gate through which he, Chamberlain, had entered the area. Mr Chamberlain said that he could not tell whether the attackers had been wearing masks or scarves but he could see their faces despite the fact that they were wearing hoods over their heads with the draw strings pulled. Mr Chamberlain was asked how he was able to exclude McSween when McSween was not known to him. He replied “from his skin colour and his stature”. When it was pointed out to Mr Chamberlain that the black and white photograph shown to him depicted only McSween’s head, face and neck, he replied, “The other men were like bouncers; they had very broad shoulders”. Mr Chamberlain accepted that he had been visited at home by a police officer on 5 July 2011. DC Hiscock had been seeking information from anyone who was present at the scene. He told DC Hiscock that he knew nothing about the incident, was rude and unco-operative. That was, he said, because the officer was arrogant and, in any case, he did not co-operate with the police. Mr Chamberlain told the court that he had himself been sentenced to a detention and training order for 24 months following his conviction for an offence of wounding with intent, committed on 12 January 2012.
52.
Each member of the court concluded that in his efforts to exculpate the appellants Ferdinand and McSween Milo Chamberlain was a fluent and unabashed liar. He demonstrated his manifest untruthfulness as a witness by purporting to be able to exclude McSween on the basis of his stature when McSween was unknown to him and there was nothing in the photograph shown to him that could have enabled him to make the comparison. When approached by the police in July 2011 Mr Chamberlain had claimed that he knew nothing about the incident when, if his present account is true, he had much to say. What he did have to say was inconsistent with the preponderance of the evidence given by others. In our judgment, Milo Chamberlain’s evidence is not capable of belief and we decline to admit it in the appeal.
Ground 7: gait comparison evidence (Hashi)
53.
The trial judge directed the jury that they could not use the CCTV evidence to make any facial identification of Ferdinand or Hashi. The images were of insufficient quality to make the attempt. The prosecution relied upon the following features of the CCTV evidence to invite the conclusion that Suspect 2 in each of the images was Hashi:
(1)
Suspect 2 was of similar build, skin colour and height to Hashi;
(2)
Suspect 2 wore a combination of clothing that was similar to that worn by Hashi at 1.30 pm on 20 April 2011 (see paragraph 25 above);
(3)
The walking gait of Suspect 2 bore strong similarities with that of Hashi recorded in the custody suite of Chelsea police station on 27 April 2011 and there were no differences between them (see paragraph 26 above).
54.
The prosecution relied upon the evidence of Mr Barry Francis to establish the similarity of walking gait. Mr Francis is a consultant podiatric surgeon. For well over 25 years his clinical practice had required him to analyse walking gait for the purpose of ascertaining whether the patient’s condition was susceptible to treatment by surgery, usually to the foot or ankle. For this purpose Mr Francis had utilised video imaging and was used to the examination of such images. He was formerly a tutor examiner at the Faculty of Podiatric Surgery and chair of professional conduct for the College of Podiatry. He had given evidence on many previous occasions in the field of personal injury claims and had acted as an expert on five previous occasions in criminal cases for both the prosecution and the defence. Mr Francis’s qualification to act as an expert in this field was not challenged by the defence.
55.
Mr Francis identified two different aspects of his analysis of gait: features and flow patterns. A ‘feature’ he described as an abnormality in the position of body parts in the walking cycle; a ‘flow pattern’, on the other hand, was a product of the walking cycle, such as its speed or length of stride. In his clinical practice Mr Francis would carry out such an analysis on his patients 35 – 40 times a week. Mr Francis had been visited by the police on or about 14 September 2011 and supplied with the CCTV footage at Malden Road, Rowley Estate and the Chelsea police station custody suite. In his report Mr Francis said that he was asked to examine the material with a view to expressing an opinion as to whether there were features of walking gait common between the images of any of the individuals shown in the footage. In a later passage Mr Francis referred to discs of footage of “an unidentified male seen in Malden Road…and Rowley Estate” which Mr Birmbaum suggests betrays a predisposition towards a finding or an assumption that the individual seen in that footage was one and the same person. We are not at all sure that is a fair inference. However, as it turned out, no-one disputed that Suspect 2 in the Malden Road and Rowley Estate footage was indeed one and the same person. Mr Francis described his process in detail. He commenced by examining the Malden Road and Rowley Estate footage, which he described as the ‘benchmark’ footage. His first task was to ascertain whether the quality of the images and variation of camera angles permitted any meaningful analysis to be made. He concluded that it did. Having decided that the images permitted analysis Mr Francis examined them for a period of 11 hours or so in order to identify any features or patterns that were repeated. Mr Francis concentrated on the person he called Suspect 2. Having identified patterns and features in the benchmark material he examined the custody suite footage in order to make a further comparison. Finally, he reviewed his findings frame by frame and selected still images from the CCTV recordings to illustrate his findings to the court.
56.
Mr Francis found the following common features between the gait of Suspect 2 and Hashi in the custody suite:
(1)
On the left side the toe was turned inwards;
(2)
Knee-knock;
(3)
The stance was upright without head-poke (that is, without the head being thrust forward);
(4)
There was a long stride with ankle movement in the stride;
(5)
There was a narrow base of gait (that is, the legs passed close together in the stride);
(6)
When the suspect turned, he did so from the waist rather than the neck.
Of these six features the most prominent was the turning inwards of the left foot at (1) above. Mr Francis looked for any dissimilarities between features of Suspect 2’s and Hashi’s walking gait observed in each of the recordings and found none.
57.
Mr Francis was asked to address the subject of evaluation of his findings. He made clear that there was no database against which he could make an assessment of frequency. He could only refer to his own clinical experience. Using that experience he expressed the view that the left sided inward turn would be found in less than 5% of the population. In Mr Francis’ opinion this feature of Suspect 2’s gait could only be caused by injury or by one-sided hypermobility, itself an unusual trait. In the absence of trauma Mr Francis would expect to see knee-knock in less than 10% of the population. He gave further estimates for other features of the walking gait expressed in more or less qualified terms. For example, he said that, of the people he sees in his clinic about 5% had such flexibility that they would turn from the waist. Mr Francis also explained that in his experience there was no predisposition to one feature in consequence of the presence of another. In other words, they were unconnected. It followed that a combination of features was more significant than the presence of any one of them.
58.
The appellant Hashi relied upon the expert evidence of Mr Blake, principal podiatrist at the Nuffield Hospital. His training in podiatry was similar to that of Mr Francis save that Mr Francis had subsequently qualified as a surgeon. Mr Blake had given evidence in seven criminal trials for the prosecution and the defence. Mr Blake examined the benchmark material and concluded that it was of insufficient quality to attempt an analysis of walking gait. For that reason he did not proceed to attempt a comparison between the benchmark and custody suite recordings. Mr Blake pointed out that podiatists who use moving images in their clinical practice have access to equipment that records walking gait at 250 – 600 frames per second. When they are asked to view CCTV material they may be faced, as in the Rowley Estate footage this case, with time lapse footage recorded at one frame per second. That did not necessarily mean that the footage was unsuitable for analysis, and he had himself expressed an opinion from such footage, but it was one of the many considerations to be borne in mind when posing the question whether the material was suitable or when attempting an analysis. With regard to the Rowley Estate footage he agreed that “there might be in-toe” but he could not express the opinion that there was because he could not be satisfied of the repetition required to validate his opinion. He agreed that the Malden Road material, recorded at about 15 frames per second, was of better quality but it was still insufficient to make any reliable analysis.
59.
At the conclusion of the prosecution case (during the course of which Mr Blake also gave evidence) Mr Birnbaum QC made a submission of no case to answer. He submitted that the quality of the material was such that the jury could not safely rely upon Mr Francis’ opinion founded upon it. The Rowley Estate footage was recorded from eight different camera positions; the custody suite footage from five different positions. The angles were different and the clarity of focus varied. The nature of the clothing worn by Suspect 2 tended to obscure features of gait. Mr Francis had conceded that the principal features of gait on which he relied were themselves subtle and only demonstrable intermittently in the footage examined when, in Mr Francis’ view, the quality of the footage permitted it. The value of Mr Francis’ opinion was affected by the indifferent quality of the footage. Some of the views were foreshortened, the effect of which was a loss of perspective. The lack of contrast in some cases deprived the observer of detail, for example as to when the shod foot made contact with the ground. There was some distortion and the angles at which the images were recorded might have given a misleading impression. Mr Birnbaum submitted that Mr Francis was not an expert in video or digital imagery. It was unsatisfactory that he should be permitted to express an opinion based solely upon trust that he had “allowed for” the exigencies created by images of indifferent quality.
60.
The judge rejected the submission of no case. He concluded that Mr Francis had explained with care the reasons for his conclusion that the benchmark material was adequate for the purpose of analysis and for his identification in that material of the features he described. Neither Mr Francis’ expertise, nor his ability to provide the jury with assistance based on his clinical experience was challenged. It was for the jury to determine whether they accepted his evidence. If they did, taken together with the other evidence relating to the clothing of Suspect 2, the jury could properly conclude so as to be sure that Suspect 2 was the defendant Hashi.
61.
In his summing up the judge reminded the jury of the important features of the expert evidence. He endorsed Mr Blake’s view that before the jury could act upon the opinion of an expert podiatrist it was necessary that the features on which he relied were “clearly demonstrable” to his peers and to a lay man. For reasons we shall explain, that, in our view, was an important direction. However, when deciding whether those features were demonstrated the jury should take account of the limitations created by the quality of the images. He reminded the jury of Mr Blake’s evidence that as a result of the quality of the Rowley Estate footage he could detect only one example of the in-toe abnormality. He summarized for the jury those aspects of the footage recorded in Malden Road and the Rowley Estate upon which Mr Blake had relied for his opinion that they were inadequate for further analysis. The judge reminded the jury of Mr Francis’ expression of self-discipline that before he could act upon a comparison he must see a pattern, a repetition of features. He then looked at the custody suite footage to ascertain whether the same features were present.
62.
The judge further directed the jury as follows:
“At the heart of it is: Is the feature demonstrated? Is it demonstrated consistently so that you can see it, and, as Mr Birmbaum put it, so that you know what Mr Francis was going on about, so that you can see it for yourselves? Is it demonstrated and is it demonstrated consistently? Can it really be seen? Before you decide whether you have seen anything demonstrated, you have to take into account the size and clarity of the image, the possibility of distortion, barrelling as it is described, that bending of an image by reason of the camera. Is the foot really on the ground? If it is time lapse, what might the subject just have done and just be about to do and could that affect the position of the limbs? Does clothing have any effect? Do baggy trousers, for example, obscure limbs? Is arm swing restricted by a jacket over the shoulders? These are all things to be taken into account.”
The judge reminded the jury of Mr Francis’ responses in cross-examination to the effect that he personally had taken these factors into account before deciding upon the existence of a feature. The judge emphasised that although the jury could test Mr Francis’ evidence against the degree of care they thought he had exercised in the process of analysis, it was for the jury themselves to exercise care when deciding whether it was right to conclude that a feature was satisfactorily demonstrated to them. In this context the judge reminded the jury that the therapeutic podiatrist and the forensic podiatrist were performing different functions in that the purpose of analysis was different as was the quality of material available for analysis. The jury should take account of the danger, as Mr Birnbaum had put it, of rolling together the Maldon Road and Rowley Estate images so as subconsciously to produce a composite whole. The judge reminded the jury that, during cross examination, Mr Francis had purported to identify a narrowness of gait in the Rowley Estate by reference to footage from the custody suite, an error that Mr Francis would not concede that he had made.
63.
The jury had viewed the recordings several times during the course of the evidence and they were provided with many pages of stills taken from those recordings. The judge took the jury, in summary, through most of the images and each of the features identified by Mr Francis in his evidence, reminding the jury as he went of Mr Francis’ response in cross-examination to Mr Birmbaum’s questions upon the quality of the images and the conviction with which he expressed his identification of features.
64.
As to the assessment of frequency the judge reminded the jury that there was no database that supported Mr Francis’ evidence. His assessment was founded only on his clinical experience, although, in the case of the frequency of ‘head-poke’, there had been some exchanges of experience within the profession. The judge directed the jury that no-one was suggesting that the reference to percentages was precise; indeed some of them had changed somewhat in the course of the evidence.
65.
It seems to us that the judge took the utmost care to ensure that the jury understood both the exercise in which Mr Francis and Mr Blake had been engaged and that they could accept the evidence of Mr Francis only if they were satisfied that, despite the limitations imposed by the quality of the material, Mr Francis had been able to demonstrate clearly to them the features to which he had directed their attention. He disallowed any evidence from Mr Francis that purported to express in terms of probability the likelihood that Suspect 2 and Hashi were one and the same person. Nonetheless, Mr Birnbaum submits that those limitations and the lack of a comparative database render unsafe any reliance upon the features identified.
66.
We do not accept the criticism that Mr Francis’ evidence was flawed by his reference to the frequency with which, in his clinical practice, he came across the features he had identified. While, during the course of his evidence, he was referring to percentages as percentages of a population, he made clear that his assessment could be and was based only upon his personal experience in practice, and the judge emphasised that this was so. There was one exception that concerned the population of those under the age of 30 years who exhibited head-poke, in respect of which Mr Francis referred expressly to discussion among experts. In our view there was no risk that the jury may have been given a misleading impression of the value of Mr Francis’ evidence. They had been warned specifically as to the basis for Mr Francis’ assessment and to be wary about any assumption of precision.
67.
In his written and oral submissions Mr Birnbaum QC took the court through some of the evidence placed before the jury. He criticised Mr Francis for inconsistency and lack of forensic rigour in his acceptance of instructions and approach. He criticised the absence of notes from Mr Francis identifying the limitation of the images with which he was presented and his need to acknowledge further limitations put to him in cross-examination. He submitted that Mr Francis had purported to identify features from images that were blurred or too small for the purpose. Mr Birnbaum submitted that there was a lack of scientific approach to the question as to how “allowances” were to be made for imperfections in the images on which Mr Francis relied. As an example, Mr Birnbaum relied on Mr Francis’ “remarkable” claim that although in the Maldon Road footage it was difficult to see where the suspect’s foot ended and the ground began, he considered that he could make that judgement. Mr Birnbaum asserted that in the manner of his answers (e.g. “I can see…”) the witness failed to acknowledge the need to demonstrate to others the appearance of the feature on which he relied. On occasions, it is submitted, there was evidence of bias. Mr Birnbaum sought to demonstrate in cross-examination that Mr Francis had failed in images 107 and 108 to allow for distortions caused by the nature of the image. Mr Francis sought to justify his opinion by reference to the known stance of Hashi to be seen in the custody suite footage. This betrayed a presumption, whose impropriety Mr Francis failed to acknowledge, that Suspect 2 in the Rowley Estate footage was the same man as that shown in the custody suite. In his summing up, the judge referred to this as “the clanger dropped” by Mr Francis of which the jury had been reminded by Mr Birnbaum in his final speech.
68.
Since the technique of gait comparison is a developing science, Mr Birnbaum QC having received the assistance of Professor Wesley Vernon OBE of the Sheffield Teaching Hospitals NHS Trust, invited the court to have regard to three academic papers, unsupported by further expert evidence. With some hesitation we have considered the material proferred. Published (by the Forensic Science Society) in the journal Science and Justice issue 53 (2013) at pages 339-342, was the report of a study conducted by Professor Ivan Birch and others into the ability of individuals with experience in gait analysis accurately to identify ‘suspects’ by comparison of walking gait. Seven analysts were provided with CCTV recordings of five sample ‘target walkers’ for each of whom they were provided with recordings of five ‘suspect walkers’. The walkers were similarly dressed in loose fitting clothing and wore balaclavas. The images of the suspect walkers were recorded at different angles and in different planes. The results showed that the experienced analysts made a correct identification in 71% of cases. However, there were more correct identifications made when the footage of the suspect walker was recorded in the saggital plane (recorded from the side) (78.57%) and when the angle of recording was the same between the target and the suspect walker (also 78.57%). Mr Birnbaum QC correctly observes that in the present case none of the benchmark recordings was made in the saggital plane. However, the custody suite footage was recorded in a variety of planes as was the benchmark footage.
69.
In the Journal of Forensic and Legal Medicine, issue 20 (2013) at pages 915-917 was published a report by Professor Ivan Birch and others of a study to develop a tool for assessing the quality of closed circuit camera footage for use in forensic gait analysis. The study identified a number of key factors and sub-factors that were capable of affecting the quality of images received in CCTV footage, chief of which were picture quality, lighting, direction from which the image was taken, frame rate and subject. The study assigned scores to different images depending upon the existence of the relevant factors and, by that means, placed them in bands so as to provide a rank of acceptability. By adopting the technique, which the article described as a simple tool, unsatisfactory material could be excluded from analysis. That tool was not available to Mr Francis and Mr Blake and no attempt has since been made to apply the study to the images in the present case.
70.
In Justice and Science, issue 54 (2014) at pages 159-163, Professor Ivan Birch and others considered the effect of frame rate upon the ability of experienced gait analysts to identify characteristics of gait from CCTV footage. The study reached the (not unexpected) conclusion at page 162 that, “The subtleties of motion occurring during gait may become more easily identifiable as the frame rate increases, whereas gross positional or structural characteristics may be more easily detectable at all frame rates”. Mr Birnbaum QC acknowledged that Mr Francis distinguished between a flow pattern whose identification depended upon movement and features of gait anomaly that were not so dependent upon the rate of frames per second. It is right to recall, however, that Mr Francis himself acknowledged that in some images he was demonstrating subtle abnormalities in gait.
71.
We have also been provided with the Home Office CCTV Operational Requirements Manual 2009. Mr Birnbaum QC sought to draw from the Manual a principle that in order to discern “some characteristic detail of the individual, such as distinctive clothing…while the view remains sufficiently wide to allow some activity surrounding an incident”, the figure targeted should occupy between 25% and 30% of the screen height. The purpose of the Manual is to give advice to installers as to measurement of the objectives of CCTV installation. The positioning and calibration of equipment will depend upon the purpose for which the images are required. A camera required to capture a wide area of activity will, of necessity, see individuals at a distance. They will occupy some 5% of the screen height. If, at the other end of the scale, the camera is to be sufficient to support facial identification of a single individual, the figure will need to occupy 100% of screen height. Mr Birnbaum’s point was that several of the images of individuals examined in the present case occupied less than 30% of the screen size. However, it is plain to us that the advice given does not purport to provide an industry or minimum standard as to the range at which a camera must be set to render analysis of gait permissible or possible. That seems to us to depend on a number of factors most significant of which is the sufficiency of the quality of images produced by the camera for the purpose for which they are examined.
72.
Finally, the court was asked to consider the Law Commission’s report on Expert Evidence in Criminal Proceedings in England and Wales (Law Com No 325, 21 March 2011). The Commission re-iterated its concern of the risk that juries may abdicate their responsibility to ascertain and weigh the facts and simply accept the expert’s opinion evidence (paras. 1.9, 1.15, 1.20). The presence of an opposing expert will not necessarily ensure that reliability and weight are properly protected (para. 1.20). On occasions expert evidence is inadequately challenged in cross-examination. For this reason juries may not be provided with the tools required effectively to evaluate the reliability of the evidence (para. 1.21). The Law Commission proposed that to be admissible expert evidence should be shown to be reliable. It will be reliable only if (a) the evidence is predicated on sound principles, techniques and assumptions; (b) those principles, techniques and assumptions have been properly applied to the facts of the case; and (c) the evidence is supported by [that is, logically in keeping with] those principles, techniques and assumptions as applied to the facts of the case (para. 1.32). The Commission recommended that judges should be provided with guidelines against which to test the reliability and therefore the admissibility of the evidence (para. 1.40).
73.
We turn to consider each of the appellant Hashi’s grounds for challenging the judge’s handling of the expert evidence. We note that no challenge was made to the admissibility of Mr Francis’ evidence notwithstanding Mr Blake’s view that the benchmark material was inadequate for the purpose for which Mr Francis used it. Mr Birnbaum QC did not and does not challenge the admissibility of such evidence in appropriate circumstances (see in this respect
Otway
[2011] EWCA Crim 3
at para. 23). He was able to rely upon the expert opinion of Mr Blake and it is clear that Mr Francis was subjected to searching cross-examination both upon the principles and the techniques of the admitted expertise and its application to the facts of the present case. He submits that the evidence was
shown
to be unreliable because (1) Mr Francis provided his opinion in a manner that was overconfident having regard to the material on which it was founded, (2) the material itself was inadequate for the purpose of identifying features of gait, (3) the expert was not qualified to make the “allowances” he claimed to be able to make and was unable to explain what allowances he had made, and (4) the value of the evidence was overstated by references to ‘population’.
74.
In order to assess the cogency of Mr Birnbaum’s submissions each member of the court has viewed the images from which Mr Francis made his demonstration of features to the jury. We accept, as did the experts and the judge, that their quality is at times indifferent and that care is required to ensure that the feature demonstrated is
reliably
demonstrated. We do not agree that Mr Francis’s inability to specify in scientific terms how he had made allowances for an imperfect image rendered his opinion unreliable or unsafe. He and the jury were viewing moving and still images. Mr Francis was showing to the jury the images in which he saw features of gait and either those features could be seen by the jury or they could not. The jury was directed that they could act on the presence of features only if they could observe the features for themselves. Mr Francis was saying that he had taken account of the imperfection in the image before declaring his identification of a feature. He showed the jury the image on which he relied to make the identification. He was not saying that, although the feature might not be seen by the jury, he, relying on his expertise, was sure it was present. In any instance in which it was argued that the quality of the image was insufficient to be sure that the feature was present the jury had the means to make the assessment for themselves with the assistance of the evidence of Mr Blake and the cross-examination of Mr Francis by Mr Birnbaum QC. The judge was in a good position to assess the safety of the evidence since he saw exactly what the jury saw. It is our view that, with appropriate directions from the judge, the jury could follow the evidence, evaluate its cogency, and make their own decision whether the features demonstrated were present in each of the recordings. In reaching this conclusion we have taken account of the fact that at the close of the prosecution case there had not yet been an acceptance that Suspect 2 in the benchmark material was one and the same person. Finally, we do not agree that Mr Francis should not have been permitted to refer to the frequency with which the features or abnormalities he found in the recordings occurred in the course of his clinical practice. It was for the jury to evaluate Mr Francis’ evidence in the light of the criticisms levelled at him.
75.
For these reasons we reject the submission that the judge should have withdrawn the case from the jury at the close of the prosecution case. We accept that Mr Birnbaum QC had in the course of cross-examination raised important issues for the jury’s consideration as to whether the features Mr Francis had identified were clearly demonstrated. The jury had been provided with the tools with which to make that assessment: in the case of each image on which Mr Francis relied they had their attention drawn to the factors relevant to it, in particular to the quality of the images and the time lapse by which they were recorded. Mr Francis was closely cross-examined on each feature and each significant image. We agree with the trial judge that the evidence was fit to be left to the jury.
76.
We have already made extensive reference to the judge’s treatment of the evidence in his summing up. The judge took care to ensure that the jury was engaged in the task of judging for themselves whether the distinguishing features of gait were present in the images and did not just take Mr Francis’ word for it. The judge also ensured that the jury did not make unwarranted assumptions about the probative value of Mr Francis’ evidence. We do not agree that Mr Francis’ references to his own experience should have been withdrawn from the jury’s consideration. The judge’s responsibility was to ensure that the jury did not misuse that evidence and the judge gave them the appropriate directions. At the conclusion of his summing up he returned to the evaluation of the evidence and reminded the jury of the submissions made by Mr Birnbaum, including that Mr Francis’ references to the frequency of features of gait applied not to the population in general but to those whom Mr Francis had examined in the course of his clinical career.
77.
Comparison evidence founded upon the science and expertise of podiatry is, we recognise, a technique still in its infancy. The articles to which Mr Birnbaum has helpfully drawn our attention show that research conducted with a view to establishing nationally accepted standards continues to take place. It remains, in our view, a technique that requires careful scrutiny before expert evidence is admitted and, if admitted, rigorous examination of the quality of the images and the opinion expressed by the expert. In the present case HHJ Wide QC ensured that, once admitted, the evidence was subjected to the scrutiny required. We reject the submission that the evidence was so flawed that the jury should not have been permitted to act upon it. The jury was entitled to conclude that the prosecution had proved that Suspect 2 was the appellant Hashi.
Conclusion
78.
In our judgment none of the grounds advanced is made out. The verdicts of the jury were safe and the appeals against conviction are dismissed.
Appeal against sentence (McSween)
79.
The judge identified serious aggravating features of the offences. There was careful planning and premeditation. The attack was made by a group of young men on two people. The group had equipped themselves with knives and sought out their victims. The attack occurred in a crowded public place causing distress to onlookers, including children. The starting point for the minimum term for such offences by an adult was, under schedule 21 paragraph 5A to the Criminal Justice Act 2003, 25 years. The judge expressed the view that had it not been for the young ages of the defendants the aggravating factors would have resulted in starting points of even greater length. By paragraph 7, in the case of a defendant who was under the age of 18 at the time of the murder, the starting point, subject to aggravating and mitigating factors, is one of 12 years. Mr Grunwald QC argued that a minimum term of 19 years (by comparison with that of 22 years imposed on the other three offenders) was manifestly excessive in itself and, furthermore, failed to give sufficient recognition of the young age of the appellant McSween.
80.
We do not know to what extent the judge reduced the minimum term to reflect the comparatively young ages of Hutton, Ferdinand and Hashi but in their cases the minimum term was set at just over three quarters of the statutory starting point. The question we have to consider is whether an increase of seven years over the 12 year statutory starting point in McSween’s case was excessive. In our view it is. McSween was 18 months – 2 years younger than his co-accused at the time of the offences. A difference of this magnitude in the case of teenagers is, in our view, significant. In our judgment, the proportionate minimum term in McSween’s case, when compared with the other offenders, was one of 17 years. We shall grant leave, quash the minimum term upon count 1 and substitute a minimum term of 17 years.
|
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|
Case No:
20031134 B3
Neutral Citation Number:
[2004] EWCA Crim 1607
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Crown Court sitting at Newcastle-upon-Tyne
His Honour Judge Lancaster
T20020368
Royal Courts of Justice
Strand,
London, WC2A 2LL
Wednesday 23
rd
June 2004
Before :
THE RIGHT HONOURABLE LORD JUSTICE HOOPER
THE HONOURABLE MR JUSTICE LEVESON
HIS HONOUR JUDGE METTYEAR sitting as a judge of the Court of Appeal Criminal Division
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Between :
R
Appellant
- and -
Stephen Christopher Makin
Respondent
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Mr K Metzger for the Appellant
Mr S Jackson QC
for the Respondent
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Judgment
Lord Justice Hooper:
1.
Late afternoon on 20 November 2002 in the Crown Court at Newcastle-upon-Tyne before His Honour Judge Lancaster the appellant changed his plea to guilty, albeit on a limited basis, to two counts of being knowingly concerned in the fraudulent evasion of duty charged on cigarettes being counts 1 and 3 of the indictment. He pleaded not guilty to count 2 and a verdict of not guilty was entered. There were 3 co-defendants; Robert Graham, indicted on count 1 only to which he also pleaded guilty. The two other defendants were John Foster indicted on counts 1 and 3 and Jerzy Snioszek indicted on count 3. Following the pleas by the appellant and Graham, a jury was empanelled to try the co-defendants. On the following day, counsel for HM Customs and Excise, Mr Simon Jackson, without giving any reasons or explanation in open court, offered no evidence against Foster and Snioszek and verdicts of not guilty were recorded. The appellant, who was on bail waiting sentence for the two offences to which he pleaded guilty, was not present and the hearing was not adjourned for him to be present.
2.
The appellant naturally felt aggrieved. He had pleaded guilty. His co-defendants, Foster and Snioszek, had pleaded not guilty. The day after the he had pleaded guilty, the case was dropped against his co-defendants without any reason being given in public. Not unnaturally the appellant wanted to know why. Was he not told something which he ought to have been told before he pleaded guilty? Why had the case also not been dropped against him? Given the recent well-publicised history of problems relating to disclosure by the Customs and Excise, had he been misled into pleading guilty?
3.
The appellant made an application to vacate his plea of guilty. That application was heard and rejected on 23 January 2003.
4.
We turn to he facts. In 2001 a person fitting the description of the appellant approached the directors of a company called Sign Co. UK Ltd with a view to renting a unit adjacent to their commercial premises in Seaham, County Durham. The man, known to them as Steve, agreed to rent the unit for £600 per month stating that he was in the second hand furniture business.
5.
On 6 September 2001 a trailer arrived at Harwich Port and was collected by a tractor belonging to John Foster Freight Services. Although a firm of builder's merchants were the nominated recipients of the load, armchairs, they had no knowledge of the consignment. The delivery address for the trailer was the unit in Station Road Seaham, rented, so the prosecution said, by the appellant. There was evidence that two of the armchairs were hollow and, on the prosecution’s case, had been used to conceal the importation of cigarettes by the appellant. This formed part of count 1.
6.
On 22 September 2001 a trailer arrived a Harwich containing furniture consigned to G&A Furniture. When examined by Customs officers it was found to contain two million cigarettes concealed in the three-piece suites. A George Tweddell arrived to collect the trailer on the orders of John Foster, the co-defendant and a haulier. Tweddell produced a fax from G&A Furniture given to him by John Foster requesting delivery of sofas “to the same spot as last time”. Tweddell was given a note by customs asking Foster to contact them. This note was subsequently found in the pocket of a coat at the appellant’s home. Scientific analysis showed that fabric samples from the armchairs delivered on 6 September and on these suites were identical. This also formed part of count 1.
7.
Count 2, no longer relevant, related to the events of 13 September when Customs officers searched the appellant’s yard and found large amounts of vodka and cigarettes on which duty had, according to the prosecution, not been paid.
8.
We turn to count 3. On 23 October 2001 the appellant in a white van met up on the A1 with Snioszek, a Polish national, driving an articulated lorry. The van and the lorry were then driven to a warehouse in Leadgate near Consett rented by the co-defendant and haulier, Foster. Some three hours later, Customs and Excise entered the warehouse. The appellant, Foster and Snioszek were in the process of getting access into the roof of the trailer in which officers found concealed 392,800 cigarettes. The revenue due and evaded on the consignment was some £66,000.
9.
The total amount of duty evaded on counts 1 and 3 was, according to the prosecution, £400,000.
10.
Following his arrest, the appellant made no comment in interview.
11.
On 17 October 2002, solicitors for the appellant served, on his behalf, a defence statement. Paragraph 1 stated that the nature of his defence was that he had been the subject of entrapment. It also claimed that there had been a participating informant involved in the offences.
12.
On 11 November 2002, there was a pre-trial hearing concerned with, amongst other things, the issue of disclosure. During the course of the hearing Mr Jackson invited counsel for the appellant to make clear with more precision what the appellant’s defence statement meant, so that the prosecution could consider the question of secondary disclosure. Counsel for the appellant, Mr Daneshyar, said that the appellant’s defence was “entrapment”, “in other words it was an agent provocateur who had gone beyond merely investigating and in fact had actively undertaken control deliveries certainly in relation to the delivery of 23 October...” (page 5 of transcript of 11 November, volume 1, tab 5). Counsel said that the appellant was unable to identify who it was although the appellant knew him and “there are suspicions”. The person concerned was “under the pay of the Customs and Excise”. Reference was made by counsel to Foster having being approached by two officers for Customs and Excise on 21 October and upon him declining to make a statement “two days later a lorry load of cigarettes arrived”.
13.
Following the 11 November hearing a further defence statement was sent which arrived with the Customs and Excise on the 15 November. Paragraph 1 stated that it superseded the previous statement submitted on behalf of the defendant on 17 October 2002. The statement continues:
“2. It is submitted that the Defendant is a victim of a setup by a participating informant who had gone beyond the role of an investigating officer and had induced the defendant to participate in the commission of the offence which he otherwise would not have committed. In the circumstances it is the defendant’s case that he was at all times acting under the influence of an agent provocateur.” (page 144 of volume 1)
In paragraph 3 the defence statement enlarged upon the background to the seizure on 23 October 2002. It referred to Foster’s alleged refusal to cooperate and continued:
“It is submitted that the delivery was a controlled delivery and that the defendant was set up by a participating informant that had gone beyond the role of a passive informant.”
14.
The Crown then made further disclosure which included material relating to four earlier operations which the Customs and Excise had undertook against the appellant. The prosecution also gave disclosure of aspects of a current operation involving the surveillance of the appellant.
15.
The trial had been due to start on 18 November but was put back by one day. On the Tuesday there was a PII hearing. That hearing is not relevant to the issues under consideration in this case. No order for disclosure was made. The Crown however indicated in open court that it would no longer rely on the evidence of the witness Sydney. The Crown offered to tender him for cross examination but no longer regarded him as a witness of truth. Following negotiations between counsel for the appellant, now Mr Metzger, and Mr Jackson, the appellant pleaded on a written and agreed basis which had been the subject of negotiation. Although the prosecution had placed the appellant as the ringleader, the effect of the written basis of plea was to put the appellant in the position of a facilitator who would be rewarded by receiving an unspecified proportion of the cigarettes smuggled.
16.
The basis of plea read:
“The Defendant, Stephen Christopher Makin, proposes to plead guilty to Counts 1 and 3 of the Indictment before the Court on the following basis:-
The Defendant was approached by person, or persons, unknown none of whom have been arrested or charged in these proceedings, and asked to provide transport and storage facilities for the relevant containers on 22
nd
September and 23
rd
October 2001.
He was provided with funds to facilitate the arrangements and received separate payment for his services through receiving a proportion of the cigarettes from each load.
He was asked to arrange for the containers to be taken to the storage facility (yard) from where as far as he knew the goods were to be transported onwards. The arrangements for onward transportation were to be made by other parties.
The Defendant had no direct link with parties in Europe and was not concerned with that aspect of the transportation of the containers to the United Kingdom.”
17.
On the next day, there was a PII hearing and, following it, no evidence was offered against the haulier, Foster, on Counts 1 and 3 and the lorry driver, Snioszek, on count 3. As we have already said, this was done in the absence of the appellant and no explanation at all was given by the prosecution in open court for what, on the face of it and in the light of the evidence, was an extraordinary thing to do.
18.
We turn to the ruling on the application to vacate. HHJ Lancaster set out the history of the proceedings and continued:
“On the third day of the trial, the Crown made a further PII application in the light of what I was told was new material then in its possession, and of course Mr Jackson, quite properly, was aware of his obligation which continued about disclosure. The defendants, Mr Foster and Mr. Snioszek, knew about the application. Mr Makin and Mr Graham didn’t. The Crown’s view was that it was not necessary to give them notice as their position was not affected by the application in the light of the Defence statements and the basis of plea. When that application was made, again I did not order disclosure of any material. The Crown considered the situation generally, as I understand it, and decided not to proceed against Mr Foster and Mr Snioszek and offered no evidence against them. By that time, if my memory is right, I think they had been put in charge of the jury, and in the light of the Crown’s position I directed the jury to enter not guilty verdicts in respect of the two defendants, Mr Foster and Mr Snioszek. The effect of that procedure and that process has brought the current applications in front of me now.
Essentially, on behalf of both defendants, it has been submitted that it looks rather suspicious because, particularly in the case of Mr Graham, it is said that his position was not so different from Mr Foster’s, with whom he was closely bound up, submits Mr Duffield, and he says that the reality is that the defendant Mr Graham should be allowed to vacate his plea. Mr Metzger, in effect, takes his view. His client essentially does not trust the Customs and Excise and the way in which they conduct investigations. He doesn’t trust that they are always open about disclosure. Mr Metzger is aware of past cases where there have been some disclosure difficulties which have resulted in trials collapsing, and he submits that whatever the Crown, whatever the information the Crown had in relation to Mr Foster and Mr Snioszek should accrue to his benefit so that he can reconsider his position, be properly advised as to whether or not he wants to be tried on the indictment by a change of plea or whether the Defence can properly say to the court that the court’s process has been abused, and he says because one is dealing here with information that the Defence don’t know the court has to be extra vigilant when considering matters such as this.
I start with this point. First of all, the process of the court is important. The principle of open justice is a principle which has to be honoured in the public interest. Often in cases such as this, as the Court of Appeal observed in the case of
Doubtfire
, there are conflicting public interests which compete against the principle of open justice, and often a court has to deal with matters which the defendant is not fully aware of beyond the fact that an application has been made to a Judge about some material which it is thought it is in the public interest he should not see. I am very conscious that whenever the Court has to look at such material it has to bear in mind the interests of a defendant at all times and keep reviewing the defendant’s interests in the light of any information which a Judge receives which the defendant is not privy to, and in looking at this application, as I have said, I am fully aware of that.
In the course of their submissions, counsel for both defendants referred me to the case of
Early
, and the head note, as I have got in front of me now, makes this point; that “It is a matter of crucial importance to the administration of justice that prosecuting authorities make full relevant disclosure prior to trial and that prosecuting authorities should not be encouraged to make inadequate disclosure with a view to defendants pleading guilty. When inadequate disclosure was sought to be supported by dishonest prosecution evidence then the Court of Appeal would not be slow to set aside the pleas of guilty following such events. I see the force of that point and of course honour it in full.
But there was an earlier decision of the Court of Appeal made in two cases called
Mullen
and
Toher
, where this general principle was enunciated by the Lord Chief Justice, Lord Woolf, that “freely entered pleas of guilty would not be interfered with by the Court of Appeal unless the Prosecution’s misconduct was of a category that justified this, that a plea of guilty was binding unless the defendant was ignorant of evidence going to innocence or guilt and that ignorance of material which went merely to credibility of a Prosecution witness did not justify reopening a plea of guilty.”
Now, pausing there, a number of questions seem to arise. Firstly in this: was the Prosecution guilty of any misconduct? In my view the Prosecution has not been guilty of any misconduct. Secondly, was there evidence which was not disclosed which went to innocence or guilt? In my view there is no material that would go to those matters in relation to these defendants, and of course it is not suggested here that any Prosecution witness has been guilty of perjury, and I bear that in mind. So, it seems to me that, looking at those matters, and bearing in mind the general considerations that I have already alluded to, that these pleas were freely entered on the basis on which they were entered and there is nothing in the Prosecution’s conduct which would cause those to be doubted, and in those circumstances it seems to me that the applications to vacate the pleas should be refused and accordingly I refuse to allow the defendants to vacate their pleas of guilty. I would add this: that there is ample material to show that they are both guilty of the offences to which they have pleaded guilty.”
19.
Following the ruling, Mr Jackson was asked by counsel to say whether, if the appellant and Graham had not pleaded, the prosecution would have dropped the case against them as it did against the other two. Mr Jackson said:
“The Crown doesn’t want to get drawn into answering hypothetical questions, and I don’t see, with respect, that there is an obligation on the Crown to do.
20.
HHJ Lancaster did not require him to answer the question. Before this court, Mr Jackson made it clear that the decision would not necessarily have been the same. The appellant was, in its view, the ring-leader and it did not follow that the prosecution would have offered no evidence against him.
21.
The appellant sought leave to appeal. When the matter first came before this court, Potter LJ presiding, on 13 February 2004 on referral from Cox J, the appellant and his advisers were no wiser. Having been told that a man by the name of Grzegorz Wach had been convicted of Customs offences in July 2003, the court invited Mr Simon Jackson QC, as he now is, to consider granting disclosure to the appellant if the reasons said to support the earlier non-disclosure were no longer applicable.
22.
Disclosure was subsequently made, the effect of which was that before the appellant had pleaded, Customs and Excise received information a man called “Gregor” was actively involved in smuggling. Customs and Excise proceeded on the assumption that the man Gregor was or could well be Grzegorz Wach, who was a prosecution witness in the case against the appellant and whose attendance at trial had been required by the appellant to give oral evidence. At the time the prosecution appear to have proceeded on the assumption that he was required to give oral evidence only by the other three co-defendants (as he was) but not by the appellant.
23.
No importation took place over the weekend. Mr Jackson was informed about the “question mark” about Wach on the Monday. He did not, at that stage, tell the judge nor did he say anything to the defendants’ counsel. Although it was not known at this time whether the information was sufficiently dependable for reliance to be placed on it, that in our view does not affect the outcome of this appeal on the facts of this case. If there were concerns about Wach and
if
there was an obligation to “warn” the appellant and Graham before plea that (at the least) there were unspecified “problems”, the fact that the information was not at that stage deemed necessarily dependable or accurate, does not affect the outcome of the appeal. It seems to us that the solution to the issue is not dependant upon the nature of the uncertainty of the information but whether, given the information, there was an obligation to give some warning to the appellant before he pleaded.
24.
Mr Metzger submitted, that if such a warning had been given, the appellant would not have pleaded at that stage. We proceed on that assumption.
25.
By Wednesday 21 November, when Mr Jackson was due to open the case against Foster and Snioszek, the concerns about Wach were now such that the prosecution had decided that he could not be relied upon as a witness of truth. Given that by now that Wach was being investigated, the prosecution took the view that it could not adopt the course which it had adopted in the case of Sidney namely, simply to tell the defence that the prosecution did not intend to rely on Wach. Faced by this dilemma , the prosecution went to the judge in a PII hearing to explain the problems. With the approval of the judge, the prosecution then dropped the case against Foster and Snioszek without, as we have said, giving any explanation in open court.
26.
For the hearing of the appeal, the appellant has been given almost full disclosure of what had happened. A few minor details irrelevant to the appeal were withheld, with our approval. During the course of the oral hearing on 17 May, transcripts of the PII hearings of 21 November and 23 January were also disclosed with some minor editing (blanking-out of the portions not to be disclosed), which we approved. Mr Metzger did not submit that he was handicapped by the editing.
27.
When we asked Mr Metzger why the witness Wach was fully bound along with 29 other witnesses, he said that there was no challenge to the evidence and frankly stated that any cross-examination would be a “fishing exercise”.
28.
The thrust of the appellant’s case is that prior to the defendant pleading to counts one and three on Wednesday 20 November, the prosecution, at the least, should have warned the appellant that there were problems with a witness or, alternatively, at the least, gone to the judge to seek a direction as to what to do.
29.
We have looked at the statement made by Wach with care. He worked for G&A and was involved as such in the two importations with which we are concerned. We accept Mr Jackson’s submission that the case against the appellant was not dependent upon his evidence. Mr Metzger did not argue to the contrary. Not calling him as a witness would not have undermined the prosecution’s case against the appellant.
30.
Mr Jackson invited us to apply the disclosure test imposed upon the prosecution in a liberal manner and we so do. With this in mind and for the purposes of this case, it is sufficient to say that there is an obligation to disclose material if it assists the defence by allowing the defendant to put forward a tenable case in the best possible light or if the material could assist the defence to make further enquiries and those enquiries might assist in showing the defendant’s innocence or avoid a miscarriage of justice (see the authorities set out in Archbold, 2004, paragraph 12-44C). If the material falls to be disclosed but is subject to PII, then the prosecution must seeks a ruling from the judge. We apply that test, as we must in this case and as Mr Jackson invites us to do, with the second defence statement referred to in paragraph 13 above very much in mind.
31.
Mr Jackson considered the issue of disclosure at the time as the following passage from the transcript of the PII hearing on 21 November shows:
“In the context of Mr. Makin’s pleas, the Crown were obviously acutely conscious of the timing of the receipt of the information and looked carefully at his plea and what he was saying, and the Crown concluded that in the light of what he was saying in terms of his plea, an issue of disclosure did not arise in respect of Makin or Graham.”
32.
Mr Metzger was unable to show how the application of the test would have resulted in an obligation to disclose the question mark over Mr Wach or the existence of problems.
33.
We have no doubt that there was no obligation to disclose that question mark, on the facts of this case, to the defence nor to warn the defence, before plea, that there were unspecified problems.
34.
It is submitted that the learned judge ought to have allowed the appellant to withdraw his plea and it is submitted that at the hearing of 23 January he did not apply the correct test. Further it is submitted that without the defence being informed as to why no evidence had been offered against the two co-defendants without them being informed as to what information the prosecution had before the plea, the defence were not in a position to properly argue in favour of the application for the pleas to be withdrawn.
35.
In our view the principle issue which we have to decide is whether or not the prosecution had a duty to disclose that which they knew before the appellant pleaded guilty. We have found no such duty. In the absence of any other reason to permit him to vacate his plea, and there is none, there was no basis on which it would have been an appropriate exercise of judicial discretion to permit the appellant to vacate his plea. On that basis, the submission that the defence had not been able properly to argue the matter has no substance.
36.
For these reasons we dismiss the appeal. We add only this. The duty of disclosure continues as long as proceedings remain whether at first instance or on appeal. In our view, as soon as there was no longer a reason for concealing the identity of Wach, the prosecution should have given an explanation as to why the case was dropped against the co-defendants and why it was felt that there had been no obligation to make at least some disclosure before the appellant pleaded guilty. It may well be that there was no reason to conceal his identity after he had been arrested and charged in June 2003. PII still attached to the identity of Wach when the PII hearing took place on 23 January 2003. The appellant has had to come to this court to obtain disclosure and much time and money has been spent investigating the circumstances which led to the appellant to feel understandably aggrieved.
|
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|
Neutral Citation Number:
[2021] EWCA Crim 242
Case No:
201902099 C4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LINCOLN
HHJ EASTEAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
22 February 2021
Before:
THE RT. HON. LORD JUSTICE FULFORD, VICE PRESIDENT OF THE COURT
OF APPEAL (CRIMINAL DIVISION)
THE HON. MR JUSTICE SWEENEY
and
THE HON. MR JUSTICE LINDEN
-
- - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Prosecution
- and -
IAN ROBERT COURT
Appellant
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Martin Evans QC and Amy Earnshaw
(instructed by
CPS
) for the
Prosecution
Christopher Jeyes
for the
Appellant
Hearing date: 16 June 2020
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Covid-19 protocol: This judgment will be handed down by the Judge remotely, by circulation to the parties’ representatives by email and, if appropriate, by publishing on
www.judiciary.uk
and/or
release to Bailii. The date and time for hand down will be deemed to be 26 February 2021 at 9:45 am. The Court Order will be provided to Lincoln Crown Court for entry onto the record.
The Honourable Mr Justice Sweeney:
Introduction
1.
On 16 January 2020 the full Court (Males LJ, May & Saini JJ) granted the renewed application of Ian Court (“the Appellant”) for leave to appeal against a confiscation order in the sum of £166,232.93 that had been imposed upon him by
HHJ Easteal in the Crown Court at Lincoln on 10 May 2019. Leave was limited to Ground (iv)(c) – in which it was asserted that the judge had erred in finding that a small parcel of land to the west of Silt Pit Lane in Wyberton, near Boston in Lincolnshire, which was worth £62,000, and which the Appellant had acquired in the spring of 2013 via a Mortgage Works (UK) plc (part of the Nationwide Building Society) interest only “Buy to Let” mortgage on a house at 64 Norfolk Street in Boston (of which he had been the sole registered owner since 2008), was (applying the property held assumption) part of the Appellant’s benefit from his criminal lifestyle. Immediately thereafter, and without inviting the attendance of the Prosecution, who had not been notified of the hearing of the renewed application, the Court proceeded to allow the appeal on that Ground, and thus reduced the amount of the confiscation order by £62,000 to £104,232.93 – see
[2020] EWCA Crim 18
.
2.
Pursuant to Part 36.15 of the Criminal Procedure Rules 2015 (as amended), and by reliance upon the inherent discretion of the Court of Appeal (Criminal Division) to reopen its decisions if it is necessary to do so, in exceptional circumstances, to avoid real injustice (as identified and delineated in cases such as
R v Yasain
[2016] Q.B. 146
,
R v Gohil
[2018} 1 W.L.R. 3697
and
R v Cunningham, R v Di Stefano
[2020] 1 W.L.R. 1203
) the Prosecution apply to re-open the determination of the appeal and for the original confiscation order to be upheld. The Prosecution contend that there is no alternative effective remedy available to them, and that:
(1)
Having granted leave to appeal on Ground (iv)(c), the Court erred in
hearing and determining the appeal without giving the Prosecution an
opportunity to attend or respond. The more so as , in the Respondent’s
Notice, which was before the Court, the Prosecution had stated in a recital
at the outset that: “
This document contains a summary of the Prosecution
submissions in response to the lengthy and numerous Grounds. If not every
single point taken by the Appellant is dealt with, no concession is thereby
intended. In the event that leave is granted, the Prosecution will respond in
detail…
”. There was thus a serious procedural defect with the result that a
re-consideration is necessary.
(2)
In any event, the Court erred in its decision to allow the appeal and to
substitute a confiscation order in a lesser sum, as the reduction of the
confiscation order by £62,000 was wholly unjustified.
3.
On behalf of the Appellant, it is variously argued that the Court acted appropriately in allowing the appeal; that the purported injustice relied upon by the Respondent is not beyond dispute and is certainly not manifest; that the case does not reach the threshold of exceptionality required; that the judgment on appeal was correct; and that the principle of finality applies.
The offences
4.
In the summer of 2016, when the Appellant (who is now in his mid-50s) was living with his wife and two children on the small parcel of land to the west of Silt Pit Lane, the police searched an adjacent outbuilding and found a lighting and watering system for growing cannabis (which was powered via a bypass of the mains electricity supply) along with a mother plant, 12 mature plants, 32 seedlings, a frozen 1.5kg block of cannabis in a freezer, and £8245 in cash in a safe.
5.
On 16 November 2016, the Appellant pleaded guilty before Magistrates to the production of cannabis and abstracting electricity, and was committed to the Crown Court at Lincoln for sentence. There, on 27 September 2017, having in the meanwhile been acquitted by a jury of possession of the 1.5kg block of cannabis with intent to supply, the Appellant was sentenced by Mr Recorder King QC to concurrent 12 month Community Orders.
The confiscation proceedings
6.
Against the background that, under Schedule 2 of the Proceeds of Crime Act 2002 (“POCA”), production of cannabis is a criminal lifestyle offence, confiscation proceedings were commenced. Neither the five statements of information made by PC
Roberts on behalf of the Prosecution under s.16 of POCA, nor the Appellant’s formal responses under s.17 of POCA, were before this Court in January 2020. We have been supplied with copies of them, and summarise them below – limited to their content in relation to the house at 64 Norfolk Street, the mortgage on that house, and the small parcel of land to the west of Silt Pit Lane.
7.
In his first statement of information, which was dated 8 December 2017, PC Roberts variously referred to the following matters:
(1)
The Nationwide Building Society mortgage.
(2)
The fact that the appellant had not lodged either self-assessment records or PAYE employment records with HMRC for the tax years 2010/2011 through to 2015/2016.
(3)
In the spring of 2013, and using monies from the Nationwide mortgage, the Appellant had bought the parcel of land to the west of Silt Pit Lane from his neighbour and friend Stacey Ruck.
(4)
Records showed that, at the time of both his arrest and his conviction, the Appellant was still the owner of the parcel of land.
(5)
The title deeds in relation to the parcel of land showed that on 6 December 2016 (some three weeks after the Appellant had pleaded guilty to the production of cannabis and abstracting electricity) Mr Ruck had paid £62,500 to buy the land back, but that analysis of the Appellant’s bank accounts did not show the receipt of any such funds.
8.
In his first formal, but undated, response the Appellant variously asserted that:
(1)
At the time of his purchase of the parcel of land to the west of Silt Pit Lane from Mr Ruck, the latter’s marriage had broken down and he was in need of cash to assist with his divorce and the separation of assets, and the Appellant had agreed to buy the land off him so as to provide him with the cash that he required.
(2)
Thus, the Appellant had taken out an interest only mortgage on his mother’s house at 64 Norfolk Street, with the intention that Mr Ruck would buy the land back from him in due course
(3)
Ultimately, Mr Ruck had not been able to obtain a mortgage so as to be able to repay the money that the Appellant had paid him, but the Appellant had nevertheless transferred the land back to Mr Ruck so that Mr Ruck’s property interests would be increased, and so that he (Ruck) would thus be able to obtain a mortgage in a sufficient amount to be able to pay the Appellant back.
(4)
The Prosecution appeared to accept that the land had been purchased by the Appellant using a legitimately obtained mortgage taken out against the property at 64 Norfolk Street. Thus, the land was clearly not purchased with the proceeds of criminal activity, and should not be included in the benefit figure said to have accrued from a criminal lifestyle.
(5)
In addition, and in any event, the equitable interest in the land could not really be said to belong to the Appellant, and for that reason again should not be included in any benefit from any criminal lifestyle of his.
(6)
In like manner, nor could the value of the land be said to belong to the Appellant – as it had been purchased with a mortgage raised on his mother’s property on the understanding that the monies provided were in the form of a loan to the Appellant from his mother in a temporary situation. In any event, the land was no longer owned by him, and nor did he have the monies available from its sale.
9.
In his second statement of information, dated 21 February 2018, PC Roberts indicated that:
(1)
The Appellant’s acquisition of the mortgage funds did not appear to be legitimate given his repeated assertion that he was not the owner of 64 Norfolk Street, and the fact that a banking establishment would not give a mortgage to someone on a property that was not their asset.
(2)
Further investigation was needed into the potential mortgage fraud.
10.
In his second formal response, served towards the end of March 2018, the Appellant variously asserted that:
(1)
He had not committed a mortgage fraud - because the house at 64 Norfolk Street was in his name, having been transferred into his name to avoid his mother’s will being contested by his estranged sister Colleen Court.
(2)
The house was still owned by his mother, and it was her who had control over it and its contents, and the fact that it was let out.
(3)
Before he took out the mortgage, his mother had given him permission to do so.
(4)
The mortgage company had only required his signature because the property was registered in his name.
(5)
His mother had made a s.9 witness statement which supported his account.
11.
In his third statement of information, dated 18 June 2018, PC Roberts stated that:
(1)
The Appellant had provided no evidence to counter an allegation of mortgage fraud.
(2)
The fact that the Appellant’s mother had provided a statement agreeing that she was aware of, and had agreed to, the mortgage did not negate the fact that the mortgage lender was not aware of the Appellant not actually owning the property.
(3)
Enquiries had been made of the mortgage lender company which had stated that it was a “Buy to Let” mortgage and that it was noted on their system that the mortgage had been obtained to “buy another Buy to Let property”.
(4)
However, as the Appellant himself had stated, he had not used the funds to purchase a “Buy to Let” property, but instead had used them to buy a parcel of land from his criminal associate, and had said that he had “no plans to use the land for anything else”.
(5)
The Appellant’s explanation for his dealings with Mr Ruck in relation to the land, in support of which he had provided no documentary evidence, made no sense.
(6)
Not only had the Appellant taken out the mortgage when he was on income support / benefits, but it was suggested that he was also making the mortgage payments himself to pay off a debt to Ruck. However, there was no evidence to support the existence of the alleged debt.
12.
The Appellant made no reference to the mortgage in his third formal response, which was dated 3 July 2018.
13.
At a hearing on 18 July 2018, a preliminary issue, raised on the Appellant’s behalf, that the confiscation proceedings were disproportionate, was rejected by HHJ Hirst.
14.
In his fourth statement of information, dated 9 October 2018, PC Roberts stated that:
(1)
The value of the parcel of land was included as part of the Appellant’s benefit under the property held assumption; and also because the actual purchase of
the land was via a mortgage on 64 Norfolk Street (which both the Appellant and his mother were asserting was not owned by him); and because the Appellant had told the lender that the mortgage was to enable him to purchase a Buy to Let property, which he had not done; and that therefore (on those bases) the mortgage had been granted based on fabricated information.
(2)
In any event, the Prosecution maintained its position that the Appellant was the sole legal owner of the house at 64 Norfolk Street.
(3)
The sale of the parcel of land back to Mr Ruck was a tainted gift, and Mr Ruck had produced no documentary evidence in support of his assertions that it was not a tainted gift.
15.
In an undated response, the Appellant said that:
(1)
He did not accept that the parcel of land should be included in his benefit figure, as it was obtained with funds from a legitimate source, namely the mortgage on 64 Norfolk Street - about which he had taken advice from an independent mortgage adviser before proceeding.
(2)
It would therefore be unjust of the Court to find that he had committed mortgage fraud as part of his general criminal conduct.
(3)
The house at 64 Norfolk Street had been purchased by his mother and she had retained all beneficial interest in it. The Appellant had the legal interest only and was not able to dispose of it, other than via the consent of his mother.
(4)
The mortgage obtained to enable the purchase of the parcel of land was no more, in effect, than a loan from his mother, and it would have been redeemed upon payment being received by him from Mr Ruck.
(5)
The mortgage had been properly obtained and secured against the rental property at 64 Norfolk Street. There was no requirement for the funds from such a mortgage to be used in relation to that property, and it was commonplace for rental property businesses to obtain funds against one property and to use them to purchase or refurbish another.
16.
The confiscation hearing before HHJ Easteal began on 12 November 2018. On that date the Appellant produced (for the first time) his application for the Mortgage Works (UK) plc “Buy to Let” mortgage in relation to 64 Norfolk Street. It was in the form of a print from a computer system which recorded answers given by the Appellant to his mortgage broker, Thea Cox – including, amongst other things, that he had asserted that he was in permanent employment, that he had no previous convictions, and that the information that he had provided to his mortgage broker was true.
17.
On 13 November 2018, a witness statement was obtained from Mr Keith Rolfe, Senior
Governance Consultant at the Nationwide Building Society in which he stated that; “
This is a “Buy to Let” mortgage subject to a satisfactory tenancy agreement with affordability determined by rental cover ratio
”.
18.
Thereafter, the confiscation hearing was adjourned while a transcript of the Appellant’s evidence at trial (in relation to the allegation of possession with intent to supply) was obtained.
19.
In a further response, dated 21 January 2019, the Appellant contended that:
(1)
He had provided documentation showing that the intent for the use of the mortgage to purchase the parcel of land was always declared. The mortgage had not been obtained fraudulently as the “Buy to Let” aspect of it related to the fact that there was a source of income from a let property (64 Norfolk Street itself).
(2)
In response to the suggestion that he had lied on the mortgage application by indicating that he had no previous convictions, he had not been obliged to indicate that he had – given that his convictions (the most recent of which was in 1993) were spent under the Rehabilitation of Offenders Act 1974.
20.
In his fifth statement of information, dated 18 February 2019, PC Roberts underlined that:
(1)
The Appellant was asserting that (as the sole title holder) he had obtained a legitimate mortgage on 64 Norfolk Street.
(2)
However, he was also asserting that he was not the true owner of the property and was merely holding it in trust for his mother – who held the beneficial interest in the property, was the sole recipient of the rental income from the property, and had given permission for the mortgage to be taken out.
(3)
The mortgage company had not been made aware of the trust, nor of any third party’s interest.
(4)
Given that ownership of a property was pivotal to a mortgage company when granting a “Buy to Let” mortgage, the circumstances outlined on behalf of the Appellant indicated that he had dishonestly misrepresented the facts to suit his own ends in fraudulently securing the mortgage – which was a criminal offence in its own right, and which (if continued on the Appellant’s behalf) could warrant further investigation.
(5)
The Prosecution’s position remained unchanged.
21.
The confiscation hearing resumed before HHJ Easteal on 20 March 2019, and took seven working days to complete. The Appellant gave evidence and called Mr Ruck and a man called Carl Boland.
22.
The Closing Submissions drafted by Ms Earnshaw (on behalf of the Prosecution) and by Mr Jeyes (appearing then as now on behalf of the Appellant) show that:
(1)
In relation to their case that the mortgage on 64 Norfolk Street had been obtained fraudulently, the Prosecution relied, amongst other things, upon the allegation that the Appellant had asserted in the application that he was in permanent employment, when he was not.
(2)
The Appellant’s case included that it was a “Buy to Let” mortgage, the purpose of which had been clear and disclosed. It was further asserted that the Appellant’s employment status was irrelevant since the mortgage had been based on the rental value of the property, and (in any event) it was likely that the Appellant had been in employment of one kind or another at the time of the mortgage application – as the application pre-dated his benefit claim.
23.
Against that background, and pulling together the strings of all the materials that are now before us, it is clear that, ultimately, the Prosecution case as to benefit in relation to the land to the west of Silt Pit Lane was that:
(1)
Given the Appellant’s criminal lifestyle, the property held assumption (under
s.10(3) of POCA) applied. Thus, the judge was required to assume that the land to the west of Silt Pit Lane had been obtained by the Appellant as a result of his general criminal conduct, and at the earliest time that he appeared to have held it, unless the assumption was shown to have been incorrect, or there would be a serious risk of injustice if the assumption were made.
(2)
The Appellant had been the sole owner of 64 Norfolk Street since 2008, when ownership had been formally transferred to him by his mother, Sylvia Court – albeit that the transfer was for no consideration; that it was not disputed that the house had been rented out; that the rent had been paid to the Appellant’s mother; and that she had paid for the maintenance of the property and the management fee.
(3)
The Appellant had obtained the mortgage on 64 Norfolk Street (the funds from which had been used to purchase the land to the west of Silt Pit Lane) fraudulently, and thus the property held assumption in relation to the land was not rebutted, because:
(a)
It was a “Buy to Let” mortgage and, contrary to what had been asserted in the mortgage application, the monies had been used to purchase land that was not let out, and/or
(b)
It had been falsely represented in the mortgage application that the appellant was in permanent employment when he was actually unemployed, and/or
(c)
He had failed to mention in the mortgage application that there were constraints on his ownership in that:
(i)
His mother received all the rental income from 64 Norfolk Street.
(ii)
He had an arrangement with Mr Ruck that the land to the west of Silt Pit Lane would not be sold, but retained until Mr Ruck was in a position to buy it back (having had to
raise money in connection with his divorce proceedings), and/or
(d)
He had failed to disclose the fact that he had previous convictions, and/or
(e)
In the ultimate alternative, and if he was not the sole owner of 64 Norfolk Street (because his mother had retained the beneficial interest), he had fraudulently represented that he was the sole owner.
(4)
It was accepted that the Appellant had paid all the instalments on the mortgage.
24.
Equally, ultimately, the Appellant’s case in relation to these issues was that:
(1)
He was the legal, albeit not the sole, owner of 64 Norfolk Street and had thus been entitled to obtain the mortgage – against the background that his mother had transferred the legal title to him in 2008 in order to avoid probate issues with his (the Appellant’s) sister, but had otherwise retained the beneficial interest in the house – as demonstrated by the fact that she dealt with the letting of the house, that she received the net income from it, and that she had given her permission for him to take out the mortgage.
(2)
Given that 64 Norfolk Street was let out and provided an income (albeit to his mother) there was no fraud in the fact that the mortgage money was used to buy the land (which was not let out, but rather used by him as part of his arrangement with Mr Ruck).
(3)
It was likely that he had been in permanent employment at the time of the application, and thus the assertion in that regard in the mortgage application had not been fraudulent.
(4)
His failures to mention the arrangements with his mother and Mr Ruck were not material and did not amount to a fraud.
(5)
Given that his previous convictions were spent, under the provisions of the Rehabilitation of Offenders Act 1974, he had been entitled not to disclose the fact that he had previous convictions.
(6)
It was not material that he had failed to mention his mother’s beneficial interest in 64 Norfolk Street.
25.
As indicated above, HHJ Easteal gave judgment on 10 May 2019.
26.
When dealing with whether cash deposits (totalling £36,431.15) which had been made to the Appellant’s bank accounts (and were said by the Appellant to be the product of various sources of legitimate income - including buying and selling cars, work done for his friend Mr Ruck, and gifts from his mother) were the product of the Appellant’s general criminal conduct (which included consideration of whether the Appellant had
been in permanent employment at the time of the mortgage application) the judge concluded (Transcript p.3D-G):
“
In my judgment the evidence relied upon by Mr Court to account for the
cash credits was flawed, inconsistent and in places wholly unbelievable. It
is said that the defendant was earning monies during the relevant period
through the buying and selling of cars, as well as work done for his friend
Stacey Ruck who was called to give evidence by Mr Court.
Between them, neither Mr Court nor Mr Ruck was able to produce any
accounts, receipts, tax returns, or other documentation to give any
substance to the assertions that the cash deposits in issue may have had a
legitimate origin. Neither Mr Ruck nor Mr Court seemed to be able to say
with any certainty when Mr Court had worked for Mr Ruck, what he had
been paid, his employment status, or how much any such payments
correlated with the indisputable evidence of the cash deposits that were
made into Mr Court’s bank accounts.
Although it was also submitted that some of the deposits may have been the
product of cash sums given to Mr Court by his mother, Sylvia, even Mr
Court himself was unable to offer any evidence as to which they were or
might be, nor was he able to suggest the amounts he was given by her. The
assumptions must stand therefore, and the benefit in relation to the
unidentified cash deposits is £36,431.15.
27.
Thus, when dealing with cash deposits, the judge comprehensively rejected the Appellant’s evidence that he had been in permanent employment at the material time (which, as already indicated, included the time of the mortgage application).
28.
The judge turned next (Transcript p.4A-G) to the land to the west of Silt Pit Lane, and concluded that:
“
This property was bought from Stacey Ruck by way of a mortgage for
£59,500 taken out in respect of 64 Norfolk Street, which in turn is said by Mr Court to have been gifted to him by his mother Sylvia on the
understanding that it would continue to be rented out, and that the rental income would be entirely her own, until her death.
It is further said that there was a mutual understanding between the
Defendant and Mr Ruck that the land would not be sold but retained until Mr Ruck was in a position to buy it back, having had to raise a sum of money in connection with his divorce proceedings.
The application completed by Mr Court gives no indication of any
constraints of Mr Court’s rights over the land. It does not disclose the purported ongoing beneficial interest of Sylvia Court in the mortgaged property and confirms that Mr Court has no previous convictions.
The defence argues however that the application should not be treated as fraudulent, and contends that any fault lies with the deficiencies of the application form and the unlawfulness of the question regarding whether the applicant has any previous convictions, relying on the provisions of the Rehabilitation of Offenders Act, and the proposition that the existence of spent convictions would not justify a potential lender from refusing an application.
In my judgment, the failure to disclose the information referred to clearly constitutes a fraud on the lender, who was plainly misled in respect of these highly material issues. With regards to the lawfulness of the question about any previous convictions, the argument fails to legitimise the dishonest answer given by Mr Court. On the basis of that argument, the only
permissible honest answers were; yes, or to decline to answer on the basis that the lender was not entitled to ask for such information insofar as it did or may relate to convictions that were now spent. The proposition that the enquiry was wrong at law would not, and did not, give Mr Court licence to enter a plainly dishonest and misleading response. The assumptions must stand therefore, and the benefit in respect of Silt Pitt Lane is £59,500
”
(
sic - later amended to £62,000).
29.
Thus, the judge did not, in giving his reasons in relation to benefit in respect of the land to the west of Silt Pit Lane, address in terms the Prosecution contentions (see [23(3)(a) & (b)] above) that, contrary to what had been asserted in the mortgage application, the mortgage money had been used to buy land that was not let (which was not disputed by the Appellant, but said not to be material), and that the Appellant had not been in permanent employment (on which issue the judge had already found against the Appellant when dealing with cash deposits), but did address the other matters on which the Prosecution had relied (see [23(3)(c)-(e)] above), including the ultimate alternative assertion that if the Appellant’s mother was the beneficial owner of 64 Norfolk Street the mortgage had been fraudulently obtained because that had not been disclosed.
30.
When dealing (Transcript p.7A-8G/H) with whether 64 Norfolk Street and the land to the west of Silt Pit Lane were available assets, the judge said this:
“I turn then to the question of Mr Court’s available assets, starting with the
equity at 64 Norfolk Street. Mr Court is the registered legal owner of this
property, and used that status to secure a mortgage, the funds of which
were used by him to purchase the land at Silt Pit Lane.
The Crown submits that as a result, all the equity that exists in the property
belongs to Mr Court.
The legal title in the property was transferred to Mr Court from his mother
Sylvia without consideration in 2008. Thereafter, Mrs Court retained all the
responsibilities for its upkeep and management as landlord, and received
the entirety of the income from the property generated by rental payments.
The defence therefore contends that despite the absence of any paperwork,
despite Mr Court appearing to have no real comprehension of what a trust
is, and despite the jeopardy to his Mother’s beneficial interest brought
about by the property being mortgaged by her son, an inter vivo trust came
into effect upon transfer in 2008 for so long as Sylvia Court remained
alive.
In turn, it is submitted that Mr Court holds no beneficial interest in the
property and the equity that exists belongs entirely to Sylvia Court.
Although Sylvia Court has not given evidence, it seems clear that she was to
all intents and purposes the landlord of 64 Norfolk Street. That being said,
the self-evident implausibility of Mr Court’s case in this respect is made
greater still by two further limbs of evidence, both of which were given and
accepted by Mr Court.
Firstly, Mr Court transferred ownership of Silt Pit Lane back to Mr Ruck
without any form of payment or retained equitable interest in that land
being made in return, effectively surrendering the value of the mortgage he
had taken out, without any reference to or measures to protect Sylvia
Court’s purported beneficial interest in 64 Norfolk Street.
And Mr Court also gave evidence that much of his Mother’s money was
kept in the safe referred to above and that he was allowed to help himself to
it without consulting her nor with any expectation of, or arrangement for,
its repayment. This evidence plainly goes some way to undermine the
defendant’s own claim that his Mother’s purported retained beneficial
interest is evidenced in part by the fact that rental payments accrued
exclusively to her.
Accordingly, in my judgment, such equity as there is or may be in 64
Norfolk Street is wholly to be treated as an available asset.
Silt Pit Lane, the defence contends that the value of this land belongs to
Stacey Ruck, and has done so all along. It is said that the property was
bought by Mr Court only as a temporary measure in order that his friend
Mr Ruck could proceed with his divorce by reducing his personal levels of
borrowing. It is also claimed that there were several understandings in
place which effectively amounted to trusts, these being firstly, Mr Court
would not and could not sell Silt Pit Lane, but would instead retain it until
such time as Mr Ruck could buy it back from him.
Second, at such time as Mr Ruck repurchased Silt Pit Lane, Mr Court
would pay off the mortgage taken out against 64 Norfolk Street with the
funds paid to him, as the beneficial interest in that property rested with his
mother Sylvia and not with Mr Court. And until such time as Silt Pit Lane
was bought back my Mr Ruck, Sylvia Court’s beneficial interest in 65
Norfolk Street was effectively charged against the value of Silt Pit Lane.
The ownership of Silt Pit Lane was transferred back to Mr Ruck after Mr
Court’s arrest. No payment whatsoever was or has been made in
consideration of that transfer. The prosecution contends that the transfer
constitutes a tainted gift, and that the value of the land should be treated as
an available asset. Once again there is no documentation which exists, or
ever did exist, to in any way formalise or even corroborate the existence of
any trusts or such other arrangements as would lend any veracity to the
scenario upon which the defence bases its arguments.
Moreover, Mr Court, having transferred ownership of the land back to Mr
Ruck continues to make the mortgage repayments himself, with absolutely
no contribution by Mr Ruck and no consultation with Sylvia Court. The
patent unfairness of this, were the defence narrative to be believed,
appeared to come as a complete surprise to Mr Ruck when his attention
was drawn to it during the course of his evidence to the court.
Having acknowledged there was no reason why this burden should be
borne by his close friend Mr Court, Mr Ruck also acknowledged that he
thought he owed monies to Mr Court which he had not yet repaid, and
which neither man had taken into account at any stage whilst these
arrangements were made and actioned.
The defence case in relation to Silt Pit Lane is in my judgment utterly
implausible. The transfer of ownership was, as the Crown argue, a tainted
gift intended to evade the inclusion of the land in the calculation of Mr
Court’s available assets, and accordingly must be included in that
calculation.”
31.
Thus, the judge concluded that the Appellant was the sole owner of the equity in 64 Norfolk Street, and of the equity in the land to the west of Silt Pit Lane, and that the “repurchase” by Mr Ruck of the land to the west of Silt Pit Lane was a tainted gift, and that therefore the full equity in both properties were available assets. The total value of the available assets was £270,895 - hence the judge made a confiscation order in the total sum of the Appellant’s benefit, namely £166,232.93.
The appeal
32.
In a 32-page document, dated 5 June 2019, Mr Jeyes set out some 11 Grounds of Appeal on the Appellant’s behalf (variously relating to proportionality, hearsay evidence from Mrs Court, and the judge’s findings in relation to the benefit amounts and the available assets) and a summary of his arguments in support of them.
33.
In Ground (iv)(c) it was asserted that:
“
In respect of the benefit amount, the learned Judge:
……
(c)
Wrongly characterised a mortgage application made by the Applicant
in respect of the property at 64 Norfolk Street as indicating that he
had a beneficial interest in the property, and further wrongly held
that the Applicant had acted fraudulently when declaring that he had
no previous convictions even though he was entitled to so answer
under the Rehabilitation of Offenders Act 1974 (the Judge failed to
deal with the legal submissions made in this regard)
”.
34.
In Grounds (v)(a) & (b) it was asserted that the judge had wrongly decided that Sylvia Court had no beneficial interest in 64 Norfolk Street and that the judge had wrongly rejected the submission that there was a trust in favour of Sylvia Court in respect of the land at Silt Pit Lane.
35.
At the direction of the Registrar, the Prosecution lodged a Respondent’s Notice - in the form of a 16-page document entitled “Prosecution Response to Grounds of Appeal” which was dated 12 August 2019. As recorded in [2(1)] above, the Response began with a recital in the following terms:
“
This document contains a summary of the Prosecution submissions in response to the lengthy and numerous Grounds. If not every single point taken by the Appellant is dealt with, no concession is thereby intended. In the event that leave is granted, the Prosecution will respond in detail…
”.
36.
At its conclusion, the Response asserted that none of the Grounds, individually or cumulatively, demonstrated that the approach taken by the Judge was wrong in law. As to the Judge’s findings of fact it was asserted that it was not the task of this Court to substitute its own view of the evidence, and that having heard evidence over a prolonged period the Judge was in the best position to determine matters.
37.
In relation to Ground iv(c) (referred to in the Response as Ground 5) the Prosecution set out the Judge’s ruling (Transcript p.4A-G – see [28] above), and the undisputed chronology in relation Silt Pit Lane. The Prosecution then underlined the fact that consideration of benefit in relation to the land at Salt Pit Lane fell to be determined under the property held assumption, and asserted that since the land had been acquired by a fraudulently obtained mortgage, the judge had been wholly justified in treating it as benefit.
38.
The Prosecution also argued, in relation to Grounds (v)(a) & (b), that the Judge’s findings that 64 Norfolk Street and the land to the west of Silt Pit Lane were available assets were both right.
39.
The Single Judge refused leave on 30 September 2019.
40.
As indicated above, the Prosecution were not informed of the hearing of the
Appellant’s renewed application for leave to appeal on 16 January 2020, and thus did not attend. At the hearing Mr Jeyes relied, as his principal point, on Ground iv(c).
41.
The Court retired to consider the submissions made by Mr Jeyes. Thereafter, Males LJ gave the judgment of the Court, which concluded as follows:
“
15. The principal point relied on by Mr Jeyes relates to the Judge’s finding on benefit, relating to the land adjacent Silt Pit Lane, where the benefit found was £62,000. This was land purchased with a mortgage on Norfolk Street, as to which the Judge’s conclusion was that the mortgage application was fraudulent in two respects. First, he found that the application failed to disclose that the beneficial interest in the property being mortgaged was the applicant’s mother, rather than the applicant himself. That was indeed the applicant’s case – namely, that his mother had the relevant beneficial interest – although, in fact, the judge did not accept that case. If that is so, there is perhaps an element of inconsistency in saying that the mortgage application was fraudulent for failure to declare a beneficial interest which, in the event, the judge was not persuaded did exist. The judge also found that the application was fraudulent because the applicant failed to answer truthfully a question on the application form about any previous criminal convictions. He answered that he did not have such convictions, when in fact he did, although they were spent. The judge said that the only permissible, honest answer would either have been ‘Yes’, or else to decline to answer, on the basis that the lender was not entitled to ask for such information insofar as it might relate to convictions that were now spent. We accept that the judge was wrong in that respect. The applicant was entitled to answer ‘No’ to that question, because his convictions were, in fact, spent.
16.
Although the Judge’s reasoning therefore, in relation to this aspect of the benefit is, in our judgment, open to those criticisms, we are not persuaded that the consequence is that the assumptions were rebutted. On the facts found by the judge, the mortgage funds were raised through a mortgage on the Norfolk Street property, in relation to which the judge also found that the assumptions were not rebutted, and therefore the Norfolk Street property had to be treated as part of the relevant property. A mortgage raised on that property, which is then used to buy adjacent property, would still be subject to the same considerations, meaning that the assumptions were not rebutted. Plainly, overall, the judge was not persuaded by the applicant’s evidence in relation to the properties in which he claimed that his mother had beneficial interests, and that affected the whole approach to these properties and the judge’s conclusion that the relevant assumptions were not rebutted.
17.
That was identified by Mr Jeyes as his strongest point, and we have rejected it. It is sufficient to say in relation to the other points (this being an application for leave and not a full appeal), that we have considered carefully what is said on each side and we find that the arguments in the Respondent’s Notice persuasive in relation to the benefit figures.
……….
19. For these reasons, the order made by the judge must stand, and the renewed application for leave to appeal against the confiscation order is refused”
42.
In immediate response, Mr Jeyes said this:
“I am grateful, my Lord. I rise with some diffidence and with more than a little
trepidation. I hope that my Lords and my Lady will understand it my professional
duty to say something…. The determination of the court appears to be that the
mortgage was not fraudulent for the reasons set out by the learned judge in his judgment. In my submission, if the mortgage was not fraudulent for those
reasons, then the assumption as to the source of those funds would have been
rebutted. The learned judge did not rehearse any other reason for those funds,
which clearly emanated from the bank, being considered to be fraudulent and
therefore the source or the product of criminal conduct”.
43.
Mr Jeyes then developed that submission by arguing that:
(1)
There was no doubt how the Appellant had come to be the legal owner of
64 Norfolk Street, and although the judge had determined that the Appellant’s mother must also have assigned the beneficial interest to him, she had nevertheless remained, essentially, the landlord of the property.
(2)
The Appellant had then mortgaged the legal interest, which the Court had just indicated he would have been entitled to do, and on the judge’s findings would have been entitled to do.
(3)
The Judge had determined that the application was fraudulent for two reasons (a failure by the Appellant to declare that his mother had a beneficial interest, and his answer in relation to his convictions) both of which, it appeared, the Court had decided were flawed.
(4)
If the reasons for which the judge thought that the mortgage was fraudulent were flawed, then (against the background of the Judge’s finding that the full equity in 64 Norfolk Street was available to the Appellant and that it could not be fraudulent not to declare something that did not exist) the assumption in relation to the land at Silt Pit Lane was rebutted.
44.
The Court retired to further confer, after which Males LJ continued:
“
Mr Jeyes, you have a point. When I gave judgment earlier, that was on the
basis, I think, of a misunderstanding as to what comprised the benefit
figures. It is, in fact, apparent that the Norfolk Street property is not part of
the judge’s findings on benefit. That was owned by the mother, and the
consequence is that what I said in the judgment earlier was on a mistaken
basis, and that once the judges reasoning as to the two reasons which he
gave is found to be incorrect, as we did find, then the benefit ought to be
reduced by the £62,000.
So, we are grateful to you for pointing that out. You were right to stand and
raise it, even with trepidation, and the consequence is that I will correct the
judgment when it comes for approval. I hope that this is being recorded, so
that I can see what the reasoning was. The consequence, therefore, will be
that we give leave, limited to this particular point, and allow the appeal by
reducing the benefit figure and thus the confiscation figure by £62000, so
that the figure will now be £104,232.93.
MR JEYES; I am very grateful.
LORD JUSTICE MALES; Alright.
MR JEYES; So, my Lord has determined the appeal itself?
LORD JUSTICE MALES; Yes, we have determined the appeal itself, which
is the normal practice, and on that basis, you should have a representation
order.”
45.
In the formal Order on the Application it was recorded that the Court had:
“
1.
Granted leave to appeal against sentence on Ground 5 only and,
without adjournment, treated the hearing of the application as the
hearing of the appeal;
2.
Allowed the appeal and varied the amount of the confiscation order
imposed in the Court below, having determined that the Applicant
does not have any beneficial interest in the property at 64 Norfolk
Street.
…………………..”
46.
We observe that it had not been suggested in the confiscation hearing that 64 Norfolk Street was part of the Appellant’s benefit; that the Appellant’s mother was the previous owner of 64 Norfolk Street, and that HHJ Easteal had found that the Appellant was the sole owner of the house at the material time; that (in the part of his ruling relating to benefit and the land to the west of Silt Pit Lane) the judge had ruled there were three relevant deficiencies (not two) in the mortgage application in relation to 64 Norfolk Street; that, in any event, when dealing with cash deposits, the judge had ruled in favour of the Prosecution on one of the other alleged deficiencies in relation to the mortgage application; that there was another alleged deficiency in relation to the land not being let (which was not disputed but said not to be material); that (as asserted by the Prosecution – see below) it is not the normal practice in confiscation cases to determine appeals without giving the Prosecution an opportunity to be heard (rather, the reverse is the well-established practice); and that the Court had not determined that the Appellant did not have any beneficial interest in 64 Norfolk Street.
47.
In the subsequent Approved Judgment, paragraph 15 remained the same as in the
ex tempore
judgment, but the remainder was amended, as follows:
“16. The Judge’s reasoning in relation to this aspect of the benefit, that is to say the land adjacent to Silt Pit Lane, is in our judgment flawed for those reasons.
17. This was identified by Mr Jeyes as his strongest point, and we agree with it.
…..
19.
For these reasons, the Judge’s order must be adjusted to exclude
from the benefit figure the value of the land adjacent to Silt Pit Lane
which was purchased with funds raised by a mortgage on the Norfolk
Street property which did not form part of the applicant’s benefit. To
that extent, therefore, he has rebutted the statutory presumptions.
20.
The consequence, therefore, will be that we give leave, limited to this
particular point, and allow the appeal by reducing the benefit figure
and thus the confiscation figure, by £62,000, so that the figure will
now be £104,232,93. In all other respects the application for
permission to appeal is refused. We make a representation order.”
Legal framework
48.
The overriding objective, and the application of it by the Court, are set out in Parts 1.1 & 1.3 of the Criminal Procedure Rules, as follows:
“
R1.1 The overriding objective
1.1
(1) The overriding objective of this procedural code is the criminal
cases be dealt with justly.
(2) Dealing with a criminal case justly includes–
(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those
under Article 6 of the European Convention on Human
Rights;
(d) respecting the interests of witnesses, victims and jurors and
keeping them informed of the progress of the case;
(e) dealing with the case efficiently and expeditiously
(f) ensuring that appropriate information is available to the
court when bail and sentence are considered; and
(g) dealing with the case in ways that take into account–
(i) the gravity of the offence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others affected, and
(iv) the needs of other cases.
……………
The application by the court of the overriding objective
1.3
The court must further the overriding objective in particular when– (a)
exercising any power given to it by legislation (including these Rules);
(b)
applying any practice direction;
(c)
or interpreting any rule or practice direction”.
49.
As to Respondent’s Notices, Part 39.6 of the Criminal Procedure Rules provides that:
“R39.6
Respondent’s notice
(1) The Registrar–
(a) may serve an appeal notice on any party directly affected by
the appeal; and
(b) must do so if the Criminal Case Review Commission refers
a conviction, verdict, finding or sentence to the court.
(2) Such a party may serve a respondent’s notice, and must do so if–
(a) that party wants to make representations to the court; or
(b) the court or the Registrar so directs.
………
(5) The respondent’s notice must be in the form set out in the Practice
Direction.
(6) The respondent’s notice must–
(a) give the date on which the respondent was served with the
appeal notice;
(b) identify each ground of opposition on which the respondent
relies, numbering them consecutively (if there is more than
one), concisely outlining each argument in support and
identifying the ground of appeal to which each relates;
(c) identify the relevant sentencing powers of the Crown Court,
if the sentence is in issue;
(d) summarise any relevant facts not already summarised in the
appeal notice;
(e) identify any relevant authorities;
(f) include or attach any application for the following, with
reasons–
(i) an extension of time within which to serve the
respondent’s notice,
(ii) bail pending appeal,
(iii) a direction to attend in person a hearing that the
respondent could attend by live link, if the respondent
is in custody,
(iv) the introduction of evidence, including hearsay
evidence and evidence of bad character,
(v) an order requiring a witness to attend court, or
(vi) a direction for special measures for a witness; and
(g) identify any other document or thing that the respondent
thinks the court will need to decide the appeal.
50.
As to parties being given notice of hearings and decisions, Part 36.7(1) of the Criminal Procedure Rules provides that:
“
The Registrar must give as much notice as reasonably practicable of every
hearing to:
(a)
the parties;
………….”
51.
In
R v Daniel
[1977] QB 364, a renewed application was listed, heard and dismissed without notice to the applicant’s lawyers, although the error was not such as to render the proceedings a nullity. Lawton LJ (giving the judgment) considered whether this Court had jurisdiction in a case where the applicant had been deprived of his right to be represented by counsel. He concluded:
“
This court clearly has jurisdiction within the ambit of the Criminal Appeal
Act 1968 and the Rules of 1968 to see that no injustice is done to any
defendant in the course of any application or appeal. If in any particular
case, because of the failure of the court to follow the rules or the well-
established practice, there is a likelihood that injustice may have been
done, then it seems to us right, despite the generality of what was said in R
v Cross (Patrick), that a case should be relisted for hearing. It is pertinent
to point out that in R v Cross (Patrick) the court had heard arguments by
counsel on the merits before any question arose about rehearing the
appeal, for such it was. The kind of problem which has arisen in this case
was never considered. It follows that this court acted per incuriam in
adjudging, on 14 September 1976, that it had no jurisdiction to consider the
defendant’s application. The court had such jurisdiction. Before leaving
this subject, the court would stress that save in cases in which what has
happened is a nullity, the jurisdiction to relist depends on the likelihood of
an injustice being done. That is for the court itself to decide. There may not
be a likelihood of injustice if, from the written grounds of appeal and any
supporting documents, it is clear beyond argument that the application
cannot succeed.”
52.
In
Yasain
(above), the Court identified three sets of circumstances in which the Court of Appeal (Criminal Division) may re-open its decisions, namely where:
(1)
The order of the Court has not yet been entered onto the record, that being the record sheet of the relevant Crown Court.
(2)
The order of the Court is
ultra vires
and a nullity.
(3)
It is necessary to avoid real injustice in exceptional circumstances, which might be when there had been a failure in the Court’s administration - as in
R v Daniel
(above).
53.
In
R v Cunningham,
R v Di Stefano
(above) the Court (presided over by Lord Burnett CJ) quoted, with approval, from the judgment of Gross LJ in
Gohil
(also above), as follows:
“
31. In Gohil the Court comprehensively summarised the ambit of this
jurisdiction in the CACD, so as significantly to reduce the need in this
judgment to rehearse the various authorities in which this issue has been
considered. Gross LJ set out:
‘(viii) Pulling the threads together.
129. We venture to pull the threads together, as follows:
i)
the CACD has jurisdiction to re-open concluded proceedings in two situations. First, in cases of nullity, strictly so-called and distinguished from “mere” irregularities. Secondly, where the principles of Taylor v Lawrence, as adopted in Yasain are applicable, thus where the necessary conditions are satisfied. For ease of reference, though not to be interpreted as a statute, the necessary conditions are: the necessity to avoid real injustice; exceptional circumstances which make it appropriate to re-open the appeal; and the absence of any alternative effective remedy. It is to be emphasised to be almost invariably cumulative requirements – though not necessarily sufficient for the exercise of the jurisdiction, in that the court retains a residual discretion to decline to re-open concluded proceedings even where the necessary conditions are satisfied;
ii)
though the principles in Taylor v Lawrence apply in both the Court of Appeal (Civil Division) and the CACD, as underlined in Yasain the jurisdiction need not necessarily be exercised in the same way, bearing in mind both the triangulation of interests in criminal proceedings (the state, the defendant and the complainant/victim) and the general availability of the CCRC to remedy the injustice of wrongful convictions;
iii)
in exercising the jurisdiction to re-open concluded proceedings, the test applied by the CACD will be the same, regardless of whether the application is made by the Crown or on behalf of the defendant;
iv)
we respectfully agree with the observation of the court in Yasain that the jurisdiction of the CACD to re-open concluded proceedings is probably best confined to “procedural errors”. Indeed, at least generally, we see the Yasain jurisdiction as directed towards exceptional circumstances involving (as submitted by the Amicus) the correction of clear and undisputed procedural errors “where it is simpler and more expedient for the court itself to re-open the appeal and correct a manifest injustice without the need for further litigation”. Such an approach is healthy as it does not altogether exclude room for pragmatism in practice, while confining its scope to appropriately very limited circumstances, where, even if recourse to the CCRC was otherwise available, it would be a wholly unnecessary exercise. As it seems to us, fashioning the jurisdiction in this manner accords with authority, principle, practicality and policy – not least the great importance of finality in criminal proceedings;
v)
[…]
vi)
[…]’
32. We entirely agree with the approach of this court in Yasain and
Gohil that, save for decisions that are a nullity, the usual exercise of
this jurisdiction is to be confined to correcting “procedural errors” that are clear and undisputed, and when there is no alternative effective remedy (albeit we do not wish to close the door entirely on exceptional circumstances, when the lack of an alternative effective remedy or some other reason, may lead the court to re-open a decision in order to avoid a manifest injustice). As Gross LJ observed in Gohil, although the jurisdiction to re-open concluded proceedings has not been removed by the availability of recourse to the CCRC, that will almost invariably be the proper route ([128]).”
54.
The procedure for seeking to reopen the determination of an appeal is set out in Part
36.15 of Criminal Procedure Rules, which provides that:
“Reopening the determination of an appeal
36.15
(1) This rule applies where-
(a) a party wants the court to reopen a decision which
determines an appeal or reference to which this Part
applies (including a decision on an application for
permission to appeal or refer);
(b)the Registrar refers such a decision to the court for the
court to consider reopening it.
(2) Such a party must-
(a) apply in writing for permission to reopen that decision, as
soon as practicable after becoming aware of the grounds
for doing so; and
(b)serve the application on the Registrar.
(3) The application must-
(a)specify the decision which the applicant wants the court to
reopen; and
(b)explain-
(i)
why it is necessary for the court to reopen that decision
in order to avoid real injustice,
(ii)
how the circumstances are exceptional and make it
appropriate to reopen the decision notwithstanding the
rights and interests of other participants and the
importance of finality,
(iii)
why there is no alternative effective remedy among
any potentially available, and
(iv)any delay in making the application.
(4) The Registrar
(a) may invite a party’s representations on-
(i) an application to reopen a decision, or
(ii) a decision that the Registrar has referred, or intends
to refer, to the court; and
(b) must do so if the court so directs.
(5)
A party invited to make representations must serve them on the
Registrar within such period as the Registrar directs.
(6)
The court must not reopen a decision to which this rule applies
unless each other party has had the opportunity to make
representations.
[Note. The Court of Appeal has power only in exceptional
circumstances to reopen a decision to which this rule applies.]”
55.
In
R v Cunningham, R v Di Stefano
(above) the Court gave guidance as to the operation of Part 36.15, which has been complied with in this case. In particular, when given notice of what had happened at the hearing on 16 January 2020, the Prosecution immediately began the steps which resulted in this application.
Submissions
56.
On behalf of the Prosecution Mr Martin Evans QC (who did not appear below) accepted that there was a burden on the Prosecution to show that there was a real requirement for the Court to exercise its discretion to re-open the determination of the appeal, and to uphold the original confiscation order. He variously submitted that:
(1)
It was not suggested that the proceedings in this Court on 16 January 2020 were a nullity.
(2)
When a Defendant has a criminal lifestyle there is a substantial public interest that any property held by them, and in relation to which the relevant assumption is not rebutted, is included in their benefit - as “crime should not pay”.
(3)
Against the background that the property held assumption applied to consideration of benefit in relation to the land to the west of Silt Pit Lane, the Prosecution case was that the mortgage funds in relation to 64 Norfolk Street that were used by the Appellant to purchase the land had been fraudulently obtained.
(4)
As summarised in [23(3)] above, the Prosecution case that the mortgage funds had been fraudulently obtained was based on four alleged deficiencies in the mortgage application, namely:
(a)
It was a “Buy to Let” mortgage and, contrary to what had been asserted in the mortgage application, the monies had been used to purchase land that was not let out, and/or
(b)
It had been falsely represented in the mortgage application that the appellant was in permanent employment when he was actually unemployed, and/or
(c)
The Appellant had failed to mention in the mortgage application that there were constraints on his ownership in that:
(i)
His mother received all the rental income from 64 Norfolk Street.
(ii)
He had an arrangement with Mr Ruck that the land to the west of Silt Pit Lane would not be sold, but retained until Mr Ruck was in a position to buy it back (having had to raise money in connection with his divorce proceedings, and/or
(d)
He had failed to disclose the fact that he had previous convictions.
(5)
In the ultimate alternative, and if the Appellant was not the sole owner of 64 Norfolk Street (because his mother had retained the beneficial interest), it was the Prosecution case that he had fraudulently represented that he was the sole owner.
(6)
In the part of his ruling dealing with benefit and Silt Pit Lane, HHJ Easteal had identified 3 deficiencies in the mortgage application, namely that the Appellant had failed to disclose:
(a)
The purported beneficial interest of his mother in 64 Norfolk
Street.
(b)
His previous convictions.
(c)
The constraints on his ownership of the house and the land.
(7)
It was accepted, given the judge’s subsequent finding (in relation to available assets) that the Appellant was the sole owner of the equity in 64 Norfolk Street, that there was no deficiency in the Appellant failing to disclose an interest that his mother did not have.
(8)
It was further accepted that, as a matter of law, the Appellant had not been required to disclose his previous convictions, as they were spent.
(9)
Nevertheless, the judge had been entitled to conclude that the failure to mention the constraints was a material failure.
(10)
In any event, it was not disputed that the Appellant had used the land to the west of Silt Pit Lane for his own purposes rather than letting it out and that, whilst dealing with cash deposits, the Judge had found (in the clearest terms) that at the material time the Appellant had not been in permanent, or any, legitimate employment.
(11)
Thus, three of the deficiencies relied upon by the Prosecution had been made out, such that, whether viewed individually or cumulatively, and in the light of the judge’s various findings as to the Appellant’s lack of veracity, the property held assumption in relation to the land to the west of Silt Pit Lane had not been displaced – rather the reverse. Therefore, the Appellant had failed to discharge the burden on him to rebut the property held assumption, and the only possible conclusion to which the Judge could have come was that the land was benefit from the Appellant’s general criminal conduct.
(12)
The Respondent’s Notice complied with Part 39.6 of the Criminal Procedure rules, and it made clear in the recital at the outset that, in the event that leave was granted, the Prosecution wished to make submissions at the hearing of the appeal.
(13)
Contrary to Part 36.7(1)(a) of the Criminal Procedure Rules, the Prosecution were not informed of the date of the hearing of the renewed application for leave. If they had been informed, a representative would have attended.
(14)
The principle of finality presupposes that in any contested matter both parties will have the opportunity to make representations before any final determination is made, and there is a well-established practice that in confiscation appeals (and notwithstanding the service of a Respondent’s Notice) the Prosecution will attend any final hearing and make representations.
(15)
In any event, the overriding objective requires that cases be dealt with justly, which includes dealing with the parties fairly (see Part 1.1(2)(b) of the Criminal Procedure Rules), and the Court’s approach in the analogous case of
Martin
(above) was illuminating.
(16)
In the absence of the Prosecution at the hearing on 16 January 2020, and in part as a result of the submissions advanced on behalf of the Appellant, the Court had fallen into the errors summarised in [46] above.
(17)
If the Court had been aware of the correct position, it was inconceivable that the appeal would have been allowed. Rather, it was bound to fail. There was not the mere possibility (as suggested on behalf of the Appellant) that a decision might have gone the other way. The result had been an unjustified reduction of the confiscation order by £62,000.
(18)
Although the errors were clear, they were not undisputed by the Appellant. However, there was no merit in the submissions now advanced on the Appellant’s behalf.
(19)
No alternative remedy was available – in that an application to the CCRC was not possible, and an application for a civil recovery order under Part 5 of POCA was prevented by s.308(9): “
Property is not recoverable if it has been taken into account in deciding the amount of a person’s benefit from criminal conduct for the purpose of making a confiscation order
”.
(20)
Against that overall background, and thus in exceptional circumstances where there was no alternative effective remedy, there was a plain requirement for the Court to avoid a manifest injustice by exercising its discretion to reopen the hearing and to uphold the original confiscation order.
57.
On behalf of the Appellant, Mr Jeyes submitted that:
(1)
The full Court had acted entirely appropriately in allowing the appeal on 16 January 2020, there was no injustice, the case did not reach the required threshold of exceptionality, and the principle of finality applied – all in a case in which the Appellant had been subjected to a sizeable confiscation order notwithstanding the fact that he had been acquitted of possession of the frozen 1.5kg block of cannabis with intent to supply. Indeed, the Appellant remained of the view that the only identifiable injustice in the case was the imposition on him of a confiscation order in such an amount.
(2)
At the outset of the hearing on 16 January 2020, the Court had confirmed that it had read and considered the Respondent’s Notice, and the Court had thus been aware of the submissions identified by leading counsel for the Prosecution as being pertinent to the appeal.
(3)
Given that the Court had ultimately concluded, rightly, that the two reasons cited by the Judge for not rebutting the assumption in relation to the land to the west of Silt Pit Lane (not declaring the beneficial interest which he said that his mother retained in 64 Norfolk Street, and answering “no” on the application when asked whether he had any previous convictions) were invalid, it followed that his judgment in that regard could not be upheld, and thus the Court’s ultimate decision had plainly been correct.
(4)
The Respondent’s Notice was notable for its lack of argument, or indeed any comment at all, in relation to the arguments advanced on behalf of the Appellant in relation to Ground iv(c) – and the truth was that that was because nothing could be said as the Ground was plainly right, as the full Court had held.
(5)
In accordance with Part 39.6(6) of the Criminal Procedure Rules (above) the Respondent’s Notice should have identified each ground of opposition on which the Prosecution relied, numbered them consecutively, concisely outlined each argument in support, identified the ground of appeal to which each related, and summarised any relevant fact not already summarised in the appeal notice.
(6)
By analogy with the requirement on Appellants to set out all Grounds of Appeal on which they intend to rely, and to have to seek leave for any additional Grounds (see
R v James
[2018] 1 Cr.App.R. 33
), and whilst the rules were not so explicit for Respondents, the general rule had to be the same – as, with both parties being under a duty to further the overriding objective, it would create manifest unfairness if applicants were required to apply for leave to vary their Grounds, but the Respondent was able to add to, vary and supplement its grounds of opposition at will.
(7)
In any event, the principal arguments now advanced by the Respondent in relation to their application were not mentioned in the Respondent’s
Notice at all, and the recital at the start of the Notice had no status in law and could not absolve the Prosecution of the duty to set out its case – which it could and should have done, but had signally failed to do.
(8)
The suggestion that there were three, rather than two, reasons for the
Judge’s findings was plainly bad on its face, and it was wrong of the Prosecution to adopt a strained construction of the judgment to try to produce the outcome that they desired. In relation to 64 Norfolk Street the constraint was Sylvia Court’s alleged ongoing beneficial interest. In any event, even if there were other constraints they would not have affected the situation - as there were no other legal interests to be declared and it was a legal mortgage.
(9)
Equally, whilst it was correct that the screen print for the mortgage recorded the Appellant as being employed (and the judge found that he had not been) that was irrelevant as it was a “Buy to Let” mortgage. In any event, the Prosecution had not strongly pressed the point during the confiscation hearing. The key consideration was the rental income. The mortgage had been paid throughout its life, and had always been fully secured. In addition, the judge had taken time to consider his judgment and (plainly) had not considered that this was a ground on which the mortgage could be vitiated.
(10)
In addition, there would be a risk of injustice in holding that the mortgage was fraudulently obtained when there was doubt, variously, as to the importance with which this was regarded by the lender; the content of what was discussed between the mortgage broker and the Appellant; the extent of remunerative work undertaken at the time of the application (which might not have been the same point in time as that in relation to the judge’s cash deposit findings).
(11)
In any event, it would be wrong at this stage to try to establish a new basis on which the judge’s conclusion on the mortgage question should be upheld. Given that the Court was required to avoid any risk of injustice, the ultimate decision on 16 January 2020 should remain.
(12)
The purported injustice relied upon by the prosecution was not beyond dispute and certainly not manifest. Moreover, this was a case in which there was no evidence of drug dealing, and a jury had acquitted the Appellant of any such intention. Thus, in reality, the State had recovered many times over what the Appellant could have obtained.
(13)
The principle of finality applied, and the proceedings, and the distress that they had caused, should finally end. Therefore, the Prosecution’s application should be dismissed.
The merits
58.
There is no doubt, given Schedule 2 of POCA and the decision in
Parvaez
[2017] EWCA Crim 873
, that the Prosecution were entitled to pursue confiscation proceedings against the Appellant, despite his acquittal in relation to possession with intent to supply,
59.
Against the background that, as to benefit, the property held assumption applied in relation to the land to the west of Silt Pit Lane, and that the Prosecution case was that the funds from the mortgage on 64 Norfolk Street which were used to purchase that land had been fraudulently obtained, it is now clear that, as summarised in [23(3)] & [56(4)] above, the Prosecution case was that the assumption was not rebutted by the Appellant, because:
(1)
It was a “Buy to Let” mortgage and, contrary to what had been asserted in the mortgage application, the monies had been used to purchase land that was not let out, and/or
(2)
It had been falsely represented in the mortgage application that the Appellant was in permanent employment when he was actually unemployed, and/or
(3)
The Appellant had failed to mention in the mortgage application that there were constraints on his ownership of both 64 Norfolk Street and the land to the west of Silt Pit Lane, in that:
(a)
His mother received all the rental income from 64 Norfolk Street.
(b)
He had an arrangement with Mr Ruck that the land to the west of Silt Pit Lane would not be sold, but retained until Mr Ruck was in a position to buy it back (having had to raise money in connection with his divorce proceedings), and/or
(4)
The fact that the appellant had failed to disclose that he had previous convictions, and/or
(5)
In the ultimate alternative, and if he was not the sole owner of 64 Norfolk Street (because his mother had retained the beneficial interest), he had fraudulently represented that he was the sole owner.
60.
Equally, it is now clear, as summarised in [29] above, that when giving his reasons in relation to benefit in respect of the land to the west of Silt Pit Lane, HHJ Easteal:
(1)
Failed to address the first two matters relied on by the Prosecution, albeit that the first was not in dispute, but was said not to be material, and that he had already ruled in favour of the Prosecution in relation to the second (when dealing with cash deposits).
(2)
Addressed all three of the other matters relied on by the Prosecution, ruling in favour of the Prosecution in relation to each of them.
61.
The judge undoubtedly erred in law in his finding in relation to the Appellant’s failure to mention his spent previous convictions, and also erred in his finding that the Appellant had failed to disclose that his mother had retained the beneficial interest in 64
Norfolk Street - as the need for that conclusion, which was put in the ultimate alternative, did not arise, and (in any event) the finding was inconsistent with his subsequent conclusion that the Appellant was the sole owner of the house.
62.
Nevertheless, and against the background of the judge’s adverse findings as to the Appellant’s veracity, we have no doubt that:
(1)
If he had considered the matter, he could only have concluded that the admitted assertion in the mortgage application that the mortgage funds were going to be used in the purchase of a “Buy to Let” property was material, and that it was demonstrated to be fraudulent by the chronology and the use of the funds to purchase the land to the west of Silt Pit Lane – which was never let out.
(2)
Likewise, there were ample grounds for his conclusion (reached when dealing with cash deposits) that the Appellant had had no legitimate employment at all at the material time, and if he had considered the matter when dealing with the mortgage application he could only have concluded that the assertion that the Appellant was in permanent employment was material, and that it was fraudulent.
(3)
The judge was also entitled to conclude that the relevant constraints (which were not in dispute) were material, and that the failure to mention them had been fraudulent.
(4)
Those findings, and the more so the combination of them, could only have led to the conclusion that the property held assumption in relation to the land to the west of Silt Pit Lane had not been rebutted by the Appellant, and that therefore the value of that land (£62,000) was part of his benefit from his criminal lifestyle. Indeed, any other conclusion would have been perverse.
(5)
Thus, there was no merit in Ground (iv)(c), and the appeal should have been dismissed.
63.
At the hearing on 16 January 2020 the Court was plainly unaware of the first three matters relied on by the Prosecution, and confined its analysis to the last two It seems to us that the reasons for that were as follows:
(1)
In his judgment, the judge failed to deal with the “Buy to Let” issue at all; only dealt with the employment issue when dealing with cash deposits; and dealt with the constraints issue in a way that was not necessarily clear to anyone who had not been involved in the confiscation hearing.
(2)
In his long Grounds of Appeal the Appellant failed to indicate the full breadth of the Prosecution case in relation to benefit and the land to the west of Silt Pit Lane, and asserted that the judge’s findings had been confined to the previous conviction and beneficial ownership issues.
(3)
In the “Prosecution Response to Grounds of Appeal” (which contained the recital quoted in [2(1)] & [35] above) the Prosecution failed, in breach of Part 39.6(6)(b) of the Criminal Procedure Rules, to identify each ground of opposition on which it relied, and to concisely outline each argument in support, identifying the
ground of appeal to which each related. Instead (see [37] above) in relation to Ground iv(c) the Prosecution simply set out the judge’s ruling at Transcript p.4AG (see [28] above); set out the undisputed chronology in relation to the land to the west of Silt Pit Lane; underlined that the land had to be considered under the property held assumption; and asserted that, since the land had been acquired by a fraudulently obtained mortgage, the judge had been wholly justified in treating it as benefit. Thus, the Prosecution failed to set out either the full breadth of its case during the confiscation hearing or any of the more detailed arguments (see [56] above) relied upon before us as to the lack of merit in Ground iv(c).
(4)
In breach of Part 36.7(1) of the Criminal Procedure Rules (see also CPD IX Appeal 39A.3(c)) the Registrar failed to notify the Prosecution of the hearing of the renewed application on 16 January 2020 – whereas if the Prosecution had been warned, a representative would have attended.
(5)
At the hearing on 16 January 2020, the Appellant (whilst asserting for the first time that Ground iv(c) was his principal point) again failed to indicate the full breadth of the Prosecution case in relation to benefit and the land to the west of Silt Pit Lane, and again asserted that that the judge’s findings had been confined to the previous conviction and beneficial ownership issues.
(6)
After granting leave, the Court proceeded to determine the appeal without adjourning to enable the Prosecution to attend, upon the basis that such was the normal practice - whereas (as we have indicated in [46] above) that is not the norm in confiscation appeals, in which the well-established practice is that the Prosecution are invited to attend any final hearing, and (save in exceptional circumstances) will do so and will make representations.
(7)
If a Prosecution representative had attended the hearing on 16 January 2020, the Court would have been alerted (at the least of it) to that well-established practice in confiscation cases, and had that practice been followed the appeal would inevitably have been dismissed.
64.
We agree with the Prosecution that:
(1)
When a Defendant has a criminal lifestyle, there is a substantial public interest that any property held by them, and in relation to which the relevant assumption is not rebutted, is included in their benefit – as “crime should not pay”.
(2)
Given the well-established practice in confiscation appeals (to which we have just referred), and notwithstanding the service of a Respondent’s Notice, the principle of finality presupposes that in any such contested appeal both parties will have had the opportunity to make oral representations before any final determination.
65.
This is not a case in which the order of the Court had yet to be entered on the relevant record, nor is it suggested that the proceedings in this Court on 16 January 2020 were a nullity. Therefore (against the broad background outlined above) we turn to the question of whether the Prosecution have discharged the accepted burden on them to show that there is a real requirement to re-open the determination of the appeal. As the authorities (see [53] above) make clear, the same test must be applied regardless of whether an application to re-open is made by the Prosecution or the Defence.
66.
Against the background of the public interest to which we have referred in [64(1)], and given that, if the full picture had been known to the Court, the appeal would inevitably have been dismissed, we have no doubt that there is a necessity to avoid real injustice.
67.
Equally, we have no doubt there are also exceptional circumstances which make it appropriate to re-open the appeal, namely that:
(1)
There was a procedural error by the Registrar in that, contrary to Part 36.7(1) of the Criminal Procedure Rules, and in circumstances analogous to those in
R v Daniel
(above), the Prosecution were not informed of the hearing of the renewed application – whereas, if they had been informed, a representative would have attended, and the errors that followed would have been avoided.
(2)
There was a procedural error by the Court at the hearing on 16 January 2020 in that, in the erroneous belief that it was the norm in confiscation appeals, the Court proceeded to determine the appeal without adjourning to enable the Prosecution to attend – whereas the well-established practice in confiscation appeals (as opposed to other sentence appeals, save for those involving a fatality – see CPD IX Appeal 39A.7 and
Palmer
[2017] EWCA Crim 471
) is to invite the Prosecution to attend the final hearing and (save in exceptional circumstances – which did not arise in this case) the Prosecution will attend and make representations.
(3)
Whilst those procedural errors are not undisputed, the disputes raised are without merit, and the errors are clear.
(4)
The combination of the procedural errors led to the case being dealt with unjustly – contrary to the overriding objective.
(5)
If the Prosecution had been invited to attend the final hearing of the appeal they would have done so and would have made representations – in consequence of which the full picture would have been made known to the Court, and the appeal would inevitably have been dismissed.
68.
In addition, we have no doubt that no alternative remedy is available to the Prosecution – given that an application to the CCRC is not possible, and that it is not possible to make an application for a civil recovery order under Part 5 of POCA.
69.
However, that is not the end of the matter, as we must finally consider our residual discretion to decline to re-open the proceedings even where, as is the case here, the necessary conditions are satisfied.
70.
This case illustrates, all too clearly, why the well-established practice in confiscation appeals is to invite the Prosecution to attend the final hearing and why, save in exceptional circumstances, the Prosecution do attend and make submissions. Confiscation appeals are almost always complex and difficult both factually and legally, and typically involve consideration of the detail of what happened during the confiscation hearing. Thus, the well-established practice plays an important role in ensuring a just outcome on appeal. Hence, we regard it as being a golden rule.
71.
Against that background, we have taken into account, in particular, both the passage of time and the failure to comply with Part 39.6(6)(b) of the Criminal Procedure Rules in the “Prosecution Response to Grounds of Appeal”, along with the other reasons (including those attributable to the Appellant – see [63] above) why the Court was not aware of the full picture. In the result, and although we agree with the Appellant that the recital in the “Prosecution Response to Grounds of Appeal” did not obviate the need to comply with Part 39.6 (which clearly must be followed – see also CPD IX Appeal 39D.1), we have concluded that this is an appropriate case in which to exercise our discretion to re-open the appeal, to uphold the original confiscation order in the sum of £166,232.93, and to dismiss the appeal.
Conclusion
72.
For the reasons set out above, we re-open the appeal, uphold the original confiscation order in the sum of £166,232.93, and dismiss the appeal.
|
{"ConvCourtName":["Crown Court at Lincoln"],"ConvictPleaDate":["2016-11-16"],"ConvictOffence":["Production of cannabis","Abstracting electricity"],"AcquitOffence":["Possession of cannabis with intent to supply"],"ConfessPleadGuilty":["Yes"],"PleaPoint":["before Magistrates"],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Lincoln"],"Sentence":["Concurrent 12 month Community Orders"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Police search evidence","Physical evidence (cannabis, cash, equipment)"],"DefEvidTypeTrial":["Defendant testimony","Witness testimony (Stacey Ruck, Carl Boland)"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence (confiscation order)"],"AppealGround":["Judge wrongly characterised mortgage application as indicating beneficial interest and wrongly held that applicant acted fraudulently when declaring no previous convictions"],"SentGuideWhich":["Proceeds of Crime Act 2002"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["The property held assumption was not rebutted; the mortgage application contained material misrepresentations; the judge was entitled to include the value of the land as benefit; procedural errors at appeal hearing did not justify reduction of confiscation order; no alternative remedy available; public interest in upholding confiscation order"]}
|
Neutral Citation Number:
[2020] EWCA Crim 1529
Case No:
202002434 A1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18/11/2020
Before:
LADY JUSTICE THIRLWALL DBE
MR JUSTICE HOLGATE
and
MR JUSTICE BRYAN
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ATTORNEY GENERAL’S REFERENCE
UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Paul Jarvis
appeared on behalf of the Attorney General
Jas Mann
appeared on behalf of the Respondent
Hearing date: 12 November 2020
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
1.
John Gregson is 34. On 27
th
August 2020 at the Crown Court in Birmingham for an offence of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences against the Persons Act 1861 he was sentenced to a community order of 3 years duration with a rehabilitation activity requirement of 30 days and a 6 months alcohol treatment requirement. The victim surcharge was payable.
2.
The respondent had been convicted on 20 February 2020 after a trial before HHJ Henderson. The Attorney General applies to refer the sentence to this court under section 36 of the CJA 1988 on the grounds that it is unduly lenient. We give leave.
3.
We take our account of the facts from the reference save where the judge made specific findings. To the extent that they conflict with the reference we rely on the judge’s findings which he made to the requisite standard.
4.
The offence took place on 7 April 2019. The victim was Gaspar Tairo. The two men had been friends for years. They had spent the evening together and ended up drinking at the home of Gaspar Tairo with other people. One of the other people owed the respondent money and went home to get it. He did not return. The respondent became agitated. He was later to say that he had also lent Tairo £40 and became very angry when he realised that Tairo was using it to buy crack cocaine. The respondent became aggressive and started a fight with the victim. The two men exchanged blows. The respondent was shouting threats. At one point he picked up a bottle and brought it down onto the back of Tairo’s head causing a wound, which was the basis of the count on the indictment. The wound bled profusely.
5.
The noise of the altercation caused a neighbour to call the police. The respondent ran away before they arrived. He was arrested and interviewed on 6 July. He denied causing any injuries to the victim, saying he had run away after an argument about the crack cocaine, the victim having attacked him. He maintained his account at trial and was disbelieved.
6.
The victim sustained a 4cm laceration to the back of the head with an associated minor head injury. There were some superficial lacerations to the victim’s face and other minor soft tissue injuries.
7.
The judge found that a single blow with the intact bottle had caused the laceration and had caused the bottle to break. He specifically rejected the suggestion that the respondent had used the bottle after breaking it. He referred to the medical evidence which supported his analysis. He continued, “Although the pictures are not at all clear there’s nothing to suggest…that this was a glassing in any sense and it doesn’t seem to me that I could be sure there was more than one blow with the bottle and that being the one that broke it.”
8.
The respondent had 6 previous convictions, none relevant to this offence. The most recent offence was in 2016. 5 were for summary driving offences, including drink driving. He had no convictions for any form of violence.
9.
The respondent had been in stable employment for years. His employer had sent a supportive reference. There was before the court a presentence report and a psychiatric report which the judge had sought in the light of the respondent’s obvious problems with alcohol. During the course of the trial it had become clear that the defendant’s drinking had begun while he was a serving soldier and after he had seen active service in Afghanistan.
10.
According to the pre sentence report the respondent was born and brought up in Zambia and educated at boarding school. He came to this country at the age of 18 and joined the army. He was posted to Helmand province in Afghanistan and served in a fire fighting unit. During a period in 2007 his unit lost a lot of men. He did not sustain any major injuries but had struggled for years with the psychological effect of a grenade attack on his unit. Some of his fellow soldiers were shockingly injured. It is not necessary to set out the details of what the respondent experienced as he sought to assist his fellow soldiers. It is sufficient to record that we have read his harrowing account. He currently suffers from flashbacks disturbed sleep and nightmares and reexperienced those events.
11.
He began drinking to cope with his experiences. When back in the United Kingdom he was regularly drinking to excess. He had pleaded guilty on two occasions within three months of driving with excess alcohol. As a result he was discharged from the army.
12.
The probation officer identified that drinking was at the heart of the offence. He said that at that time he was drinking vodka and cider daily. At the time of the offence he had drunk about a bottle of vodka. He remembered the fight but did not remember hitting his friend over the head with a bottle. The respondent was remorseful, having accepted his guilt. He was empathetic towards the victim. The probation officer assessed him as at low risk of reoffending. The focus of the report to the court was the need for the respondent to deal with and overcome his drinking. Whilst acknowledging the likelihood of a custodial sentence the recommendation was for a long Community Order to give sufficient time to address the problems with requirements for unpaid work, an alcohol treatment requirement and a rehabilitation activity requirement.
13.
The psychiatrist also supported an Alcohol Treatment requirement. He diagnosed mental and behavioural disorders due to harmful use of alcohol (ICD 10 F10-1) and found the account of nightmares and flashbacks met the criteria for reaction to severe stress, unspecified. It was his view that alcohol was clouding any other potential underlying diagnosis.
14.
Mr Mann who appeared for the respondent at trial and before us began his mitigation with a reminder to the judge of the provisions of Section 125(1) of the Coroners and Justice Act of 2009 and submitted that it was not in the interests of justice to impose a sentence of imprisonment in accordance with the sentencing council guideline for an offence of wounding with intent contrary to section 18.
15.
In response to this submission the judge said he would think first about the guideline. Before turning to the detail he described the incident thus “As I say, my view is this is a drunken fight between two friends. One of them picks a bottle up and whacks the other one over the head with it and it causes a classic head cut that bleeds like mad but is in no sense any serious injury in terms of the range for a section 18.” He said that he could persuade himself that the case came within category 3 or the borderline of 2
and 3 and recognised that applying the guideline the shortest sentence of imprisonment would be more than 2 years and so could not be suspended (by reason of the suspended sentence guideline). 16.
He went on to say “looking at the defendant, a bit of trouble but no violence before. Although not a diagnosed PTSD plainly I’ve no reason to doubt what he says about the experiences he had serving his country and I’ve no reason to doubt the flashbacks and all the rest of it that he describes and that he chose, as so many people do, a completely inappropriate but understandable coping mechanism and he managed to control himself for many years having gone through that, having drunk too much for a long time.” He went on to comment that the effect of a 16 month delay from the events to sentence was that he was able to show that there had been no repeat of the behaviour, however worrying that extended wait had been.
17.
The judge said towards the end of mitigation that he was prepared to be persuaded by Mr Mann that “what’s in the PSR is probably in the particular circumstances of this case the proper way of dealing with it.” At that point, if not before, it was clear that the judge was going to step outside the sentencing guidelines.
18.
In his sentencing remarks the judge said “You are 34 years old. As we know from everything that we’ve read you served this country in the army for some time and …you were faced with at least one terrible event. I am not surprised to find that it has carried on affecting you, as it does with many people who go through these events not everyone does because it is a lottery whether it affects you or not, but it plainly has in your case. You chose to deal with it in a foolish way but understandably... not facing up to it trying to mask it by drinking too much.
19.
He repeated his assessment that this was a drunken fight, that the respondent had picked up the bottle and used it once only. He told the defendant that he would have been facing a sentence of several years for this offence “particularly not helped by the fact that you did not face up to it at the trial but in all the particular circumstances of this offence bearing in mind as well the long delay and the fact that you have not reoffended I am just persuaded that it is appropriate to make the order that I am asked to do.”
20.
He continued, “the effect is in real terms that this is a suspended sentence because if you break this order you will be brought back and any breach will come before me if I am available and I will send you to prison for a significant length of time”
The AG’s submissions
21.
A number of points made in the written reference were not developed in argument before us and there is no need to refer to them. Mr Jarvis put the case before us with characteristic focus and clarity.
22.
He first developed an argument to the effect that the judge must have had in mind a sentence of 4 or 5 years given the passage of the sentencing remarks to which we refer at paragraphs 18-20 above. He submitted that it was “difficult to unpick the sentencing remarks” to understand how he ended up with a community order. We disagree.
23.
Taking the sentencing hearing as a whole it is clear that the judge first gave consideration to the guideline (see paragraph 15 above). Having concluded that following the guideline would lead to a longer sentence than he could properly suspend he did not, as some may have done, seek artificially to reduce the sentence to 2 years so that he could suspend it. He recognised that he either followed the guideline or he did not. That was a principled approach.
24.
Mr Jarvis submitted that the judge did not explain why he was taking such an unusual course. He said that the judge did not engage with the interests of justice test in his sentencing remarks but he was careful to add that he was not saying that the judge had not applied the appropriate test – rather that he had not explained it. Whilst the judge did not say in terms that he considered it in the interests of justice to depart from the guideline, any fair and balanced reading of the sentencing hearing and the sentencing remarks which he addressed in somewhat conversational terms to the defendant, leads to the clear conclusion that he was departing from the guideline to achieve a just sentence in this case namely a Community Sentence.
25.
Mr Jarvis drew to our attention that there was no punitive element in the sentence which he submits renders it unlawful. We agree.
26.
By Section 177(2A) of the Criminal Justice Act 2003 ,where the court makes a community order, the court must - (a) include in the order at least one requirement imposed for the purpose of punishment, or (b) impose a fine for the offence in respect of which the community order is made, or (c) comply with both of paragraphs (a) and
(b).
27.
The court did none of these. By operation of subsection (2B), subsection (2A) does not apply where there are exceptional circumstances which (a) relate to the offence or to the offender, (b) would make it unjust in all the circumstances for the court to comply with subsection (2A)(a) in the particular case, and (c) would make it unjust in all the circumstances for the court to impose a fine for the offence concerned
28.
We do not consider that any of the exceptional circumstances in Section 177(2B) were satisfied in this case. It is unfortunate that these provisions were not drawn to the attention of the judge leading him to impose a sentence which was unlawful and, in the absence of punishment, unduly lenient.
29.
As we have already said the probation officer had recommended unpaid work, notwithstanding that the respondent was in full time employment and the respondent was prepared to undertake such work. He still is. The recommendation was appropriate. The reason the judge did not impose an unpaid work requirement is clear from the exchanges during the hearing namely that there was no possibility at that time of unpaid work being offered because of the effects of the Covid 19 pandemic. It was not pointed out to the judge (as it should have been) that there was no barrier to ordering unpaid work so that it could be carried out within 12 months of the making of the order, as and when such work became available. That course should have been taken here. Since August, increasing amounts of unpaid work have become available. We would expect that to continue, subject inevitably, to some interruptions as the Probation Service copes with the changing and difficult situation.
30.
But even had the judge imposed an unpaid work requirement the position of the Attorney General would have remained the same. Distilled to its essential component Mr Jarvis’ submission was that there was nothing about the offence or the defendant which the judge could properly have relied on in coming to a decision that it was not in the interests of justice to follow the guidelines in this case and impose a sentence of immediate imprisonment. We disagree.
31.
It was accepted by prosecuting counsel at trial and by Mr Jarvis that there was a connection between the respondent’s experiences in Afghanistan and the offence. The judge was clearly deeply affected by the respondent’s account of what had happened and placed significant emphasis upon the fact that the trauma the respondent experienced was in the service of our country. Military service even in the most difficult conditions does not lead automatically to lenient sentencing for crimes committed later in life. Much depends on the circumstances of the case. The judge had read a great deal about the respondent and had observed him throughout the trial. That, taken with the other features to which we have already referred led him to conclude that a lengthy prison sentence would be unjust.
32.
We were provided with an updated report from a different probation officer. The respondent has responded well to the community order, maintaining contacts and engaging in discussions with his probation officer. He is still working and has cut down his drinking. He is ready willing and able to engage with the Alcohol Treatment team and it is highly regrettable that he is still waiting for his first appointment three months after the order was made. We are told that this is to be escalated by Probation to the provider’s managers. It hardly needs to be said that delay in treatment of this sort is fraught with danger. We would expect this issue to be resolved swiftly. The probation officer suggests that an Alcohol Treatment order of 12 months duration would have a better prospect of success than the current 6 months order.
33.
It is very rare that following the sentencing guidelines will be contrary to the interests of justice. This very experienced judge had time before sentence to reflect and approached the sentencing exercise in a principled fashion. We are not persuaded that he was wrong to conclude that it would be contrary to the interests of justice to follow the sentencing guideline on the particular facts of the case before him. Nor, in the context of such facts, was he wrong to pass a Community Order, provided that it included the necessary punitive element.
34.
The sentence was unlawful by reason of the absence of a punitive element and was therefore unduly lenient and we quash it. We replace it with a three year Community Order starting from the date of sentence and a Rehabilitation Activity Requirement of 30 days from date of sentence. There will also be an unpaid work requirement of 200 hours and an alcohol treatment requirement of 12 months from today.
|
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|
No:
200604505/A4
Neutral Citation Number:
[2007] EWCA Crim 123
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Monday, 15th January 2007
B E F O R E:
LORD JUSTICE LONGMORE
MR JUSTICE TOULSON
THE RECORDER OF LONDON
(HIS HONOUR JUDGE BEAUMONT QC)
(Sitting as a Judge of the CACD)
- - - - - - -
R E G I N A
-v-
STEPHEN WATTY
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 I JAMES
appeared on behalf of the APPELLANT
J U D G M E N T
1.
MR JUSTICE TOULSON: On 11th July 2006 at Norwich Crown Court, the appellant was convicted of two counts of sexual assault on a child under 13, contrary to
section 7 of the Sexual Offences Act 2003
. On 11th August 2006 the trial judge, Her Honour Judge Plumpstead, passed a sentence of imprisonment for public protection and set a minimum term of 12 months' imprisonment less four days which the appellant had spent in custody. That minimum period represented half of what the judge considered would have been the appropriate determinate sentence had she not thought it appropriate to pass a sentence of imprisonment for public protection. She considered the appropriate term of sentence would have been 12 months' imprisonment consecutive on each count.
2.
He appeals against that sentence by leave of the Single Judge.
3.
His counsel, Mr James, submits that, firstly, that 2 years would have been manifestly excessive as a determinate sentence, and secondly, that it was wrong to pass a sentence of imprisonment for public protection.
4.
The two offences occurred when the victim was aged 10. She lived with her mother and her younger brother. The appellant formed a relationship with the victim's mother and moved in to live with the family in August 2005. The victim complained to her mother that he used to walk round the house naked and on occasions used the lavatory in the bathroom when the victim was in the bath. The victim's mother took these matters up with him but he dismissed them.
5.
The facts of the offences were that on two occasions he put his hands inside her clothing and squeezed her buttocks. The victim reported this conduct to her mother on 21st November 2005. She called the police. From that moment on there was no further contact between the appellant and family.
6.
The appellant is now aged 44. He has a bad criminal record, mainly for offences of dishonesty. He has twice appeared before the court for offences of violence to the person. The first occasion in 1980 and the other in 1991 but on both occasions he received non-custodial sentences. Between 2003 and 2005, he appeared before the courts on a number of occasions for offences of harassment towards an ex-partner, for which he received a variety of sentences including a sentence of 18 months' imprisonment. He also has convictions for offences of criminal damage.
7.
So he was a persistent offender but had no previous convictions for any form of sexual offence and his record of offences of violence to the person was at the lower end of the scale.
8.
In her sentencing remarks the judge accepted that in terms of their physical contact, the offences were at the lower end of the scale. She identified four aggravating features: first, that there were two offences; secondly, that they involved breach of trust; third, that he had failed to take the hint dropped by the victim's mother about the need to respect her physical integrity; and fourth, that the appellant failed to admit his wrongdoing, and therefore the child had to face the ordeal of giving evidence.
9.
The breach of trust was undoubtedly an aggravating feature. It is difficult, we think, to regard the fact that there were two offences of an isolated rather than specimen nature, and in physical terms at the lower end of the scale, as amounting to a significant aggravating feature. It was also in our view, with respect to the judge, wrong to regard his refusal to plead guilty as an aggravating feature.
10.
Having regard to the comparatively minor physical nature of the indecent assaults and the appellant's lack of previous convictions for any sexual offences, we consider that a determinate sentence of amounting to a total of 2 years' imprisonment would have been too high. We have been referred by Mr James to draft recommendations of the Sentencing Guidelines Council. We consider that the appropriate determinate sentence would have been one of 12 months' imprisonment on each count concurrent.
11.
Turning to the question whether it was appropriate to impose a sentence of imprisonment for public protection, the judge set out her reasoning process in some detail. She noted the following matters about the facts: (a) there was a serious breach of trust; (b) it happened on more than one occasion; (c) there was a denial of guilt which forced the victim into the ordeal of giving the evidence; (d) the appellant maintained that there was a conspiracy between the child and the mother (e) the appellant had a long criminal record, (f) he had repeatedly harassed ex-partners; and (g) the probation officer who prepared the pre-sentence report using two separate diagnostic tools had concluded that there was a high risk of reconviction and potentially high risk of harm to others. Because the judge clearly placed significant reliance on the pre-sentence report, it is appropriate to see just what that report said and the basis on which it said it.
12.
The pre-sentence report recorded that the appellant agreed that he had twice pinched the victim's bottom but that he denied there was any sexual motivation.
13.
The statistical tools used by the probation officer, which indicated a 60 per cent probability of reconviction for some offence in 2 years and a medium risk of re-offending of a violent or sexual nature, resulted from there being fed in to the analysis the following factors: (i) he had a lengthy list of previous convictions; (ii) he did not have secure accommodation; (iii) he did not have regular employment; (iv) he had a history of poor relationships and showed a lack of understanding of emotional feelings of others or of his own behaviour and its effect on others; (v) he had poor alcohol control; (vi) he had a poor emotional state and acknowledged a history of depression with suicidal feelings at the times.
14.
From those factors the probation officer concluded that he presented a high risk of re-offending and potentially high risk of harm to others but the report did not expand on the nature of the foreseen re-offending or its seriousness.
15.
In order to pass a sentence of imprisonment for public protection, the judge had to be satisfied that there was a significant risk of him causing serious harm by the commission of further offences. The judge accepted, as already noted, that in purely physical terms, the offences were at the lower end of the scale. Indeed she referred to them as being "the least physical interferences that can constitute a sexual offence". The judge continued:
"But I have to consider the question of whether there is a significant risk of serious psychological harm, and this, with a high risk of re-offending of this nature, and I agree that the assessment by the Probation Service is soundly based..."
She concluded:
"Now, it is my opinion that sexual touching of children under the age of 13, and particularly in this case a child of ten, has the potential for serious psychological harm. I think I can take that as accepted by the Court of Appeal in the decision in
Bowlers
, despite the dicta in
Iser
.
Having read the pre-Sentence Report, I am perfectly satisfied that at the present time you present to children, into households where you may gain entry by persuading yourself into the good books of their mother, there is a serious risk that you will again indecently assault, sexually assault, a child in the circumstances."
The judge went on to say that she was strengthened in her view by looking at the guidelines given by this Court in the case of
R v Lang
[2005] EWCA Crim 2864
. We have difficulty with the judge's reasoning. First, the pre-sentence report had not suggested that there was a high risk of reoffending of this nature. It had merely suggested that there was a high risk of some form of reconviction, based on his past record, which did not include sexual offences.
16.
The judge, who has great experience in the knowledge of child abuse cases from her work as a family judge, drew on that experience in saying that she was well aware that sexual touching of a child of 10 has the potential for causing serious psychological harm.
17.
The test, however, was whether there was, firstly, evidence to conclude that there was a significant risk of him committing further offences of the kind which might give rise to psychological damage and secondly, that there was a significant risk of him causing serious harm by so doing.
18.
We do not consider that there was sufficient evidential basis for reaching either of those conclusions. Furthermore, we do not see that the conclusion which she reached was strengthened by the guidelines laid down by this Court in
Lang
. Rather, the reverse. In that case the Court presided over by Rose LJ, considered 13 cases of violence and sexual offences, in 12 of which the court had imposed either life imprisonment or a sentence of imprisonment for public protection or an extended sentence. He said in paragraph 17:
"
In our judgment, the following factors should be borne in mind when a sentencer is assessing significant risk:
(i) The risk identified must be significant. This is a higher threshold than mere possibility of occurrence and in our view can be taken to mean (as in the Oxford Dictionary) 'noteworthy, of considerable amount or importance.'
(ii) In assessing the risk of further offences being committed, the sentencer should take into account the nature and circumstances of the current offence; the offender's history of offending including not just the kind of offence but its circumstances and the sentence passed, details of which the prosecution must have available, and, whether the offending demonstrates any pattern; social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse; and the offender's thinking, attitude towards offending and supervision and emotional state. Information in relation to these matters will most readily, though not exclusively, come from antecedents and pre-sentence probation and medical reports. The Guide for sentence for public protection issued in June 2005 for the National Probation Service affords valuable guidance for probation officers. The guidance in relation to assessment of dangerousness in paragraph 5 is compatible with the terms of this judgment. The sentencer will be guided, but not bound by, the assessment of risk in such reports. A sentencer who contemplates differing from the assessment in such a report should give both counsel the opportunity of addressing the point.
(iii) If the foreseen specified offence is serious, there will clearly be some cases, though not by any means all, in which there may be a significant risk of serious harm. For example, robbery is a serious offence. But it can be committed in a wide variety of ways many of which do not give rise to a significant risk of serious harm. Sentencers must therefore guard against assuming there is a significant risk of serious harm merely because the foreseen specified offence is serious. A pre-sentence report should usually be obtained before any sentence is passed which is based on significant risk of serious harm. In a small number of cases, where the circumstances of the current offence or the history of the offender suggest mental abnormality on his part, a medical report may be necessary before risk can properly be assessed.
(iv) If the foreseen specified offence is not serious, there will be comparatively few cases in which a risk of serious harm will properly be regarded as significant. The huge variety of offences in Schedule 15, includes many which, in themselves, are not suggestive of serious harm. Repetitive violent or sexual offending at a relatively low level without serious harm does not of itself give rise to a significant risk of serious harm in the future. There may, in such cases, be some risk of future victims being more adversely affected than past victims but this, of itself, does not give rise to significant risk of serious harm.
(vii) In relation to a particularly young offender, an indeterminate sentence may be inappropriate even where a serious offence has been committed and there is a significant risk of serious harm from further offences (see for example, R v D
[2005] EWCA Crim 2282
).
(viii) It cannot have been Parliament's intention, in a statute dealing with the liberty of the subject, to require the imposition of indeterminate sentences for the commission of relatively minor offences. On the contrary, Parliament's repeatedly expressed intention is to protect the public from serious harm."
19.
As to the first issue, whether there was a significant risk of repeated offending of the kind in question, we have already noted that although the probation officer thought there was a significant risk of some further offending, there is no suggestion that there was significant risk of this particular type of offending. The relationship with the family had terminated. As already noted, the appellant admitted the physical acts but said they had been innocuous. He now knows that this is firmly not society's view and he is rightly being punished for his behaviour. But since his past history does not suggest a pattern of behaviour of this kind, since the offences were of their kind at the least grave end of the scale, and since the relationship has come to an end, while there may be a possibility of him committing a similar offence. We are not satisfied that it passed the higher threshold required for it to be regarded as a significant risk.
As to whether there was a significant risk of serious harm, again we accept there was a possibility that a child might suffer serious psychological damage from a repetition of such behaviour, but we remind ourselves of the guidance of this Court, that repetitive sexual offending with a relatively low or without serious harm does not of itself give a significant risk of serious harm in the future. We are not satisfied that there was the material on which the judge could, with respect, have justifiably concluded that there was a significant risk of future serious harm.
More generally, we remind ourselves that Parliament cannot have intended a sentence of imprisonment for public protection for offences of a relevant minor nature which would at most result in only a short term of imprisonment. If we are right in the view that the appropriate determinate sentence in this case would be one of 12 months' imprisonment, it would follow that the minimum period which should have been specified as part of a sentence of imprisonment for public protection would have been 6 months.
The regime of imprisonment for public protection is not geared to passing such a sentence with a specified period of such short duration.
For those reasons this appeal is allowed and for the sentence passed by the judge, we will substitute a sentence of 12 months' imprisonment concurrent on each count.
|
{"ConvCourtName":["Norwich Crown Court"],"ConvictPleaDate":["2006-07-11"],"ConvictOffence":["Sexual assault on a child under 13 (2 counts), contrary to section 7 of the Sexual Offences Act 2003"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[4],"SentCourtName":["Norwich Crown Court"],"Sentence":["Imprisonment for public protection with a minimum term of 12 months less 4 days (original); substituted on appeal with 12 months' imprisonment concurrent on each count"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[44],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[10],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["High risk of harm","High risk of reoffending","Medium risk of reoffending"],"AggFactSent":["two offences","breach of trust","failed to take the hint about respecting physical integrity","failure to admit wrongdoing (victim had to give evidence)"],"MitFactSent":["offences at lower end of scale","no previous convictions for sexual offences","record of violence at lower end of scale"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["2 years would have been manifestly excessive as a determinate sentence","wrong to pass a sentence of imprisonment for public protection"],"SentGuideWhich":["section 7 of the Sexual Offences Act 2003","Sentencing Guidelines Council (draft recommendations)","R v Lang [2005] EWCA Crim 2864"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["offences at lower end of scale","no previous convictions for sexual offences","no significant risk of further sexual offending","minimum period for imprisonment for public protection inappropriate for short sentence"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
|
Neutral Citation Number:
[2022] EWCA Crim 456
Case No:
202100314B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM
Mr Justice Jeremy Baker
T20177126
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
06/04/2022
Before :
President of the Queen’s Bench Division
Mrs Justice Cutts
and
Sir Nigel Davis
- - - - - - - - - - - - - - - - - - - - -
Between :
Ian Paterson
Applicant
- and -
Regina
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Joel Bennathan QC
(instructed by
Hadgkiss, Hughes and Beale
) for the
Applicant
Hearing date: 23
rd
November 2021
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Dame Victoria Sharp P. :
1.
The applicant, Ian Paterson, was a consultant general surgeon specialising in breast surgery.
2.
On 28 April 2017, at the Crown Court at Nottingham the applicant was convicted after an eight-week trial before Jeremy Baker J and a jury, of 17 counts of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861, and 3 counts of inflicting grievous bodily harm contrary to section 20 of that Act. On 31 May 2017, he was sentenced to a total of 15 years’ imprisonment (15 years’ imprisonment on each of the section 18 offences, and 4 years’ imprisonment on each of the section 20 offences, the sentences to run concurrently). On 3 Aug 2017, the sentences were quashed following a reference by the Attorney General under section 36 of the Criminal Justice Act 1988, and increased to one of 20 years’ imprisonment on each count, concurrent (see
R v Paterson
[2017] EWCA Crim 1625 (Hallett LJ, VPCACD, Carr and Goss JJ)). The applicant now applies for an extension of time of 3 years and 9 months in which to apply for leave to appeal against conviction.
3.
We refused leave at the conclusion of the hearing before us. These are our reasons.
Background
4.
The applicant qualified as a doctor in 1981, and became a consultant in 1994. Between 1997 and 2011, during the years with which this case is concerned, he worked as a consultant at the Heart of England NHS Foundation Trust in Birmingham, and at two private Spire Healthcare hospitals in the Birmingham area, specialising in the diagnosis and treatment of breast conditions. He was regarded as the ‘go to’ specialist by many local general practitioners for patients they regarded as at risk of breast cancer, or who might have breast cancer.
5.
In 2011, after concerns were raised, the applicant was suspended first from the NHS and then from the private hospitals. He was interviewed under caution on 8 January 2013. In a prepared statement he said that all the surgical procedures that he had undertaken were appropriate and necessary and he denied any allegations to the contrary. This was the stance he maintained at trial, including in evidence given in his own defence.
6.
The prosecution case at trial however was that over a period of some 14 years, in respect of 10 patients, 9 women and one man, the applicant had deliberately misrepresented the contents of medical reports, exaggerated the complainants’ risk of cancer, and advised and knowingly carried out unnecessary surgery including mastectomies. Further, that believing they had a potentially fatal illness, the complainants agreed to invasive procedures and then suffered from the physical pain, discomfort of surgery, and the subsequent physical and mental suffering that it had caused. The 20 counts related to individual operations which the applicant told the patients were necessary, usually, but not always on the basis they had or were at risk of developing breast cancer and all of which operations the prosecution alleged, were in fact, as the applicant knew, completely unnecessary.
7.
In opening the case to the jury, the prosecution said that in medicine, as in many different professional fields, differences in opinion may arise between professional people as to what the best course of action is in a particular situation, and knowledge and accepted practices can change over time. But none of that could explain or excuse what was seen in this case. Remarkably, and tragically, the prosecution said, these were operations which no reasonable surgeon at the time would have considered justified. Nor were they dealing with simple mistakes or incompetence. The jury could safely conclude that the applicant
knew
that these operations were unjustified, from the fact that he frequently misrepresented the results of various tests carried out.
8.
The prosecution case was that a sufficiently consistent picture emerged for any realistic possibility that this was incompetence, or genuine difference of professional opinion, or innocent misrepresentation of the findings of reports to be rejected. Shocking though it may seem, so the prosecution said, the applicant was lying to patients and to their GPs, and in some instances to a colleague as well, about the patients’ condition, exaggerating or quite simply inventing risks of cancer in order to justify carrying out serious operations which were quite unnecessary. As a result, the patients and their families lived for many years with the belief that they could be very ill, and underwent extensive, life changing operations for no medically justifiable reason. Amongst the similarities in the evidence supporting the various counts, relied on by the prosecution were the fact that the applicant explained their risk of developing cancer in a way which involved a greater degree of risk than was justified by the radiology and histology reports; evidence from the patients that the applicant failed to advise them about alternative medical treatment apart from the surgical procedures that he carried out; evidence from letters the applicant wrote to the patients’ GPs which did not accurately reflect the radiology and histology reports and which described their risk of developing cancer as greater than was justified by those reports; and the absence of the patients’ names from the agendas of MDT meetings at which the applicant claimed their diagnosis and treatment had been discussed.
9.
The prosecution called the complainants who gave evidence of their various conversations with the applicant, the advice he had given them and their decisions to undergo surgery based on that advice; as well as from their family members who had accompanied them to these various consultations. Amongst the other evidence relied on were documentary evidence, medical records, notes etc, reports obtained into the complainants’ condition, and correspondence between the applicant and the complainants’ GPs. The prosecution further called evidence from 3 experts, each of whom were or had been consultants and experts in breast surgery; from one expert breast pathologist and from two employees at the hospitals at which the applicant had worked.
10.
At trial, the applicant was represented by Mr Nicholas Johnson QC and Mr Alaric Walmsley (both of whom also represented him at the hearing of the AG’s reference). The applicant did not rely on any expert evidence. In his own evidence, the applicant said, in summary, that each of the patients had consented to the surgery, after receiving appropriate medical advice or advice which he honestly believed was appropriate medical advice. Amongst other things the applicant said that some of the differences between what he had said to GPs in letters to them and the reports available, could have been an error on his part, or because he had spoken to other professionals or conducted his own examination of ultrasound images. In certain critical respects he further challenged the complainants’ accounts of what they had been told, alleging in relation to one of them (Dr Rosemary Platt), that she had lied, or in relation to others, that they had been coached as to what to say.
11.
Mr Bennathan QC, fresh counsel instructed on behalf of the applicant, made it clear in the course of his submissions, that it was no part of this renewed application to challenge the conviction by reference to the underlying facts. We are bound to say however, that is clear from the judge’s careful and fair presentation of the evidence that the case for the prosecution, as outlined above, was a strong one.
12.
A summary of the factual case in relation to each complainant was set out in the judgment of the Court on the Attorney General’s reference in
R v Paterson
. It is convenient to repeat it here.
13.
In 1997 Dr Rosemary Platt was referred to the applicant for a lump on her right breast. The initial biopsy was unclear as to the presence of lobular carcinoma in situ (LCIS), that is abnormal cell growth, which is an indication of increased risk of cancer. A second opinion was sought. The applicant failed to tell Dr Platt about the outstanding second opinion. He falsely described the lump as malignant. On his advice Dr Platt underwent a wide local excision, an axillary node clearance on 5th August 1997 (Count 1, an offence under section 18). Despite the fact that neither the second opinion nor post-operative analysis confirmed the presence of LCIS the applicant told Dr Platt that it was present. Further surgical biopsies were carried out in May 2000 and May 2001. None of the histology revealed evidence of malignancy, yet the applicant advised a mastectomy. This was carried out on 25th June 2002 (Count 2, an offence contrary to section 18). Subsequently the applicant advised Dr Platt she may have a similar condition in her left breast. He recommended a four-quadrant biopsy which was carried out in October 2001 (Count 3, section 20). Thereafter Dr Platt remained under the applicant's regular supervision for the next 8 years, continuing to believe that she had cancer in her right breast and fearful of it occurring in her left breast.
14.
Carole Johnson was referred to the applicant in 1998. By 2002 she had undergone a serious of radiological tests, none of which revealed anything suspicious. Despite this the applicant falsely described Mrs Johnson's condition as "dangerous and difficult". He recommended removing a lump and an excision biopsy was carried out on her right breast in April 2002 (Count 9, section 20). Further unnecessary operations were carried out in 2004 and 2005. Mrs Johnson's insurers queried the need for the continuing treatment. In response the applicant falsely stated that the latest histology had shown there to be pre-malignant potential in Mrs Johnson's breast. Notwithstanding the applicant's claim the insurers refused to fund further treatment. Such was Mrs Johnson's trust in the applicant that she and her husband decided to pay for the treatment themselves. In 2006 the applicant falsely stated that radiology tests had disclosed a suspicious growth and a wide local excision was carried out in July (Count 10, section 18). A further unnecessary excision biopsy was carried out in 2007.
15.
John Ingram was referred to the applicant in 2006 in relation to a lump under his right nipple. Tests revealed he had a common benign condition that did not require surgery. The applicant did not reveal the true diagnosis. He falsely stated that Mr Ingram had pre-cancer and needed to have the lump removed. Mr Ingram followed the applicant's advice notwithstanding he suffered from a phobia of undergoing a general anaesthetic. On the day scheduled for the operation he had a panic attack and could not go through with the surgery, but a further date was arranged in May 2006 when he underwent a breast excision (Count 11, section 18). Following that operation a second opinion was sought. Before it was obtained the applicant told Mr Ingram that unless he had a bilateral mastectomy it was inevitable that he would develop cancer. This operation was carried out in June 2006 (Count 12, section 18). The second opinion subsequently revealed the operation was unnecessary. The surgery left Mr Ingram with pain in his chest which required further treatment and remains unresolved.
16.
Leanne Joseph had a consultation with the applicant in 2006 after she experienced discharge from her left nipple. An ultrasound scan was carried out which disclosed that the breast appeared normal. Despite this the applicant told Mrs Joseph she had pre-cancerous cells in her milk ducts and needed to have them removed. He offered to carry out the operation the following week. Mrs Joseph was devastated but she trusted the applicant and agreed to the surgery. She took out a loan to pay for the procedure, which was carried out on 23rd October 2006 (Count 13, section 18). In the post operative follow up the applicant falsely told Mrs Joseph it would be necessary for her to undergo the same procedure on her right breast. This was carried out in December 2006 (Count 14, section 18). The second operation caused Mrs Joseph to suffer a significant amount of pain and further surgery was required to excise scar tissue. In 2007 Mrs Joseph became pregnant. On the suggestion of a midwife she consulted the applicant as to whether she would be able to breastfeed. The applicant displayed annoyance that his authority was being questioned by a midwife and confirmed that Mrs Joseph would not be able to breastfeed. When a subsequent scan showed that in fact many of the ducts on her breasts were still connected he hid this fact from Mrs Joseph and recommended that she took medication to prevent milk production. She found her inability to breastfeed particularly distressing.
17.
Frances Perks was under the applicant's care between 1994 and 2008. When he first saw her the applicant told Mrs Perks that because of her family history she was at risk of developing cancer and she would require review on a regular basis. In fact Mrs Perks' risk of developing cancer was no higher than normal. Following unnecessary biopsies on the left breast in 2003 and 2007 the applicant falsely stated that Mrs Perks was likely to require a mastectomy. A biopsy on a further lump in 2008 revealed it was benign. However the applicant stated that some ductal atypia had been discovered and went on to carry out an unnecessary biopsy in July 2008 (Count 15, section 20). The applicant sought to persuade Mrs Perks and her insurers that mastectomies of the left and right breast were required. In the event the applicant carried out multiple core biopsies on the right breast in October 2008, notwithstanding the fact that until that time she had experienced no problems with her right breast (Count 16, section 18). On 15th November 2008 the applicant carried out an unnecessary left breast mastectomy followed by reconstructive surgery (Count 17, section 18).
18.
Joanne Lowson was referred to the applicant in 2009 in relation to a lump on her left breast. Initial tests showed nothing suspicious. The applicant falsely stated that unstable abnormal cells had been found and that it could not be guaranteed they would remain non-cancerous. The applicant said that the only way to deal with the situation was through surgery and an operation to excise the lump was carried out in April 2009 (Count 18, section 18). In 2010 Mrs Lowson discovered a new lump on her left breast. Initial tests again revealed there were no suspicious features. The applicant again falsely stated that the tests were suspicious and recommended removal. A second excision procedure was carried on 8th September 2010 (Count 19, section 18).
19.
Rachel Butler was referred to the applicant in 2005 in relation to a lump on her left breast. The applicant said that although he was not worried about the lump he was concerned about discharge from the nipple. He advised that she needed surgery straightaway. Pre-operative radiology revealed nothing of concern, but Mrs Butler accepted the applicant's advice and he excised part of her left breast. She returned for a consultation in 2011. Further tests were carried out in relation to discharge from the left breast and revealed no abnormality. Instead of telling Mrs Butler the true position the applicant told her she was at high risk of developing cancer and needed surgery immediately. Mrs Butler again accepted his advice and in January 2011 the applicant carried out a procedure (Count 20, section 18). Following this operation Mrs Butler was ill for a long time.
The Grounds of Appeal
20.
The judge’s directions of law were discussed and agreed in advance with counsel for the crown and for the defence. The first objection to them was raised in the Grounds of Appeal settled by Mr Bennathan, and lodged, as we have said, some 3 years and 9 months after the applicant’s conviction. Those grounds take issue with the agreed directions given on consent and mens rea. In those directions, the judge said in summary, that before the jury could convict the applicant on each count they had to be sure:
i)
That the patient’s consent was based upon advice which no responsible body of duly qualified and experienced breast surgeons would have given to the patient;
ii)
That the applicant knew that that no responsible body of duly qualified and experienced breast surgeons would have given that advice to the patient;
iii)
That at the time he carried out the surgical operation he intended to cause the patient grievous bodily harm.
21.
The new argument advanced for the applicant is that the judge’s directions on the issues of consent and mens rea were wrong in law. There is an established legal exemption that protects a qualified doctor carrying out a recognised medical treatment with the patient’s consent, from the laws of assault, and that consent is only vitiated by fraud in respect of certain fundamental details, namely the identity of the doctor or as to the nature and purpose of the act. Since none of the complainants was deceived as to the applicant’s identity (as a doctor) or as to the nature of the surgery to be carried out, the failure to inform them that other doctors would have taken a different view of their condition or treatment, or the (lack of) reasonableness of their treatment, did not vitiate their consent. The judge’s directions engaged with consent, but directed the jury to have regard to reasonableness in a legal test that was more akin to that for an action in negligence than that for a criminal offence under either ss18 or 20 of the Offences Against the Persons Act 1861.
Discussion
22.
We address first the application for the extension of time. We have carefully examined the reasons given for the delay, and have concluded they are wholly inadequate, both as to substance and in their particulars. We are not satisfied therefore that they justify the lengthy extension of time that is sought, nor do we consider that injustice would be caused by the refusal of an extension.
23.
The application for an extension of time was supported by the witness statement of Maslen Merchant, a partner of the solicitors’ firm now acting for the applicant. The witness statement provided only a sketchy account of events between the date of conviction and the date when the Grounds and application for an extension were lodged. The bald chronology however which emerges from Mr Merchant’s statement is as follows. The applicant was convicted in April 2017. He instructed fresh solicitors in November 2018. Though the question of an appeal was then discussed, his fresh solicitors were not instructed to concentrate on that issue until November 2019. The Grounds of Appeal and request for extension were not then lodged until the end of January 2021.
24.
A number of things should be noted. First, the delay of 19 months (after conviction, and before the applicant contacted his fresh solicitors) is unexplained. Secondly, the further delay of 12 months that ensued before the applicant’s fresh solicitors “concentrated on the issue of an appeal” was deliberate, as the applicant, so we are told, chose to focus his attention during that period on his submission to a public inquiry arising out of his conviction. Thirdly, there was then a further 14-month delay before the Grounds of Appeal were lodged. Fourthly, it was only during this latter period in 2020 (no specific dates are given) that a transcript of the judge’s summing-up was obtained, and fresh counsel instructed. Fifthly, no blame for any part of the delay can be laid at the door of the applicant’s former solicitors or the Crown Prosecution Service who were, according to Mr Merchant, extremely helpful and cooperative nor is it suggested there were any difficulties faced by fresh counsel as can sometimes happen after a complex trial - because of the need for example to examine extensive documentation or to obtain fresh evidence or to examine the underlying facts in detail. Sixthly, whilst reference is made to the pandemic and some of the logistical difficulties it caused, self evidently these had no bearing on what happened prior to March 2020, and in our judgment do not excuse more than a minimal amount of the substantial delay that occurred thereafter. Seventhly, brief reference was made by Mr Bennathan in his written argument to some mental health difficulties the applicant may have had, but these matters are not referred to in Mr Marchant’s witness statement, and are not therefore grounded in any evidence put before the court. We were told by Mr Bennathan that an application was made that the applicant was unfit to stand trial. That application was however obviously rejected, and whatever the basis for it, it formed no part of the application for leave to appeal or for an extension of time before us.
25.
The statutory framework for appeals to the Court of Appeal, Criminal Division is contained in the Criminal Appeal Act 1968. Section 18 (1) of the Criminal Appeal Act 1968 provides that a person who wishes to appeal to the Court of Appeal, Criminal Division or to obtain leave to appeal against conviction should give notice of appeal or notice of application for leave to appeal. Notice and grounds of appeal should be lodged within 28 days from the date of conviction, sentence, verdict, finding or decision that is being appealed: see section 18(2) of the Criminal Appeal Act 1968 and Crim PR 39.2(1)). Section 18(3) provides that the time for giving notice under this section may be extended, either before or after it expires, by the Court of Appeal. Further, an extension of time application should be made at the time of service of the notice and grounds of appeal, and give the reasons for the application: see Crim PR 36.4 and 39.3(1)(e)(ii).
26.
The court is asked to exercise its power under section 18(3) to grant an extension of time in many different circumstances and n
either the Criminal Appeal Act 1968 nor the Criminal Procedure Rules limit the discretion of the court on the issue whether an extension of time should be granted: see
R v Thorsby and ors
[2015] EWCS Crim 1, 1 Cr App R(S) 63 (Pitchford LJ, Popplewell and Edis JJ)
27.
It is not the case however that an arguable case on the merits is simply a trump card without more. If that were to be the position, the legislative scheme, providing as it does for time limits for appeals with a discretionary power to extend, would be rendered nugatory. So would the requirement in the Rules for the applicant to give reasons for the delay in applying.
28.
In
Thorsby
the defendants appealed the failure to give them credit, under section 240A of the Criminal Justice Act 2003, for half of the time they had spent on a qualifying curfew. Their appeals were out of time, but the responsibility for this lay with the court and the legal representatives, not the defendants. At paras 13 to 15, Pitchford LJ addressed the general approach that is taken to extensions of time. Having said, as already mentioned, that neither the Criminal Appeal Act 1968 nor the Criminal Procedure Rules limit the discretion of the Court on the issue whether an extension of time should be granted, Pitchford LJ said that the principled approach to extensions of time is that the court will grant an extension if it is in the interests of justice to do so. There are, however, several components that contribute to the interests of justice. The court will have in mind finality, the interests of the parties, the efficient use of resources and good administration. The public interest also critically embraces the justice of the case and the liberty of the individual. Where there is no good reason why the time limits were not complied with, the court is unlikely to grant an extension unless injustice would be caused in consequence. The merits of the underlying grounds will be examined. The judgment is judicial and not merely administrative. The court will be more likely closely to examine the merits of an out of time appeal when it is argued that some principle of law or legal requirement has been ignored or overlooked.
29.
For cases involving a failure to provide a defendant with a statutory entitlement, as Pitchford LJ made clear at para 29, applicants would be expected to demonstrate - with particularity - when and in what circumstances they became aware of the entitlement for the first time; that no further delay had occurred after then; and if there had been delay by the applicant himself, the court would be likely to refuse the extension of time.
30.
In coming to the view that the application for an extension should be refused, we have in mind that were the application to be successful, one potential outcome could be a retrial, some 5 or more years after the conclusion of the original trial, and many years after the events in question. In that context, we reiterate the point made in
Thorsby
, that the interests of justice include a number of components, including finality, the interests of the parties (including here, those of the complainants as well as those of the applicant) and the public interest in the efficient use of resources and good administration. We note that the applicant had access to expert advice and assistance from leading and junior counsel at trial. He had access to fresh legal representatives when he chose to instruct them at a later stage. He made a conscious decision not to pursue an appeal. The points now made on his behalf did not involve any lengthy investigation or difficulty. The appeal grounds when they were eventually produced turned on a legal issue arising from a short passage in the directions of law given by the judge in the summing up, which was itself conspicuously thorough and fair. Further, the account given to the court in support of the extension application lacked particularity and left much unexplained. This was the position even though it is well settled that the court requires details of the delay in lodging grounds of appeal and the reasons for it; and where it is clear that the longer the delay, the more convincing and weighty the explanation for any delay will need to be.
31.
The underlying merits of the application do not persuade us to take a different view.
32.
Extensive submissions were made in writing by reference to cases in which the issue of the effect of consent on criminal liability for certain types of offences, including assault, has been considered. The cases to which we were referred included
R v Brown
[1994] 1 A.C. 212,
R v Richardson (Diane)
[1998] 2 Cr. App. R. 200,
R v Naveed Tassum
[2000] 2 Cr. App. R. 328,
R v Dica
[2004] 2 Cr. App. R. 467,
R. v B
[2006] EWCA Crim 2945,
R v M(B)
[2018] EWCA Crim 560 and
R v Lawrance
[2020] EWCA Crim 971. A full discussion of those authorities and the principles to be derived from them must await a case other than this one, and which is dealt with by way of an appeal. In brief however, Mr Bennathan suggested, by reference to at least some of these cases, that because the act causing serious harm to each complainant was a medical procedure to which each complainant consented and the applicant was a registered doctor, there has been no assault. However, none of the cases cited to us have determined that in circumstances such as those of this case (i.e. where the patients were not told the true facts about their “medical condition”, where the medical procedure was not for a proper medical purpose – and thus not a proper medical treatment - and where the doctor concerned knew this) that the “medical exemption” applies, and a doctor can act with impunity from the criminal law.
33.
We would add that in any event, in a number of respects, the arguments presented seem to us to be somewhat hypothetical and detached from the real issues the jury had to resolve. As can be seen from the nature of the prosecution case to which we have already referred, this case was not, as was suggested in argument, akin to a trial of clinical negligence wrongly transplanted into the criminal forum, and did not turn on the issue of the reasonableness of the treatment provided. The case for the prosecution, as it was opened and ultimately summed up, was not that the applicant’s treatment was unreasonable such that this vitiated his patients’ apparent consent. The essence of the case against the applicant, and what the jury had to be sure of before they could convict, was that no responsible body of qualified breast surgeons would have advised those patients to have the treatment he advised them to have (advice they clearly relied on in consenting to that treatment); and the applicant
knew
this. Thus in substance, the patients were deceived about the true position by the applicant, who dishonestly and for an improper collateral purpose misrepresented the position to them, thus vitiating their purported consent to the procedures he then carried out. On the unusual facts of this case, we are not persuaded that the directions given by the judge were arguably contrary to authority, or otherwise erroneous.
34.
For these reasons, and in agreement with the single judge, the applications for an extension of time and for leave to appeal against conviction were refused.
|
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|
[2019] EWCA Crim 158
2
2019/02425/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 20 September 2019
B e f o r e:
LADY JUSTICE NICOLA DAVIES DBE
MR JUSTICE LAVENDER
and
MR JUSTICE NICKLIN
____________________
R E G I N A
- v -
IRFAN MOHAMMED
____________________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
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__________________________
Mr G Bermingham
appeared on behalf of the Appellant
______________________
J U D G M E N T
(
Approved
)
______________________
Friday 20 September 2019
LADY JUSTICE NICOLA DAVIES:
1.
On 17 June 2019, in the Crown Court at Worcester, the appellant pleaded guilty and was sentenced in respect of the following offences:
•
Count 1: aggravated vehicle taking, 22 months’ imprisonment;
•
Count 2: dangerous driving, 22 months’ imprisonment, to run concurrently;
•
Count 3: possession of a Class B controlled drug, one month’s imprisonment, to run concurrently; and
•
Driving without insurance, no separate penalty was imposed, other than his licence was endorsed.
The total sentence was, therefore, 22 month’s imprisonment. He was disqualified from driving for a period of five years and eleven months.
2.
The appellant now appeals against sentence by leave of the single judge.
The facts
3.
On 17 May 2019, a van which had been parked in the car park of a hotel in Birmingham was found to have been stolen. It was subsequently detected by police officers as it exited a junction of the M5 in the Droitwich area. The occupant of the vehicle was the appellant. Police officers pulled alongside the vehicle when it had stopped. An officer approached the vehicle on foot. However, the appellant manoeuvred the van over a central reservation and drove off on the opposite carriageway. Police vehicles followed utilising their sirens. The appellant stopped the van and deliberately reversed into the police vehicles, causing damage and injury to one of the officers. The police attempted to block the van, but the appellant drove the van onto a kerb and directly at a police officer who, fortunately, managed to dodge it. Police continued to follow the van which maintained its dangerous course, during which it rammed police vehicles on more than one occasion, causing injuries to officers and damage to their vehicles. The van was eventually hit by a police vehicle, causing it to move on to an embankment. When the vehicle came to a halt, the appellant exited it and ran into some woods in order to escape from the police. He was apprehended and taken into custody.
4.
During the course of the chase police officers sustained injuries which included whiplash, soft muscle injury, stiffness to the neck and upper back, and a hand injury. Considerable damage was caused to the police vehicles, the value of which exceeded £70,000. When the appellant was searched by the police, two bags of cannabis were seized.
5.
At the sentencing hearing the appellant was aged 30 years. He had one conviction for an unrelated offence, for which he was sentenced to a community order in April 2016.
6.
In sentencing, the judge stated how seriously he regarded the driving of the appellant. He took as the starting point the maximum sentence in respect of counts 1 and 2, namely, two years’ imprisonment. The judge stated that the sentences should be concurrent. The only reduction given was that of credit for the guilty pleas. The appellant had pleaded guilty to 2
the offences as the plea and directions hearing. However, the judge limited the degree of credit for the pleas because he was of the opinion that, as the appellant was under the scrutiny of the police and on camera, he had no choice but to plead guilty. The credit he allowed was in the order of eight to ten per cent.
7.
There is one ground of appeal. It is that the judge failed to give the appropriate discount or credit of 25 per cent for the guilty pleas.
8.
We accept the submission made on the appellant’s behalf that, given the stage at which the pleas of guilty were entered, the appropriate credit which should have been given following the guidance issued by the Sentencing Council was 25 per cent. The guideline specifically states that “the benefits apply regardless of the strength of the evidence against an offender. The strength of the evidence should not be taken into account when determining the level of reduction”.
9.
In our judgment, the judge erred in reducing the appropriate figure for credit to reflect the strength of the evidence. Accordingly, the total sentence of 22 months’ imprisonment is quashed and substituted for it is a sentence of 18 months’ imprisonment.
10.
As to the period of disqualification imposed, the guidance set out in
R v Needham and Others
[2016] EWCA Crim 455
is to be followed. Given the reduction in the sentence, the extension period of eleven months is to be reduced to a period of nine months. Thus, the disqualification is for a total period of five years and nine months, comprising a discretionary disqualification of five years and an extension period of nine months.
11.
Finally, pursuant to
section 36 of the Road Traffic Offenders Act 1988
, following a conviction for dangerous driving an extended re-test is to be ordered by the sentencing court. The judge did not make such an order. By reason of the provisions of
section 11(3) of the Criminal Appeal Act 1968
, this court does not have the power to impose what would be a more severe sentence than that ordered by the Crown Court. In the circumstances we do not impose a re-test.
12.
For the reasons given and to the extent identified, this appeal is allowed.
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Lower Ground, 18-22 Furnival Street, London EC4A 1JS
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|
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|
Neutral Citation No:
[2005] EWCA Crim 190
Case No:
2003 00214 B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
His Honour Judge Lewis
Lower Court References: T2000 01736, T 2001 7227
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
3rd February 2005
Before :
LORD JUSTICE LONGMORE
MR JUSTICE LEVESON
and
SIR RICHARD TUCKER
- - - - - - - - - - - - - - - - - - - - -
Between :
RICHARD KEITH SUTTON
Applicant/Appellant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
ANTHONY JENNINGS Esq QC and LEWIS POWER Esq
for the Applicant/Appellant
STEPHEN RIORDAN Esq QC and Ms TERESA LOFTUS
for the Respondent
Hearing dates : 16th, 17th December 2004
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lord Justice Longmore:
1.
Introduction
On 2nd and 3rd July 2001, Richard Keith Sutton was convicted of 32 out of a total of 47 counts of sexual abuse and sentenced to 14 years imprisonment. On 30th January 2004, this Court referred Mr Sutton’s application for leave to appeal to the Full Court and ordered that, if leave to appeal were granted, the appeal should be heard immediately. On 16th and 17th December we heard full argument on all matters. We decide that Mr Sutton should have leave to appeal and will now refer to him as “the appellant”.
2.
Between July 1976 and November 1981, the appellant was a care worker at Hand House at the St Thomas More home in Southport, which was run by an organisation called the Nugent Care Society. It is alleged that while he was there he abused PH, born in 1964, between September 1980 and October 1981 and PD, born in 1965, between December 1980 and June 1981. In the case of PH, the appellant was convicted on 3 counts of indecent assault and one specific count of buggery but acquitted of various specimen buggery counts over a period and a specific count of buggery alleged to have occurred after PH had been pushed or fallen downstairs; a verdict of Not Guilty on 2 other counts had been entered at the close of the prosecution case. The appellant was sentenced to a total of 4 years on the counts of which he was convicted.
3.
The appellant was convicted of 10 counts of indecent assault on PD for which he was sentenced to 12 months concurrent on each count and concurrent with the sentence on other offences in relation to other offenders.
4.
The appellant moved to become Deputy Head of Parkside Children’s Home in the Wirral between November 1981 and November 1987. He was there employed by Wirral Borough Council. Here he met the female complainant, PV, who was born on 9th December 1965, and was at Parkside between November 1978 and January 1984. Thereafter she moved out and lived at various addresses at Halfway House in Borough Road and Devonshire Road. The appellant was convicted of 5 offences of indecent assault on PV, 4 of them at Parkside and one at Halfway House for which he was sentenced to 18 months concurrent. He was also convicted on two counts of rape, one on PV’s first day at Halfway House and the other at Devonshire Road. For the first of these rapes he was sentenced to 6 years imprisonment and for the second 5 years concurrent. The four year sentence for buggery of PH was consecutive to those sentences.
5.
Between November 1987 and March 1990, the appellant was head of a school known as St Vincent’s. No allegations of abuse were made in respect of this period. Thereafter he was head of Othona Children’s Home in Southport, again run by the Nugent Care Society, and he was convicted of 1 count of buggery and 7 counts of indecent assault on JA, born 21st August 1978 for which he received a sentence of 4 years consecutive to the other offences making a total of 14 years imprisonment.
6.
The appellant’s defence was that none of the alleged offences had occurred. The three main general grounds of appeal are that:-
(1)
there were insufficient warnings given to the jury of the particular care which they should take and the caution they should exercise in relation to allegations which depended on the unsupported evidence of the complainants;
(2)
there was insufficient warning given to the jury about the care they should take by reason of the antiquity of the alleged events and the delay in bringing them to court;
(3)
the police, in the course of conducting “Operation Care” in relation to allegations of abuse in Merseyside homes, including the allegations against the appellant, may have encouraged the complainants to come forward and make allegations of abuse but to play down their intention of claiming compensation (whether through the courts or by application to the Criminal Injuries Compensation Authority) by saying at the trial that they were unaware of their rights and had no intention of making any claims.
7.
There are further grounds of appeal specific to each complaint:-
(1)
in relation to PH, that the conviction on the specific count of buggery was inconsistent with the appellant’s acquittal of subsequent specimen counts of buggery and the further specific count;
(2)
in relation to PD, that he had said (both before and after the trial) to a third party that he intended to make false charges of indecent assault;
(3)
in relation to PD and PV, that their applications for compensation post-trial, after PD had said in evidence that he did not know he had any claim to compensation and PV had said she would make no claim, make their evidence unreliable;
(4)
that JA had retracted his evidence since the trial and that, if his diary had been disclosed to the jury at trial, they would have appreciated that he would invent serious allegations and that he was a liar.
8.
Evidence
It is unfortunately necessary to say something of the evidence in the case in order to understand the individual grounds of appeal. The various complaints all emerged as part of the large scale police inquiry in the North West of England in relation to children’s homes, known as “Operation Care”, which resulted in a number of trials and subsequent appeals of which this case is one.
9.
PH
(
Counts 1-15
)
PH was 16 when he went to St Thomas More’s in September 1980 where he stayed for 13 months, leaving in October 1981. He said he had been there for 2-3 years but, as the judge told the jury, that was manifestly and completely inaccurate. He said it was a very unpleasant place to be in and that the appellant was known as Big Bird. He described him as an ‘evil bastard’ whom he saw regularly and who abused him. The first occasion was when he was in bed in his dormitory and the appellant came in and was nice, asking if he wanted anything. The appellant asked him to touch his private parts which PH eventually did. He said that that happened on numerous occasions. The appellant would then do the same thing to him. That was the subject matter of count 1, a specimen count. After that first time it got more serious. The appellant would get an erection and the complainant was forced to masturbate him on numerous occasions either in the dormitory or in the toilets. That was count 2, again a specimen count. Sometimes two others, bullies, were present in the toilets when he was being abused and they also took part. On more than one occasion he was forced to suck the appellant’s penis. That was count 3, again a specimen count. The complainant said he was threatened with a beating if he did not do what was asked.
10.
On one occasion in the dormitory the appellant got him to fondle him and said “I’m going to bum you”. He then buggered PH (count 4). That happened on several other occasions either in the dormitory or in the toilets (counts 5-8, specimen counts). He was buggered again on several occasions by the appellant and ‘Big Sid’ a resident who got on well with the appellant. A third man was present on most occasions. He would be buggered up against the wall by more than one person but would not know which one it was. Lots of laughing went on and although he screamed nobody ever came (counts 9-12, specimen counts).
11.
At one point he had a broken leg, which was in plaster. He was in bed with another boy, cuddling together for comfort because they were both scared and the appellant dragged him out of bed and then pushed him down the stairs where be was buggered on the floor at the bottom of the stairs (count 14).
12.
On his admission to St Thomas More at aged 16 PH was over 6 feet tall and weighed 11½ stone. The judge commented that he was “no shrinking violet”. PH accepted the reality which was that he had been at St Thomas More for just over a year and he further accepted that during that time he had absconded for a total of 143 days.
13.
PH’s first contact with Operation Care in relation to the appellant was a note from DC Neil who later asked him about his time in care and whether he had any complaints. He thought he mentioned St Thomas More’s first but the appellant’s name was not mentioned until later. He was not prompted with the appellant’s name nor did the police say anything about him specifically.
14.
PH agreed that in April 1995 he made a statement complaining of buggery in St Aiden’s, another care home, by a man called Dick. He also said he had been sexually abused by his father. He agreed that he was making applications for criminal injuries compensation and taking civil proceedings against the local authority and the Nugent Care Society. He said he suffered rectal bleeding following the abuse by the appellant, Big Sid and Joe Bugner or Buckner (count 13) and was taken to hospital. He said he may have become confused between St Aiden’s and St Thomas More’s.
15.
He agreed that he had appeared before the courts on 11 occasions and had seen many probation officers but had not disclosed the fact of his abuse in the care system. Re-examined he said he could not say whether or not he complained to his social worker, Mr Ruddock, about what was happening but did tell him he was unhappy. He had made a complaint about Dick because he understood he was still abusing young people and wanted to get him back for what he did and the same reasons applied to the appellant.
16.
The appellant was convicted of counts 1-4 (by a majority 11:1). He was acquitted by the jury or by direction of the other 10 counts against him.
17.
PD
(
Counts 16-25
)
PD was 15 when he went to St Thomas More’s and was there from December 1980 until June 1981. At the time of the trial in 2001 he was serving an 8 year prison sentence imposed in October 1998 for burglaries of dwelling houses, often in circumstances where the residents were present. At St Thomas More’s he thought he shared a dormitory with 4-5 other boys and remembered the appellant by the name of ‘Big Bird’ saying he was big and over 6 foot tall. The appellant would play fight with the boys and started lifting the complainant between the legs from behind or from the front saying “I’m only playing”. One day the complainant was alone in the music room and the appellant came in, shutting the door. He grabbed PD’s hand, pulling it towards his groin. The appellant mentioned early weekend leave and opened his button putting the complainant’s hand on his underpants on his penis and making him masturbate him. He kept saying that he would get weekend leave. The appellant ejaculated. This was count 16.
18.
After that, masturbation occurred sometimes 2-3 times a week (counts 17-20, specimen counts). Sometimes there were some weeks when nothing happened. The appellant tried to make him suck his penis in the staff room but PD did not want to do that. The appellant made the complainant masturbate him and fondled him. When he ejaculated he pushed PD’s head down and told him to kiss his penis which he did (count 21). That happened on a further 3-4 occasions (counts 22-25). PD would be sitting on a chair with the appellant standing in front of him with his penis out. He would push PD’s head down to his penis and make him kiss it. PD started running away to get away from him. He had just become sexually active himself and was confused but knew he should not be doing what he was with the appellant; it was the promise of weekend leave that made him carry on.
19.
Cross examined PD denied that he was telling lies and said he was unaware of the possibility of financial gain. He did not hold any vendetta against the appellant and had no desire for publicity. He agreed that he had led a life of crime but said he did not blame it on the appellant or on the care system. He was put in the St Thomas More home by the Juvenile Court and was not going to school at the time. He agreed that at the time he was described as untruthful. Asked to explain the reasons for his late complaint, he said they were embarrassment, that he thought he would not be believed, that his mother had felt guilty at putting him in care and he wanted to spare her the angst of discovering that he had been sexually abused while in that situation. Both his parents had recently died and it was for that reason he thought he should move on and disclose what had happened. He made his witness statement on 19th January 2000 whilst at Long Lartin Prison having received a proforma letter from the police. He agreed that at one point he told a social worker that he was enjoying life at St Thomas More’s. He also agreed that he absconded on a number of different occasions and was later sent to a detention centre where a report by the governor said he did not like St Thomas More’s because he was bullied. He had no recollection of PH at St Thomas More’s. He had not made a criminal injuries claim nor a civil claim against the local authority. Whilst being escorted back to St Thomas More’s after he had absconded, he had thought of telling the local policeman about the abuse but did not because he knew that the officer fancied his sister and he did not want anything to get back to his family.
20.
The appellant was convicted on all counts concerning PD.
21.
PV
(
Counts 26-35
)
PV was 12 when she went to Parkside in November 1978. The appellant became deputy head there in November 1981. She got on well with him at first and at the age of 16 she moved into the ‘warden’s house’ a building divided into flats to enable residents to learn living independently. The appellant came to her flat on many occasions, initially for a cup of tea and to see how she was getting on. He came one Christmas and she could smell alcohol on him. He sat next to her putting his arm round her and then he took her hand and put it on top of his hard penis over his trousers. He started rubbing her hand on himself saying it was nice and he liked her. He asked if he could “come”, which he did. He still had his trousers on. This was count 26. She was frightened and did not want to do it, telling him to get off but he did not. That happened a few times.
22.
On another occasion in the appellant’s office they had a big fight and she kicked his shins trying to get him off but he sat her on the chair next to him and she again masturbated him (count 27). That happened on a few occasions, usually in the warden’s house (count 28, specimen count). The incidents were not always over clothing and sometimes he would take his penis out, putting it in her hand and she would masturbate him into the sink (count 30, specimen count).
23.
In January 1984 when she was 18 the appellant helped her to move into a halfway house at Borough Road. He grabbed her and started kissing her before forcing her to the floor where he pulled her jeans off and had sexual intercourse with her. She told him she did not want it but she could not move her hands as they were under his chest. He was very big and when he penetrated her she felt a sharp pain. She had not had sex before. He told her he loved her and then left. Afterwards she threw her clothes in the bin (count 31 – rape). After that he came again to Borough Road and the same thing happened, sexual intercourse and masturbation (count 32 – indecent assault – specimen count).
24.
In May 1984 she moved to a flat in Devonshire Road and the appellant would call after his shift. Sometimes he called two or more times a day and sexual intercourse and masturbation occurred. She did not consent to any of it and he knew that but took no notice even though she kicked, punched and screamed at him (Counts 32 and 33). On one occasion when he came to the flat she made coffee and although she told him she did not want to do it they had sexual intercourse on the floor (Count 34-rape). She later discovered she was pregnant and the appellant told her to have an abortion and there was no need for discussion as to who was the father. (It was agreed that on 7th January 1986 she had had a termination in the tenth week of pregnancy.) The appellant took her to the hospital and brought her home again. After that no further intercourse occurred but masturbation carried on (count 35, specimen count). He then took a job in Formby and she did not see him again.
25.
She agreed that in her youth she was angry, rebellious and aggressive and most difficult at Parkside. She regarded herself as being quite tough, saying that people could not push her around. She had access to a social worker, Nora Griffiths and was seeing her when the appellant was abusing her but did not confide in her. She accepted that by going to Parkside to be with the appellant she may have given the impression of being attached to him but said she did that so that she would not be on her own with him if he came over to the warden’s house. On the occasion of the fight she was telling him to leave her alone. Anyone hearing the noise would be used to it because she was known for screaming and kicking. She agreed that on the occasion of the first rape, the appellant would know that the resident warden, Maggie, lived next door but it was her recollection that Maggie said she would leave them to settle in. She did not say anything at the time and people dealing with her had no idea of the distress she was suffering. The appellant never sought to disguise the fact that he was calling on her regularly and if she had visitors he would just say he was calling to see how she was getting on.
26.
In February 1984 she was convicted of assaulting a police officer but she did not disclose what was going on. She agreed that the appellant did not hide his involvement in taking her to and collecting her from the clinic after her termination. She denied that her pregnancy had anything to do with a boyfriend, Ray Rich, with whom she had had sexual intercourse on one occasion.
27.
In 1997 she told a counsellor, Vicky Bithell, about the abuse. That was the first time she had spoken of it and she made a statement to the police implicating other individuals in the care system. One of those Simkins, pleaded guilty to indecent assault and the police told her she could claim compensation. She did not name the appellant until after Simkins’ trial in January 2001. She had not made any criminal injuries claim.
28.
KR, PV’s female partner, said that she had known PV since she was 12 years old. She visited her 3-4 times a week at Devonshire Road. Sometimes the appellant was present when she arrived or would turn up, staying for hours, not speaking but following PV around. She thought his behaviour bizarre and weird and a lot of other people noticed what was going on. PV never told her that she was being sexually abused and the first she heard of it was after the Simkins trial.
29.
The appellant was unanimously convicted of courts 26-28 and 30-35. He was acquitted on count 29 by direction of the judge.
30.
JA
(
Counts 36-47
)
JA went to Othona in January 1993 when he was 14. He said that the appellant seemed a nice chap, outgoing, big and friendly. They went for trips out and on one occasion they went to a caravan at Squirrel Park in the Formby area. Once in the caravan they had a drink and the appellant put his arms round him and started kissing him on the mouth and unbuttoning his shirt, kissing his chest and feeling his body. He pulled his jeans down and performed oral sex on him (the complainant) but he did not ejaculate. This was count 37, the first of 8 counts of indecent assault). They got on the bed. He was on his stomach and the appellant raised him to his knees and then inserted his penis inside him (count 36, the first and only count of buggery). He did not like it and told the appellant it hurt but he said “It’ll be OK, you’ll get used to it after a while”. On numerous other occasions sexual activity took place, the next being 2 days later in the office when the appellant unbuttoned his (the complainant’s) trousers and performed oral sex on him (count 38). The appellant was a nice man, not rough with him. He looked after JA, taking him for drives and giving him a couple of pounds every now and then to buy lager. JA just did what he did to please the appellant and to keep him looking after him. He thought the benefits might stop if he did not go along with it.
31.
JA said that oral sex took place in the office about four times with JA lying on the desk and the appellant performing oral sex on him. Then the appellant would take his penis out and get JA to masturbate him (counts 40-41, specimen counts). There was an occasion when they went for a drive on the Southport coastal road and the appellant pulled JA’s trousers down and performed oral sex on him. The appellant wanted JA to put his (JA’s) finger in his (the appellant’s) anus and whilst he did that the appellant did the same to JA (counts 45-46).
32.
On another occasion one of the side flats was being decorated and he was alone with the appellant who unbuttoned JA’s shirt and kissed his chest. JA undressed to his shorts and lay on the floor whereupon the appellant masturbated him and he did the same to the appellant. They got into the ’69 position’ and tried to have anal intercourse but it did not work and so they performed oral sex on each other (counts 42-43).
33.
Cross examined JA agreed that he was serving life imprisonment for murder. That had involved JA and another befriending a homosexual man, going back to his flat, holding a knife to his throat, tying him up and bundling him into a trunk, leaving him to suffocate. He said that he specialised in that type of offence. When sentenced in 1997 the trial judge recommended that he serve a minimum of 16 years’ imprisonment. In March 1996, JA agreed he was convicted of 10 offences of robbery. He agreed that over the years he had been interviewed many times by social workers and probation officers but had not disclosed the offences involving the appellant. He first told a probation officer of the offences about 2 years ago although initially did not name the appellant. He was aware of the Criminal Injuries Compensation Authority but had not made any application for compensation because of his record. It was the probation officer who contacted the police about the allegations. He thought he had been crossed by the probation officer and initially refused to see the police when they came to interview him. Prison records were produced and showed that in December 1998 JA disclosed that he was sexually abused by the appellant when aged 15.
34.
The appellant was unanimously convicted of counts 36-38, 40-43 and 45-46. He was acquitted by direction of the judge of 3 counts.
35.
Detective Constable Neil then gave evidence and said he interviewed the appellant between April 1999 and March 2001 and he vigorously maintained his innocence in respect of all allegations. In the course of the investigation the police sent out 155 letters to former residents of St Thomas More’s. Of that number 125 did not reply. Only two of the complainants in this case (PH and PD) came forward as a result of receiving letters.
36.
The appellant gave evidence. He described the routine at the Home and said that he remembered PH as a persistent absconder. He confirmed that he was known at the Home as ‘Big Bird’ or ‘Buzby´ and remembered somebody called ‘Sid’ whose name may have been Russell Williams. He was not a resident but may have visited friends at the home. He thought he might have taken PH to the Lakes once for a day out. Lights went out at 10 pm and there may have been pillow fights but he did not take part in them nor did he regard such activity as grooming youngsters. If PH had screamed in pain others would have heard him. He could offer no reason why PH should make the allegations against him and did not think he would have put up with such treatment because he was a mouthy, loud, big boy who could lose his temper. He did not remember him injuring his foot or being in plaster. He took residents, individually and as groups, to his home for a visit and this included PH. He never molested PH. He had no specific recollection of PD but said he did not molest him. As for the music room described by PD he said it was more like a corridor and did not have chairs as described by PD and no private facilities to commit such offences. He was not aware of any vendetta or dislike that PD may have acquired against him.
37.
He remembered PV as having moments of being extremely troublesome and volatile who was objectionable to everybody, kicking, spitting, fighting and using foul language. Two weeks after he arrived at the Home she had a fight with one of the other residents. If anything of a violent or disruptive nature had occurred when she lived downstairs in the Warden’s flat, it would have been heard upstairs. When he helped her move into Borough Road nothing happened and he left her on the basis that he would not abandon her but pop in from time to time if she wanted. He tried to go once a week for half an hour and other people at Parkside knew he was calling on her. She would ring on occasion asking him to go. He remembered friends being there when he visited, but he denied he was there for hours as KR had said. As for her pregnancy, he did not ask who the father was but simply advised her to go to her GP. He gave her advice about drinking and paying her way and occasionally took her small quantities of food.
38.
He remembered JA at Othona and spoke to him about his behaviour. He denied he had had a caravan, or access to one, at Squirrel Park in Formby. He had no recollection of a flat being decorated in Othona where JA had said some of the offences had taken place. Whilst at Othona he did not know that JA had a history of sexual abuse from previous residences. He was not surprised that PH had not confided about the abuse he had suffered from Mr Dick or that PV had not disclosed to him her abuse at the hands of Mr Simkins. Although his caring for PV after she left Parkside was not part of his contract he did it out of a sense of duty and conscientiousness if young people asked him. Cross examined about a child care review held at Parkside on 20th May 1981 when it was recorded that PV had become very attached to him and that such contact should be reduced, he said that in the geographical sense he did not go out of his way to go and see her. Initially he called once a week but that was reduced to occasions when she telephoned asking to see him and he would stay 10-20 minutes or less if she had friends there. There was, in fact, some evidence from the Parkside log of PV phoning on 5th December 1985 and a message for him to phone her on 10th January 1986. By that time he thought the ‘crush’ crises was over and things had moved to a greater maturity between himself and PV. He did not remember seeing KR there at PV’s place and said he visited other people over a period of years after they had left. He might have pecked PV on the cheek as a form of affection when saying goodbye. He did not arrange any specific care after her termination.
39.
On the day of her move (the first allegation of rape) he did not see any residents but thought he saw Maggie the house mother. He was sad and sick at PV’s allegations because he had spent a lot of time trying to help her and could think of no reason why she should make them. He had made no records of taking children on trips out of the establishment. He did not remember ‘Sid’ as a bully in the home. None of his visits to see PV or others were recorded but there was no sinister reason for that.
40.
The appellant called witnesses on his behalf:
Diane Williams was interposed during the evidence given by the appellant. She worked in the care system and in 1994 was deputy team leader. The appellant was her superior. She remembered the name ‘JA’ but could not put a face to him. The appellant responded well to the boys and had a good relationship with them. She never heard any complaint about him.
Pauline Riley, George Lynch, Margaret Austell, Jack Nuttall, Helen Johnson, Michelle Kanavan, Ann Matteo all worked with the appellant and gave positive evidence of his work at the Home as did Michelle Burnside who was resident at St Vincent’s for 4 years and Darren Levy a resident at Parkside for 4 years.
Mrs Jane Sutton (the appellant’s wife) gave evidence attesting to their normal sex life and the fact that her husband had not made any unorthodox sexual demands or indicated any homosexual inclinations.
41.
Application to adduce new evidence
Mr Anthony Jennings QC for the appellant applied to adduce no less than 26 items of new evidence. We received all this evidence de bene esse and indicated we would rule on his application in the course of our judgment. It is convenient to do so before considering the grounds of appeal upon which reliance is placed.
42.
In relation to PH, application was made to adduce (1) his school report of 7th April 1981 and (2) his statement of 1st November 1999 made for the purposes of civil proceedings. Both these documents were available and were disclosed at the time of trial. They are, moreover, peripheral to the issues raised by the grounds of appeal and we have therefore decided not to allow reference to be made to these documents. Next, application is made to adduce (3) a letter of 25th November 1999 written by Detective Superintendent Robbins to PH’s solicitors which was not disclosed at trial. This letter is central to ground 9 of the Grounds of Appeal and we have decided that the appellant should have leave to adduce that letter. The Crown contended that if such leave was given, they would wish to adduce a statement from Detective Sergeant Thomas of 24th November 2004 more fully set out hereafter and Mr Jennings said that he would not object to our reading that statement. Next the appellant sought to adduce (4) evidence of PH’s application of 2nd September 1999 to the Criminal Injuries Compensation Authority (“CICA”), received by them on 10th September 1999 and (5) the outcome of such application, dated 11th December 2001, in the sum of £3,750. The application was made before the appellant’s trial but the award was made after that trial. We have decided that both the application and the outcome should be adduced in evidence.
43.
In relation to PD, application was made to adduce:-
(6)
his criminal antecedents;
(7)
various social enquiry reports and parole board decisions in relation to his offending;
(8)
a statement from Ms Barbara Taylor of 8th January 2001 relating to PD’s frequent absconding;
(9)
PD’s application to CICA for compensation of 13th November 2001 (made after the appellant’s trial);
(10)
PD’s authority for the initiation of civil proceedings dated 19th January 2000;
(11)
A statement to police from a social worker John Donnelly of 8th November 2000 that he had visited a certain Lee Dugdale two days previously in prison in relation to a trial in which Dugdale was an intended complainant. Dugdale had told him (among other things) that while he was being moved from HMP Long Lartin to HMP Garth on 6th or 7th September an unidentified male fellow prisoner had informed Dugdale that he was making abuse allegations to claim compensation;
(12)
A statement of DC Peter Thomas of 13th November 2000 in which he said he was following up the statement made to John Donnelly and went to see Lee Dugdale on 9th November 2000. Dugdale identified the prisoner with whom he was travelling from HMP Long Lartin as PD and repeated that PD had said he was going to make false complaints to get financial compensation. When asked if he would make a written statement, Dugdale said he wanted nothing more to do with the police and walked out of the room. This statement was part of the unused material and was available to the defence at trial, although John Donnelly’s statement (No 11 above) was not, since the Crown did not appreciate its possible relevance in its anonymised form;
(13)
A statement of Lee Dugdale of 10th September 2001 made after the trial without saying to which person the statement was made. It repeated the allegation in relation to PD and did not say whether Dugdale was prepared to give evidence. The application to include this statement included a further application to admit a statement of 12th August 2003 from Jane Hutcheson assistant solicitor in Bindman & Partners (the appellant’s now solicitors) in which she said she had visited Dugdale in HMP Blakenhurst on 5th August 2003 and that he had read and confirmed the statement of “10th October 2002” (sic). She added that Dugdale was not willing to attend and give evidence in the appellant’s appeal because, as he put it, fellow inmates objected to what they viewed as his “giving evidence for nonces”. Despite this Mr Jennings for the appellant originally hoped pursuant to a witness order of this court to call Dugdale in person in support of his statement. Unfortunately he was badly stabbed (causing a chronic abscess of the right lung) shortly before this appeal was due to be heard and could not attend court. Mr Jennings therefore applied to adduce his evidence in statement form, pursuant to
sections 23
-26 of the
Criminal Justice Act 1988
on the basis that he was unfit to attend. The Crown submitted that, if this statement were to be received in evidence they would wish to adduce evidence from Detective Sergeant Thomas in accordance with his statement of 14th December 2004 to the effect (1) that, although Dugdale had claimed to be a victim of alleged abusers and had apparently been prepared to be a witness at the trial of other alleged abusers, he did not give evidence at any of the trials; and (2) that on 18th December 2000 the Crown Prosecution Service advised that Dugdale should not be used in any future trials. D/S Thomas was, with our permission, called to give his evidence subject to our ultimate ruling; he confirmed this evidence but said he was unable to say why the CPS had given the advice which they did. The Crown further relied on the fact that by 23rd August 204, Dugdale had been convicted of or pleaded guilty to 70 offences.
(14 & 15)
A letter from a firm of solicitors to Barnardo’s of 4th May 2004 together with a copy of Barnardo’s log of 5th April 2001 in which it is suggested that PD’s social worker was unhappy that Barnardo’s were counselling PD before trial. These were not available at the trial;
(16)
A report of Helen Roberts, Forensic Clinical Psychologist, about PD dated 12th June 2003 (and thus unavailable at trial) in which she stated, inter alia, that PD’s principal problem was drug abuse but also said that he had said he had told the matron at St Thomas’s of his abuse. The significance of this is that at trial he had said he had never told anyone of the alleged abuse;
(17)
A pre-sentence report compiled for Leeds Crown Court on 20th June 2003 showing that PD explained his criminal behaviour as being due, at any rate in part, to abuse while in care. This was not available at trial.
44.
We have decided to receive items (6), (7), (9), (10) and (14)-(17) on the basis that they were not available at the trial (save for (10) which, however, needs to be seen now in the context of (9)). Item (8) was available and disclosed at trial; it could have been presented in evidence but was not. The jury, however, knew perfectly well that PD was a persistent absconder; whether the number of times he absconded was 24 as put to him or rather more as item (8) might suggest was of little consequence.
45.
Items (11)-(13) are, however, the critical items in relation to the counts in relation to PD. We have decided that it would not be right to admit these items. (11) goes nowhere since PD is not identified; (12) was available at trial and disclosed to the defence. If the defence had wanted to call Dugdale at trial they could have done so. In the light of Dugdale’s reluctance to attend he would have to have been the subject of a witness summons and could well have been a highly dangerous witness to call. It is not in the least surprising that he was not called. It is no doubt unfortunate that he could not be called before us due to his medical condition but it would not, in our judgment, be right to admit, pursuant to
the 1988 Act
, a potentially controversial hearsay statement which cannot be challenged by cross-examination, when the evidence to which it relates was available but not called at the trial.
46.
In relation to PV application was made to adduce:-
(18)
Records of telephone messages left for the appellant at Parkside showing that PV had telephoned and wanted to speak to him. An agreed schedule of these calls was compiled for the purpose of this appeal showing that calls had been made on 10th April, 13th April and 19th July 1984, 21st June, 2nd July and 13th November 1985 and 10th July and 27th August 1986, being 8 calls over a period of 2 years and 4 months;
(19)
PV’s application to CICA made on 20th July 2001, 17 days after the conclusion of the trial;
(20)
PV’s award from CICA in the sum of £16,500.
We have decided we should receive these items, as further evidence on this appeal.
47.
In relation to JA application was made to adduce:-
(21)
A report dated 15th December 1998 made by Probation Officer Pete Nowell on JA after he had received a life sentence for murder on 31st July 1997. This referred to abuse JA had purportedly received at the hands of the appellant;
(22)
A statement of 16th December 2004 from the journalist David Rose saying that together with Claire Curtis-Thomas, MP for Crosby, he visited JA at HMP Wakefield on 20th September 2001 (10 weeks after the appellant’s conviction) and that JA had made it clear that he had been lying when he gave evidence at the appellant’s trial. Mr Rose gave oral evidence to us in accordance with this statement and said that he had made notes of his meeting (which he produced) and had sent those notes to Mr Chris Saltrese who was “then” acting for the appellant. He had seen a copy of JA’s subsequent signed statement of 24th September 2001 retracting his evidence which he believed Mr Saltrese prepared for JA to sign;
(23)
A statement of 24th November 2004 from Mr Chris Saltrese who said that, with Ms Curtis-Thomas MP, he visited JA on 24th September 2001 taking with him a typed statement prepared from information obtained by Mr Rose. He read through the statement with JA who made two small amendments and then signed it. He gave oral evidence to us confirming his statement but, rather remarkably, said (1) that he thought JA’s statement had been prepared by Mr Rose and (2) that he had never asked JA if he was prepared to come to court to give evidence in accordance with his statement;
(24)
The statement of JA dated and signed by him of 24th September 2001 in which he said that the appellant had never abused him and that everything he (JA) had said in court (and to the police) was a fabrication from beginning to end. He claimed that the reason for these lies was that the police had told him in prison that, if he did not say the appellant had abused him, he would be accused of targeting gay men in the course of his crimes and, therefore, be classed as a sex offender required to participate in a sex offender treatment programme;
(25)
A copy of JA’s diary compiled while in prison awaiting trial for murder describing how he had killed his victim in terms which amounted to an admission of murder;
(26)
The decision of the Criminal Case Review Commission on 17th May 1999 refusing to refer JA’s conviction for murder to the Court of Appeal.
48.
We do not see the relevance of items (21), (25) and (26); both items (21) and (25) were, in any event, available at the appellant’s trial for use, if anyone had thought them relevant. Items (22)-(24) were not available at trial and, if JA’s retraction is inherently credible, should, we think, now be received in evidence. The problem with them is that JA, despite being available, has said that he is not willing to come to this court in support of his September 2001 statement. We do not, however, think that it would be right, in all the circumstances, to refuse to receive items (22)-(24) (and the accompanying oral evidence of Mr Rose and Mr Saltrese); we will accordingly admit this evidence as evidence that JA made the statements which he is recorded as having made. In due course we shall consider the effect of having admitted this evidence.
49.
We accordingly turn to the grounds of appeal.
50.
Grounds of Appeal
Some grounds of appeal raise particular points in relation to particular complainants; others are general grounds. We will take the general grounds first (grounds (7)-(11)). One point must, however, first be emphasised. In the appellant’s perfected advice it appeared that there might be some criticism of the defence team at trial. This criticism was never a ground of appeal and, by the end of the hearing, Mr Jennings for the appellant had accepted that any criticism he had of the defence team was not sufficient to constitute a ground of appeal.
51.
Inadequate warning about relying on unsupported evidence of the complainants (Ground 7)
Now that juries no longer have to be directed about corroboration as a matter of law, the question whether any warning about relying on unsupported evidence of complainants in sex cases should be given and, if so, what the terms of such warning should be is very much a matter for the trial judge, see
R v Makanjuola
[1995] 2 Crim App Rep 469.
52.
In the present case the judge made four separate points about the approach which the jury should adopt to the complainant’s evidence. He first reminded the jury (6A-F) that the male complainants all had previous convictions, two of them having “very serious” convictions of offences of violence and dishonesty. The female complainant, though of good character in a formal sense was rebellious, aggressive and angry about having been brought up in care. For these reasons the jury should approach the witnesses’ evidence “with particular caution”. Secondly the judge pointed out (6F-7B) that none of the complainants’ evidence in relation to any particular count was supported by any other evidence; he added:-
“So you must approach each complainants’ evidence with care for the reasons I have indicated and have regard to the criticisms which are made of each of those witnesses.”
Thirdly he reminded the jury (7B-C) that they had to be sure that the witnesses were individually honest and accurate before they could convict. Fourthly (7D-8C) he said that, even though the defence did not suggest that there was any collusion between the complainants, the jury should consider the question of collusion and that, if they thought there might have been collusion, the evidence of relevant witnesses would be worthless.
53.
Mr Jennings for the appellant submitted that the case called for a much stronger warning about the dangers of relying on unsupported evidence. We do not agree; it was for the judge to gauge the strength of the warning he was to give the jury in the context of the case as a whole. The warning he gave was significant; this court would be wrong to criticise judges who gave warnings which might be somewhat different in terms from the warnings that individual judges of this court might have given. The warning that the judge gave was comprehensive and entirely adequate for its purpose. It is to be noted that the jury had no difficulty in acquitting the appellant of a number of counts.
54.
Mr Jennings then submitted that if the judge had known the facts that we have now admitted as further evidence particularly the facts (1) that PD and PV had made compensation claims after saying in PD’s case that he did not know he could and in PV’s case that she would not do so and (2) that JA had retracted his evidence, he would have given a stronger warning. This seems to us to be the wrong approach. If subsequently admitted evidence causes us to doubt the safety of the convictions that is sufficient for the appellant’s purpose; if it does not do that, it would not be right to use the “new” evidence as a ground for saying that an enhanced or strengthened warning should have been given and that, in its absence, the convictions are unsafe.
55.
Inadequate warning about the consequence of delay in making complaints (Ground 8)
Mr Jennings made a sustained attack on the inadequacy of the delay warning given in this case. In the light of that attack we should set out in full the part of the summing-up which deals with delay (4A-5H):-
“One factor in this case which you must consider in conjunction with the standard of proof is the question of delay. This case has been concerned with events which allegedly took place a long time ago. The oldest counts, the PH counts, 20 years ago in round figures, the most recent counts, JA, up to eight years ago. You must have in mind that the defendant may have been prejudiced by the delay and such possibility must be in your minds when you decide whether the prosecution have made you sure in respect of each or any of these counts.
A number of factors arise which you must consider. Firstly, ask yourselves this; why did these matters not come to light sooner so they could have been tried within a year or two years of the allegations arising? Does the fact that these allegations arise at this point of time reflect on the reliability of the complainants? Or does the fact that these charges have arisen at this time suggest recent invention of the complaints, recent fabrication, as it is sometimes called? That is the first thing.
Secondly, make allowance for the fact that memory obviously fades, memories on all sides fade over a period of 20 years and as a result evidence of about certain aspects of the case may be vague and may be unspecific. Thirdly, from the defence point of view the older a charge is the more difficult it may be for the defendant to answer it.
You have become aware during the course of this evidence that both sides have had access to large numbers of documents and files from Social Service departments, from Nugent Care, from hospitals, from doctors and so on, psychiatrists and psychologists and even the Prison Service. Those records have been used extensively during the course of the evidence to try to cast light on the events of many years ago but in the nature of things those records are on occasions incomplete and inconclusive. Where there has been ambiguity, where there has been doubt in relation to those records it has been impossible to resolve such doubt because generally speaking the witnesses responsible for creating those records are untraceable. So bear that in mind.
You may well take the view that in a case of this sort delay is entirely understandable, that in the nature of things people who have been the victims of this sort of abuse, if indeed it happened, store it away for years and it comes out later for some particular reason, the complaint is prompted by something. But even if you believe that the delay is understandable if you think the defendant has been put at a real disadvantage by the fact that these charges come to light in 2001, for trial at least, then you must take that into account when considering whether the prosecution has proved its case in relation to each of these charges.”
56.
There are two main criticisms. The first is that, contrary to the JSB standard direction, the judge made no effort to single out particular instances where the absence of records or witnesses might have prejudiced the appellant. The second is that such good effect as the direction might have had was nullified by that part of the direction which said that the jury might take the view that the delay which had occurred was understandable.
57.
In relation to the first complaint, the most relevant prejudices which the judge ought to have highlighted were said to be:-
(1)
the absence of the register of St Thomas More’s home, which might have enabled the appellant to say where he was on particular days;
(2)
the absence of hospital records which could have confirmed whether PH had been admitted for an anal injury;
(3)
the death of the headmaster of St Thomas More’s thus preventing any inquiry whether PH had complained to him;
(4)
the death of the matron there who could not confirm whether (as the subsequent psychological report of Helen Roberts of June 2003 had indicated) PD had made a complaint to her.
58.
As far as written records are concerned, there were as the judge said “large numbers of documents and files” from (among others) hospitals, doctors, Nugent Care and Social Services departments. In this context, the absence of the St Thomas More register was peripheral at best particularly for the help it might give as to the appellant’s (rather than the complainants’) movements. One incident after which PH was taken to hospital was that alleged in count 14 in relation to which PH said he had been pushed downstairs by the appellant and then buggered at the bottom of the stairs. That was a count of which the appellant was (for whatever reason) acquitted, so it is difficult to see how any gap in hospital records could have prejudiced the appellant as matters have turned out. The absence of relevant hospital records cannot make unassociated counts unsafe. Insofar as PH claimed there were other hospital visits, such visits were not associated with any particular count. Moreover, once judge and jury have a “large number” of contemporary documents, it is difficult for a judge to highlight the absence of a particular record without indicating how a defendant might be affected. In such cases a general warning is adequate.
59.
Absence of evidence from the headmaster and the matron is equivocal at best. If they had said no complaint had been made, it is difficult to see how the appellant’s case could be bettered; if they had said complaints were made that might or might not have affected the complainants’ credibility at trial. The jury could have taken the view that, even if the complainants had forgotten that they had made such complaints, the complaints did in fact support the complainants’ evidence. One can understand the judge’s reluctance to highlight the absence of evidence from the matron or headmaster on this topic.
60.
Complaint was also made that the direction on delay was tied to the direction on the burden of proof. We think that the judge was justified in dealing with delay in this manner. To the extent that delay results in the absence of evidence (which is the appellant’s complaint), that absence of evidence means that a jury will sometimes feel that it cannot be sure that the complainant’s evidence is reliable. It is, in this way, an aspect of the need for the jury to be satisfied that the prosecution has made out its case. This is confirmed by
R. v Smith
(unreported, 20th December 1999, No 99/01664), one of the cases relied on by Mr Jennings in support of his proposition that the judge should direct the jury as to particular reasons why a defendant may have suffered delay in a particular way. In that case Evans LJ said (page 17):-
“The judge’s primary concern should be to ensure that the jury pays ‘conscientious’ regard to the burden and standard of proof . . . The reason is, in our view, that the jury should be reminded that the fact of delay means that the evidence should be scrutinised with particular care, before they can conclude that they are sure that the defendant is guilty of the specific offence or offences charged against him.”
and later (page 22):-
“Care must be taken to ensure that the burden of proof is not effectively reversed.”
Subject to the second main complaint, we consider that the direction on delay was sufficiently tailored to the facts of the case and was an adequate direction.
61.
That leaves the complaint that the judge nullified the effect of the direction by inviting the jury to think that the delay was understandable. This is an unfair categorisation of the judge’s final paragraph. The jury can hardly have failed to ask themselves why the delay had occurred since the absence of prior complaints figured largely at the trial and it is well known that complaints of abuse do sometimes surface long after the incidents constituting that abuse have occurred. It is not impossible that some members of the jury might think that delay (for whatever reason) is understandable. Any judge would wish to set that understanding in its proper context and that is what Judge Lewis did by saying that, even if the jury believed that the delay was understandable, they should take into account (viz. in the defendant’s favour) any real disadvantages into which the defendant had been put by the fact that the charges came to light in 2001,
“when considering whether the prosecution has proved its case in relation to each of those charges”.
Read as a whole, this direction does not nullify the delay direction; it expands and amplifies it. Again, one must remember that the appellant was acquitted on a number of counts.
62.
Non-Disclosure (Ground 9)
In the course of what may be called the
Williams-Rigby/Lawson
appeal to this court in early 2003,
[2003] EWCA Crim 693
, a case where the appellants had been members of staff at the SG Residential Community Home near Liverpool between 1976 and 1984, certain documents were disclosed by the Crown which Mr Jennings says should have been available to the defence at the appellant’s trial in 2001. The documents do not seem to have played any part in the decision of the court on those appeals; most of the documents deal with the position of Detective Superintendent Robbins who was the senior detective in charge of “Operation Care” investigating cases of alleged child abuse in Merseyside and, after retirement, worked for a firm of solicitors Abney Garsden MacDonald (“AGM”) assisting them to co-ordinate claims for civil compensation by victims of alleged abuse, whether brought against local authorities in charge of schools or homes where abuse allegedly took place or made in the form of applications to CICA.
63.
These documents are said to show that D/S Robbins was aware that complainants in the Operation Care cases had made statements in support of compensation claims and that solicitors exchanged their clients’ statements with other solicitors whose clients were also making claims. It is further said that when Mr David Rose, the journalist to whom we referred in item (23) above, put to D/S Robbins that he asked solicitors to advise their clients to postpone making claims for compensation until the conclusion of criminal proceedings, he had agreed that he had done that in order to make the complainants’ evidence look more credible in the criminal court and justified his conduct by saying that he was just trying to get a conviction. In the event no application to call Mr Rose to give evidence in respect of this statement was made but we were asked to admit and have now decided to admit in evidence the letter of 25th November 1999 from D/S Robbins to PH’s solicitors about his case. In that letter D/S Robbins said that he could not release PH’s statement since the police were still investigating his alleged abuse. He said (correctly as it turned out) that the conclusion of the investigation and any prosecution would be months away and added:-
“In any event I always advice caution regarding the commencement of compensation claims as defence lawyers have suggested victims’ evidence may be tainted by monetary gain.”
In fact PH did make a compensation claim before trial and was cross-examined about it. Disclosure has now been made of other similar letters written to solicitors for complainants and one of 25th February 1999 to a particular complainant (not in the present case) advising him not to begin civil proceedings until he had given evidence in the criminal trial.
64.
Also disclosed is the fact that in 1997 Mr Garsden of AGM had written to D/S Robbins saying that an exchange of correspondence could “damage the prosecution case” a remark which D/S Robbins said, in a letter to Mr Garsden of 25th November 1997, “will be seized upon”. A police policy document and power point slide of 24th August 1998, perhaps intended to be shown to solicitors for complainants, stated:-
“It must be remembered that it has been a consistent defence tactic to allege that victims are motivated to make allegations by potential financial reward. Any investigation should negate this from the outset by ensuring that no discussion takes place on this subject between the investigator and the victim.”
Disclosure has also been given by the Crown of a solicitors’ attendance note of 3rd December 1998 in which a Mr Peter Cromer of Liverpool Social Services said that he felt it was advantageous in criminal proceedings if witnesses could answer “No” to a question whether they had made a compensation claim. It appears, moreover, that there was a suggestion made by a complainant in the Williams-Rigby trial (but about 3 years after that trial had taken place) that all the complainants in that case were brought into a room and told by a police officer (not suggested to be D/S Robbins) that if the issue of compensation was raised they should say that they had not made a claim.
65.
In response to the suggestion that the Crown should have disclosed all this material before the appellant’s trail and that the defence could have, therefore, been more forcefully placed before the jury than it was, the Crown also disclosed a synopsis of the material held on what was called the “HOLMES indexing system”, a computer system created to cope with the numerous claims being investigated by “Operation Care”. This showed that PH was the only complainant in the present case to whom or to whose solicitors a letter was sent of any similar nature to those in fact sent by D/S Robbins to Messrs Pictons on 25th November 1999. We have already indicated that the Crown also submitted that we should receive a statement from the Deputy to the Senior Investigating Officer of Operation Care, Detective Sergeant Graham Thomas of 24th November 2004 explaining how he had interrogated the HOLMES Indexing system and also Operation Care civil litigation databases and had elicited that out of 776 letters held on such systems only 9 other letters worded similarly to the letter of 25th November 1999 could be traced; none of the 9 letters referred to any person who was a complainant against the appellant. Mr Jennings did not object to our reading this statement of D/Sgt Thomas, provided that we paid the requisite regard to the new documents which he complained had not been disclosed.
66.
Mr Jennings then submitted that the combined effect of this material was that the police, complainants’ solicitors and employees of social services were advising complainants not to apply for compensation before trial and to deny being interested in compensation since they had not yet made any claim. The material ought to have been disclosed and the defence could then have investigated with complainants and police officers “whether there had been police irregularity in respect of compensation”. The result would have been that the appellant’s defence would have been more forcefully deployed before the jury.
67.
We cannot accept these submissions. Of course, police priming of witnesses would be irregular in the highest degree but there is no evidence of that having happened in the present case. The highest that Mr Jennings can legitimately put his argument on the material relevant to this appeal is to say that D/S Robbins perhaps suggested to some complainants’ solicitors that any claim for compensation should await the outcome of criminal proceedings. PH (the only complainant in this case to whom the suggestion was made) in fact did make a claim before the criminal proceedings concluded; PD and PV, to whose solicitors no such letters were written, did not but made their claims soon afterwards. JA, the murderer, has never made a claim – not surprisingly. We do not see how the appellant’s case could have been materially improved by disclosure of the material now sought to be relied upon.
68.
We would, however, add that even if the police had generally discouraged complainants’ solicitors from instituting civil proceedings before the conclusion of criminal proceedings, we would not consider it irregular for the police to have made the suggestion which they did. A criminal trial is, of course, not an ideal venue to investigate police irregularity at the best of times. The issue for this jury, as they must have been very well aware, was whether the fact that PH had made a claim for compensation and the fact that PD, PV and JA might make such a claim in the future made their evidence unreliable. In relation to those counts on which the appellant was convicted, the jury decided that the evidence of the complainants was reliable and their verdicts followed accordingly.
69.
It must be remembered that even if the complainants were motivated to give evidence of abuse by the hope or expectation of compensation that does not, of itself, make their evidence untrue or unreliable. It is, of course, a perfectly acceptable tactic on the part of the defence to suggest that a complainant may be motivated by the prospect of compensation and that such motive may make that complainant’s evidence unreliable. We cannot see that it is an unacceptable tactic for complainants to defer (or for their solicitors to advise them to defer) making a final decision on whether to claim compensation until after the conclusion of the trial. Whether their evidence is therefore unreliable is just one of the many difficult decisions a jury has to make in a case such as the present. That is what we have juries for. It would not be right for this court to decide that the hope of compensation makes the evidence of a witness suspect and set aside a conviction for any such reason.
70.
Eliciting “Expert Evidence” from Appellant (Ground 10)
The objection here is that counsel for the Crown at trial (not Mr Riordan QC) asked inappropriate questions of the appellant with a view to establishing the reason for delay on the part of the complainants in making their complaints. In particular the appellant was asked about “the three guilts” which it was suggested might be felt by complainants and deter them from complaining. This would be a matter for evidence from an expert in child abuse, if it were to be placed before a jury at all and the Crown had never proposed to adduce such evidence as part of its case. In these circumstances Mr Riordan accepted before us that such questions should not have been put to the appellant.
71.
We cannot accept, however, that the convictions are unsafe for this reason. A colleague of the appellant, called on his behalf, gave some evidence of the guilt experienced by the victims of sexual abuse and she had had training in the field of child protection. Although Mr Jennings submitted that she was not technically an expert qualified to give opinion evidence to the jury, it is difficult to imagine any objection to her cross-examination being sustained. In fact no objection was made to the questioning of this colleague (nor indeed to the questioning of the appellant himself). The judge did not refer to this questioning in his summing-up and we do not consider that the appellant was placed in an unfair position in the context of the trial as a whole.
72.
Cross-examination of Appellant which implied a sexual liaison with one of the witnesses called on his behalf (Ground 11)
The relevant witness was interposed during the appellant’s own evidence because she was going on holiday. After the evidence was given, the Crown suggested to the appellant that she had given such evidence because she had had a sexual relationship with the appellant. No such suggestion had been put to the witness while she was giving evidence. Mr Riordan accepts that the cross-examination of the appellant was inappropriate. The appellant strenuously denied the suggestion however; no reference to the suggestion was made in the remainder of the trial. We cannot accept that the convictions are unsafe for this reason.
73.
We turn, therefore, to the grounds affecting the individual complainants.
74.
PH: inconsistency between verdicts of conviction on count 4 and verdicts of acquittal on counts 5-8 (Ground 1) and counts 9-15 (Perfected Advice, para. 12)
Count 4 was a specific count of buggery, occurring on PH’s bed in a dormitory at St Thomas More’s; counts 5-8 were specimen counts of buggery which were alleged to have occurred on many other occasions in the dormitory or in the toilets. On these counts the appellant was acquitted; there were other specimen counts of buggery relating to occasions when one or more other (older) boys were said to be present, laughing, joking and threatening PH; on these counts, the appellant was also acquitted either by the jury at the end of the trial or (in the case of counts 13 and 15) on the direction of the judge.
75.
It is well accepted that, if inconsistency is alleged, it is for an appellant to show that the verdicts are such that no reasonable jury could arrive at the conclusion reached, see
R v Durante
56 Cr. App R 708. This is always difficult and in this case it is impossible. The jury were sure that PH’s evidence as to the first act of buggery was reliable; they may well have thought that his evidence of later specimen acts of buggery was exaggerated or too indefinite to be sufficiently reliable for a conviction. In our judgment there is not even a logical inconsistency between the conviction on count 4 and the acquittals on counts 5-15, let alone anything to show that no reasonable jury could have arrived at the decision of this jury. Mr Jennings pointed to various inconsistencies in PH’s evidence but that of itself cannot come anywhere near to demonstrating that the verdicts were inconsistent.
76.
PD: The “fresh evidence of Dugdale” shows that PD had a motive to lie (Ground 2)
Now that we have decided that we ought not to receive the hearsay “evidence” which Dugdale could, in any event, only give by way of written statement, this ground falls away.
77.
PD: his subsequent application for compensation shows that PD had a further motive to lie (Ground 3)
In evidence PD said that he did not know that he could claim compensation until the appellant’s counsel had mentioned it in cross-examination and that he had not done so. We have admitted evidence that he did make such a claim on 13th November 2001. His claim was in fact refused because of his record. PD’s solicitors have also confirmed that he intends to sue the Nugent Care Society in respect of his abuse.
78.
We have already observed that the hope or expectation of compensation does not, of itself, make the evidence of a complainant unreliable. There is no reason why, even if a complainant intends to make a claim, he or she should do so before criminal proceedings are concluded. If a complainant is asked whether he intends to make a claim and says that he did not know that he could claim compensation, it is for the jury to assess whether such answer is or may be truthful and whether, if they think that that evidence is or may be untruthful, that affects the reliability of the evidence of the acts of abuse. Counsel then appearing for the Crown said in his speech that the latter 3 complainants said they had no intention of making any application for compensation and that that was not why they were giving evidence. Counsel then appearing for the defence reminded the jury that there was a potential for a change of heart after the trial as far as compensation was concerned. The jury heard the evidence and the submissions; the fact is that they convicted after such evidence had been given and such submissions were made. That does not mean that the convictions are, in any way, unsafe.
79.
The other evidence we have received in relation to PD is all peripheral. Although it does appear that PD did not use his account of sexual abuse to curry favour with the authorities before the trial, his parole report of 17th February 2001 does refer to it. Given the obligation of those administering the parole system to understand the background of an offender and his offending in order to assess risk to the public, it is not surprising that the parole report includes that information. This cannot, however, show that his evidence at trial was false or unreliable. It is, no doubt, unfortunate that the matron whom he said in 2003 he had told of his abuse, has died; but that can hardly affect the reliability of his evidence; if the jury had heard defence counsel putting that to PD, they would either have concluded that his telling the matron supported his evidence or that he was inventing the incident when he told Mrs Roberts about it.
80.
PV: subsequent application for compensation shows a motive to lie (Ground 4)
The only difference between this ground and the previous ground is that PV did not claim to be ignorant of her possibility of compensation but merely stated that she did not intend to claim it. She in fact sent a claim to CICA 17 days after trial on a form which she must have previously received and, in due course, she obtained an award in the sum of £16,500. There is thus no difference of substance between her position and that of PD and this ground of appeal is dismissed for the same reason.
81.
We decided to admit the evidence of the number of telephone messages left for the appellant by PV at Parkside since it has emerged since the trial that there were more of these than had been originally thought. This fact does not, however, cause us to think that the convictions in relation to PV are unsafe. PV had denied making any calls (Summing-up 36B). It was known that there were in fact some calls and that fact was put to her and referred to by defence counsel in his speech (888F) and the judge in his summing-up (57D and 59E). The fact that it now transpires there were more calls than previously thought is of no consequence. PV was also cross-examined about her straitened financial circumstances, her failure to mention her abuse at earlier stages in 1997 and March 1998 when she made allegations in respect of other individuals and her previous history. All these matters were before the jury; yet they decided she was a witness of truth. The convictions in relation to her are not unsafe.
82.
JA: his retraction and diary evidence (Grounds 5 and 6)
The convictions in relation to JA are rather different, although we do not consider the diary evidence to be of any consequence. We have already expressed our reservations about admitting the evidence of Mr Rose and Mr Saltrese about JA’s retraction of his evidence at trial. We have nevertheless decided that we ought to admit the evidence of that retraction as contained in his signed statement. In most cases this court would expect a victim, who sought to retract evidence which he had given at trial, to come to court and explain why he gave evidence which he now says was untrue. As a prisoner serving a life sentence, an order could be made for his production but the court would have no effective sanction over him, if he were produced and continued to decline to give evidence. This matter was raised before the court on 30th January 2004 when Mr Jennings told the court, without dissent from Ms Loftus, that an approach to JA on behalf of the Crown had been made and that JA had refused to co-operate. Thus the current position is that he has refused to confirm or deny that he retracts his evidence. This parallels the position before trial when, having made an initial statement to the police, he sought to retract it. In the event, however, he did give his evidence to the court. The court is therefore left in a state of complete uncertainty on the vital question whether his evidence at trial was reliable. All that can be said is that JA has had every opportunity to come to court and support the evidence he gave at trial but he has declined to do so. In the peculiar (and, we believe, unprecedented) circumstances of this case, we have decided that we cannot be sure that the appellants’ convictions on the counts relating to JA are safe. It follows that those convictions which together carried a sentence of 4 years imprisonment will be quashed.
83.
Conclusion
Since it has never been suggested that any of the complainants have colluded together and since it was never suggested either that the jury could use a conviction on any count in relation to any one complainant as support for convicting the appellant on any count relating to any other complainant, it does not seem to us that the unsafety of the conviction in relation to the counts concerning JA can have any effect on the safety of the convictions in relation to the other complainants. Mr Jenning’s argument to contrary effect must be rejected.
84.
It follows that the appellant’s sentence will be reduced from 14 years to 10 years imprisonment. To that extent his appeal is allowed.
|
{"ConvCourtName":["Crown Court at Liverpool"],"ConvictPleaDate":["2001-07-02","2001-07-03"],"ConvictOffence":["Indecent assault","Buggery","Rape"],"AcquitOffence":["Buggery (specimen counts and specific count in relation to PH)","Indecent assault (count 29 in relation to PV)","3 counts in relation to JA"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Liverpool"],"Sentence":["14 years imprisonment (original)","10 years imprisonment (after appeal)"],"SentServe":["Combination"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["4"],"VicSex":["Mixed"],"VicAgeOffence":[16,15,12,14],"VicJobOffence":["Other"],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Witness testimony","Documentary evidence (school reports, social services records, hospital records)","Police investigation evidence"],"DefEvidTypeTrial":["Offender denies offence","Character witnesses","Cross-examination of complainants","New evidence (post-trial statements, compensation claims, retraction statements)"],"PreSentReport":[],"AggFactSent":["Abuse of position of trust","Multiple victims","Abuse over extended period"],"MitFactSent":[""],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction unsafe","Sentence excessive"],"AppealGround":["Inadequate warning to jury about unsupported evidence","Inadequate warning about delay in complaints","Non-disclosure of material regarding compensation claims","Improper cross-examination of appellant","Inconsistency between verdicts","Fresh evidence (retraction by JA)","Complainants' compensation claims post-trial"],"SentGuideWhich":[""],"AppealOutcome":["Allowed in part: convictions on counts relating to JA quashed; sentence reduced from 14 to 10 years","Dismissed in respect of other counts"],"ReasonQuashConv":["Retraction of evidence by JA; court not sure convictions on counts relating to JA are safe"],"ReasonSentExcessNotLenient":["Sentence reduced as convictions on counts relating to JA quashed"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Jury properly directed; no material irregularity; compensation claims do not render evidence unreliable; no collusion; other grounds not made out"]}
|
Neutral Citation Number:
[2006] EWCA Crim 3063
Case No: 200505928D3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
H.H.J. HAWKINS Q.C.
T20057547
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 07/12/2006
Before:
LORD JUSTICE SCOTT BAKER
MR JUSTICE PENRY-DAVEY
and
HIS HONOUR JUDGE LORAINE-SMITH SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION
- - - - - - - - - - - - - - - - - - - - -
Between:
R
Respondent
- and -
Kerry Ley
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Christopher Badger
for the
Respondent
Mr Joel Bennathan Q.C.
for the
Appellant
Hearing dates: 6 November 2006
- - - - - - - - - - - - - - - - - - - - -
REASONS FOR DECISION
Lord Jusitce Scott Baker:
1.
Kerry Ley, aged 37, appeals with the leave of the Full Court against his conviction before Judge Hawkins Q.C. and a Jury at the Central Criminal Court on 14 October 2005 of aggravated burglary. The conviction was by a majority of 10 to 2; he was subsequently sentenced to 7 years imprisonment.
2.
He was tried jointly with his brother Jason Robinson (also known as Jason Ley) who was acquitted.
The facts.
3.
In summary, on 10 May 2005 two men forced their way into a flat in Morning Lane in East London having persuaded the occupants to open the door by pretending they were with a lost child. On opening the door Mrs Costello and her daughter Catherine were pushed aside by one of the men who was wearing a stocking mask over his head. He pointed a knife at her and demanded money. The other man was wearing a wig as a disguise. When he emerged from Catherine’s bedroom the wig slipped. Catherine recognised him and said: “Kerry, how can you do this to my parents.” Both men panicked and ran out of the flat. During the burglary a mobile phone was stolen.
4.
The Crown’s case was that the aggravated burglary was a joint enterprise between the appellant and his brother. The brother entered the property with a knife and the appellant with a gas canister.
5.
The Crown relied on recognition evidence from Catherine. She recognised the appellant as someone she had known for the previous four years which was why she had spoken to him as she did when she recognised him. She recognised the wig worn by him as belonging to his sister Siobhan. A telephone call was made by Siobhan the following day at a time when, on the Crown’s case, she could not have known about the burglary unless she had been told about it by the appellant or his brother.
6.
The defence case was alibi. The appellant and his girlfriend had spent the evening at the hostel where he lived. He remembered the occasion because it was the day after his birthday. His girlfriend supported his alibi. It was said that Catherine’s recognition was mistaken and based on a fleeting glance. Anyone disguised in the way the second man was would have reacted in the way he did when words of apparent recognition were uttered.
7.
The appellant called the local postmaster who said he had witnessed an argument between the appellant and Sandra Costello, allegedly on the day after the burglary.
8.
Catherine’s evidence was that the burglary occurred about 10.30pm when she and her mother were watching television in the living room. The man with the knife held it to her mother’s throat shouting: “give us the money.” They replied that they did not have any. She and her mother were shouting. Her father, who had been in bed and was suffering from a broken leg, came out of the bedroom and started shouting, too. She put herself between her mother and the man in the stocking mask because she feared for her mother’s safety. She recognised him as Jason Robinson whom she had known for some years. She did not know how the other man had got into her bedroom. She described him as: “tall and skinny” he was smaller than the man with the knife and wearing dark clothing. When he passed her father his hair flew up and his wig slipped. She recognised him as the appellant. His sister was a friend of her sister; she knew him well enough to speak to and had seen him just a few days before. She had an unobstructed view from 10 or 12 feet. She had seen the wig worn by the appellant at his sister’s house. She agreed in cross-examination that she had not seen the second man come into the flat and that the incident had shaken her up. She had tried to give the police the best possible description but had done so after she had dealt with her mother’s hysterics. She had no doubt it was the appellant. The one of the two she did not really know was Jason. She disagreed when it was put to her that one of the men could have been Darren Ley. She was sure she was not mistaken in her identification.
9.
Mrs Costello confirmed the second man was wearing a wig or had long hair and that her daughter said: “Kerry, why are you doing this to my mum and dad.” She had not concentrated on identifying the two men as she just wanted to get them out of her flat.
10.
Mr Costello said the second man was wearing a wig with a baseball cap over it. He too heard his daughter’s words to him at which the man put his head down and covered his face with his hands. The two men were then tripping over themselves to get out of the flat. The police arrived two minutes later. The following morning he received a telephone call from Siobhan Ley who wished to speak to his wife. She said her two brothers had been accused of the burglary. He told her his wife would not be interested in speaking to her and she should take her brothers to the police station. About 11am his daughters Michelle and Sandra came to the flat. He told them about the incident. They had not heard about it before. He then went to sleep and was woken by a bang on the door. He answered and a man shouted at him: “if any thing happens to my fucking brothers, I will do you on the street…..you have got it wrong, my brothers did not do anything”. He had not seen the man before and did not think he was one of those involved.
11.
There was no forensic evidence to connect the appellant to the burglary. He made no comment when interviewed, but provided a prepared statement which gave a short account that was broadly consistent with his subsequent evidence.
12.
The appellant’s submission at the close of the Crown’s case that there was no case to go to the jury was rejected by the judge. When the appellant gave evidence he said he did not know Mr Costello; he did know Mrs Costello but had never spoken to her. Although he knew Catherine Costello he had only spoken to her a few times and did not know her well. He knew her through his sister Siobhan. He said that on 11 May he went to his sister’s house to collect his benefit cheque as it was delivered to her house for safekeeping. He then went to the post office to cash it. When he got there he saw Sandra Costello. As he passed her she shouted abuse at him and said: “how could you do that to my family.” He said he did not know what she was talking about. She swore at him and told him he and his brother had robbed her family at knife-point the night before. She stormed off. He ran after her and asked her to explain but she told him never to speak to her again. He went into the post office and was asked by the postmaster what was happening. He told the postmaster what she was alleging. He cashed his money and then went to Siobhan’s house. He told her what had happened and she phoned the Costellos. Words were exchanged but he did not know what was said.
13.
Jason Robinson gave evidence that he had never been to the Costellos’ flat. He had seen the appellant the day after the alleged robbery and he told him he had seen Sandra Costello at the post office and she had alleged they had robbed her family.
14.
Siobhan Ley said she knew Sandra Costello well and indeed had been asked to be a godparent to her child. She telephoned Catherine Costello to find out what was happening but she was very rude and put the phone down. She had not spoken to Mr Costello. She remembered an occasion in January 2005 when Catherine Costello and others had been to her house when children and others were playing with a number of wigs.
The appeal.
15.
The Full Court in granting leave to appeal did not limit the terms of the leave but indicated it expected the argument to be directed primarily to one ground. That ground is that the judge having concluded it would not be safe to leave the case to the jury if it depended solely on the recognition evidence of Catherine Costello should have directed the jury in positive terms not to convict unless they were satisfied there was other reliable evidence independent of Miss Costello which would support her identification. Mr Bennathan Q.C., for the appellant, submits that although this point is not expressly covered in
R v Turnbull
(1976) 63 CrAppR 132 that case should be understood as imposing a duty on the judge to direct the jury to this effect.
16.
The first ground of appeal that the judge should not have left the case to the jury was, rightly in our view, not pursued by Mr Bennathan. It is, however, necessary to look at the judge’s ruling because it is the starting point for his main argument. The judge referred to the
Turnbull
principle that when in the trial judge’s judgment the quality of the identification evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, he should withdraw the case from the jury unless there is other evidence to support the correctness of the identification. He then said of the identifying witness Miss Costello that she had known the appellant for about four years.
“I knew him well enough to sit down and speak to him; and I had done that on a number of occasions. The last time I had seen him was on the Friday before the incident on the way to college.”
He continued:
“It is accepted that the view that Miss Costello got of the man who would have been wearing a wig was a fleeting glance. Also, it was a limited view of the side of his face, and I have looked at it, as I have been asked to, in the context of the first descriptions and the evidence of other witnesses in the case. It is submitted that I should withdraw the case from the jury.”
Then he went on to record the prosecution’s response that it was a recognition case and there was evidence (i) as to the appellant’s reaction when Miss Costello mentioned his name, putting his hands over his face and trying to leave as quickly as possible (ii) that Miss Costello had seen the wig before at his sister’s house and indeed tried it on and (iii) the phone call the next day from the appellant’s sister. He then said:
“In my view, in spite of the fact that this is a fleeting glance – this is the second defendant (the appellant) – in view of the other evidence I have referred to, it is a fit case for a jury to consider in relation to that defendant.”
17.
The judge, as he was obliged to do had to look at the whole of the evidence at that stage and decide whether there was sufficient evidence against the appellant to leave the case to the jury. That evidence included the three matters of potentially supporting evidence to which we have referred. The judge did not have to make a decision about what he would have done had the evidence been different and the case dependent on Miss Costello’s recognition alone. It is true that the judge’s decision can be read on the basis that he only left the case to the jury
because
there was independent supporting evidence
,
but it does not have to be read in that way. It is difficult to speculate on what the judge would have done had the evidence been different. What if any reaction there was from the person identified as Kerry could have been very relevant.
18.
True it is that the
Turnbull
principle requires a judge to withdraw the case from the jury when the quality of the identifying evidence is poor. Furthermore, recognition cases are not excluded from that principle. As the Lord Chief Justice pointed out in
Turnbull
at p.137:
“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 relations 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.”
19.
There are of course recognition cases and recognition cases. The degree of familiarity of the witness with the person he or she is identifying is very relevant just as are the circumstances of the identification itself. Here, Miss Costello had good previous familiarity with the appellant and had seen him not long before.
20.
Mr Bennathan invites us to proceed on the basis that the judge would, but for the supporting evidence have withdrawn the case from the jury at the close of the Crown’s case. The identification evidence alone was not a safe basis for conviction. He should therefore have directed the jury to that effect. The jury should have been directed as to what evidence was capable of amounting to supporting evidence, it being for them to decide whether it was or not, but they should also have been directed not to convict on the identification evidence alone. Mr Bennathan concedes that such a direction is not specified in these terms in
Turnbull,
but submits that as a matter of principle such a direction is required in circumstances where the judge would not have left the case to the jury in the absence of independent supporting evidence.
21.
He advances the following reasons for this. First, the mischief
Turnbull
seeks to address is unsafe convictions arising from the evidence of honest but mistaken witnesses. Once a trial judge has concluded that a conviction based solely on an identifying witness’s evidence would be unsafe surely it cannot be proper for a jury to be left with the opportunity to convict on such a basis. But that, he submits, would be precisely the effect of not requiring the direction for which the appellant contends.
22.
Next he observes that while juries are normally allowed free range in arriving at factual conclusions, bitter experience has led the courts to make an exception in identification cases. As Lord Mustill put it in
Daly v The Queen
[1994] 1 AC 117
at p.129f:
“When assessing the `quality` of the evidence, under the
Turnbull
doctrine, the jury is protected from acting on the type of evidence which, if believed, experience has shown to be a possible source of injustice.”
23.
Mr Bennathan’s argument is that under basic principles it is for the jury to decide whether to accept or reject any supporting evidence. Thus it must follow that, absent the direction sought, the jury would be entitled to discount the supporting evidence and convict solely on the basis of identification evidence that the trial judge had previously found to be too poor.
24.
Mr Bennathan draws an analogy with the old law in cases where corroboration was required and juries were directed it would be dangerous to convict without it, although he does not seek to resurrect the old technicalities of corroboration. He also referred to directing juries about the dangers of convicting on the unsupported evidence of an accomplice.
25.
In our judgment no direction of the kind sort by Mr Bennathan is either required as a matter of principle or necessary in the circumstances of the present case. It is of course always open to a judge to warn the jury about the dangers in respect of any particular aspect of the evidence. A summing up needs to be tailored to the circumstances of the case. The evidential landscape will change when the defence call evidence. Identification evidence may become stronger or weaker as a result of other evidence called by the defence. In this case there were two defendants; both gave evidence. Other witnesses were called as well. It was for the jury to weigh up at the end of the day the whole of the evidence. It would in our judgment have been inappropriate and unhelpful for the jury to have been directed not to convict on Miss Costello’s evidence unless they found it was supported by one or more of the three potential supporting pieces of evidence.
26.
Mr Badger, for the respondent, submits that there are dangers inherent in requiring as a matter of principle the direction Mr Bennathan seeks. He says the judge would effectively be saying to the jury that he would have withdrawn the case from them but for the supporting evidence. This might lead the jury to conclude he thought the identification was safe to act upon because of other evidence in the case, a danger identified in the commentary to the report of
R v Akaidere
[1990] Crim LR 808.
27.
Mr Bennathan has not drawn the court’s attention to any authority that supports a requirement to give the direction he seeks. His argument, although superficially attractive, does not in our judgment bear close examination. There are two distinct exercises for the judge. First he must decide, in a case depending on identification evidence alone, whether the evidence of identification crosses the quality threshold so that the case can safely be left for the jury to determine. Secondly, when summing the case up, he has to give the jury an appropriate
Turnbull
direction tailored to the facts of the case. There may be cases where, in the light of the evidence that has unfolded, the jury should be directed not to convict on the evidence of an identifying witness alone. However, in our judgment there is no general rule of principle of the kind submitted for by the appellant.
28.
When the judge summed the case up he gave the jury a classical
Turnbull
direction. The jury could have been in no doubt about the special need for caution as to Miss Costello’s evidence. He went on to deal with the weaknesses in her evidence in these terms:
“Undoubtedly the witness’s view was a fleeting glance – she said the words herself when it was put by counsel; and it was a profile view. At the same point the witness must have been undoubtedly under pressure at the time. Then there is also – as in the case of (the other defendant) – the first description to be considered, which I will remind you of when I come to deal with her evidence, and the contents of the officer’s notebook, to be taken into account as a weakness when you come to consider both their cases.”
29.
Mr Bennathan submitted, and this was the other ground of appeal that he pursued, that the judge dealt inadequately with the weaknesses in Miss Costello’s evidence. He should have given the jury a complete list so that the jury could consider them cumulatively. The list would have included the following.
•
She accepted she had a “quick fleeting glimpse of his face,” or “the amount of time was virtually nil.”
•
The glimpse was obviously in difficult circumstances.
•
She was 10 to 12 feet away with nothing to obscure her view.
•
It was a profile view.
•
She did not see all of the man’s face.
•
She was too far away to see:
a)
if he had facial hair;
b)
the colour of his eyes;
c)
particular features like the shape of his ears.
•
She mixed up the names of the four, very similar looking, brothers when giving a name for the offender at the scene on the night;
•
Mr and Mrs Costello both described the appellant as 5 foot 4 inches whereas he is 5 foot 9 inches.
•
She told the police he was in his mid twenties whereas in fact he is 36.
30.
The judge touched on most of these matters in his summing up at different stages when recounting the evidence. Some are no more than different aspects of the same weakness. The complaint is that they should all have been listed together. In our judgment the judge covered adequately the weaknesses in the identification. He gave the jury the appropriate
Turnbull
direction and drew attention to the various weaknesses in the identification evidence as he summarised the evidence and the issues to the jury. We were reminded of the words of Steyn L.J in
R v Fergus
(1994) 98 CrAppR 313 at p.318 that it is incumbent on a trial judge to place before a jury any specific weaknesses which can arguably be said to have been exposed in the evidence and that 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. However, we are satisfied that the judge complied with that requirement in the present case.
Conclusion
.
31.
The point of law to which the argument was mainly directed was this: the judge having decided that the identification was of such poor quality that he would not have left the case to the jury in the absence of supporting evidence, must the jury be directed that they should not convict on the evidence of identification alone in the absence of supporting evidence? In the first place we are not satisfied the judge would have stopped the case in the absence of supporting evidence. But assuming that were so we do not think the judge was required to give such a direction. Identification cases always require a careful direction from the judge drawing attention to the dangers of honest but mistaken identification along the lines of
Turnbull.
But the jury has to consider its verdict in the light of the whole of the evidence, it being a matter for them what evidence they accept and what evidence they reject. When a defendant gives or calls evidence, and especially so when there is more than one defendant, the picture may look very different at the conclusion of the whole of the evidence from how it looked at the end of the prosecution case. We have found nothing unsafe about the appellant’s conviction and these are our reasons for having dismissed his appeal.
|
{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2005-10-14"],"ConvictOffence":["Aggravated burglary"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["7 years imprisonment"],"SentServe":[],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[37],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["3"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Recognition evidence"],"DefEvidTypeTrial":["Alibi claim","Offender denies offence"],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction unsafe"],"AppealGround":["Judge failed to direct jury not to convict on identification evidence alone unless supported by independent evidence","Judge dealt inadequately with weaknesses in identification evidence"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge gave appropriate Turnbull direction","Judge adequately covered weaknesses in identification evidence","No unsafe conviction found"]}
|
NCN: [2020] EWCA (Crim) 301
No: 202000227 A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 11 February 2020
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE EDIS
MR JUSTICE CHAMBERLAIN
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
R E G I N A
v
DANIEL VASILE IVAN
Ms J Ledward
appeared on behalf of the
Attorney General
Ms R Hill
appeared on behalf of the
Offender
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22
Furnival Street, London, EC4A 1JS, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court)
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
J U D G M E N T
LORD JUSTICE SIMON:
1.
The Solicitor General seeks leave to refer a sentence, passed in the Crown Court sitting at Winchester on 19 December 2019, under section 36 of the Criminal Justice Act 1988, as
being unduly lenient.
2.
The offender is Daniel Ivan, aged 22, and the sentencing judge was His Honour Judge Cutler. The offender was charged with six offences of engaging in sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003. On 8 November 2019, at a
hearing shortly after the plea and case management hearing, the offender pleaded guilty to four of the offences on a written basis. The other two charges were left to lie on the
file on the usual terms.
3.
On 19 December he was sentenced concurrently on each count to a term of 15 months' imprisonment, suspended for 24 months, with a rehabilitation activity requirement of up
to 20 days. A sexual harm prevention order was made for a period of 5 years.
4.
The victim of these offences was F. At the relevant time she was 13 and in Year 8 at school. She was born in Romania (as was the offender). She met him while out with friends in Aldershot, her local town. Following their initial meeting there was contact on Facebook and they began messaging each other via Facebook messenger. They began to meet, usually in his car, before and after school. On one occasion one of her friends accompanied them, and saw them kissing and hugging. F considered that the offender was her boyfriend and described him as such to her friends. After two or three weeks the offender asked F to have sex with him. She told him that she was only 13 and that she was too young. He responded by telling her she looked older, that she looked 18. She did not want to have sex with him but felt pressurised into doing so as she loved him and
did not want him to break up with her.
5.
They agreed he would collect her in his car before school as usual. She was wearing her school uniform. He then took her to a secluded carpark near a local swimming pool, he undressed her lower part by removing one leg of her trousers and underwear and then penetrated her vagina with his penis. He wore a condom and continued until he
ejaculated. F found the experience painful and she bled from her vagina. He told her that he loved her and dropped her off by her school (count 1). This occurred on three further occasions with the same arrangements each time over a period of a few weeks (count 2 - 4). The last occasion was on 8 March 2018. The offender told her he would not leave her like other boys would. He also asked her to send him photographs of her naked breasts and vagina but she refused. The soliciting of indecent images was opened, advanced as a fact irrelevant to categorisation and not challenged in mitigation or on the
basis of plea in the Crown Court. This is a matter to which we will return later.
6.
Matters came to light when a boy in F's year at her school saw the offender dropping F off at school and kissing her in his car. He alerted teachers, who contacted her parents.
When they confronted her she told them what had happened. They went to the police.
7.
She was video interviewed on 10 March 2018 and provided an account of what had taken
place.
8.
The offender was arrested and interviewed on the same day. He answered "no comment" to all questions asked. He was issued with a Child Abduction Warning Notice in which
he was told by the police not to have any further contact with F.
9.
By the time F was first spoken to by the police she had deleted the Facebook and other messages between her and the offender. However, messages were recovered later from the mobile telephone of a friend of hers which she had used when contacting the offender after his initial arrest. These later episodes became the subject of counts 5 and 6 on the original indictment, left to lie on the file. The messages included F referring to the offender as her "King" and he responding by referring to her as "my Queen", they both saying they missed and loved each other. Numerous heart emojis and other affectionate messages and symbols were exchanged. The messages made clear that F considered herself to be in a romantic relationship with the offender and to have formed an emotional attachment to him. When asked why she had engaged in further contact with him which she did not tell the police about, she said at the time she felt she loved him and could not stop herself. She thought that he felt the same way. As a result of this further contact the offender was re-arrested and interviewed on 1 May 2018. In a prepared
statement he denied any further contact with F.
10.
He was interviewed voluntarily on 29 May 2018, on which occasion he answered questions. He accepted having sexual intercourse with F but claimed she had told him she was 18 and that he had never had cause to disbelieve this. He accepted dropping her off at school but said she had told him she worked as a cleaner. He had found out her true age from a friend much later and he had not had sex with her after this.
11.
He was charged by way of postal requisition in September 2019 with four offences contrary to section 9, relating to the penile penetration of the victim's vagina and two
further offences relating to allegations of non-penetrative sexual touching in April 2018.
12.
He first appeared on 17 September 2019 and indicated that he would plead not guilty to
all six charges: the defence to be advanced was belief the victim was aged over 18.
13.
At the plea and trial preparation hearing on 16 October he pleaded not guilty to all counts and the matter was set down for trial on 16 December. Subsequently the offender's representatives made contact with the Crown Prosecution Service offering a plea of guilty to counts 1 to 4 (the four charges relating to penile penetration) on the basis of that plea
which read as follows:
[F] contacted me on Facebook after we had seen each other in Aldershot. I am unsure quite how she located me, but we are both part of the Romanian community in Hampshire.
Whilst I initially believed [her] to be 18 years old (as her Facebook profile indicated) I accept that I later discovered she was 13 years old. I learnt this before I had sex with her.
I
had sex with her four times from the 1st January 2018 to 8th March.
Although I knew that [she] was not old enough to have sex with me, at no time did I force her to have sex with me. She was a willing participant in all sexual activity.
14.
The proposed pleas and basis of plea were acceptable to the Crown and the matter was re-listed on 8 November for the offender to be re-arraigned. As already indicated, he pleaded guilty to counts 1 to 4; and a pre-sentence report was ordered.
15.
The offender had no previous convictions in this country or in his native Romania. A pre-sentence report, dated 17 December 2019, was before the court. The offender told the author of the report that he did not know the victim's age, had no reason to suspect her to be a child and that he only pleaded guilty "to get rid of the mess" - in other words the court proceedings. The author of the report noted that he refused to take responsibility and lacked any insight into the motivation for or the impact of his offending, and failed to show any evidence of a commitment to desist as he was not engaging with any support
agencies. He posed a medium risk of further sexual offending.
16.
A victim personal statement from F, dated 3 October 2019, was before the court and read out. In the statement she said she was left with a sense of deep shame because she considered herself to be "guilty of the entire situation". She was ashamed in front of her parents and, at school many children had made fun of her behind her back saying she had a "lover" who was much older. She still struggled with feelings of shame and guilt and the incident had forced her to grow up more quickly. She was now much more
reserved and cautious in her interactions with other boys.
17.
For the Solicitor General, Ms Ledward submitted that by reference to the Sentencing Council Definitive Guidelines for section 9 offences, the offending fell within category 1A. It was category 1 harm because of the penetration of the vagina. It was category A culpability because there was a significant degree of planning so as to avoid detection, grooming behaviour and solicitation of sexual images. Category 1A offending has a starting point of 5 years and a range of 4 to 10 years. There was in addition the aggravation of there being four offences, disparity in the ages of the offender and his victim, and ejaculation.
18.
Ms Ledward acknowledges the mitigation of his previous good character and his guilty
pleas.
19.
She submits that the sentences were unduly lenient because the judge erred in placing the offending in category 1B of the guidelines, with a starting point of 12 months and a range of a high level community order up to a term of 2 years' custody. There were enough high level culpability factors to place this offending above the starting point for category 1A offending, not least because there were four offences. Alternatively, the offending was so serious as to place it at least above the level of category 1B sentences. She also submitted that the judge gave too much weight to the mitigation and that he should not in
any event have suspended the sentence.
20.
Ms Hill, who appears for the offender, accepts that the sentence was lenient but submits that it was not unduly so. The circumstances included that it was F who had made the initial contact by Facebook, that the offending was confined in time to a period of 2 months or so rather than the longer indicted period, and that the offender exerted no pressure on F in the sexual activity. She submitted that there was not grooming, in the sense of building a relationship of trust or emotional connection with a child or young
person for the
purpose
of manipulating, exploiting or abusing them.
21.
She submitted that the credit could properly have been more than 20% given the delays in entering pleas were due to the difficulties in procuring a Romanian interpreter. Prior to
this there had been a delay of 18 months between arrest and charge. Throughout the relevant period the offender had been in employment as a manual labourer, working seven night shifts a week. In addition, she points out that he was 20 at the time of the offending, of good character and, from her contact with him, immature and of low
intelligence.
22.
Ms Ledward has drawn our attention, to the pre-sentence report:
Using a maturity tool, it does not appear that Mr Ivan struggles with low maturity, however I do acknowledge that his young age may impact upon his understanding of the seriousness of his behaviour, as well as continued denial. His minimisation may also be impacted upon by his young age.
23.
We have seen a supplementary report prepared by the probation service for this hearing. That does not throw much light on the issues we have to decide. It appears that, if there continued to be difficulties with him living with his new partner and her daughter, as
there are bound to be, he had indicated that he will return to Romania.
24.
It appears that the judge placed the offending in category 1B of the Sentencing Council Definitive Guideline for section 9 offending, a high degree of harm but lesser culpability, with a starting point of 12 months and a category range of a high community order to 2
years' custody.
25.
It is clear that this offending fell within the highest category of harm (category 1) in view of the full penetration of the victim's vagina. The issue is whether there were four features identified in the guidelines as indicating higher culpability: first, a significant degree of planning; second, grooming of the victim; third, solicitation of sexual images;
and fourth, significant disparity of age.
26.
Whether the culpability of the offending falls within category A or category B has a significant impact on the starting point and this is so whether the harm is category 1 or 2. However, some of the matters identified as potential culpability A factors, a degree of planning and a disparity of the age, are not inherently hard edged criteria. They are made so by the qualifier, the use of the word "significant". It is a
significant
degree of planning
and a
significant
disparity of the age that renders the offending of higher culpability.
27.
Grooming too involves the exercise of a judgment as to whether the activity of the offender was such as to constitute a high culpability factor as the judge accepted with a
view to identifying the purpose of his conduct.
28.
In the case of solicitation of sexual images, it is not generally a request that is refused
which will make the offender of higher culpability but a request which is accepted.
29.
In our view the judge's approach was consonant with the approach set out in the
guidelines. He said this:
I
have seen the photographs and pictures of the 13-year-old girl. It is quite clear and obvious that she is underage. I hope you have heard what she has said has been the impact on her of your offences. You should not have done it, you did it for sexual gratification and I accept you put too much pressure on her, that at the time she was vulnerable through her age. All in all you should have known better.
I look at the Sentencing Guidelines and I put your offending in what the
lawyers have called Category 1 but the culpability I put in Category B. For the knowledge of the barristers involved in your case, I indicate that I do conclude that there has been some degree of planning but limited in its effect. There has been some grooming and I, of course, acknowledge the disparity of age being seven years. But these factors do not, in my view, become significant enough for me to put your culpability in Category A.
30.
Ms Ledward further agrees that the judge erred in not treating the disparity of 7 years between 13 and 20 as significant, as sufficient to elevate the offending into category A. She has referred to a number of cases in which this court has addressed the issue:
R v Wigmore
[2016] EWCA Crim 1813
;
R v Thompson
[2017] EWCA Crim 527
;
R v Hackett
[2017] 2 Cr App R(S) 10;
R v Rashaan Hopkins
[2018] EWCA Crim 353
;
R v Pollard
and Allen
[2018] EWCA Crim 439
;
R v Reuben John Babich
[2018] EWCA Crim 457
.
31.
The judge set out his approach later in the sentencing remarks:
What does this mean for your sentence? It means I have starting point, under the guidelines, of 1 year custody. That has to be increased because there are four separate offences and because of the elements that I have mentioned of grooming, disparity of age and ejaculation. Had you been convicted by a Jury who had sat then your sentence may have been slightly in excess of 2 years' custody, as it is, I bear in mind your mitigation. You are now 22 years of age. You have no previous convictions and you were arrested as long ago as May 2018 for these offences. All those particular features play in this way that I put into the mix your basis of plea, the fact that you are in employment and have stability and I reduce the sentence and then take into account a 20% deduction for your plea of guilty.
All this brings me to a conclusion that the sentence that I impose on each of the four counts is one of 15 months. They will be concurrent on each of the four counts. These other factors that I have mentioned about your good character and your employment and those other features mentioned by Miss Hill means that, in your case, I will suspend the sentence. So you will not have to serve the sentence of 15 months unless of course you commit another criminal offence punishable by imprisonment and unless you fail to attend and comply with the requirement that I now make of 20 RAR days.
32.
It is clear that the judge assessed the seriousness of the offending and concluded that it warranted a sentence of above 2 years before the offence and offender mitigation, and credit for the plea were taken into account. In other words he placed the overall offending out of the category range of category 1B, although not into the category range of category 1A. He did not take the view that the nature and extent of culpability factors, either individually or collectively, took the offending into category A culpability, or were of comparable culpability with, for example, the use of alcohol or drugs to facilitate the
crime or the use of threats or blackmail to procure it.
33.
In our view, the judge's overall approach was unobjectionable. Having taken that view of the matter he then had to consider the mitigation. That included the long delay in deciding to prosecute this young offender. We accept there may have been delays due to
the prosecution investigating mobile phones but overall the delay was unacceptable.
34.
Standing back it might be said that this sentence was lenient but, in our view, the overall sentence was not unduly or objectionably so accordingly, although we grant leave, we
will not interfere with these sentences.
|
{"ConvCourtName":["Crown Court at Winchester"],"ConvictPleaDate":["2019-11-08"],"ConvictOffence":["Engaging in sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on re-arraignment"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Winchester"],"Sentence":["15 months' imprisonment suspended for 24 months with a rehabilitation activity requirement of up to 20 days"],"SentServe":["Concurrent"],"WhatAncillary":["Sexual harm prevention order for 5 years"],"OffSex":["All Male"],"OffAgeOffence":[20],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[13],"VicJobOffence":["Student","Child"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony","Facebook messages","Witness testimony (friend saw them kissing and hugging)"],"DefEvidTypeTrial":["Offender denies knowledge of age","Claimed victim said she was 18","No comment interview","Prepared statement denying further contact"],"PreSentReport":["Medium risk of reoffending"],"AggFactSent":["disparity in ages of offender and victim","multiple offences (four counts)","ejaculation","some degree of planning","some grooming"],"MitFactSent":["offender of previous good character","offender in employment","offender young at time of offence","delay between arrest and charge"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Judge erred in placing offending in category 1B rather than 1A of guidelines","Judge gave too much weight to mitigation","Sentence should not have been suspended"],"SentGuideWhich":["Sentencing Council Definitive Guidelines for section 9 offences","section 36 of the Criminal Justice Act 1988"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["Judge erred in categorisation of culpability and harm under guidelines","Judge gave too much weight to mitigation","Sentence should not have been suspended"],"ReasonDismiss":["Judge's approach was consonant with guidelines","Sentence was lenient but not unduly so","Judge considered all relevant factors including mitigation and delay"]}
|
Neutral Citation Number:
[2011] EWCA Crim 1142
Case No:
200904316 D1
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEEDS
HER HONOUR JUDGE KERSHAW
T20097006
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
05/05/2011
Before :
LORD JUSTICE RIX
Mr JUSTICE MADDISON
and
HIS HONOUR JUDGE RADFORD
THE RECORDER OF REDBRIDGE
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Respondent
- and -
W
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ian Peddie QC
(instructed by
Faraday Solicitors
) for the
Appellant
Mark McKone
(instructed by
Hull & East Riding CPS
) for the
Respondent
Hearing dates : Monday 21
st
March 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Rix :
1.
The appellant in this case, W, then 58 years old, was convicted on 16 July 2009, at the Crown Court at Leeds before Her Honour Judge Kershaw and a jury, of the rape (count 1) and assault by penetration (count 2) of his step-daughter, when she was 14. We shall refer to her throughout as the complainant. We will refer to Mr W as the “appellant” but sometimes, where it is natural to do so, as the “step-father”. The convictions were by a majority of 10 to 2. The trial with which we are concerned was a retrial. At the first trial the jury could not agree on verdicts in respect of these allegations.
2.
The complainant’s allegations were made first to her mother, the appellant’s wife, on 19 October 2007, towards the end of a lengthy conversation which had been initiated by the mother as a result of the appellant finding a text on the complainant’s mobile phone suggestive of a sexual relationship between the complainant and a boyfriend. The appellant was angry and had asked his wife to deal with it. The mother was therefore challenging her daughter’s behaviour. In the course of that conversation, the mother had told her daughter that she would have to go to live with her father, ie her natural father. At the end of the conversation, the complainant made an allegation that the appellant had touched her, in the stables, by putting his hand down her trousers.
3.
Later that same day, the complainant was already being interviewed on video by a senior social worker for the purpose of a police investigation (the “video”). What the complainant then said in due course became her evidence in chief at the trial. During the interview the complainant made two allegations against the appellant. One was an allegation of rape, in the stables, “a few months ago”. He had stood behind her, put his hands down her trousers, fingered her, and then put his penis (his “willy”) down her trousers and up her. He stopped and she ran off. The second allegation was of something that had happened only two days earlier, on 17 October 2007, when she and the appellant had been alone on a settee in the living room of their house watching a film. He had “started to do it again”, had put his hand down her pyjama bottoms and had fingered her. She ran off to bed. In due course these allegations became counts 1 and 2 on the indictment.
4.
At trial the question of the date of the alleged rape became an important issue for the defence. The indictment alleged that it had occurred between 8 July and 31 August 2007. 8 July 2007 was the complainant’s fourteenth birthday, and the prosecution did not suggest that the rape had occurred before the complainant turned fourteen. Although in the video the complainant had been quite vague at first about the timing of the rape (“about a few months ago”), with more questioning she was able to be increasingly precise: “maybe in like the beginning of August”…“It was on the weekend”…“It was a Sunday, I think”…“before we broke up [school]”. It was later established that the complainant’s last day of school before she broke up for the summer holidays was 20 July. The complainant accepted in cross-examination that it had certainly not taken place on her birthday, Sunday 8 July. That left only Sunday 15 July as a Sunday prior to breaking up at school. Therefore 15 July became the focus of particular attention on the part of the defence.
5.
The complainant gave further details about the occasion of the rape. In her cross-examination evidence at trial she said that it had occurred at about 1pm. In her video she said that she had had a shower afterwards “cos I’d been riding my pony”, “and then my dad picked me up”, ie her natural father, and he had taken her to school the next morning “cos it was a Monday”. As for the appellant, he had been in his old jeans and a shirt, his “weekend” clothes. He “just drove off in his car”, going, she thought, to the pub, and leaving the complainant to be picked up by her father. As a result she had not spoken to the appellant about the rape. As the judge summed up her video evidence:
“Well, I stayed at my Dad’s that night and I don’t know what happened when Mum got back home because I was at my Dad’s, but when my Dad took me to school the next morning it was a Monday, and then when I got home from school he [the appellant] was in his office at work and he didn’t like, speak to me.”
6.
Another major issue at trial concerned the complainant’s motive. Inevitably, the question was raised as to what possible motive the complainant could have had for making allegations against her step-father, if they were false. The evidence from the appellant and his wife was that the relationship between appellant and complainant was on the whole a normal one. However, the complainant also said (in her video) that “I just don’t like living with him really” and that “he’s quite nasty”. Be that as it may, the text message found on the complainant’s phone caused a crisis of a kind. The complainant was aware that it was the appellant who had found the message. It was from an unknown friend and said “K [ie OK], I will, LOL [ie laugh out loud]. Ye, mine too. K a shag it is” (smiley face), LY [ie love you] X”. The inference was that the complainant was sexually active, and her mother put that to her, but she denied it (although at trial she accepted in cross-examination that the message read as an arrangement to have sexual intercourse). She would not say from whom the message was sent. The mother was worried that her daughter was pregnant and said so. She also said that she had had enough and that the complainant could go and live with her father. She had never said that to her before and was very angry. The complainant was crying hysterically. That was when she came out with her allegation.
7.
In the circumstances, the defence suggested that her allegation was a reaction to the predicament she found herself faced with, and that she had no adequate explanation for the delay which had occurred (some three months or so) between the rape and the text-induced conversation with her mother. When she was asked to explain this delay she gave a variety of explanations. She said that she was scared and that it was hard to speak about such things. However, she also said that she had decided to act naughty, so that her mother would leave the appellant and “I’d be able to get away from him”. She had said that in her video, and again in cross-examination. On the other hand, she also said, at a different place in the video, that she did not know what to do because her mother was happy with her stepfather and she did not want her younger half-sister growing up without her parents being together.
8.
The complainant was cross-examined about these two different explanations. It was suggested, both to her, and to the jury, that they were inconsistent. First, it was put to her that she had wanted her mother and stepfather to separate, which she confirmed:
“Q. I thought you just said you wanted them to split up?
A.
Only after that had happened.
Q. Did you want them to stay together after this happened?
A. No.
Q. You wanted them to split up?
A. Yes.”
Then, it was put to her that she wanted them to stay together, for the sake of her half-sister:
“Q…Now, is that true?
A.
At first it was.
Q. So how long did that last for?
A. Not very long.
Q. You see, they are two different explanations, are they not?
A. No.”
9.
What the defence said were inconsistent explanations of her delay in speaking out about the rape was thus tied up with the defence’s suggestion of a possible motive for the allegations. It was to ensure that she could remain with her mother, when she was threatened with exile with her natural father, and/or to get away from the appellant.
10.
In these circumstances, the defence was that the complainant was not telling the truth, and was not to be believed. There was no Sunday before the complainant broke up from school on which the rape could have taken place. The only possible candidate was Sunday 15 July, but on that afternoon there was a family party which the family attended (away from home) of which there are photographs showing the complainant together with the appellant in happy poses. The submission was that it was impossible to think that such an event had taken place within hours of a rape. In any event, the complainant had said nothing about going to a family party that day: on the contrary, she had said that after the rape her father had picked her up, whereas her step-father had gone off to the pub. She had seen neither her mother nor her step-father again that day. Moreover, her father could not have picked her up as she had said, for he was travelling back from a training course in Cardiff that day. Even if, for some reason the enquiry was stretched to Sundays beyond the break-up of school, there was, as it turned out, no other Sunday on which events could have occurred as the complainant had said they had, for a number of different reasons such as the complainant’s competing at horse shows, or her father being away in Turkey or suffering a motor-bike accident.
11.
Moreover, the defence submitted that the complainant had a motive for telling lies, in response to her step-father’s discovery of the compromising text on her phone, and had given an inconsistent explanation for her delay in mentioning the rape to her mother – until a combination of anger and fear over the discovery of the text and being sent away from her mother to her father led to the allegations. It appears that at some point in his cross-examination, the appellant had described the complainant as a “vindictive liar”.
12.
The defence also submitted that the rape could not have occurred as it was described by the complainant. She was wearing tight, elasticated, jodhpurs, into her hips, which she said had only been pulled down by a couple of inches. In such circumstances, the defence suggested that the complainant, who was a big man, could not have penetrated the complainant in a standing position from behind.
13.
There was no medical evidence to support the allegations. The examining doctor, Dr Osman, found the complainant’s genitalia to be normal. His findings neither confirmed nor undermined the allegations, and he was “at pains to say that the upshot of his findings is neutrality” (to quote from the judge’s summing-up). However, the complainant had spoken to him of transient pain on urinating following the rape. This was not a medical finding but part of a history taken from the complainant herself. Dr Osman said that there were a number of causes of such pain, both innocent and consequential on penetration.
14.
In response to the heavy emphasis which the defence placed upon the complainant’s account of the rape occurring on a Sunday during term-time, the prosecution’s response was to say that the rape could have occurred on any day of the week during the period mentioned in the indictment, which was “between the 8
th
day of July 2007 and the 31
st
day of August 2007”, whether before or after the end of the school term. The prosecution submitted that the complainant’s evidence about the dating of the rape was vague, eg “about a few months ago” and “It was a Sunday, I think”. Normally, the dates in an indictment are not material facts, but as a concession to the defence the prosecution was happy to stipulate that the rape must at least have occurred during the period mentioned in the indictment.
The summing-up
15.
On behalf of the appellant, Mr Ian Peddie QC, who had not appeared at trial, relied on what was essentially a single ground of appeal, albeit it had several aspects to it: and that ground was that the judge had made material errors in her summing up, the effect of which were that she failed to sum up the main aspects of the defence in a way which fairly presented that defence to the jury. As a result the conviction on count one, the rape, was unsafe, and it necessarily followed that the conviction on count 2 was unsafe as well.
16.
The most important aspect of this ground related to the defence’s case as to the dating of the rape. It was an essential plank of the defence that the rape could not have occurred on any Sunday as described by the complainant, and that the only real candidate for the relevant Sunday, namely 15 July, was an impossible date, and that therefore the complainant’s account for that reason alone had to be regarded as suspect. On this appeal, Mr McKone for the Crown conceded that there was no Sunday within the indictment period when the complainant could have been picked up by her father and taken to school the next day.
17.
Mr Peddie’s complaint was that the material relating to the Sundays in July and August was presented in the summing up as if it was really part of the prosecution case, rather than the essential plank by which the defence sought to challenge the complainant’s credibility; that there was nothing to reflect the particular emphasis that the defence placed on 15 July as the only available Sunday prior to the break up of school; and that the judge gave the jury no guidance whatsoever as to how to regard the significance of the availability of a date consistent with the complainant’s account as bearing on the way in which they should regard the complainant’s evidence as a whole. Above all, Mr Peddie submits that the judge all but removed this essential part of the defence case by directing the jury that “It does not, however, matter if [the complainant] has got the day of the week wrong or if she has got the time of day wrong or if she has got it wrong about her seeing her father afterwards and being taken to school and so on and so forth.”
18.
Thus the judge summed up the evidence and submissions about dates in the following three passages:
“And as a result of researches carried out by the police the following propositions became common ground between the two sides: 8
th
July is [the complainant’s] birthday; 15
th
July is the day on which you have photographs in your jury bundle of a family event. The officer has established that…[the complainant’s] natural father had gone to Turkey on 21
st
July and was therefore still abroad on the 29
th
. He was back in the country by 5
th
August but had unfortunately been involved in a road traffic accident and so had had to go to Hull Royal Infirmary, and 12
th
August was the Christening, of which again I think you have a photograph in your jury bundle” (at 45, where the judge was dealing with the prosecution evidence).
19.
Secondly, at 49/50, where the judge had turned to the appellant’s evidence, she said this:
“Dealing with some specific dates in the summer of 2007 – because you will appreciate the defence are saying, “Well, if we assume that [the complainant] is correct about going to see her father after the rape complained of in the stable, and if we assume that she is correct about staying the night with her father and him taking her to school the following day, that rather suggests that it was a Sunday and therefore it is appropriate to look at the Sundays in July and August and many of those, if not all, can be accounted for in circumstances which do not really allow this to have happened in the morning and therefore that demonstrates”, say the defence, “that [the complainant] is lying about this.” Her fourteenth birthday was 8
th
July, and that is agreed by all the parties. There was a family event on the 15
th
and you have got a photograph arising out of that – photographs. That, said the defendant, was a family party. It started about 2 pm and it went on into the evening. There was also a family event, a Christening, on 12
th
August and you will recall from the contents of the jury bundle you have been provided with that various British Show Jumping Association print-outs demonstrate that [the complainant] was competing on 14
th
July, 21
st
July, 22
nd
July and 5
th
August.
Further it appears that [the complainant’s father], who I think had intended to see her on 5
th
August, was unfortunately involved…in a road traffic accident and documentation has been acquired from, I think, Hull Royal Infirmary making it plain that he attended at A & E on 5
th
August after the road traffic accident, and so contact between him and [the complainant] did not take place that day. And then the family themselves…were on holiday in August for about three weeks in Spain so that takes out some more weekends.”
20.
Finally, just before concluding the summing up by resuming the prosecution and defence cases, the judge said this:
“In relation, therefore, members of the jury, to the counts on the indictment, the overall question which you must ask yourselves in relation to count 1 is “Has the prosecution made us sure that on a day, which must in the circumstances of this case fall between 8
th
July and 31st August 2007, has the prosecution made us sure that the defendant raped [the complainant]?...
Insofar as dates are an issue in count 1, as I have said in the circumstances in which you are trying this case you have to be sure that the date fell between 8
th
July and 31
st
August 2007. It does not, however, matter if [the complainant] has got the day of the week wrong or if she has got the time of day wrong or if she has got it wrong about seeing her father afterwards and being taken to school and so on and so forth. What matters is the overall spell of dates between 8
th
July and 31
st
August 2007.”
21.
Mr Peddie QC submits that even in the second of those passages, which represents the high water mark of the summing-up with respect to the date of the rape, the judge did not highlight Sunday 15 July as the only Sunday even in theory available before the break-up of school, but lost that date among the other dates canvassed; that the judge’s expression “many of those, if not all, can be accounted for” had an unhappy tendency to remove the force of what was really common ground; and that the hypothesis with which the judge began – “if we assume that [the complainant] is correct” – is hardly the appropriate way with which to introduce a point which challenges the complainant’s credibility. However, whatever might, even inadequately, have been achieved in putting the material on which the defence relied before the jury, was then removed in the third passage cited above in which the judge directed the jury that the total of the complainant’s circumstantial dating of the rape “does not matter”. Mr Peddie’s complaint is that the judge effectively there removed from the jury the defence’s primary point for challenging the complainant’s credibility. So far from explaining to the jury the possible significance of the defence being able to challenge the alleged circumstances of the rape as described by the complainant (in circumstances where the burden of proving her credibility lay on the prosecution), the judge appears to have directed the jury that these circumstances did not matter. Of course, what the judge intended to tell the jury was that,
in law
, the indictment would not be defective as long as the jury was sure that the alleged rape occurred at some time within the stated period; but, unfortunately, she expressed herself in such a way as in effect to remove from the jury the defence’s
factual
challenge to the credibility of the complainant’s account.
22.
We consider that there is considerable force in this submission. On behalf of the Crown, Mr McKone went far to concede the relevance of this, while submitting that it did not affect the safety of the convictions. In our judgment this amounts to a material misdirection.
23.
We go on to consider the way in which the judge dealt with motive. She approached it in this way. At page 31 of the summing up, after setting out evidence about the normality of the relationship between appellant and complainant, she dealt with the question of motive generally, outside the context of the text message, by saying:
“the Crown’s assertion being that [the complainant] is saying what she is because it is the truth; the defence assertion is that she is saying this, it being untrue, because it was in her interests, or she perceived it as in her interests, to bring about, if she could, the end of the relationship between her mother and the defendant.”
The judge then reached the subject-matter of the text message at page 32, in the context of which the judge said nothing whatsoever regarding motive, as at any rate the defence would see it, namely as engendering both anger on the complainant’s part against the appellant and fear that she would be separated from her mother by being sent to stay with her father. On the contrary, the judge directed the jury in terms that the “relevance of the content of this text message, of course, is that the medical findings…”, and then the judge reminded the jury about the doctor’s account of the complainant’s history of pain on urinating. She said, accurately, that if the complainant was having sexual intercourse with a boyfriend, that could well explain her account of subsequent pain on urinating. However, that was only one consequential aspect of the complainant having a sexual relationship with a boyfriend, and had nothing to do with the way in which the defence relied on the discovery of the text message, its content and its consequences, for an explanation of why the complainant made the allegations she did at the time she did.
24.
Mr McKone was forced to accept that the judge’s summing-up was in this respect defective on the subject of motive. We accept Mr Peddie’s submission that this was another material error on the part of the judge.
25.
Thirdly, Mr Peddie relied on the issue as to whether the complainant had given inconsistent explanations of her delay in reporting the fact of rape to her mother. This was also connected with motive, since the complainant’s explanations embraced whether or not she wanted her mother’s and step-father’s relationship to survive. The Crown’s submission about this aspect of the complainant’s evidence was that there was not an inconsistency, but a succession of emotional responses over time: at first the complainant had been silent because she did not want to destroy her half-sister’s family, but subsequently she had concluded that her own best interests lay in her freeing herself from her step-father.
26.
That was, in our judgment, a possible way to understand the complainant’s evidence: and, in any event, there needs to be caution about expecting too much of a young girl’s possibly conflicting emotional response to a step-father’s abuse. However, the judge’s summing-up on this issue made the alleged inconsistency entirely disappear by suggesting that the complainant’s evidence had been concerned with her feelings about the family situation
before and after
the rape itself. Thus she said (at page 36):
“She said that there had been a time when she wanted her mother and the defendant to stay together
but not, she said, after this happened
. “Yes”, she said, “at first there was a time when I wanted them to stay together and then there was a time when I did not want them to stay together. She said that they were not two different explanations, in the sense that they were not conflicting explanations but they referred to different stages in time” [emphasis added].
This was, in our judgment, a further material error.
27.
Two further matters of complaint have contributed to our concern.
28.
The first is the terms in which the judge concluded her summing up. After setting out the Crown’s case at some length (at pages 57/8), emphasising the description of pain on urination as though it was support for the complainant’s credibility independent of the complainant herself, she turned to the defence case, in these brief remarks:
“The defence case is that [the complainant] – who, to use the defendant’s word, is a “venomous liar” and is so despite the defendant having treated her from first to last in a perfectly appropriate and indeed devoted manner. The defendant, as you know, says that he has done nothing which could possibly give rise to her wish to tell about him lies which are not just wicked but are, of course, devious and now by July of 2009 somewhat long standing.”
That, of course, was not so much the defence case, as a reprise of the prosecution case. In effect, at this critical passage of her summing-up, the judge failed to put the defence case at all, other than that it amounted to an irrational denial.
29.
The second matter relates to what happened after the jury retired.
The replaying of the complainant’s video
30.
After four hours of deliberation two jury notes requested the complainant’s video and the transcript of that video. The judge briefly remarked to counsel (there were no submissions) that the jury “are of course entitled to see the video”, but not the transcript, although she would remind them of anything in her evidence. The jury were brought in and the judge told them of that decision. The trial was then adjourned for five days, from 10 July to 15 July 2009, and the jury were sent home.
31.
Normally, however, the practice is to refuse to replay the video of a child witness (it will at most be replayed in court, not in the jury’s retirement room) unless the jury indicate, when asked, that they wish to be reminded of how the evidence was given, as distinct from what was said. The following guidance is derived from
R v. Rawlings; R v. Broadbent
[1995] 2 Cr App R 222, as noted in
Archbold
, 2011, at para 4-423:
“A video recording constituting a child complainant’s evidence in chief may, at the discretion of the trial judge, be replayed to the jury after they have retired to consider their verdict if the jury wish to be reminded of how, rather than what, words were said. It would be prudent, where the reason for the request is not stated or obvious, for the judge to ask whether the jury wish to be reminded of something said, which he may be able to give them from his note, or whether they wish to be reminded of how the words were said. If the video is replayed, (a) the recording should be replayed in court with the judge, counsel and defendant present, (b) the judge should warn the jury that because they are hearing the complainant’s evidence in chief a second time, after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case, and (c) to assist in maintaining a fair balance, the judge should after the tape has been replayed, remind the jury of the cross-examination and re-examination of the complainant, whether the jury asked him to so or not.”
32.
The judgment of this court in
R v. Rawlings; R v. Broadbent
was given by Lord Taylor CJ. In
Rawlings
, the appeal was dismissed, because the video replay had been necessitated by points made by the defendant in his evidence, about play-acting by the child, after the video had been first played and at a time when the jury would not necessarily have had such points in mind, and because the judge there had observed the three conditions for which the case is authority. In
Broadbent
, the appeal was allowed, because no reason was given or obvious for replaying the video, the video went into the jury’s room, and no warning was given.
33.
Moreover, even where the judge refuses the jury a replaying of the video, but instead only reminds them of relevant evidence by reference to a transcript, it is none the less incumbent on the judge to warn the jury not to give disproportionate weight to the evidence because it is repeated after all the other evidence and to consider it in the context of all the evidence; further, the judge should remind the jury of the cross-examination, any pertinent re-examination and, where appropriate, of any relevant part of the defendant’s evidence:
R v. McQuiston
[1998] 1 Cr App R 139
. In that case, the appeal was allowed: the judge disturbed the balance of his summing-up by giving a long verbatim recapitulation of the child’s evidence, by failing to give the appropriate warning, and by failing to remind the jury “of the other relevant evidence” (at 142).
34.
That indicates, in our judgment, that whether the video is replayed or not, any repetition of the child’s evidence to the jury after retirement should be accompanied by the warning emphasised and required in both cases cited above, and that in addition, in order to achieve fairness and to support the warning given, the judge ought to remind the jury of the evidence given by the complainant outside the video itself and indeed, in order to maintain that fair balance, may also have to refer to other relevant parts of the defence evidence.
35.
In the present case what happened was that the judge appears to have overlooked these necessary precautions. At the opening of her summing-up she had already told the jury that “If at any stage in your discussions it becomes evident that one or more of you would like to see part of it again, you have only to ask and that will be done. You will be brought back into court and such part of it as you want to see again, the whole of it if you wish, will be replayed” (at pages 6/7). It may possibly be that defence counsel at trial, Mr Duffy, had already indicated that he was relying on passages in the video as to the manner in which the complainant had given her evidence: but subject to that, and in any event, we think that the judge’s open invitation to the jury went beyond what should be done in such a case, and was likely to cramp the proper exercise of her discretion if there was a subsequent request for the video to be replayed.
36.
In the event, there was such a request, and the judge’s immediate reaction on the Friday was that the request would be granted.
37.
On the following Wednesday the video was replayed in full to the jury who were told by the judge that they could afterwards indicate by note whether they wanted to be reminded of any part of the complainant’s evidence. The video lasted about 75 minutes, and the judge had already read much of the transcript of the video into her summing-up.
38.
After the jury had retired again after watching the video, Mr Dixon, who had not been trial counsel for the prosecution, but was covering for Mr McKone that day, raised his concern with the judge in the following terms:
“I have not been party to the trial but my concern from the prosecution point of view is that of course they have now the complainant’s account replayed in chief without any of the cross-examination being repeated to them and I would hate it to be argued in due course that a fair picture had not been given to the jury at this stage and that effectively they are getting just the prosecution account and not the defence case being put to them again.”
39.
Those remarks initiated a discussion which had probably not been foreshadowed before Mr Dixon spoke up, although defence counsel, Mr Duffy, then indicated that he had had it mind to say something. However, he seemed fairly relaxed about things. He said: “…as a surfeit of caution I think it is probably on balance best repeating the cross-examination”. The judge thanked Mr Dixon and recalled the jury. She asked them whether there was any part of the complainant’s evidence that they wished to hear again. She was told by the foreman that there was not. The judge then proceeded nevertheless to give them a version of the rest of her evidence. Mr Peddie submitted that this account lacked coherence, because it was not counter-pointed to the various issues which arose on the defence case. That is true, but then it was not intended to have that form. It was a second run-through of the complainant’s evidence at trial, for which the judge had not prepared in advance, and which arose on the spur of the moment as a result of Mr Dixon’s request. Thus, as for the issue regarding the dating of the rape, there was barely anything (“She talked about various dates during the summer and what had happened on them…”). Nothing was said about Sunday, 15 July as the only candidate for a Sunday before break-up of school. As for motive, arising out of the text message and its consequences, the judge said that she denied making her allegations because of what her mother had said to her, which was not how the matter had been dealt with first time round. As for the alleged inconsistencies of her explanation for her delay in telling her mother of the rape, the judge said “There was a time when I wanted them to stay together but not after this had happened”, which was to repeat, with perhaps greater emphasis still, her error first time round in making the possible inconsistency disappear by relating the complainant’s change in attitude to a period first before and then after the rape.
40.
The full court which had given leave to appeal on limited grounds did not extend its leave to a complaint about the replaying of the video to the jury. As set out above, this appears to have happened without any objection on the part of the defence. We therefore do not take that into account. However, the guidance of
R v. Rawlings; R v. Broadbent
and of
R v. McQuiston
remains the background to this situation, and the permitted grounds of appeal did include a complaint that after the replaying of the video the judge had failed to remind the jury about the main thrust of the defence case. We consider that this ground of appeal is made good. The judge failed entirely to warn the jury that they should guard against giving the complainant’s evidence in chief, which they had just had replayed, disproportionate weight, and that they should bear well in mind the other evidence in the case. The judge also failed to remind the jury of even the bare outlines of the defence case, which in these circumstances was probably required in order to achieve a fair balance, since that could not simply be achieved by a second run-through of the complainant’s cross-examination and re-examination. The judge did not give any thought to these elements of the learning of the jurisprudence, because it was not brought to her attention. It cannot therefore be said that she had exercised an informed discretion about how to handle the situation. Although it may not be possible to generalise about what is necessary to achieve a fair balance in such situations, nevertheless the jurisprudence demonstrates that the achieving of a fair balance is what is necessary and, in particular in the absence of any warning, we do not consider that the judge came close to achieving that balance in this case.
Safety
41.
Finally, we have asked ourselves whether the convictions are safe in these circumstances. We have concluded that they are not. We think that the first (the dating of the rape) and last (the second-run through) of the grounds considered above are of particular significance, but that all the points discussed above are not without their weight in undermining the safety of the conviction on count 1. Although the judge, at various points of her summing-up, had made the point to the jury that one or other of the protagonists was lying and that it was their job to decide whether they had been made sure that the complainant was telling the truth, nevertheless she gave the jury little help, and less help than was necessary, about how to approach determining the issues which had been raised by the defence. In circumstances where the two counts were cross-supportive of each other, we feel compelled to regard the conviction on count 2 as also unsafe.
42.
We announced our decision to allow the appeal and quash the convictions at the time of the appeal hearing. These are our reasons for that decision.
|
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|
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No: 2020/03162/A3
NCN:
[2021] EWCA Crim 208
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 16
th
February 2021
LORD JUSTICE DAVIS
MR JUSTICE BRYAN
MRS JUSTICE COLLINS RICE
____________________
R E G I N A
- v –
CAMERON MURTEN
____________________
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 E Moss
appeared on behalf of the Appellant
____________________
J U D G M E N T
___________________
Tuesday 16
th
February 2021
LORD JUSTICE DAVIS:
1.
On 26
th
November 2020, in the Crown Court at Chester, the appellant pleaded guilty to an offence of possessing a Class A drug (cocaine) with intent (count 1) and possessing a controlled of Class B (ketamine) with intent (count 2). On that day he was sentenced by the judge to a term of 42 months' imprisonment on count 1 and to a concurrent term of 18 months' imprisonment on count 2. The total sentence was, therefore, three and a half years' imprisonment. Various ancillary orders were also made.
2.
He now appeals against that sentence by leave of the single judge.
3.
The background facts may be shortly summarised and are these. On 24
th
August 2019, the appellant was stopped by officers as he attempted to enter the Creamfields music festival in Cheshire. In his bag and amongst his clothes, officers found a number of new snap bags, which aroused suspicion. A further search of his bag revealed a Pringles tin which contained a hidden compartment. Within that compartment were 59.6 grams of ketamine, which would have had a "festival" retail value of £3,400, if sold in 85 deals. Also discovered were 12.7 grams of cocaine at 80% purity which, depending on how it was cut and sold, would potentially have fetched a sum of between £1400 and £1800.
4.
The appellant was arrested and his phone was taken. When he was interviewed he declined to comment. When the phone was thereafter examined, two significant messages were revealed. One, which was sent the day before he was arrested at the festival, read: "I'm gonna get there, weigh all my stuff up and go sell it". The second message, which was sent to his girlfriend, read: "Creamfields is gonna pay for everything", before referring to various difficulties and how they could have a weekend away.
5.
The appellant has no previous convictions of any kind. Indeed, references which this court has seen (although were not produced before the judge because they had not at that time been prepared) speak positively about him and about his role in society, his good work ethic and so on. That is one of the points of complaint now raised. Mr Moss, who appeared then as now for the appellant, said that he had attended the Crown Court not anticipating that the judge would proceed immediately to sentence once the pleas had been taken. However, that is what the judge did. He did, in fact, grant a short adjournment to enable Mr Moss to prepare his mitigation. However, in such circumstances no references could be produced to the judge. Furthermore, the judge had dispensed with the obtaining of a pre-sentence report, although we can perhaps understand that, even though the appellant had not been in custody before. Quite clearly this offending would attract an immediate custodial sentence.
6.
It is wholly evident that the Chester Crown Court in general, and this judge in particular, had significant experience of dealing with Creamfields drug cases. In passing sentence, the judge indicated that the appellant should receive 25 per cent credit for his guilty pleas. Although some criticism is made of that, we can see no error at all in that level of credit being given.
7.
The judge then went on to summarise the background facts. He stressed, amongst other things, that those attending the Creamfields festival were warned by flyers and other such matters in advance of the dangers of dealing in drugs, and indeed the kinds of sentences they might expect if apprehended. The judge went on:
"You took that chance and like many young people … you probably thought it would not happen to you, you would not get caught but you were caught. It was a fairly determined effort to get the drugs in, clearly you put some work in in putting a hidden compartment into the Pringles tin to hide the drugs and that is, it seems to me, a slightly aggravating feature of the case. However, balanced against that is the fact that you have no previous convictions and that this will be your first custodial sentence. It seems to me there is an aggravation because it is a
Creamfields case."
The judge went on again to state that this was a Creamfields case which had involved two kinds of drugs. He indicated that, before credit for the guilty plea, five and a half years' imprisonment would have been the appropriate sentence. However, he reduced that because of the lack of previous convictions and the fact that this would be the first prison sentence for the appellant. He further reduced the sentence by 25 per cent to reflect the credit for the guilty pleas, and reduced it by a yet further three months to reflect the Covid-19 conditions in prison during the pandemic.
8.
It is said on behalf of the appellant that this sentence was excessive. It is rightly conceded that, given the circumstances, this was category 3 offending for the purposes of the definitive guideline on drug offences issued by the Sentencing Council, and the appellant was to be taken as having had a "significant role". Consequently, the starting point under the guideline is four years six months' custody, with a category range of three years six months to seven years' custody.
9.
On behalf of the appellant Mr Moss primarily seeks to say that the judge went too high up in the range open to him, and in particular gave too much weight to the fact that two different kinds of drugs were involved. Mr Moss further sought to bolster his argument by reference to a number of other matters. He stressed, for example, that the appellant had no previous convictions of any kind, and that there are (at least now) the positive references available to testify as to his character. Further, Mr Moss referred to the appellant's family situation and the fact that there are children involved. He also drew attention to the significant delay that had occurred before the appellant first appeared in the Magistrates' Court – a delay which the judge had not specifically referred to in the course of his sentencing remarks. However, his principal point remained that the judge had no sufficient justification for going up as far as he did within the guideline range.
10.
What this court has to consider is whether or not this sentence was manifestly excessive. As the judge had noted, the offending was careful and planned: and it was conducted in the face of every kind of warning as to the risks to those attending the festival intent on supplying drugs. Furthermore, it was certainly a legitimate factor for this judge to take into account what might be called local issues, namely, the need to deter people who attend the Creamfields festival from dealing in drugs.
11.
Taken overall, we think that the judge was entitled to take a stern view here in the way that he did. We cannot see that this sentence, even though it was a stern sentence especially bearing in mind the personal circumstances of the appellant, was nevertheless an excessive sentence. It was, after all, a sentence within the Guideline range open to the judge. It is not open to this court to tinker with such a sentence.
12.
Accordingly, we dismiss this appeal.
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|
No: 201405119 C1/201405118 C1/2014 05114 C1
Neutral Citation Number:
[2017] EWCA Crim 106
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 24 January 2017
B e f o r e:
LADY JUSTICE HALLETT DBE
VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
MR JUSTICE LEWIS
MS JUSTICE RUSSELL DBE
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R E G I N A
v
SHAKEAL REHMAN
BEKIR RASHEED
USMAN ALI
- - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
Trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr N Worsley
appeared on behalf of the
Appellant
REHMAN
Mr S M Khan
Appeared on behalf of the
Appellant
RASHEED
Mr N Worsley
appeared on behalf of the
Appellant
ALI
Mr T S Storey
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
LADY JUSTICE HALLETT: Reporting restrictions apply to this judgment to protect the identity of the complainant.
Introduction
2.
On 2 October, at the Sheffield Crown Court, the three appellants were convicted of various sexual offences. Rehman was convicted of trafficking and rape and was sentenced to a total of 12 years’ imprisonment. Rasheed was convicted of trafficking and sentenced to 4 years’ imprisonment. Ali was convicted of sexual activity with a child and sentenced to 3 years' imprisonment. All three appellants appeal against conviction with leave of the full court on the basis of criticisms of the disclosure process and of the trial judge His Honour Judge Durham-Hall QC. Rasheed and Ali also apply for leave to appeal against sentence.
3.
The co-accused, Mohammed Shuib Shapal, was convicted of one count of trafficking and one count of sexual activity with a child under 16. He too was sentenced to 4 years' imprisonment. Yaseen Amini was convicted of one count of trafficking and one count of sexual activity with a child under 16 and he was sentenced to a total of 66 months' imprisonment.
Facts
4.
On 5 August 2014, the complainant, whom we shall call C, was aged 13 years old. She ran away from home in Sheffield. She travelled to Bradford to meet a male named Atif, whom she considered her boyfriend. An extensive police search for her ensued. She was found a week later on 12 August 2013 in Bradford. She disclosed to the police that during her time away sexual offences had been committed against her by a number of males.
5.
A number of Achieving Best Evidence (“ABE”) interviews were conducted with her lasting approximately ten and a half hours. The prosecution accepted and opened to the jury that in the first interviews she told many lies and concocted detailed but false stories. They relied on the last interviews, in which she described offences committed by the appellants.
6.
She maintained that when she arrived in Bradford she wandered around in a distressed state, she met a man named Said (who has since left the UK) and spent two nights with him at his home address, during which time he had sex with her. She left his address on 8 August after he had verbally and physically abused her. She again wandered around the centre of Bradford and encountered the co-accused Shapal (nicknamed ‘Baby’) and the appellant Rehman. She got into their car and they took her to a hotel. CCTV footage captured their arrival at reception.
7.
Mr Andrew Mead, a manager of the hotel, thought the people he saw at reception looked in the "17/18/19 age bracket". The woman insisted she was 18, claimed she was recently divorced and had travelled from London. Mr Mead thought it prudent to ask for identification because she appeared to him ‘reasonably young’. A letter addressed to Mrs Z Rehman was produced. Shapal paid £40 for the room.
8.
Jabran Mahmood is the son of the hotel owner. He also saw C at the hotel when she came to reception to ask for tea or coffee. She told him she was 22 but he did not believe her. She looked to him to be 13 or 14. He accepted she could have been older, 17 or 18.
9.
In the hotel bedroom, both Shapal and Rehman had sex with C. Shapal told her he loved her and wanted to marry her and she consented to sex with him. She claimed Rehman raped her.
10.
The next morning, Shapal left the hotel and did not return. C came downstairs at about 11.30 am. She was captured on CCTV footage more than once. She became upset when she realised Shapal was not returning. She spent the day walking around and she was outside the hotel when another car pulled up. She was approached by the driver of that car, Ali. She got into his car and he drove her to a car park where sexual activity took place. Ali then took C back to the hotel and left. When Shapal failed to appear she made her way to a nearby park. She was by this stage in some distress and she approached a man and asked for help. He arranged for her to stay at a friend's house for the night.
11.
The next day she wandered about the city centre. She approached a group of three and asked if she could walk with them into town and use their mobile phone. According to them she gave the name Ayesha, which she later denied.
12.
She telephoned Said and went off to meet him. She spent the next day at Said's house. After significant telephone contact between the accused, the appellant Rasheed arrived. Said and Rasheed took her in Rasheed's car to another flat in the centre of Bradford. This was the home of Amini. At the address were a group of adult males including Amini and one other girl. The prosecution maintained that C was taken to the flat with the intention that sexual activity would take place.
13.
C stayed the night at the address and slept in the same bed as Amini. During the night he kissed her. She said she told him she was 13 but he still had sexual intercourse with her. In the morning, Rasheed asked Amini if he had "done that thing with her".
14.
The next day, the police spoke to the appellant Rehman by telephone. He directed them to where C could be found. She was taken back to Sheffield, medically examined and her underwear forensically examined. Evidence of sexual activity with a number of males was found. A major DNA profile of Rehman was present on material on her bra. DNA profiles of Ali and Amini were present in her underpants.
15.
The appellants were arrested in August 2013 and interviewed. Rehman and Ali gave no comment interviews. Rasheed answered questions. On 1 October 2013, C formally identified Rehman and Shapal.
It is necessary to rehearse in summary the defence case for each so as to put in context the limited nature of the issues before the jury.
16.
Rehman’s defence
17.
In evidence, the appellant Rehman stated that C had approached his car when he was stopped at traffic lights. He thought she was a prostitute. She appeared happy, although she claimed her sister had died and she had lost a baby. He thought she was aged 18 to 19 and attractive. It was Shapal who said he wanted to book a hotel for the girl. He provided the identification letter and his only reason for returning to the hotel was to retrieve it. He had no intention of having sexual intercourse with her. He was told by the management that the letter was with the complainant in the bedroom. The complainant asked him to stay and started to rub his penis. He said they then had consensual sexual intercourse and when he left she appeared to him fine. He told ‘Baby’ what had happened and ‘Baby’ ‘dumped’ her. It was also him who provided the information that led the police to her. C blamed him for both.
Rasheed’s defence
18.
The appellant Rasheed did not give evidence; he relied on his account to the police in interview, in which he stated that he was in Bradford visiting his friend Amini. Out of the blue he received a call from Said, who was an acquaintance he had only seen a few times. Said was keen for Rasheed to visit him, so he went to Said's address and met the complainant. She was introduced to him as Said's girlfriend. Rasheed then told Said that he was going to Amini's flat and Said asked if he could join him. Rasheed contacted Amini to ask his permission and then drove Said and the complainant to Amini's address. Whilst there, the complainant and Said had an argument and Said left. The complainant remained at the flat.
19.
The following day, he went into town with Amini, leaving the complainant at the flat. He received a call from Said to say he had returned to the property. Rasheed, went back to the flat and found both Said and the complainant there. He then drove Said to his home to collect some items belonging to the complainant and dropped Said back at Amini's flat; after which he drove to his own home.
20.
A summary of his interview was put the before the jury and they took it with them in retirement. Despite a request from Mr Khan, for Rasheed, the judge declined to remind the jury of the contents of that summary.
Ali’s defence
21.
On 15 November 2013, Ali was interviewed and provided a pre-prepared statement in which he denied the allegations. He stated he had had a number of sexual relationships over the previous few months with females, all of whom had been 18 or over.
22.
He was re-interviewed on 15 January 2014 and again gave a prepared statement in which he stated that he had picked women up in his car but any sexual contact had been consensual.
23.
He gave evidence at trial in which he accepted he had had sex with the complainant on the back seat of his car. His memory had been jogged by the retrieval of his DNA from her underwear. He believed that she was 18. She had called herself Ayesha and did not tell him she was only 13. He said she had approached his car while he was stopped at a red light and engaged him in conversation. She had got into his car. She had started to put her hands on him and told him to park up, which he did. They had then had unprotected sexual intercourse. He said there were no signs she did not want to participate.
Rulings
24.
The judge was asked to rule on two issues at the ground rules hearing that took place just a matter of days before the trial and at the trial itself that are relevant to this appeal. They were the playing of the ABE interviews in their entirety and evidence as to the complainant's character.
25.
Playing of the ABE interviews.
26.
We have no specific ruling in relation to the playing of the ABE interviews. We understand that having been advised by the intermediary that putting lies and previous inconsistencies to the complainant would only serve to confuse her and make her evidence impossible to follow, the judge concluded that it was not necessary or desirable for the first four interviews to be played. The first four amounted to five hours of interview. He felt that the remaining eight or more hours or interview which were to be played were sufficient. He allowed a summary to be put before the jury containing the most obvious lies in the earlier interviews and he allowed Mr Worsley, defence counsel, to select and play a 20-minute clip from the earlier interviews that showed the complainant's demeanour when producing elaborate and fabricated accounts.
27.
Complainant’s character
28.
The defence sought the judge's permission to put a number of matters before the jury relating to C's character. They were based on material from school and social services records. They revealed a number of people believed that C was an habitual liar who would make up allegations against people.
29.
Having been provided with a list of the matters defence counsel wished to adduce, the judge considered the material globally. He ruled that, in the main, the material consisted of personal opinions and views of social workers and teaches who had the care of the complainant. He noted there was no “hard evidence of proven untruths”. He referred to the dangers of satellite litigation and to public policy in not discouraging teachers and social workers from keeping full and frank files on troubled children. He was not prepared for the bulk of the material to go before the jury. He was satisfied that the jury had sufficient from their observations of the complainant in the ABE interviews, from permitted cross-examination, from other witnesses and from the admissions that the Crown were prepared to make so as to be able to form a proper assessment of the complainant. He did, however, direct that the material touching upon Shapal and Rehman directly, for example where she spoke about Shapal, should be admitted.
The appeal against conviction
30.
The full court gave leave to appeal on three grounds common to the three appellants and one further ground in respect of Rasheed.
Ground 1: The judge's refusal to admit material in relation to an allegation made against Sebi/Qaiser Mahmood.
31.
Social services records revealed that the complainant had made allegations about a man known as Sebi. She claimed that Sebi, with whom she had had a relationship, had appeared near her home, had remained for hours pestering her and had attempted to abduct her; in so doing he had caused scratch marks to her arm. She repeated the allegation to the police. However, her mother gave a contradictory account and said that, on the day in question, C had not left her house at all. When her mother's account was put to her, C admitted that had she had made up the attempted abduction; the scratch marks had been caused accidentally. Her reason for making up the incident was because she hated Sebi.
32.
Sebi Mahmood was someone with whom she had undoubtedly had some form of sexual relationship. As a result of her initial complaint about him, he was charged with rape. When his case was listed for trial, he offered to plead guilty to two offences of sexual touching. The prosecution accepted those pleas.
33.
Mr Worsley, for the appellant's Rehman and Ali, supported by Mr Khan, sought to rely upon this incident because it demonstrated (1) the complainant had admitted lying about what happened about her; (2) she persisted in a lie, giving a detailed account to the police; (3) she produced evidence to support the lie (the scratch marks); (4) she made up the allegation through animosity towards Sebi. There is a considerable difference between someone making up things to account for her movements whilst a runaway and deliberately and repeatedly lying to get somebody into trouble. On Rehman's case his behaviour could have caused her to hate him in the same way she had hated Sebi and therefore may have led to another display of malice. C's credibility was central to the trial. The failure to admit the evidence meant the jury did not get a sufficiently full and fair impression of her.
34.
Mr Storey, for the respondent, explained that the basis for the judge's refusal to admit this material in evidence was its lack of relevance to the case and uncertainty about what happened. It is true that the prosecution accepted pleas from Sebi Mahmood short of rape but it does not follow that all her allegations against him, whatever her admissions, were false. In any event, the judge was anxious to keep the trial within reasonable bounds and to limit the case to a consideration of the circumstances relating to the complainant's time in Bradford and to the mental state of the accused. On that basis, he invited us to find that the ruling was well within the judge’s discretion.
Ground 2: Admissibility of the ABE interviews
35.
The appellants contend that the Crown refused to play all the complainant's ABE interviews because they did not all accord with their case. They may have made some admissions in relation to lies C had told but the jury were unable to assess properly how she behaved when she had told those lies. Furthermore, the judge's decision meant there was no chance to challenge her fully about those lies. The judge should have allowed the defence to submit the earlier interviews to the intermediary for her comments in the same way as the questions to be asked in cross-examination were submitted in advance for her to decide whether it would be appropriate to play them.
36.
Mr Worsley also complained about the timing of the playing of those parts of the interviews he was allowed to play. It would have made more sense and would have been fairer to all to play the passage from the earlier interview when she gave her evidence so that the jury could see it in context. As it was, the clip was played during the defence case.
37.
Mr Storey countered with the assertion that he thought it necessary to play only the later interviews because what C said in them was verifiable by objective evidence. He felt, and the judge agreed with him, that it was unnecessary and it would take up far too much time for the jury to see the interviews in their entirety. He did not ignore her early accounts or lies; he not only referred to them in opening, he agreed to put details of them before the jury and was content that part of the earlier interviews was shown to the jury. He was happy for this to take place at any time during the trial; it was defence counsel's decision for it to be done during the defence.
Ground 3: The BBC documentary
38.
At trial, Mr Storey was unaware that during the police investigation into this case a BBC documentary about South Yorkshire Police had been filmed. Others did and they included the constabulary itself, specific officers, the appellants and their solicitors.
39.
The documentary shows a police officer visiting the hotel in Bradford where some of the offences were alleged to have taken place when investigating C's disappearance. The officer viewed CCTV footage showing the complainant in the presence of people from the hotel. On the documentary film, an unidentified male voice commented that the girl seen on the hotel CCTV footage looked like she wanted to be there at the hotel. The police officer replied, "You've got to bear in mind her age, she's 13".
40.
On the last occasion this matter came before the full court it was thought that the unidentified male was one of the witnesses who had given an opinion as to the age of the child. His estimate of C’s age (and how she appeared) may have been coloured by what the officer said. Complaint was made that the existence of this film had not been disclosed.
41.
However, during the course of today’s hearing we learned that the witnesses who opined as to the complainant's age accepted at trial that they knew of C’s exact age before they gave their estimates to the police and that the unidentified male was not one of them.
42.
Mr Worsley shifted his ground. He now maintains that his inquiries suggest there may be audio recordings of the complainant that should have been discovered and disclosed. The hotel manager/owner, Mr Tariq Mahmood, can be heard saying of the CCTV system that "it voice records", albeit only in the reception area. He also appears to comment: "You can hear what he says", referring to Mohammed Shapal, (‘Baby’) in the reception area. If there was audio on the CCTV, and it seems from questioning of another suspect that the officers were aware there might be, Mr Worsley demanded it be found and disclosed. This could be highly significant evidence both to provide insight on C’s relationship with the appellants and because she is captured within minutes of the alleged rape in the reception area and talking to people. We were invited to adjourn for further inquiries to be made about the possibility of retrieving the hard drive and any audio recording on it.
43.
According to Mr Storey that would be pointless. Inquiries have been made and nothing is forthcoming. All the material that can be found had been disclosed.
Ground 4 - Rasheed
44.
Rasheed faced the single count of trafficking in that it was said he drove C to a "party" at the home of Amini with the intention that Amini should have sexual intercourse with her. The summary of the appellant's interview was six pages long. It set out the appellant's case that he had driven the complainant and Said to Amini's flat at the request of Said and with the consent of Amini. He maintained he had no idea any sort of sexual activity was going to take place, although conceded he was aware the complainant and Amini slept in Amini's bedroom and he knew there was only one bed in that room. Rasheed complains that the judge failed to summarise his case to the jury in terms and or sum up the contents of this interview. Mr Khan described the failure as significant because, unlike his co-accused, Rasheed did not give evidence. The only reference to his case directly is where the judge reminded the jury they had a copy of his interview summary and he did not intend to rehearse its contents.
45.
Reliance was placed on the decision in
R v Cadwell & Curley 2004 [EWCA] Crim 2395
, in which the same argument was run. Curley had not given evidence or called any witnesses but he had given a detailed account of rather complex financial transactions that formed the basis of the charge of conspiracy to defraud. The court held that it was not enough for the judge simply to tell the jury to read the transcripts of the interview, on the facts of that case. Mr Khan suggested the judgment has broader relevance. May LJ, giving the judgment of the court observed at paragraphs 73 and 74:
"It needs to be emphasised and emphasised again that it is the plain duty of a judge summing up a criminal case to a jury to put fairly and sufficiently the defence case. Where a defendant has not given evidence, and in addition has not called any evidence on his behalf, there is no evidence from the witness box in support of that defence other than such evidence as has been gleaned by one way or another from other witnesses which have been called. Where that defendant who has not given evidence has been interviewed in detail and has given an account in interview which is relevant to their defence and which so far as it goes contains their defence, that is evidential material in the way that we have described and it is the duty of the judge, in our judgment, in putting the defence case properly and fairly to make such proper and structured reference in summary to the material in the interview which constitutes the defence case in the criminal trial. That we conceive to be a principle which applies to the present case and in our judgment the judge failed to live up to it.
We also accept and emphasise that it will only be in an exceptional case that, such a failure in the summing-up having taken place, this court will conclude that nevertheless the conviction of a defendant subjected to that kind of a summing-up should be regarded as safe. The task of this court is of course to identify whether trials have been properly conducted and whether in particular they have been conducted fully and fairly and whether the judge's summing-up has been a proper, full and fair one. But the statutory function of this court considering an appeal against conviction is to consider whether, nevertheless, if we reach that conclusion as we do in this case, the conviction is safe. If nevertheless we conclude that the conviction is safe, then the appeal will fail, notwithstanding the failure of the judge such as we have indicated."
46.
Mr Storey did not accept that these observations could properly apply to this situation. Rasheed had not been interviewed in detail about complicated issues at the heart of the alleged conspiracy. The appellant's case was very simple: he did not know that any sexual activity was going to take place with the complainant and did not believe or intend that it should. His case turned entirely on his own state of mind, which was why no questions were asked of the complainant in cross-examination by counsel for the appellant.
47.
The judge directed the jury at the outset of his summing up that he was not going to read out to them anything of which they had been given a copy. He referred a number of times to the appellant's summary of interview, telling the jury he was not going to summarise it because they had a copy and they could see for themselves what the appellant had said about the complainant, his assessment of her and of the situation. The summary would not have taken the jury long to read. The judge also directed the jury that the issue for them to consider in relation to the appellant's interview was whether what it told the police was the truth. During his closing speech, counsel for the appellant reminded the jury of the contents of the interview.
48.
Defence counsel also reminded the jury that Rasheed’s position was in reality no different from one of the prosecution witnesses who had met the complainant in Bradford and who had arranged somewhere for her to stay. He had not been prosecuted. Counsel emphasised more than once that that it is not an offence to give someone a lift or "chill out in a car with them".
49.
Mr Storey conceded that
Curley
suggests that as a general rule, where a defendant has not given evidence, there is an obligation on the trial judge to sum up those parts of the interview that constitute his defence at trial, particularly where the account was lengthy or complicated. That is not the position here. In the alternative, he sought to place this case within the category of exceptional cases to which May LJ referred in
Curley
in that the safety of the conviction has not been undermined.
Conclusions
50.
This case involved a vulnerable child with very real difficulties in understanding and communication. She gave her evidence through an interpreter and required the services of an intermediary. It followed inevitably there would be restrictions on cross-examination and on the material that could be put directly to her. It was the duty of all parties, including the judge, to facilitate her giving evidence and to ensure her evidence was tested appropriately, without confusing her or causing her unnecessary distress. It was not necessary or desirable for every aspect of the defence case to be put to her directly. As has been observed by this court on more than one occasion, if the defence wish to put before the jury a number of previous inconsistent statements made by a witness, they do not have to confront the witness with each and every one of them, in direct questions or by playing her ABE interviews, particularly when the witness is as vulnerable as C. A list of inconsistent statements can be produced and agreed with the prosecution and adduced in evidence by way of admission.
51.
We therefore endorse the judge's approach which was to elicit from counsel a series of admissions covering the areas considered relevant and to allow the defence to play an excerpt from the interviews (in the absence of the witness) so that the jury could judge her demeanour (to the extent that was not obvious from the interviews the Crown wished to play). In any event, it became clear during the course of argument that a number of inconsistencies in her account were put to the witness without objection. We assume the judge had been notified in advance so that he could ascertain the views of the intermediary as to the nature and form of the questions.
52.
Finally, on this ground, we note that when the defence case statement was drafted it was made clear that the defence wished the jury to see all the ABE interviews in their entirety and in chronological order as a coherent whole. However, the defence also posed as a suitable (and fair) alternative the Crown’s making of admissions. This is what happened, supplemented by the playing of a quite lengthy passage showing C’s demeanour when lying. We are satisfied, therefore, that the jury was given a sufficient summary of the earlier ABE interviews, sufficient detail of the lies told and sufficient material to show C’s demeanour.
53.
We turn to the ruling on the ‘bad character’ of the complainant. Mr Worsley had very properly and carefully itemised each of the matters that he wished to put to the witness or to adduce by way of admission. HH Judge Durham-Hall dealt with the issue globally. With respect to the judge, it would have been preferable for him to go through the list in a little more detail stating which category was admissible and which category was not. Because this did not happen, it took us some time this morning to ascertain the extent of the judge’s ruling.
54.
One thing is clear the judge did not allow evidence of the ‘false’ allegation of attempted abduction against Sebi Mahmood. Initially we found this surprising. The Crown could have made an admission as to the details of the complaint of abduction to the police and the circumstances of its withdrawal (together with any admissions as to lies) without, it seemed, involving any satellite litigation or examination of the witness as to her sexual history. We therefore shared the full court's concern on the last occasion. However, we now understand that the situation was far from straightforward. The allegation involved a different set of proceedings in which the complainant had made a number of allegations, at least two of which were accepted by the defence to be true. It is not clear the basis for the Crown's accepting Mahmood’s pleas, why they abandoned the other allegations, or the circumstances in which the complainant retracted the attempted abduction allegation. A degree of satellite litigation may well have been inevitable.
55.
Accordingly, having considered the matter with great care, and in the light of the numerous other lies told by the complainant put before the jury, we are satisfied the judge’s ruling was within the bounds of his legitimate discretion.
56.
As far as the BBC documentary is concerned, the defence had ample material upon which to comment as to the complainant's demeanour on checking in with the appellants and after the alleged rape. They had the CCTV footage from which the jury could see for themselves; they had witnesses from the hotel. There was nothing on the CCTV footage to suggest C was distressed when checking in or immediately after the alleged rape. Mr Worsley did not identify for us anything that might be on the audio (if it exists) that might advance the defence case in any significant way. We refused the adjournment for further inquiries to be made, as it seemed to us that they were likely to prove fruitless.
57.
This was a case where the jury had considerable material upon which they could assess the complainant and her character. She was a vulnerable and troubled child. She did not always tell the truth, if it suited her purposes to lie, even when speaking to the authorities. No doubt the jury would have looked very carefully at what she said and asked themselves whether it was consistent with the objective evidence.
58.
In any event, as important as her credibility was, the principal issue for each of the appellants was their own state of mind. The case against each of them on that issue was strong.
59.
Rehman found a young girl wandering the streets, got her into his car and drove to a hotel. He produced false identification for her to allay the suspicions on the hotel manager. He had sex with her. There were two issues: consent and belief in age.
60.
Ali also picked up a young girl he found wandering the streets, made no apparent attempt to check her age, had sex with her and then put her out of his car. There was one issue: belief in age.
61.
Rasheed had significant contact with his co-accused shortly before he drove C to the flat, which in itself raised considerable suspicion. His explanation of why he drove Said and C to the flat was far from satisfactory. He drove a young girl whom he had never met to a flat where it must have been obvious to him that the occupants of the flat did not plan a party. They planned sexual activity. That is why, as he well knew, C shared a bed and bedroom with a man she had only just met, whilst he slept in the sitting room. The next morning he asked the man if he had done "that thing to her".
62.
The last ground advanced by Rasheed caused us more concern. Given the number of defendants and the length of the trial (3 weeks), we have no doubt that it would have been preferable had the judge reminded the jury in greater detail of Rasheed's defence, either by way of summarising the specific issues in his case or by reminding the judge of the contents of the interview. With respect to him, the judge should have listened with greater care to Mr Khan, who did his best to persuade him. However, this is not a
Curley
situation and ultimately the only test for us
is the safety of the conviction.
63.
The issue in Rasheed’s case was extremely straightforward and the advocates made that plain throughout the trial and during their submissions. The interview summary was short and easy to read. The judge directed the jury as to the elements of the offence in clear terms. It must have been abundantly clear to the jury from that direction and from all that gone before what the issue in his case was. They could only work their way through the elements of the offence with which he was charged by focusing on his mental state and what he had said in interview. The judge reminded the jury more than once to focus on what the appellant said in the interview.
64.
In all those circumstances, we are satisfied that the judge's failure in express terms to remind the jury of the contents of the interview has not undermined the safety of the conviction.
(Further submissions were heard)
Sentence
65.
We now turn to the application as far as sentence is concerned. Both those seeking leave to appeal their sentence were of previous good character. Rasheed was aged 37 and Ali 21 by the time of conviction.
66.
Mr Khan, on behalf of Rasheed, argued that the sentence was excessive and the starting point adopted too high. The judge chose a starting point for the trafficking offence higher than the starting point he adopted for Amini, who had committed the offence of sexual activity with a child, in addition to the trafficking offence.
67.
Mr Worsley, on behalf of Ali, criticised the judge’s placing the offending in category 1A of the Guideline on the basis that there was "a significant disparity in age between the applicant and the complainant" and for taking the complainant's case taken at its highest. The judge thereby sentenced on a flawed factual basis. It was also said that the judge failed to give sufficient weight to the applicant's good character, the stressful effect of the arrest and the fact the applicant was arrested for more serious offences than those of which he was ultimately convicted.
Conclusion on sentence
68.
Rasheed’s offence of trafficking was a category 1 offence within the Guideline and the closest culpability was category B. This provided the judge with a starting point of 6 years. There was little by way of mitigation. Nevertheless, the judge took off a third to reflect that personal mitigation. In our judgment, it is not arguable that he should have taken off more. There is no substance in the disparity point, even if Amini should consider himself fortunate.
69.
Ali’s offence of sexual activity with a child was a category 1A offence. There was a significant disparity in age of the kind the Sentencing Council had in mind. A 20-year-old grown man had sex with a 13-year-old child. Further, it was for the trial judge to determine the factual basis for sentencing and it was a matter for him the extent to which he was satisfied the complainant's account had been established. Category 1A has a starting point of 5 years. Again the judge made a very considerable reduction in the circumstances to reflect the personal mitigation and 3 years cannot be described as excessive.
70.
For all those reasons, therefore, as indebted as we are to all counsel, we are satisfied that the appeals against conviction and the applications as far as sentence is concerned, must be dismissed.
|
{"ConvCourtName":["Sheffield Crown Court"],"ConvictPleaDate":[""],"ConvictOffence":["Trafficking (Rehman)","Rape (Rehman)","Trafficking (Rasheed)","Sexual activity with a child (Ali)"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Sheffield Crown Court"],"Sentence":["12 years’ imprisonment (Rehman)","4 years’ imprisonment (Rasheed)","3 years’ imprisonment (Ali)"],"SentServe":[],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[37,21],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Female"],"VicAgeOffence":[13],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","DNA match","Victim testimony","Witness testimony"],"DefEvidTypeTrial":["Offender denies offence","No knowledge of age","No intention for sexual activity (Rasheed)","Consensual sex claimed (Rehman, Ali)"],"PreSentReport":[],"AggFactSent":["Significant disparity in age between offender and victim (Ali)","Offence involved vulnerable child"],"MitFactSent":["Offender of previous good character (Rasheed, Ali)","Personal mitigation considered"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction unsafe","Sentence is unduly excessive"],"AppealGround":["Criticisms of the disclosure process","Criticisms of the trial judge","Refusal to admit material relating to complainant's character","Admissibility of ABE interviews","Non-disclosure of BBC documentary","Failure to summarise Rasheed's interview in summing up","Sentence excessive (Rasheed, Ali)"],"SentGuideWhich":["Sentencing Council Guideline (sexual offences, category 1A, trafficking)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Starting point for trafficking offence not too high","Reduction for mitigation was sufficient","No substance in disparity point","Judge entitled to determine factual basis for sentencing"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge's rulings within legitimate discretion","Jury had sufficient material to assess complainant's credibility","Principal issue was defendants' state of mind","Judge's failure to summarise Rasheed's interview did not undermine safety of conviction","Sentences not excessive"]}
|
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2024] EWCA Crim 484
No. 202202144 B1
202201945 B1
Royal Courts of Justice
Tuesday, 30 April 2024
Before:
LADY JUSTICE WHIPPLE
MR JUSTICE HILLIARD
HER HONOUR JUDGE LUCKING KC
REX
v
WESLEY KEVIN DAVISON
__________
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]
_________
The Applicant was not represented, did not attend.
The Crown were not represented.
_________
JUDGMENT
MR JUSTICE HLLIARD:
1
On 8 October 2021, in the Crown Court at Guildford, the applicant was convicted of attempted robbery. On 3 March 2022, he was sentenced to four years' imprisonment to run consecutively to the prison sentence he was already serving. He now renews his application for an extension of time (224 four days as regards conviction and 40 days as to sentence) and for leave to appeal against conviction and sentence after refusal by the single judge.
2
The case involved an allegation of attempted robbery on 12 February 2019. The applicant was said to have entered the back office of a hotel in Surrey and unsuccessfully attempted to steal cash by using force on a member of staff, Hannah Scammell. The applicant was chased from the scene and apprehended. His DNA was found on a hat left at the scene. The applicant accepted at trial that he had been in the office but said that he had gone to the hotel to use a lavatory and thought that the office was a bathroom. His evidence was that Miss Scammell entered the room and attacked him.
3
In her first statement Miss Scammell said that the applicant hit her in the face but that she did not know if that had been accidental or deliberate. In her second statement, taken the day after the incident, she said that he had punched her in the face while trying to grab the money. Here, she appeared to be of the opinion that it was deliberate.
4
The applicant has drafted his own grounds of appeal. We have made every allowance for that. We have considered all the arguments he had advanced. If we do not make reference to any particular point, it is because we do not think it adds anything of substance. We have also looked at material he has submitted since the single judge made his decision. We are aware that the applicant had not seen his lawyers' observations before they were submitted to the single judge.
5
The applicant makes a number of complaints about his lawyers. His solicitors have responded with their comments. His barrister has not responded to requests for information. The applicant says that his representatives were at fault in failing to instruct an expert to examine an injury to Miss Scammell. We do not think that this would have been necessary or useful. The real question was how any injury was caused, and an expert would not be able to say whether it was deliberate or accidental. The applicant says that he was inadequately represented by his barrister who was drunk and smelled of alcohol. We have not been able to identify any failures during the trial. Prosecuting counsel and the defence solicitors do not support the suggestion of alcohol consumption. The applicant says that his first solicitors signed his first defence statement before he had had the opportunity to approve it. In the first defence statement, presence at the scene was not accepted by the applicant. This is consistent with a note on the PTPH form for November 11, 2019, where the issue in the case is recorded as "Identification". The applicant had the opportunity at his trial to give his account about the contents of the first defence statement.
6
The applicant says that the jury was told that he was in prison which was prejudicial, that the judge did not allow the jury to be told of his bowel complications which were relevant in his defence, and that the judge sent the applicant back to custody whilst the jury was still deliberating. The applicant says, in addition, that the summing-up favoured the prosecution. The fact that the applicant was in custody arose in the context of evidence that he had not been interviewed by the police. The applicant said that he did not want to be interviewed as there was no solicitor available because he was in prison. The judge told the jury not to hold the fact he was in prison against him. The applicant had become disruptive in the cells while the jury was in retirement. He appears from the transcript to have agreed to return to custody rather than remain at court. The jury was told that in the applicant's records there were notes about a problem in relation to his bowels, and mention of a possible colonoscopy or gastropathy although no procedure had, in fact, taken place. In evidence, the applicant had said that he needed to urinate. He had referred to a medical problem. There was nothing in the notes about urinary incontinence. In summary, there is nothing in any of these points. We cannot see any unfairness in the summing-up.
7
The applicant says he is 80 per cent sure that one of the jurors was a juror in a previous case of his and would have been aware of his previous record. There is no sufficient basis to explore this any further. We are satisfied that the applicant would have raised this matter at the time if there was any substance to it. The applicant complains that there were disclosure failures by the police/prosecution. These issues were raised at the time. We cannot see that there is anything in these points which could have any impact on the central issues in the case, namely why the applicant was in the office and what happened there.
8
Accordingly, we are satisfied that there are no arguable grounds to appeal against conviction. In those circumstances, there is no purpose to be served in granting the substantial extension of time which would be needed.
9
The applicant also seeks leave to appeal against sentence on the basis that the trial judge did not take account of his mental and physical health conditions and did not have the benefit of a pre-sentence report.
10
If the offence had been completed, it was agreed by counsel on both sides that it would have been a category 2B robbery for the purposes of the sentencing guidelines, with a starting point of four years' imprisonment and a range of three to six years. The offence was very close to the full offence. The judge said that it was aggravated by the applicant's previous convictions. He had been convicted over 46 occasions of 132 offences and was serving a sentence of imprisonment at the time of sentencing. It was for the judge to weigh personal mitigation, and it is not arguable that four years' imprisonment was manifestly excessive. In the circumstances, no pre-sentence report was required.
11
Thus, there are no arguable grounds to appeal against sentence and there is again, therefore, no purpose to be served in granting the extension of time which would be needed.
12
Accordingly, all these applications must be refused.
__________
|
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|
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
Neutral citation No.
[2023] EWCA Crim 658
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No: 2022/01649/B2, 2022/01650/B2
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 26
th
May 2023
B e f o r e:
LORD JUSTICE DINGEMANS
MR JUSTICE HILLIARD
HIS HONOUR JUDGE BATE
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
____________________
R E X
- v -
JENNIFER MBAZIRA
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Mr R Keene
appeared on behalf of the Appellant
Mr O Gibbons
appeared on behalf of the Crown
____________________
J U D G M E N T
LORD JUSTICE DINGEMANS:
Introduction
1.
The appellant renews her application for an extension of time (43 days) in which to apply for leave to appeal against conviction following refusal by the single judge. If her application is refused, she appeals against sentence by leave of the single judge.
2.
On 16
th
March 2022, following a re-trial in the Crown Court at Portsmouth, the appellant, who was then aged 50 years and who had some convictions for fraud and theft when she was in her early 20s, was convicted of an offence of blackmail. On 6
th
May 2022, she was sentenced to three years and six months' imprisonment.
3.
The offence of which the appellant was convicted was blackmail of a person to whom we will refer as "LTN". An order was made before trial to prevent the publication of any matter relating to LTN during his lifetime if it was likely to lead to his identification. An appeal against that order was heard and refused by the full court. We therefore confirm that an order under section 46 of the Youth Justice and Criminal Evidence 1999 is in force in relation to these proceedings. No matter may be published which will lead to the identification during his lifetime of LTN as the victim of the offence.
4.
The appellant has represented herself on the renewed applications for an extension of time and for leave to appeal against conviction. Mr Keene has represented the appellant on the appeal against sentence, and Mr Gibbons has represented the respondent prosecution. We are very grateful to the appellant, Mr Keene and Mr Gibbons for both their written and oral submissions.
The Factual Background
5.
The appellant and LTN had met on Encounters, a dating website, in October 2015. LTN was a retired successful businessman. He and the appellant commenced a sexual relationship, which continued on and off until February 2018.
6.
In June 2018, some four months after the relationship had ended, the appellant contacted LTN again on WhatsApp and requested a loan of £20,000 to assist with a business venture. LTN refused. He said that as they were no longer in a relationship, he considered that it would be imprudent for them to enter into a business relationship. He did, however, offer to give, and did give, a one–off monetary gift of £2,000, which he transferred to the appellant's bank account. We make it clear that that transfer of funds is no part of the criminality alleged in this case.
7.
The prosecution case was that the appellant, not content with the gift, began to blackmail LTN a few months later. In November 2018, LTN received the first in a series of communications (four in total), mainly by email, in which the appellant complained of her treatment by LTN during their relationship and asked for increasing amounts of money. The demands were accompanied by threats to publicise embarrassing details of their sexual activity together and other private information about LTN if he did not give her what she was asking for. The appellant threatened to reveal information to LTN's family, to the businesses with which he had been involved and on social media. LTN tried to reason with her, and eventually offered to pay her the £20,000 which had originally been requested, on the condition that she promised to leave him alone and not to reveal any details of their private relationship. He told her, however, that he had found the whole exchange very distressing and it seemed very much to him like blackmail. In her final email to him in January 2019, the appellant told LTN that she was seeking £10 million to enable her to set up a new home, establish a business and fund her son's education. This final email prompted LTN to report the matter to the police.
8.
During the trial the prosecution also relied on personal notes made by the appellant. The notes referred to the appellant writing a book, and there were various other notes which contained the first name of LTN and an entry that read "Should blackmail him".
9.
The appellant's case was that the demands were reasonable because she was trying to enforce a verbal contract, which they had entered into during their relationship in which they had discussed business matters and future business ventures. The appellant claimed that LTN had agreed to help her set up a fashion business venture and was now going back on that promise. She took legal advice with a view to suing him, and the emails were negotiations in an attempt to avoid court proceedings. It seems that the solicitors who had given her advice had asked for money on account and the appellant had said that she could not afford it. They had advised her that there was no oral contract, but had suggested that there might be some way of exploring a claim for promissory estoppel.
10.
The appellant’s case at trial was that she was not blackmailing LTN because the details of their relationship would have become public anyway. She also claimed that the relationship had been abusive; that LTN had degraded her; but that it was only now that she had found the courage to stand up for herself. She believed that she was entitled to what he had promised her. She was intending to write a memoire. The note on which the prosecution relied also referred to the first name of her son's father; it was not a reference to LTN.
11.
The appellant represented herself during the trial process. She gave evidence in her defence. She relied on previous messages, on the correspondence with the solicitors, and the fact that she had a claim against LTN.
Summing up
12.
Prior to his summing up, the judge prepared written directions and a Route to Verdict. The issue for the jury was whether the appellant had made demands with menaces, and, if so, whether the appellant genuinely believed that she had reasonable grounds for making such demands. It is apparent from the jury's verdict that they were sure that the appellant had made demands with menaces and that she did not have reasonable grounds for her belief.
The Sentencing
13.
In passing sentence the judge said that the appellant was a 50 year old woman, she had one adult child and had historic convictions for offences of dishonesty in the 1990s, but had never served a custodial sentence.
14.
The judge detailed difficulties with the appellant's representation and the efforts made to assist her at trial. He said that the case against her was overwhelming. The blackmail was explicit in the emails sent to LTN and was corroborated by her own private notes which had been referred to at trial. The judge set out his findings of fact. He said:
"You persuaded yourself that he was fantastically rich based on your internet research and you proceeded to press him for as much as you thought he could give you. You became fixated in the view that you were entitled to financial payback from him due to the time that you had spent together in the relationship. You researched and contacted lawyers to see if you could engage one to bring what was a ludicrous lawsuit against him, and when that came to nothing, as you were told by then you had no claim, you resorted to calculated and cold blackmail and your internet search history revealed that you researched blackmail, extortion and negotiation.
You sent him an email accusing him, quite falsely, of all sorts of domestic and sexual abuse in the relationship and then proceeded to threaten him with its release to his family and business contacts and on to social media. You told him that you had contacted the police. That was untrue. In desperate response and fear of the threat he offered you the £20,000 that you had asked for in June, which was a total capitulation. But even this did not prove enough for you, and sensing weakness you pressed your demands to the hilt, demanding £10 million on 30
th
January 2019, causing him to contact the police."
15.
The judge found that LTN was caused genuine fear that his life would be ruined. LTN was particularly concerned that there would be an effect on his children, who had recently lost their mother (his ex-wife) to cancer.
16.
The judge considered the pre-sentence report and found that the appellant maintained her rigid thoughts, beliefs and grievances. She refused to accept the jury's verdict. The judge, however, took into account her disrupted childhood, her separation from her mother, the fact that she had fled Uganda when she was aged 15, and the fact that she had suffered periods of homelessness in the United Kingdom, including during the trial.
17.
There are no sentencing guidelines for the offence of blackmail, but the judge considered recent authority. He said that a starting point of four years' custody was appropriate to reflect the sustained nature of the threats and the significant impact on LTN, his business reputation and his family. It was a planned and calculated offence and an element of deterrence had to be factored in. The appellant's previous convictions were too old to act as an aggravating feature but deprived her of the mitigation of good character. The judge took into account the mitigation and the Covid conditions, and reduced the four years by six months and imposed the final sentence of three years and six months' imprisonment. An indefinite restraining order was also imposed.
The Proposed Grounds of Appeal against Conviction and the Application for an Extension of Time
18.
The appellant did not bring her proposed appeal against conviction in time. It appears that the delay was caused because the appellant was a litigant in person. She was in prison. She told us this morning that there were delays in obtaining transcripts and she had difficulties in understanding and navigating the procedures. The appellant also mentioned the effect of the barristers' strike on obtaining representation.
19.
Given the reasons for the delay provided by the appellant, we confirm that if the proposed grounds of appeal against conviction are arguable, we would grant leave. We therefore turn to consider whether there are any arguable grounds.
20.
The appellant's complaints were set out in her oral submissions this morning; and in her numerous written submissions, which have been less easy to follow. We propose to group the complaints under a series of headings.
The First Complaint: Representation
21.
The appellant complains that the judge refused to adjourn the trial to permit her to be represented by counsel of her choosing and that as a result the appellant was unprepared. She had no access to the Digital Case System or to the trial documents. It is apparent from the chronology, which we have carefully considered, that the appellant was represented at her first trial, which was adjourned because the prosecution disclosed some 21,000 pages of documents on the Friday before the trial was due to start on the Monday. The appellant's counsel was unable to deal with those documents. It is also apparent that the appellant was represented in the lead up to the start of the second trial and then for reasons the detail of which we do not know, she no longer had legal representation. The appellant said that she was able to continue with the trial. It is apparent from the transcripts that both the judge and prosecuting counsel fairly gave the appellant every proper assistance. We can see no basis on which the absence of representation could be a ground of appeal. The appellant, as she was entitled to do, decided to represent herself.
The Second Complaint: The Indictment
22.
The appellant asserts that the indictment was wrong, was changed and was hidden. It appears that the appellant was charged on the indictment with two counts: blackmail (count 1) and sending a malicious communication (count 2). However, once the jury had convicted on count 1, there was no need to take a verdict on count 2, which was ordered to lie on the file on the usual terms. We can see no error in relation to the indictment which would have rendered the trial either void or voidable.
The Third Complaint: The Judge's Rulings
23.
Complaints are made that the judge allowed the prosecution to adduce evidence that had been excluded; that he failed to order disclosure; that he did not accept a submission of no case to answer; and that he prevented the prosecution from reading key emails. So far as we can see from looking at the transcripts – and we should record that the appellant does not accept the authenticity of the transcripts, but there is nothing to suggest that they are anything other than accurate – the judge carefully addressed the issue of the evidence and disclosure. We have transcripts of his rulings on 7
th
March 2022 and 14
th
March 2022. The judge and prosecuting counsel confirm that there were no further relevant documents to be disclosed.
24.
So far as the refusal of the submission of no case to answer is concerned, there was plainly evidence on which the jury could convict the appellant of blackmail, and the count was properly left for their consideration.
25.
So far as the reading of emails is concerned, there is nothing to suggest that there was anything other than a full and fair trial. Having read through the transcript of the summing up, it is apparent that all the points for and against the prosecution and all the points for and against the appellant were made.
The Fourth Complaint: Perjury
26.
The appellant says that all the prosecution witnesses committed perjury. Indeed, in her submissions to us this morning the appellant concentrated on this aspect of her grounds of appeal. The appellant complains that five prosecution witnesses all made false statements and committed perjury.
27.
It is apparent that the appellant does not accept that those statements made against her were true, but that was an issue for the jury who must have been sure that LTN's evidence was true. There is nothing to indicate that there was any false evidence given or indeed any intention to mislead the court.
The Fifth Complaint: Unfair Cross-Examination
28.
From what we have seen of the transcripts – and indeed from what we have seen from the summing up – prosecuting counsel acted perfectly properly throughout and fairly put all the points on which the prosecution relied to the appellant.
The Sixth Complaint: Defects in the Summing Up
29.
The appellant asserts that the prosecution case was not properly reflected in summing up. We do not see that in the summing up. She also asserts that the defence case was not fairly identified. From page 8 onwards of the summing up, the defence case is fairly summarised. We have already addressed her assertion that there were failures of disclosure.
30.
We have carefully considered all of the proposed grounds of appeal against conviction which the appellant has addressed in a number of different documents. But we can identify no arguable grounds of appeal against conviction.
31.
For that reason we refuse the renewed application for an extension of time and we refuse the application for leave to appeal against conviction.
The Appeal against Sentence
32.
On behalf of the appellant, Mr Keene submits that the judge took too high a starting point in circumstances where there is no sentencing guideline; that he gave too much weight to the aggravating factors; and that insufficient regard was paid to matters of mitigation. Accordingly, it is said that the sentence imposed is manifestly excessive.
33.
In his oral submission this morning, Mr Keene pointed out to us the delay; the fact that the appellant was of effective good character, because her previous offending was in her early 20s and she was aged 50 by the time of the trial; and that some of the trial judge's findings against her were too harsh and did not depend on the judge's assessment of the appellant during the trial and were matters which we could correct.
34.
On behalf of the respondent, Mr Gibbons pointed out that this was high culpability offending because it was persistent and planned, as evidenced by the internet research; it had continued from November 2018 to January 2019; and that real harm had been caused to LTN. Mr Gibbons confirmed (because the failure to read it was a particular complaint made by the appellant) that he had, in fact, read out the Victim Personal Statement made by LTN before sentence. He submitted that there was limited mitigation.
35.
There is no sentencing guideline for the offence of blackmail. We have considered
Attorney General's Reference No 84 of 2015
[2015] EWCA Crim 2314
, which itself referred to other decisions of the Court of Appeal Criminal Division, including:
R v Hadju
[1989] 1 Cr App R(S) 29;
R v O'Sullivan
[2021] EWCA Crim 248
, [2021] 2 Cr App R(S) 28; and
R v Burgan
[2020] EWCA Crim 1186
, [2021] 1 Cr App R(S) 39.
36.
In sentencing, the court will have regard to the unlawful demand, the sums claimed and the measures which accompany the demand, together with the harm caused and the time over which the unlawful conduct has persisted, thereby addressing the matters of culpability and harm. At [22] of
Attorney General's Reference No 84 of 2015
, the court there said that there was an uncontroversial proposition that for offences of this nature the starting point is in the region of four to five years' custody. In that case, the court took four years. That was the blackmail by a man of a woman with whom he had a relationship, after she refused to leave her husband. The woman had then paid £500 and a further smaller sum after pawning her jewellery and taking money from her children's accounts.
37.
It is fair to point out that in
R v O'Sullivan
, the court did not interfere with a three year starting point, although it was said that many courts might have taken a starting point of three and a half years. In that case, a male posed as a woman. He obtained an intimate photograph, blackmailed the sender and obtained a total of £2,870. However, in that case there were some extraordinary mitigating features: the money had been paid back; the offender was an NHS volunteer; and there were family issues.
38.
We have looked carefully at the circumstances of this case: the unlawful demands; the measures which were used; the effect on LTN; and the sums which were involved. We consider that the judge was entitled to take a starting point of four years' custody, based on his assessment of the evidence. We can see no basis on which we can interfere with his assessment of the evidence because it was based on the facts before him, and his findings were consistent with the evidence which he had heard. There was no irrationality in his findings. The reduction of six months for mitigation was sufficient, given the findings that the judge had made. In all those circumstances we are unable to say that this sentence was manifestly excessive.
39.
For all the reasons we have set out, we refuse the renewed applications for an extension of time and for leave to appeal against conviction, and we dismiss the appeal against sentence.
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|
Case No:
200503714 D1
Neutral Citation Number:
[2006] EWCA Crim 1719
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM IPSWICH CROWN COURT
His Honour Judge Holt
T20040326
Royal Courts of Justice
Strand, London, WC2A 2LL
14/07/2006
Before :
THE RIGHT HONOURABLE LORD JUSTICE HOOPER
THE HONOURABLE MR JUSTICE LEVESON
and
THE HONOURABLE MR JUSTICE BEATSON
- - - - - - - - - - - - - - - - - - - - -
Between :
THE CROWN
- and -
LISA JOY LOIZOU
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment 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)
- - - - - - - - - - - - - - - - - - - - -
M. Levett (instructed by the Registrar) for the Appellant
C. Fender (instructed by CPS) for the Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
LORD JUSTICE HOOPER :
Mr Justice Beatson made a substantial contribution to that part of this judgment which is concerned with legal professional privilege.
1.
On 6
th
July 2005 in the Crown Court at Ipswich (H.H.J. Holt ) the appellant was convicted of transferring criminal property, £87,010 in cash, contrary to
section 327(1)
(d) of the
Proceeds of Crime Act 2002
.
2.
She was jointly charged in a single count with
John McCarthy, James Quilligan and Anastasios Gourzoulidis. McCarthy and Quilligan
pleaded guilty on the first day of trial. Gourzoulidis, who was tried with the appellant, was also convicted. Petros Arampatzis was arrested, but failed to answer police bail on 16
th
August 2004 and is believed to have returned to Greece.
3.
On 20
th
June 2004 in the car park of the Holiday Inn, Brook Street, Brentwood in Essex, cash totalling approximately £87,000 was transferred from a Vauxhall Vectra registration KGG03 UTC to a VW Polo registration LJ02 RFY. The transfer was made by at about 15.20 when a male passenger walked from the Polo to the Vectra and returned to the Polo carrying a pouch. The money was discovered in the Polo at 15.40 when it was stopped by police as it tried to leave the car park. Gourzoulidis was the driver of the Polo. Arampatzis was the front seat passenger.
4.
The appellant was arrested at 15.35 in the rear seat of a Vauxhall Omega Y659 DWP which had arrived at the car park shortly after the transfer. Quilligan and McCarthy were arrested at about 16.10 on London Road Brentwood, having just entered a taxi. A mobile phone was found in the taxi.
5.
The Omega had been under surveillance from shortly before 10am that morning when it left North London. The occupants were the applicant, Arampaztis, and 2 others. At 10.53 the vehicle entered the car park of a Little Chef near junction 29 of the M25 where the occupants met with Quilligan and McCarthy who were travelling in a VW Passat registration BG OYF.
6.
At just after mid-day both vehicles left that car park and travelled to McDonalds at Laindon. At 12.29 customs officers entered McDonalds and observed the applicant, Arampaztis, Quilligan, McCarthy and others. They overheard a conversation between McCarthy and the applicant to the effect that time was pressing with regard to a meeting which should have taken place at 11.30.
7.
The Omega and Passat left the McDonalds car park shortly after 13.30. The Omega obtained fuel from a Jet petrol station at 13.43 whilst the Passat waited nearby. The Omega then went to a point near the junction of the A127/M25 where it met with the Polo driven by Gourzoulidis at 14.02. The Omega and Polo moved in tandem towards the M25, moving onto the A12 towards Chelmsford. At 14.20 both vehicles stopped by a Total petrol station at the junction of the A1023 and M25 where they waited until 15.20.
8.
At 14.20 the Passat drove into a Holiday Inn car park approximately 500 metres (1/2 mile) away. It then moved to the car park of a public house across the road. The Vectra arrived in the Holiday Inn car park at about 15.19. Shortly after the Polo arrived; there were 2 men in the rear, one of whom was McCarthy. The transfer was made. The applicant remained in the Omega at the Total garage during the transfer and Arampatzis remained in the Little Chef next to the garage. After the transfer, the Omega driven by a man called Kumas moved into the Holiday Inn car park and parked by the Polo. Arampaztis and the applicant were observed standing close to each other, then Arampaztis got into the Polo. The arrests followed.
9.
It was the prosecution’s case
that the £87,000 in cash was “criminal property” which the defendants knew or suspected constituted a person’s benefit from criminal conduct. The prosecution did not identify the nature of the alleged criminal conduct. The prosecution alleged that the cash was
being transferred in connection with the purchase of cigarettes from Belgium.
10.
The full court gave leave to appeal on four grounds, one of which Mr Levett has sensibly abandoned. The first ground relates to the direction given as to the meaning of "criminal property". It is clear law that the money must be criminal property at the time it is transferred. It is not sufficient that it becomes criminal property as a result of the transaction involving the transfer (see
Loizou
[2004] EWCA Crim 1579
).
11.
In his summing up to the jury the learned judge said:
“Firstly, there must be criminal property and that means property obtained as a result of criminal conduct and I made a simple example is the proceeds of a bank robbery, another example would be proceeds of a fraud. You do not have to be sure what the criminal conduct was,
you just have to be sure that there was some criminal conduct which led to the creation of the particular criminal property
. And you may infer that it was criminal property from the evidence before you, if you think it is right to make an inference. That is the first ingredient. The second ingredient is that there must be a transfer; that simply means that the criminal property must pass from one person to another. Thirdly, the particular defendant whose case you are considering must know about the transfer and intend to play a part in it. If you don’t know what is going on you can’t really be guilty of anything, so they have got to know what is going on; and, secondly, that person must know or suspect that it was a transfer of criminal property. Those are the three ingredients which the prosecution have to prove.” (Underlining added)
12.
Mr Levett particularly focuses on the words which we have underlined. He submits that the judge should have said “which
had previously
led to the creation of the particular criminal property”, in order to make it clear that the property had to be criminal property at the time it was transferred. Whilst accepting that it might have been better if these words had been added in, we have no doubt that the jury were being told that the money had to be criminal property at the time it was transferred. That is made clear at the beginning of this
passage. There is no suggestion that the property could become criminal on transfer. We see no merit in this ground.
13.
The second ground, as developed during the course of argument, relates to the manner in which the trial judge directed the jury on the relevance of the pleas of guilty by Quilligan and McCarthy. The prosecution sought and obtained the leave of the judge to admit the two convictions under
section 74
of the
Police and Criminal Evidence Act 1984
. The prosecution sought to rely on the convictions to prove that the money was criminal property before it was transferred.
14.
The particulars of the offence to which the two co-defendants pleaded guilty were:
“Liza Loizou, John Mccarthy, James Quilligan and Anastasios Gourzoildis, together with Petros Arampatzis, on the 20th day of June 2004, transferred £87,010 in cash, which was criminal property, knowing or suspecting that the said cash constituted a person's benefit from criminal conduct.”
15.
There was a basis of plea which Mr Levett brought to the attention of the judge when he made his now unchallenged ruling that the pleas of guilty were admissible. As to that basis of plea the judge said in his ruling:
“Now it is quite clear that … the basis of plea does not expressly refer to the money as being criminal property, but it is quite clear that by the pleas of guilty each defendant was admitting that it was criminal property. In my judgment it would be absurd to reach any other conclusion.”
16.
Mr Levett submits that the judge, when directing the jury as to the effect of the pleas of guilty ought to have done so against the background of the basis of plea. Mr Levett had not sought to place before the jury the basis of plea in a redacted or unredacted form (redacted in order to remove those parts of the basis of plea which were very unhelpful to the appellant).
Section 74 (3)
provides that if a person is proved to have been convicted of an offence, “he shall be taken to have committed the offence unless the contrary is proved.” Mr Levett did not seek to prove the contrary. In any event, it seems to us that the judge's conclusion from his ruling which we have read out applies equally when one considers his direction to the jury. There was, in our view, no need to refer to the basis of plea; indeed, it would have been wrong to do so.
17.
We turn to the ground of appeal which has given us more difficulty. Mr Levett submits that the judge was wrong when he ruled that the appellant had waived her legal professional privilege by answering questions put to her by Mr Levett. He also submits that the judge misdirected the jury when explaining to the jury the effect of
section 34
of the
Criminal Justice and Public Order Act 1994
(adverse inference from failure to mention facts). The appellant, having declined to answer questions at either of her interviews, had given in evidence a detailed account of what had occurred on the day. Thus a
section 34
was appropriate. Mr Levett complains of the manner in which it was given.
18.
At the conclusion of the hearing we asked for and received further written submissions from both counsel on this ground. We received these in May.
19.
The questioning by Mr Levett which was to lead to the ruling that the appellant had waived privilege, was as follows:
“Q. Now you say that you relied on the advice of your solicitor to go "No comment" and you have explained that the reason for that was – well, would you just like to repeat it so that I've got it firmly in my head because I'm going to ask you why it was that you said "No comment" at the next interview.
A. Because of Chris Casey advised me on the next interview to say "No comment" because of the charge for money laundering because - - - -
Q. And what do you mean "Because of the charge of money laundering"?
A. He didn't see a charge. He couldn't understand why I was being charged with money laundering.
Q. And did you take his advice?
A. Yes.
Q. And why is it that you relied on his advice?
A. He's a solicitor and he was advising me.
Q. Now at any stage have you attempted to tailor in or fit any of your evidence so that you can make yourself sound better, you know, having heard what the prosecution's case - - - -
A. No.
Q. - - - - is about?
A. No.
Q. And have you told the jury the truth today?
A. Yes.”
Q. And at any stage did you know or suspect that this money that had been transferred was criminal property?
A. No.
20.
We note that in the first interview there had been a long argument between the solicitor and Customs Officers “about the very purpose why he’d advised his client not to answer questions”.
21.
In cross-examination, Mr Fender asked the following questions:
“Q. So when you were at the police station on the first occasion had you prepared, or had prepared for you that short written statement you were taken to by my learned friend Mr Levett. Was there any reason why you didn't want to make a clean breast of it then and say what you've told the jury about today, how you'd been embroiled in somebody else's business, you didn't know anything was going on that was dishonest, you were acting as a translator and that you'd been wrongly arrested for something that you had no knowledge of an no involvement in anything criminal, or anything like that.
A. No, because the Customs were talking about there'd been money involved. I'd never seen any money so why was I to be charged on a money laundering?
Q. Well, just put the niceties of the offence that you were being alleged to be involved in first of all, I'm just more concerned with you just feeling as though you wanted to tell the Customs Officers exactly what your role was in the events that they had mistakenly arrested you for. Do you follow? Just making a complete clean breast of it and saying, "Officers, you've just got it wrong. I was there because I was helping someone I thought was a perfectly legitimate businessman carry out this business and I'm, you know, I'm just an innocent dupe in all of this. I've got nothing to do with anything to do with the sales of cigarettes or tobacco, or money laundering" and just put it out there.
A. No, because my solicitor advised me not to say anything because there was no connection for me to be charged with money laundering.
Q. Well that was on 21st June.
A. Yeah.
Q. You went in August, didn't you?
A. Yeah.
Q. You were bailed by the police and you went back on 16th August and on that occasion you followed the same advice.
A. Yes.
Q. And said nothing to the police, or rather Customs.
A. Yes.
Q. But do you accept that you were asked a number of questions about your involvement in events of that day?
A. Yes.
…
Q. Yes. Now to all of those questions you exercised your right to remain silent. Yes?
A. Yes.
Q. On the advice of your solicitor. Did you tell your solicitor any of the account that you've given today?
MR LEVETT: Isn't this privileged?”
22.
The jury were then asked to leave and, following argument, HHJ Holt ruled that the question could be asked:
“The defendant, Miss Loizou, was interviewed twice on 21 June and 16 August and on both occasions she, to summarise and use the vernacular, "went no comment".
When she was giving her evidence in-chief she was asked why she "went no comment". In the first interview that no comment was by means of a short prepared statement, apparently written by her solicitor. She said: "I said no comment on the advice of my solicitor, Mr Christopher Casey. He told me that he didn't see any charge for money laundering." There was no attempt by her counsel to try and cut her short, because there she was clearly giving evidence of the advice or the reason for the advice, not just the advice to keep silent. And when she was asked about the interview on 16 August there was no attempt beforehand, counsel being aware of what she had said on the previous occasion, to invite her to limit her evidence to whether she had been advised to go "no comment" and she gave the same answer: "Christopher Casey advised me to go no comment because he couldn't see any charge."
In those circumstances prosecuting counsel say there has been a clear waiver of privilege and he is entitled to ask her about that advise in accordance with the case of R v. Bowden –
…
The short statement in Archbold at paragraph 15-424 is: "A waiver of privilege will be involved if the defendant or his solicitor seeks to put forward in interview or in evidence the reason for such advice." The case of R v. Bowden (1999) 2 Cr. App.R., 176.
Mr Fender was not aware this point would necessarily arise, but being a well prepared prosecutor has a transcript of that case with him and we have all had the opportunity to look at that transcript and the summary in Archbold is correct. It seems to me there has been a clear waiver on the authority of R. v. Bowden and the evidence by Miss Loizou did not appear to be given inadvertently or by accident and it was repeated in respect of the second interview without any attempt by her experienced counsel to limit her evidence merely to say that she had been advised to go no comment. Therefore, in the circumstances I shall allow this line of questioning, there having been a waiver of privilege.”
23.
Mr Fender then continued his questions in the presence of the jury:
“Q. Now everything that you've told the jury about today, your association with Mr Arampatzis and all the other people that were involved in the events of that day, 20th June, and before that time, do I understand you correctly that you didn't tell Mr Casey, your legal adviser, anything about that on either of the two occasions that you met him at the police station?
A. I told him briefly what had happened.
24.
Mr Fender then addressed the same question in relation specifically to the second interview, which took place some two months after the first interview:
Q. Well, perhaps if I can leave it on this note then: did you discuss, even briefly, all the story that you've told the jury this morning.
A. No.
Q. Did you tell the solicitor anything of that?
A. No, we didn't have time. I just went straight into the interview with the officers.
Q. So he knew nothing about all the account that you gave this morning?
A. No”
25.
In his speech to the jury Mr Fender alleged “recent fabrication”. In summing up HHJ Holt, after summarising the appellant’s evidence, said:
“Miss Loizou says that all that is true. If you conclude that it is, or may be, true, then that’s the end of it, she is not guilty.”
26.
The judge then summarised the prosecution’s attack on the credibility of the appellant’s account:
“The prosecution say this is a tissue of lies and one reason you can be sure of this is that if it had been true, she would have come out with it in interview. The prosecution say it would have been very easy to say at least: ‘I am an innocent interpreter, indeed I was to be paid £200. I’m fed up that it took longer than promised and I am furious that I ended up being arrested.’ The prosecution say this was not said because she hadn’t yet thought up this story in answer to the questions which were put to her in interview. Indeed, Mr Fender went through a lengthy list of questions which had been put to her in interview and Miss Loizou agreed that they were put to her and she had declined to comment. The prosecution say that since then she has used the time to concoct this story and tailor it to the prosecution evidence.”
27.
The judge continued:
“Now, if you agree with the prosecution and draw this conclusion, you must not convict wholly or mainly on the strength of it, but you may take it into account as some additional support for the prosecution case and when deciding if her evidence about these facts is true. Having said that, you may draw such a conclusion only if you think it’s a fair and proper conclusion and that you are satisfied about three things: first, that when she was interviewed she could reasonably have been expected to mention these facts. Second, that the only sensible explanation for her failure to do so is that she had no answer at the time or none that would stand up to scrutiny, and, third, apart from her failure to mention those facts the prosecution case against her is so strong that it clearly calls for an answer.
You will also consider this matter: Miss Loizou, when she gave evidence, said that she had been advised not to answer these questions by her solicitor. How do you approach that explanation? Well, firstly, you will have to decide if she has, or may have, told you the truth about that. Second, if you conclude that she may have been so advised by her solicitor, then clearly it’s an important consideration, but it doesn’t automatically prevent you from drawing any conclusion from her silence. You should bear two things in mind: firstly, what had her solicitor been told by her? Had her solicitor been told about the account which she gave you? She was asked questions by Mr Fender about that and her answers were unclear. If she hadn’t, and it’s a matter for your judgement to decide, why not? Was it because she had yet to make it up, or was there indeed an innocent reason that she had not told her solicitor why she was with Petros that day? That’s the first thing to bear in mind.
The second thing to bear in mind is that a person given legal advice has the choice whether or not to accept it and indeed solicitors have a duty to tell their clients this. Moreover, she was clearly warned in the caution that failure to mention facts which she relied on at her trial might harm her defence.
Now those are the things to bear in mind. If you conclude at the end of your considerations that she could have told the police what she told you, but she genuinely relied on legal advice to remain silent, then you shouldn’t hold that silence against her. On the other hand, if you are sure that she had no answer and merely latched on to the legal advice as a convenient shield behind which to hide, you would be able to hold the silence against her in the way the prosecution invites you to do so. So it’s quite a lengthy process and that’s the way to approach it.”
28.
It was pointed out to the judge that it was not disputed by the prosecution that she had been advised not to answer questions. The judge therefore returned to this issue later:
“Now, the second point is a matter where I have been assisted by further information, if you like. Can I go to Miss Loizou and her “No comment” interview and just remind you about that. She gave evidence that she was advised not to answer the questions by her solicitor, who indeed said that he didn’t think they amounted to a criminal charge, or the prosecution evidence at that stage amounted to a criminal charge. And it’s quite rightly pointed out, I didn’t add that second part when I reminded you of it and I apologise. But it goes further than that because apparently, and we haven’t heard the tapes quite properly, you’d be deluged with information if you had, but the tapes do make it clear that he gave that advice and so when I said there are two stages that you have to consider: firstly, whether she has or may have told you the truth that she was given that advice, she was indeed given that advice. What I then went on to say about, if you reach that conclusion, how you approach it still stands, but that first stage is clearly she was so advised and don’t be misled by my labouring, if I did, the first stage, that’s passed.
29.
Mr Levett submits that the judge was wrong to allow the appellant to be asked whether she had given to her solicitor before the police interviews the account which she had given in evidence. Mr Levett also submits that, in any event, the judge was wrong, when dealing with
section 34
of the
Criminal Justice and Public Order Act 1994
, to give the following direction to the jury (which we have already set out in paragraph 27 above):
“You should bear two things in mind: firstly, what had her solicitor been told by her? Had her solicitor been told about the account which she gave you? … If she hadn’t … why not? Was it because she had yet to make it up, or was there indeed an innocent reason that she had not told her solicitor why she was with Petros that day?”
30.
We shall consider first of all whether the judge ought to have allowed the prosecution to ask the question. Mr Levett relies upon
R v Derby Magistrates' Court ex parte B
[1996] 1 AC 487
as demonstrating the great importance which the courts attach to legal professional privilege. The headnote reads in part:
“In 1978 the applicant went for a walk with a 16-year-old girl, who was later found murdered. The applicant was arrested and made a statement to the police admitting being solely responsible for the murder. Shortly before his trial at the Crown Court for murder he retracted that statement and alleged that although he had been at the scene of the crime his stepfather had killed the girl. The applicant was acquitted. In 1992 the stepfather was charged with the girl's murder and committal proceedings were commended before the stipendiary magistrate. The applicant gave evidence for the prosecution and repeated his allegation that his stepfather had murdered the girl. Counsel for the stepfather, in cross-examining the applicant, asked about the instructions he had initially given to his solicitors when admitting to the murder. The applicant declined to answer on the grounds of legal professional privilege. An application was thereupon made on behalf of the stepfather, pursuant to
section 97
of the
Magistrates' Courts Act 1980
, for a witness summons directed to the applicant's solicitor requiring production of the attendance notes and proofs of evidence disclosing the relevant instructions.”
31.
Lord Taylor considered the authorities and in particular the case of
Ataou
[1988] QB 798
. As to that case Lord Taylor said (page 503):
"...under the principle stated in
Reg. v. Ataou
, if it be correct, the judge is required to approach an application for production of documents protected by legal privilege in two stages. First he must ask whether the client continues to have any recognisable interest in asserting the privilege and, secondly whether, if so, his interest outweighs the public interest that relevant and admissible documents should be made available to the defence in criminal proceedings."
32.
Lord Taylor continued (page 503):
"So stated, the principle seems to conflict with the long established rule that a document protected by privilege continues to be protected so long as the privilege is not waived by the client: once privileged, always privileged. It also goes against the view that the privilege is the same whether the documents are sought for the purpose of civil or criminal proceedings, and whether by the prosecution or the defence, and that the refusal of the client to waive his privilege, for whatever reason, or for no reason, cannot be questioned or investigated by the court."
33.
Lord Taylor then looked at the history of the privilege in order to see whether these traditional views were borne out by the authorities. Having examined those authorities, Lord Taylor continued (page 507):
"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests."
34.
Lord Taylor then considered the arguments submitted on behalf of the applicant by Mr Goldberg and said (page 507):
"Nobody doubts that legal professional privilege could be modified, or even abrogated, by statute, subject always to the objection that legal professional privilege is a fundamental human right protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969), as to which we did not hear any argument. Mr. Goldberg's difficulty in other areas, legal professional privilege is a field which Parliament has so far left untouched."
35.
Lord Taylor referred to the argument of the
amicus curiae
that the rule should not be absolute and should permit the court to conduct a balancing exercise. Lord Taylor continued (page 508):
"But the drawback to that approach is that once any exception to the general rule is allowed, the client's confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything which the client might say would never in any circumstances be revealed without his consent, would have to qualify his assurance. He would have to tell the client that his confidence might be broken if in some future case the court were to hold that he no longer had "any recognisable interest" in asserting his privilege. One can see at once that the purpose of privilege would thereby be undermined."
36.
Lord Taylor did not accept that argument.
37.
Lord Keith and Lord Mustill agreed with Lord Taylor. Lord Lloyd also agreed with Lord Taylor. He stressed the principle that a client must be free to consult his legal advisers without fear of his communications being revealed (page 509):
"If the client had to be told that his communications were only confidential so long as he had 'a recognisable interest' in preserving the confidentiality, and that some court on some future occasion might decide that he no longer had any such recognisable interest, the basis of the confidence would be destroyed or at least undermined".
38.
Lord Lloyd accepted that there may be cases where the principle will work hardship on a third party seeking to assert his innocence, but it was in the overall interests of the administration of justice to preserve the principle intact.
39.
Lord Nichols agreed with Lord Taylor with one proviso. He was unattracted by the argument that a client could insist on non-disclosure even when disclosure would not prejudice the client. This reservation is not of relevance in the present case.
40.
Mr Levett submits, rightly in our view, that this case shows that the protection of legal professional privilege is regarded as so fundamental that it “trumps” (our words not his) any claim of a defendant to show his innocence by relying upon material protected by another’s legal professional privilege.
41.
Mr Levett referred us to
Wilmot
(1989) 89 Cr. App. R. 341
, at 352 (a pre-
section 34
case) where Glidewell LJ said :
"In the course of his submission to us, Mr. Boal told us that when he was pressing the defendant in cross-examination as to whether the account he had given was recently fabricated, he asked the defendant: ‘Did you tell your solicitor the truth?" The defendant paused and said: "I don't want to answer that question.’ Mr. Roberts submitted that that was an improper question, that it led the recorder perhaps to take the line he did, and in itself had a damaging impact. In our view – it is easy to be critical of counsel who asked questions in the heat of battle, so to speak - it is a question which should not have been asked. We hope that that question or anything approximating to it will not be asked again of defendants. We think it was unfair. It put the defendant in an impossible position. We also think that if it had been answered, the answer would have been inadmissible. So the question was not a proper question anyway. Mr. Boal himself when pressed by this court conceded that the question was not an appropriate one and suggested that what he really ought to have asked was: "When did you first tell anybody the story you have told the jury?" That would have been a perfectly proper question and there could have been no possible objection to that."
42.
Mr Levett also relies on
Wishart
[2005] EWCA 1337.
43.
The appellant was convicted of four robberies. His defence was one of alibi. He said that at the time of the robberies he had been at his father's house. When interviewed by the police under caution after a private consultation with his solicitor, Mr Dongworth, the appellant made "no comment" answers to all questions. At trial he said that he had given a no comment interview on the advice of his solicitor. In cross-examination the appellant was asked whether he had told the solicitor whom he had consulted prior to the interview that he had been with his father at the time of the robberies. The appellant answered that he thought that he had done so. It was put to him that he was lying and that his alibi was a recent fabrication. The judge then directed that the solicitor who was no longer acting for the appellant should provide any notes of the conference with the appellant. Counsel for the appellant informed the court that the notes contained no reference to an alibi but she claimed privilege for what they did say. The prosecution invited the judge to read the notes and decide whether they should be disclosed. The judge did so and ordered disclosure.
44.
The solicitor's notes revealed that the appellant had admitted presence at, but not participation in, the first three robberies and of the fourth had said that he had done the robbery. When the appellant was recalled to give evidence he denied making any such admissions to the solicitor.
45.
An application to discharge the jury on the grounds that what the appellant had told his solicitor was privileged and should not have been admitted in evidence was rejected. The judge said that the appellant had gone further in his evidence than making the bare assertion that he had not answered questions on the advice of his solicitor. He had said that he thought that he had told his solicitor that he had an alibi for the period of the robberies. The judge concluded that the appellant had waived privilege in what he had told his solicitor. The judge said that the jury were entitled to know that he had not told his solicitor about the alibi when considering whether or not to draw an adverse inference of silence.
46.
Following the ruling the prosecution recalled the solicitor to give evidence in rebuttal of the appellant's assertion that he had not said what was recorded in the notes. His solicitor said that if the appellant had mentioned an alibi he would have advised him to answer the questions in interview and to tell the police about the alibi. In the course of summing up the judge told the jury to take into account what they had been told by the appellant and by the solicitor about what had led to the giving of advice to make no comment. Counsel for the appellant submitted that the judge's decision that the appellant had waived privilege was wrong. Summarising this submission the Court said:
“13. … The appellant had gone no further than saying that he had made a no comment interview on legal advice. Such a statement did not waive privilege. The appellant was bound to answer the judge's question and in doing so he did not disclose the reasons or basis for the advice which he had been given and so he had not waived privilege in that way. In support of his submissions Mr Russell-Flint relied on the decisions of this court in
R v Condron
[1997] 1 Cr.App.R 185 and
R v Bowden
[1999] 2 Cr.App.R 176. ”
47.
Counsel for the respondent submitted that the privilege was waived when the appellant said that he thought he had told his solicitor about the alibi.
48.
Tuckey LJ started the judgment by saying:
“1.
Section 34
of the
Criminal Justice and Public Order Act 1994
has recently been described by this court as a notorious minefield. As Lord Woolf said, the inter-relationship between this section and legal professional privilege is ‘singularly delicate’. Nevertheless on this appeal the Crown invite the court to take an adventurous step forward and say that a defendant will impliedly waive privilege in any case where he gives evidence that he made a no comment interview on legal advice and indicates that he will invite the jury not to make an adverse inference against him.”
49.
Having set out the facts Tuckey LJ said:
“15. It is first necessary to identify what was privileged and how and to what extent, if any, it was waived.
Section 10(1)
of the
Police and Criminal Evidence Act 1984
defines legal professional privilege as ‘communications between a professional legal adviser and his client made in connection with the giving of legal advice to the client’. A waiver will ordinarily occur where a client chooses, for whatever reason, to reveal the effect of a communication protected by privilege. In this case everything which was said at the pre-interview conference between the appellant and his solicitor was privileged. It is well-settled that merely by saying he gave a no comment interview on legal advice a defendant does not waive privilege. The waiver in the present case is said to have occurred during the appellant's cross-examination when it was being suggested to him that his alibi defence was a recent fabrication. The questions were perfectly proper. The Crown were entitled to ask whether he had told anyone about his alibi before trial. But what is the position if a defendant says in answer to such questions, as the appellant did here, that he did tell someone else earlier? The answer to this question is apparently given by Lord Bingham, CJ, in
Bowden
at page 182 where he says:
‘When a defendant at trial deposes to facts which he has not mentioned at an earlier stage, and it is suggested to him that these facts are an invention or fabrication after the event, the defendant may rebut that accusation by asserting and calling evidence to show that he mentioned the facts to another person at that earlier stage, and no waiver of privilege is involved even if evidence is given (by him or his legal adviser) that this disclosure was made to the legal adviser.’
In support of this statement of the law, Lord Bingham relied on the earlier decisions of this court in
Wilmott
(1989) Cr.App.R 351, at page 351 and 352 and
Condron
at page 197D to E. In the latter case this court said:
‘However, it should be borne in mind that the inference which the prosecution seek to draw from failure to mention facts in interview is that they have been subsequently fabricated. It is always open to a party to attempt to rebut this inference by showing that the relevant facts were communicated to a third person, usually the solicitor, at about the time of the interview (see Wilmott). This does not involve waiver of privilege if it is the solicitor to whom the fact is communicated; the solicitor is, for this purpose, in the same position as anyone else.’
16. It could be argued that in such circumstances what a defendant says to his solicitor is a privileged communication and that he waives privilege in that communication by volunteering that he has made it. But that is not what this court has said in the three cases to which we have referred which have not been doubted in any more recent cases where the earlier decisions have been followed. Even if we thought there was some reason to doubt this well-established line of authority, we are bound to follow it.
17. It is worth underlining that what this court has said about waiver of privilege is confined to the situation where a defendant is trying to rebut an allegation of recent fabrication. If a rationale for the rule is required it must be that a defendant against whom a potentially very damaging allegation of recent fabrication is made should be entitled to defend himself without running the risk that in doing so he will lose the protection of privilege.
18. This court's decisions assume that there has been some communication to the solicitor or someone else of facts not mentioned in interview. Here there was no such communication. The appellant had said nothing about an alibi to the solicitor. Does this make a difference? Has the appellant waived privilege so that the Crown may call the solicitor to say that no such communication has been made to him? And, if so, can he also be asked what the appellant did in fact tell him?
19. The cases to which we have referred make it clear that the answer to each of these questions is ‘no’. The logic of the authorities to which we have referred is that a defendant's assertion in defence of an allegation of recent fabrication that he has told his solicitor something he omitted to mention in interview does not waive privilege. This must be so whether the assertion is true or false. If true there is at least a communication. If false there is none. Still less do we think it is open to the Crown in such a case to discover what information a defendant did in fact provide.
20. The position in the present case is even more striking and emphasises the practical difficulties associated with the Crown's case and the potential for unfairness. The appellant was asked by counsel whether he had told any of his legal advisers about the alibi. His initial response was that he had told his barrister, as was no doubt the case. But the Crown were compelled to concede in argument that this answer also constituted a waiver of privilege in respect of these instructions, upon which the Crown, if so advised, could take a statement from counsel as to the scope of the instructions (regarding the alibi, if not more) and treat counsel thereafter as a potential witness. It is also striking that the answer which is said to constitute the waiver as regards the instructions to the former solicitor was provoked by a question from the judge himself. This of itself, if the Crown is correct, presented difficult case management problems. But in any event if this is a permissible route to the Crown eliciting otherwise privileged material, questions of this kind will become commonplace and in their train there will be frequent arguments as to the legitimacy of the question, the appropriateness of warnings to the witness and the scope of waiver that results.
21. The circumstances in which privilege will be waived were considered in
Condron
and
Bowden
. If a defendant states the basis or reason for the advice to go no comment (
Condron
page 197C) and if a suspect goes beyond saying that he declines to answer on legal advice and explains the basis on which he has been so advised, or if his solicitor acting as his authorised representative gives such an explanation, a waiver of legal professional privilege is involved (
Bowden
page 183F).
22. Subject to Mr Anelay's first point this analysis is sufficient to dispose of the appeal. The appellant did not waive privilege, the judge should not therefore have ordered production of Mr Dongworth's notes and allowed the appellant to be cross-examined on them, or admitted the evidence of Mr Dongworth in rebuttal. The notes and Mr Dongworth's evidence about them were near fatal to the appellant's defence and so his conviction cannot stand.
50.
Tuckey LJ then turned to
section 34
and said:
“23. This conclusion does not deprive
section 34
of all effect in a case such as this. It is well-established that it is not enough for a defendant simply to assert that he has made a no comment interview on legal advice in order to avoid a
section 34
direction. The defendant's explanation is left to the jury to consider in accordance with the JSB standard direction. In a case such as this the judge would obviously remind the jury of the defendant's evidence that he had told his solicitor the facts which he failed to mention in interview and if the solicitor was not called to support the defendant's assertion it would be open to the Crown and the judge in his summing-up to comment upon this omission. This is what happened in
R v Bui
[2001] EWCA Crim. 1752 (see paragraph 36). ”
51.
At the conclusion of the judgment Tuckey LJ turned to the submissions referred to in the first paragraph of the judgment:
“24. We return finally to Mr Anelay's first submission. He conceded, rightly in our view, that a defendant's bare assertion that he made a no comment interview on legal advice did not of itself waive privilege. However, he submitted that if the jury were to be invited to consider whether a defendant "had or might have had an answer to give but genuinely and reasonably relied on legal advice to remain silent" (see paragraph 5 of the JSB direction) the defendant must impliedly waive privilege to enable the jury to see or hear the reasons or basis for the advice so as to give proper consideration to whether they should or should not draw adverse inferences. If this submission is correct then of course the appellant waived privilege in this case and examination of the circumstances which we have considered above would be unnecessary.
25. This submission, if correct, would make substantial inroads into legal professional privilege. This privilege is of paramount importance and Parliament has so far left it untouched --
see R v Derby Magistrates Court ex parte B
[1986] AC 487
.
Section 34
says nothing about privilege. The decisions of this court, which are binding on us, do not give any support for Mr Anelay's submission. A claim for privilege will often deny a court the best evidence available to determine a particular issue, but that has never been a reason for saying that privilege has impliedly been waived. We therefore reject Mr Anelay's first submission.”
52.
We were also referred to
Bowden
[1999] 2 Crim. App. Rep. 176, in which Lord Bingham CJ set out and applied passages from
Condron
and
Roble
.
53.
We have already noted the two propositions of law which the Court in
Wishart
deduced from
Bowden
and other cases. First, a defendant who merely gives evidence that he made no comment on the advice of his solicitor does not thereby waive his privilege. (A justification for this rule can be found in
Beckles
[2004] EWCA Crim 2766
, paragraph 43). Secondly, a defendant (or his solicitor if called) who gives evidence of what was said to the solicitor in response to a prosecution allegation of recent fabrication does not thereby waive privilege.
54.
The facts in
Bowden
were that a robbery took place in Macdonalds and £9,500 was stolen. Shortly after the robbery, the appellant went on holiday to the Canary Islands and was photographed there in a celebratory pose outside a McDonald's restaurant. On return to England he was interviewed by the police but, on legal advice, declined to answer questions. After the interviews his solicitor made a statement setting out the grounds on which that advice had been given. At trial the Crown led evidence of his refusal to answer pre-trial questions, but not of the solicitor's statement.
55.
The appellant testified that the holiday had been paid for by his mother and gave an explanation why he and his companion had posed for the photograph outside Macdonalds.
56.
In order to put forward a reason why the jury should not draw a
section 34
adverse conclusion against the defendant, evidence had been elicited from the interviewing police officer of the defendant’s solicitor’s statement of the grounds upon which he advised the defendant not to reply to questions in interview. According to the officer the solicitor had stated that he was not satisfied that the defendant was the person on a video shown to him by the police and that the remaining evidence was circumstantial. He considered any charge of robbery could not be sustained, and that was why he gave the defendant the advice which he had.
57.
Crown counsel then submitted that by putting in evidence the solicitor's statement, the defence had thereby waived the legal professional privilege which would have otherwise protected confidential communications between the appellant and his solicitor. The judge ruled in favour of that submission and the appellant was then cross-examined as to whether he had told his solicitor that his mother had paid for the holiday and why the photograph had been taken. The appellant said that he could not remember whether he had told the solicitor this. He did remember receiving the advice. The appellant was convicted and appealed on the ground that there had been no waiver of legal professional privilege and that the prosecution should not have been permitted to cross-examine the appellant as they did.
58.
In summing up to the jury the judge gave a standard
section 34
direction. The judge identified the “facts” which had not been mentioned in interview: the circumstances of the holiday and how the photograph had come to be taken.
59.
The judgment of this Court was delivered by Lord Bingham CJ. The defendant had waived his legal professional privilege and it was open to the prosecution to cross-examine him as to what he had said to his solicitor. His counsel had deliberately elicited evidence of the solicitor’s statement and there was nothing to suggest that counsel was acting outside the scope of his authority. At pages 183-184 the Court stated: (i) the solicitor’s statement to the police officer constituted the waiver of privilege, (ii) it would have been open to the prosecution to have adduced the statement as evidence against the defendant had it chosen to do so, (iii) the position would have been the same if a statement of the same kind had been made by the defendant, and (iv) there would be no waiver of privilege if, during pre-trial questioning, the suspect or his solicitor said that the suspect declined to answer questions on legal advice and the evidence called by the prosecution at trial were limited to reporting that simple statement.
60.
The crucial part of the judgment in that case is at p 184. The Court stated:
“If, at trial, the defendant or his solicitor gives evidence not merely of the defendant's refusal to answer pre-trial questions on legal advice but also of the grounds on which such advice was given, or if (as here) the defence elicit evidence at trial of a statement made by a defendant or his solicitor pre-trial of the grounds on which legal advice had been given to answer no questions, the defendant voluntarily withdraws the veil of privilege which would otherwise protect confidential communications between his legal adviser and himself, and having done so he cannot resist questioning directed to the nature of that advice
and the factual premises
on which it had been based.” (Underlining added)
61.
We note that the “factual premises” on which the advice had been based was (on the evidence) the absence of a sufficient prosecution case against the defendant. On the solicitor’s account, as given to the officer, the advice did not depend upon anything said by the defendant to the solicitor. Nonetheless the Court held that the “factual premises” included what was, or what was not, said by the defendant to his solicitor.
62.
We should also note that the ECHR in
Condron v. UK
(2001) 31 EHRR 1
, paragraph 60 later confirmed that if defendants make the content of their solicitor’s advice a live issue, they cannot complain that the scheme of
section 34
“is such as to override the confidentiality of their discussions with their solicitor”.
63.
The instant case is very similar to
Bowden
. When Mr Levett asked the appellant what advice she had received from her solicitor, he, on behalf of his client, thereby waived privilege. That is not disputed by Mr Levett. Although the solicitor had made it clear during the interview that he had given the advice to remain silent because what was being alleged “didn’t amount to a criminal charge”, nonetheless, according to
Bowden
, the prosecution is permitted to cross-examine the defendant to see whether she had then given to her solicitor the account which she had given in evidence about the events of the day.
64.
Mr Levett submits that it was not fair for the prosecution to ask such questions, primarily for two reasons. First, he makes the point -- which is undoubtedly true -- there was no challenge to the fact that the solicitor gave the advice and no challenge to what advice he gave. This was not therefore a case where the prosecution were challenging the credibility or accuracy of the defendant as to whether she had been advised and what were the terms of the advice. Secondly, in this case, as Mr Levett submits, the advice given by the solicitor was in no way dependent on what he was told, if anything, by his client. The solicitor must have been giving his advice on the strength of what had been disclosed to him by Customs and not because of what he had (or had not) been told by his client. Mr Levett relies on these factors to distinguish this case from others. The question is whether they distinguish it from
Bowden
where such questions were permitted. Unless the circumstances of the present case are distinguishable, that decision binds us.
65.
We know from
Wishart
and the cases referred to therein that a defendant who gives evidence of what he said to his solicitor
in response
to a prosecution allegation of recent fabrication does not thereby waive privilege. Mr Levett submits in his further written submissions that counsel for the prosecution was not suggesting in his cross-examination that the appellant had recently fabricated her account. In our view Mr Fender was in effect doing that as the judge properly identified in the summing up (see paragraph 25 above). But Mr Fender’s allegation of recent fabrication
followed the defendant’s
evidence in chief. If Mr Levett had not asked his client about the advice which she had received, Mr Fender could not lawfully have asked the questions which he did. Is he also precluded from doing so after Mr Levett had asked his client about the advice which she had received?
66.
In his very helpful submissions prepared following the hearing of the appeal, Mr Fender wrote:
“Case law since
Condron and Condron
has not explored the application of the principles of privilege and its waiver in criminal cases. Nor has there been any exploration of the principles of disclosure ancillary to privilege which has been deliberately or unintentionally waived.”
67.
He submits that the approach in criminal cases reflects general practice in civil cases. He continues:
5. ‘Fairness’ underpins the question of what disclosure there should be by a party who has partially waived privilege in relation to a document or communication. In
General Accident Corporation Ltd v Tanter
[1984] 1 WLR 100
, Hobhouse J reviewed the relevant authorities and summarised eight principles in relation to privileged communications deployed at trial. The fourth and sixth principles are significant here:
‘Fourth, the waiver of a part of the document or conversation is a waiver of the whole of that document or conversation as was stated in Lyell’s case, and as the subject of decision in Burnell v. British Transport Commission
[1956] 1 QB 187
and Great Atlantic Insurance Co. v. Home Insurance Co.
[1981] 1 WLR 529
…
Sixth, by adducing evidence at a trial one does get involved in potential further waiver. The underlying principle is one of fairness in the conduct of the trial and does not go further than that. The fact that this principle does not arise unless you adduce the evidence at the trial is clearly stated in the judgment of Mustill J. and it was clearly raised by the facts in the Doland case and it was likewise raised by the facts in the Great Atlantic and Burnell cases. Further, if the evidence is adduced then the extent of the waiver relates to the transaction to which the evidence goes. The extent of the transaction has to be examined and where it is what somebody said on a particular occasion, then that is the transaction. It is not the subject matter of those conversations. It does not extend to all the matters relating to the subject matter of those conversations.’
6. The reference to the judgment of Mustill J. in the above passage is a reference to his judgment in
Nea Karteria Maritime Co Ltd v. Atlantic and Great Lakes Steamship Corpn
(an unreported case from 1978). In explaining his stance on waiver and consequential disclosure, Mustill J. relied on the decision of
Burnell v British Transport Commission
[1956] 1 QB 187
. The facts can be stated shortly. In a personal injury action, a witness for the Plaintiff was cross-examined on a previous statement he had made. He agreed he had made the statement. Counsel for the Plaintiff asked to see the whole statement. Counsel for the Defendant objected on the ground of privilege. The trial judge ordered disclosure. His order was upheld on appeal.
‘It seems to me that the judge was correct, because although this statement may well have been privileged from production and discovery in the hands of the Transport Commission at one stage, nevertheless when it was used by cross-examining counsel in this way, he waived the privilege, certainly for that part which was used; and in a case of this kind, if privilege is waived as to the part, it must, I think, be waived also as to the whole. It would be most unfair that cross-examining counsel should use part of the document which was to his advantage and not allow anyone, not even the judge or opposing counsel, a sight of the rest of the document, much of which might have been against him.’
7. In
Nea Karteria
, Mustill J. said
‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.
8. Templeman LJ agreed with this passage in
Great Atlantic Insurance Co v Home Insurance Co
[1981] 2 All E R 485 at 492f-j. In short, it is submitted that a defendant who has revealed the nature of any advice not to answer questions under caution runs the risk of being cross-examined as to whole of those communications. Some of those communications may have been set down in attendance notes and be the subject of cross-examination, especially if the legal advisor is called to give evidence of behalf of the defendant. Given that privilege is a right of a party to litigation not to disclose certain communications, once part of a communication has been revealed the whole of the communications within the transaction should be. In civil cases, such a step would be commensurate with the duty of full and frank disclosure in litigation so that the court can satisfy itself that evidence is not being cherry-picked by the party relying on the waived communication.
9. A case from the High Court of Australia,
A-G for the Northern Territory v Maurice
[1986] 161 CLR 475 demonstrates ‘fairness’ operating in favour of the party unintentionally waiving privilege. This was a claim by aboriginals in relation to certain land. A document, called the Claim Book, was lodged with the Land Commissioner. It was prepared using other source material which had not been disclosed. The Court found that the use to which the Claim Book was put at trial did not create a misleading or unfair result. Consequently, documents which were source material for the preparation of the waived document were not ordered to be disclosed. In this case, the authorities were reviewed, including
Burnell
,
Tanter
,
Nea Karteria
and
Great Atlantic
.”
68.
Mr Fender then concludes:
“10. In the context of the silence provisions in a criminal trial, once a defendant in evidence has indicated his reliance on advice and the associated reasons for failing to answer questions under caution, the issues become ones of genuineness and reasonableness in the defendant’s actions. In certain cases, a defendant may genuinely rely on advice and not answer questions. Nevertheless, a question remains as to whether that reliance was reasonable or not. In
Regina v Hoare & Pierce
[2004] EWCA Crim 784
Auld LJ stated at [54 and 55]:
‘It is not the purpose of
section 34
to exclude a jury from drawing an adverse inference against a defendant because he genuinely or reasonably believes that, regardless of his guilt or innocence, he is entitled to take advantage of that advice to impede the prosecution case against him. In such a case the advice is not truly the reason for not mentioning the facts. The
section 34
inference is concerned with flushing out innocence at an early stage or supporting other evidence of guilt at a later stage, not simply with whether a guilty defendant is entitled, or genuinely or reasonably believes he is entitled, to rely on legal rights of which his solicitor has advised him. Legal entitlement is one thing. An accused’s reason for exercising it is another. His belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is…
The question in the end, which 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’.
11. It is submitted that asking a defendant what the factual basis for the advice given is a permissible line of cross-examination. It goes to examine the issues of genuineness and reasonableness, and to explore whether the defendant’s actions in making no comment at interview were tactical or not. The credibility of the defendant must also be an important factor here as well, where cross-examination beyond the waived communication must be permitted. If cross-examination beyond the reason given for advice was not permitted, such reliance could frustrate the operation of the legislation in the way described in
Condron
.
12. In summary, cross-examination of the Appellant (
‘Did you tell your solicitor…?’
) would have been permitted by the learned Judge’s ruling. Cross-examination was consistent with
Condron
and
Bowden
, and civil cases which touch upon the court’s powers to control fairness within proceedings, and the rules upon the degree of any waiver and its effects.”
69.
Mr Levett accepts that Mr Fender in his further written submissions accurately summarises the civil law. He cites Mann J in
Fulham Leisure Holdings Ltd v. Nicholas Graham and Jones
[2006] EWHC 158. In paragraph 11 Mann J identified the “relevant process”:
i) One should first identify the “transaction” in respect of which the disclosure has been made.
ii) That transaction may be identifiable simply from the nature of the disclosure made – for example, advice given by counsel on a single occasion.
iii) However, it may be apparent from that material, or from other available material, that the transaction is wider than that which is immediately apparent. If it does, then the whole of the wider transaction must be disclosed.
iv) When that has been done, further disclosure will be necessary if that is necessary in order to avoid unfairness or misunderstanding of what has been disclosed.
70.
Mr Levett also refers to
Legal Professional Privilege
by Jonathan Auburn (2000) at page 215.
71.
Mr Levett submits that the approach in criminal cases should be the same as that in civil cases; partial waiver should be determined “by the transaction and fairness”, and in the circumstances of the present case, and in particular the factors we set out in paragraph 53 of this judgment it was not fair to ask the appellant what she had said to her solicitor before he advised her not to comment in her police interviews.
72.
It is clear that legal professional privilege is a fundamental condition on which the administration of justice as a whole rests:
Derby Magistrates
.
73.
The authorities, in particular
Wishart
and
Bowden,
establish
that, while the object of
sections 34
to 37 was to weaken the protection which criminal defendants had previously enjoyed against the drawing of inferences adverse to them from such failures and refusals in the circumstances specified, they do not affect the law on legal professional privilege. In
Bowden’s
case this Court stated (at page 181) that:
“since [the sections] restrict rights recognised at common law as appropriate to protect defendants against the risk of injustice they should not be construed more widely than the statutory language requires. There is nothing in any of these sections to suggest that Parliament intended in any way to modify the existing law on legal professional privilege.”
74.
Once, however, the defendant or the defendant’s solicitor gives evidence of the content of or the reason for the advice given, privilege is waived: see paragraphs 60 of this judgment in which we set out what we have described as the crucial part of the judgment in
Bowden.
75.
At page 185 the Court in
Bowden
stated that where grounds for doing so exist, the control of the admissibility of such evidence is either by the application of
section 78
of the
Police and Criminal Evidence Act 1984
or by an application that the judge direct the jury not to draw inferences adverse to the defendant from his silence at interview. It was also stated that, if on the
voir dire
evidence is elicited by or on behalf of the defence of the grounds on which the defendant was advised by his lawyer not to answer police questions, “that will amount to a waiver of privilege
for all purposes
” (emphasis added) and (at pp 185-186) that the defendant “cannot at any stage have his cake and eat it; he either withdraws the veil and waives privilege or he does not … and his privilege remains intact. But he cannot have it both ways.”
76.
Both Mr Fender and Mr Levett accept that a waiver may be partial. It is also common ground that, apart from legal professional privilege, what the appellant did not say to her solicitor is relevant.
77.
We have some difficulty in translating the word “transaction” to the criminal context of an interview. Whether or not a better word can be found, we take the view that the process of giving advice to this appellant can be seen as one transaction.
78.
We turn to the question of the extent of any disclosure and its basis once there has been a waiver of legal professional privilege. In the cases cited to us the basis is said to be “fairness” and, with one exception, “fairness” is given as a reason for requiring full disclosure of the evidence on the point so as not to mislead; i.e. it operates against the party who has waived privilege: see
Burnell v British Transport Commission
[1956] 1 QB 187
and
Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corp
. The exception is the decision of the High Court of Australia in
AG for Northern Territory v Morris
[1986] 161 CLR 475. In that case, as Mr Fender stated, “fairness” operated in favour of the party who had waived privilege. That case suggests that if the evidence that has been given which amounts to a waiver of legal professional privilege does not
mislead
the finder of fact, here the jury, fairness requires no further disclosure.
79.
The matter is complicated by a tendency identified by Auburn,
Legal Professional Privilege
(2000)
,
p 216 on the part of courts to treat partial disclosure as a formalised category divorced from its underlying rationale. He states that the consequence is that some courts “simply look to whether there has been a partial disclosure and fail to ask the essential question whether the partial disclosure has actually led to unfairness or prejudice”. Auburn criticises any tendency to look only at whether there has been a partial disclosure and states that “fortunately” many cases in the Commonwealth stay closer to an investigation of the actual unfairness of the disclosure. Although
AG for Northern Territory v Morris
is the only example cited for this proposition, we consider it to be correct in principle. If, as
Burnell v British Transport Commission
and
Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corp
. state, “fairness” underlies the rule, it can hardly only operate in one direction to permit the inclusion of evidence as it did in those cases, but not operate to justify not including it, where the partial disclosure has not misled.
Bowden
should not be seen as an example of this court doing that. The passage from the judgment set out at paragraph 60 above contains no reference to fairness, and the statement that revealing the content of advice “will amount to a waiver of privilege
for all purposes
” (emphasis added) is not qualified in any way. But the fact that this court stated that control on admission is to be
inter alia
by
section 78
of PACE suggests that the court was alive to this factor.
80.
The question whether the evidence creates a misleading impression or risks doing so depends on the issue before the finder of fact. In our case that issue is “the
section 34
question”; that is whether the appellant’s reason for exercising her entitlement to be silent is the legal advice genuinely given and genuinely accepted or whether it is because she had no or no satisfactory explanation to give: see
Hoare & Pierce
[2004] EWCA Crim 784
. Paragraph 54 of the judgment in
Hoare & Pierce
draws a distinction between the defendant's belief in his entitlement to remain silent which may be genuine and his reason for exercising it which may not be reliance on that entitlement. The prosecution submit that the question asked in the case before us goes to the issues of genuineness and reasonableness and to explore whether the appellant's actions were tactical or not: see written submissions, paragraph 11, set out in paragraph 68 of this judgment. Realistically, in this case “genuineness” is not in issue. The solicitor gave the advice and there does not appear to have been any evidence to put in question the appellant's belief that she was entitled to rely on the advice. In any event, according to
Hoare & Pierce,
it is immaterial to the
section 34
question whether the solicitor rightly or wrongly believed that, as a matter of law, the defendant was not required to answer the police officers’ questions or whether he or she believed they had a right to rely on the advice of the solicitor: paragraph 56. The question is whether it was the advice rather than the absence of a satisfactory explanation which caused the appellant to make no comment.
81.
It is in our judgment potentially misleading for the jury in considering this issue to have only the appellant’s answers in chief before them without further evidence as to the context or, in the language used by this Court in
Bowden,
the factual underpinning of the advice given to her.
82.
Mr Levett’s submission is that it was not fair for the prosecution to ask the question because this was not a case where the prosecution was challenging the credibility or accuracy of the defendant as to whether she had been advised and what were the terms of the advice. He also submitted that it was not fair because the advice was in no way dependent on what, if anything, the solicitor had been told by the appellant. The factors relied on by Mr Levett (see paragraph 64 of this judgment) do not grapple with or meet the point derived from
Hoare & Pierce
set out in paragraphs 63 and 74 above: that is whether her reason for exercising her entitlement to remain silent was the legal advice. If the disputed question was not asked, all the jury would know is that the solicitor gave advice for the reason given. They would have no factual material upon which to assess whether she “latched onto it” other than her evidence that she relied on the advice. The defendant would be able to go beyond the assertion that she relied on legal advice by providing, as she did here, some colour and detail about her reliance upon that legal advice without the counterbalancing information that assists in resolving the
section 34
question identified in
Hoare & Pearce
(and set out in paragraph 80 of this judgment).
83.
There is another problem with reliance on these factors. They do not afford a ground for distinguishing this case from
Bowden.
In
Bowden
the prosecution was not challenging the credibility of the defendant as to whether he had been advised or as to its terms; it simply had not led evidence of the solicitor’s statement (which this court ruled it could have done). Secondly, in
Bowden
the solicitor’s advice in that case did not depend in any way on what the defendant had told the solicitor but on the quality of the video. Nevertheless, this court held that cross-examination as to what the defendant in that case said to his solicitor was permitted. Moreover, since, in
Bowden
, a
section 34
direction was sought and given, the prosecution in that case was in effect making an allegation of recent fabrication in a similar way to which the allegation was made in the present case.
84.
For these reasons, there is no material distinction between this case and
Bowden
. We return to the distinction we refer to in paragraph 53 of this judgment. Can it be said that the importance attached to legal professional privilege requires the rule in the line of cases considered and applied in
Wishart’s
case to be extended in this way? We have concluded that it does not. There is a distinction between
having
to reveal what was said to a solicitor to rebut an allegation of recent fabrication and
volunteering
information about the legal advice over and above stating that the refusal to answer questions was as a result of receiving such advice. In the former scenario the reason privilege has not been waived is there is no way of dealing with the allegation other than by revealing what was said. In the latter scenario, while the effect may be to enable an allegation of recent fabrication to be made, this is the consequence of the voluntary provision by or on behalf of the defendant of information which because of its partial nature is misleading.
85.
The statements of principle by the House of Lords in the
Derby Magistrates Court
case and by in this court in
Wishart
are of course important. But they are of limited assistance to us in the particular circumstances of this case save as background statements of principle. This is because those cases were not concerned with waiver of legal professional privilege but with the scope of such privilege. The House of Lords in the
Derby Magistrates Court
case was dealing with the argument that it should construe
section 97
of the
Magistrates Court Act 1980
as a tool to get discovery of privileged documents in the hands of a third party not otherwise admissible. The applicant in that case had stated he was not willing to waive privilege: see page 501. What was argued was that, in the interests of justice, the court should balance the public interest favouring protecting confidence between solicitor and client and the public interest in ensuring that all relevant evidence is available to the defence in deciding whether to order production. Their Lordships considered that to do this would be to enunciate a new exception to legal professional privilege in the face of the long established rule that “once privileged, always privileged”: see Lord Taylor at 503, set out in paragraph 31 of this judgment. The statements of Lord Taylor, including the comment that legal professional privilege is a field which Parliament has so far left untouched, must be seen in that context.
86.
This Court in
Wishart
did consider waiver but held that privilege had not been waived in the circumstances of that case. In paragraphs 24 and 25 of its judgment the court rejected the submission that merely inviting the jury to consider whether a defendant “had or might have had an answer to give but genuinely and reasonably relied on legal advice to remain silent” (see paragraph 5 of the JSB direction) constituted an implied waiver of privilege by the defendant. It did so because that submission, if correct, would make substantial inroads into legal professional privilege which is of paramount importance and has so far left untouched by Parliament, including
section 34
. The court was not dealing with the consequences at common law of an effective waiver of privilege.
87.
For these reasons we have concluded that HHJ Holt rightly allowed the questions to be asked and that the appeal cannot succeed on this ground.
88.
We turn finally to the second part of this ground of appeal. Mr Levett submits that the judge misdirected the jury when explaining the effect of
section 34
. We have already identified and set out the relevant passage in the summing-up (paragraph 28 above). We have also summarized the trial judge’s direction in
Bowden
, which was not criticized by the Court.
89.
In deciding whether the appellant could reasonably have been expected to mention in interview the “facts” (i.e. the events of the day and why she was present) about which she gave evidence and in deciding whether she had an answer at the time to the allegations being put to her in interview, what she said, or did not say, to her solicitor at the time must be relevant. We see no merit in this ground.
90.
The appeal is, for these reasons, dismissed.
|
{"ConvCourtName":["Crown Court at Ipswich"],"ConvictPleaDate":["2005-07-06"],"ConvictOffence":["transferring criminal property, £87,010 in cash, contrary to section 327(1)(d) of the Proceeds of Crime Act 2002"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":["All Female"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["Conviction"],"AppealGround":["(1) Direction as to meaning of 'criminal property' was incorrect; (2) Direction on relevance of co-defendants' guilty pleas; (3) Judge wrongly ruled that appellant had waived legal professional privilege by answering questions about solicitor's advice; (4) Judge misdirected jury on section 34 Criminal Justice and Public Order Act 1994 (adverse inference from silence)"],"SentGuideWhich":["section 327(1)(d) of the Proceeds of Crime Act 2002","section 74 of the Police and Criminal Evidence Act 1984","section 34 of the Criminal Justice and Public Order Act 1994"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Jury were properly directed as to the law on 'criminal property'; no merit in ground regarding direction on co-defendants' pleas; judge was correct to allow questioning about solicitor's advice as privilege was waived; judge's direction on section 34 was proper; no material distinction from binding authority (Bowden); no unfairness or misdirection identified."]}
|
No:
04/5228/A3
Neutral Citation Number:
[2005] EWCA Crim 112
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Friday, 21 January 2005
B E F O R E:
MR JUSTICE BEATSON
MR JUSTICE WAKERLEY
- - - - - - -
R E G I N A
-v-
ROSHAAN SOORIYA RANJITKUMAR
- - - - - - -
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 L JOHNSON
appeared on behalf of the APPELLANT
- - - - - - -
J U D G M E N T
1.
MR JUSTICE BEATSON: On 26th April at the Crown Court at Chelmsford the appellant pleaded guilty and on 13th August was sentenced by His Honour Judge Ball to fifteen months' imprisonment on count 1, conspiracy to defraud, and fifteen months' imprisonment concurrent on count 3, false accounting. A confiscation order in the sum of £14,600 was made, to be paid within six months, with nine months' imprisonment consecutive in default. A compensation order in the sum of £73,853.81 was made, to be paid within twelve months. No order was made in default of payment, but the magistrates' courts' powers in default of payment were enlarged to a maximum of two years' imprisonment. The appellant was ordered to pay £450 towards prosecution costs. He appeals against sentence by leave of the single judge. The appeal is confined to the compensation order. The appellant has now served his sentence of imprisonment.
2.
The facts of the case are that the appellant was a cashier at the Halifax Building Society in Epping. Between 1st April 2003 and 9th July 2003 he obtained credit and debit card details from customers by passing their cards through a card reader device. That data was passed to an unidentified third party and used to clone cards. Forty-five accounts were cloned. The cards were then used to obtain goods fraudulently. The total of the goods obtained was £73,853.81. This was count 1.
3.
There was no evidence that the appellant personally benefited from the transactions. It was HBOS Plc which bore the loss.
4.
On 3rd June 2003 the appellant processed a fraudulent transaction, in which he issued a cheque in the sum of £14,500 from an account of an elderly customer. That cheque was paid into his aunt's account and subsequently 28 withdrawals of £500 each were made from that account. That formed the subject of count 3. On his arrest the card reader was discovered at his home. His aunt's bank card was found on him.
5.
For the purposes of this appeal it is sufficient to record the information relevant to the compensation order. His benefit was agreed at £14,600. The realisable property was property at 85 Portia Way, Bow, with available equity of £13,143 - the appellant is or was the sole owner of that property; a Halifax ISA valued at £3,083.78; a Citreon Saxa valued at £2,220; cash found in the appellant's room of £500; and cash from his aunt's account of £637.28. The statement also included the property at 12 Chase Lane, Barkingside, in which the appellant and members of his family - his father, his stepmother and a number of other family members - lived. The available equity, after taking account of the mortgagee's interest, was £84,000. The appellant is the joint proprietor of this property with his stepmother.
6.
The sentencing judge stated that, although on the face of it there was every reason why, having regard to personal mitigation, the court would want to avoid sending people like the defendant to prison, breach of trust cases called for special consideration because people in special positions of trust were expected to comply with the higher standards of honesty. The financial loss in the case was significant. It was a matter of conjecture how much money had found its way to the appellant. It was not accepted that he benefited but by a few hundred pounds. The bank had suffered a significant loss, and the court was not attracted by the thought that an insurance company would stump up rather than the bank bearing the loss. The sentencing judge stated that he proposed to take steps to ensure so far as possible that the losers did not suffer a penny of loss from the appellant's actions. Account was taken of the fact that significant financial orders would put members of his family who were occupying the Chase Lane premises at risk of homelessness. The judge stated:
"I am afraid I am not particularly sympathetic to members of your family who, for what appear to be religious reasons, seem to have taken it upon themselves to put distance between you and them to ostracise you in a way which I find wholly unchristian, although that is not the religion in the dock on this particular occasion. However, it is disgraceful that members of the family should behave like that in a situation such as this. In any event, there will be financial orders."
7.
Miss Johnson submits that the compensation order was punitive, unjust and wholly inappropriate. First, she submitted that the judge erred, in that he made an order that would necessitate the sale of the family home and make the family homeless contrary to the decisions in a number of cases of this court:
Jorge
[1999] 2 Cr App R (S) 1
;
Hackett
(1988) 10 Cr App R (S) 388
;
Butt
(1986) 8 Cr App R (S) 216
; and
Blackmore
(1984) 6 Cr App R (S) 284
. In these cases this court has stated that a compensation order is not a punishment but is a convenient summary means of putting right all or some of the damage done by a criminal offence and avoiding the necessity for civil proceedings which might be expensive and time consuming. It is not appropriate for such an order to be made when the effect would be to leave the family homeless.
8.
The exceptional situation in which such an order might be made was considered by this court in
McGuire
(1992) 13 Cr App R (S), where a compensation order did necessitate the sale of the matrimonial home but left sufficient equity for the appellant in that case to purchase a new home.
9.
Secondly, Miss Johnson submitted that in any event the compensation order in the sum of £73,853.81 did not take account of the appellant's stepmother's interest in the property. At the most his equity in it was £42,000. She submitted that it is likely to be significantly less because his father, who lives there and meets the bills and pays the mortgage, also has a beneficial interest in the property.
10.
Thirdly, she submits that the passage which we have quoted shows that the motivation - at least in part - of this compensation order was punitive rather than compensatory and that that was an improper purpose.
11.
We have concluded that the compensation order must be set aside. We accept that, on the basis of the authorities cited, it was wrong to make an order which could only be satisfied by selling the family home. The cases cited all concerned a matrimonial home, but we consider that there is no difference in principle from a shared family home. In any event, this house now appears also to be the matrimonial home. We also consider that the relations between this appellant and other members of his family were wholly irrelevant to this sentencing exercise. Accordingly, we allow this appeal and set the compensation order aside.
|
{"ConvCourtName":["Crown Court at Chelmsford"],"ConvictPleaDate":[""],"ConvictOffence":["Conspiracy to defraud","False accounting"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Chelmsford"],"Sentence":["15 months' imprisonment (count 1, conspiracy to defraud)","15 months' imprisonment concurrent (count 3, false accounting)","Confiscation order £14,600","Compensation order £73,853.81 (set aside on appeal)","£450 prosecution costs"],"SentServe":["Concurrent"],"WhatAncillary":["Confiscation order","Compensation order","Order to pay prosecution costs"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Company"],"VicNum":["45 accounts"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":["Breach of trust","Significant financial loss"],"MitFactSent":["Personal mitigation","Risk of family homelessness"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Compensation order"],"AppealGround":["Compensation order was punitive, unjust and wholly inappropriate","Order would necessitate sale of family home and make family homeless","Order did not take account of stepmother's interest in property","Order was punitive rather than compensatory"],"SentGuideWhich":[""],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["It was wrong to make an order which could only be satisfied by selling the family home","Relations between appellant and family were irrelevant to sentencing"]}
|
Neutral Citation Number:
[2020] EWCA Crim 1662
Case No: 201901564 B3, 201901565 B3,
202001242 B3 & 201902232 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT SOUTHWARK
HHJ Gledhill QC
T20167024 & T20167025
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 09/12/2020
Before :
THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
LORD JUSTICE FULFORD
MRS JUSTICE CUTTS DBE
and
SIR NICHOLAS BLAKE
-
- - - - - - - - - - - - - - - - - - - -
Between:
Colin BERMINGHAM
Carlo PALOMBO
1
st
Appellant
2
nd
Appellant
- and -
REGINA
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr Andrew Thomas Q.C.
(instructed by
Adkirk Law
) for the
1
st
Appellant
Mr Tim Owen Q.C. & Ms Katherine Hardcastle
(instructed by
Hodge, Jones & Allen
Solicitors
) for the
2
nd
Appellant
Mr James Waddington Q.C. & Ms Emma Deacon Q.C.
(instructed by
the
Serious Fraud Office
) for the
Respondent
Hearing dates: 28
th
& 29
th
October 2020
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Fulford:
This is the judgment of the court to which all members have contributed.
Introduction
1.
On 26 and 28 March 2019, respectively, in the Crown Court at Southwark (Judge Gledhill Q.C.), the applicants Palombo and Bermingham were convicted following a re-trial (by a majority of 10 to 2) of a single count of conspiracy to defraud.
2.
On 1 April 2019, Bermingham was sentenced to 5 years’ imprisonment and Palombo was
sentenced to 4 years’ imprisonment.
3.
On 3 March 2020, Bermingham was ordered to pay a contribution within two years towards the prosecution’s costs in the sum of £300,000, pursuant to section 18 Prosecution of Offences Act 1985.
4.
Philippe Moryoussef (an interest rates trader at Barclays Bank) was convicted in his absence at the conclusion of the first trial in June 2018 and sentenced to 8 years’ imprisonment.
5.
Christian Bittar (an interest rates trader at Deutsche Bank) changed his plea to guilty on 2 March 2018 following a ruling by this court (31 January 2018) on an interlocutory appeal against a ruling made in a preparatory hearing (
R v B (Bittar)
[2018] EWCA Crim 73
)
.
We return substantively to that decision later in this judgment. He was sentenced to 5 years and
4 months’ imprisonment and ordered to pay a confiscation order in the sum of £2.5 million.
6.
Bermingham applies for leave to appeal against conviction and sentence, these applications having been referred by this court at a directions hearing on 25 July 2019. Bermingham also applies for leave to appeal against an order to pay prosecution costs in the sum of £300,000, the application having subsequently been referred by the Registrar to be considered with the conviction and sentence applications.
7.
Palombo applies for an extension of time (50 days) to apply for leave to appeal against conviction only, the applications having been referred at the same directions hearing. The application for an extension of time is essentially founded on the proposition that it was considered desirable to synchronise Palombo’s grounds of appeal with those submitted by Bermingham and there was a delay in Palombo’s representatives being furnished with a copy of Bermingham’s grounds. There was an additional delay while instructions were taken from Palombo in prison. We have considerable reservations – if advanced as a general proposition – that a breach of the time limits can be justified, as here, in order to
“synchronise” the grounds of appeal between applicants. However, in the markedly complex circumstances of the present case we are persuaded that this explanation provides a sufficient basis for extending time and we grant the application. It has been necessary to ensure coherence in the presentation of the highly detailed submissions on the various and complicated issues arising in this case which otherwise may have been missing. We stress, however, the exceptional nature of the present case and in less complex circumstances this explanation may well be insufficient to justify a failure to lodge an application for leave to appeal in time.
Overview of the case
8.
This trial concerned the alleged manipulation of the ‘Euribor’ (‘Euro Interbank Offered Rate’) benchmark interest rate between 1 January 2005 and 31 December 2009, in order to benefit the trading positions of interest rate derivate (“swaps”) traders, in deliberate disregard of the proper basis for setting the daily Euribor rate. Euribor was devised at the time of the creation of the Euro in 1999. Euribor was principally devised by the European Banking Federation (‘EBF’), representing national banks and the Financial Markets Association (‘ACI’), on behalf of European banks. Euribor – EBF and Euribor – ACI were established under Belgian law to supervise the operation of the Euribor. Its purpose was to provide participants in euro denominated transactions with a new benchmark interest rate for interbank lending in that currency comparable to those found in many money markets. Euribor is defined as the rate at which euro interbank term deposits are being offered within the eurozone by one prime bank to another. Interbank lending rates vary according to the period of the loan (known as the tenor) and it is therefore quoted at a range of rates varying from one week to one year. It is commonly designated as the reference rate for interest rate swaps or other derivative transactions. Euro interest rate derivatives contracts contain payment terms which are referenced to the Euribor benchmark rate. The traders regularly hold trades with notional amounts worth billions of euros, such that a very small movement in the Euribor rate can yield large profits on their deals. In such trades, a gain to one party to the trade will result in a corresponding loss to the other party.
9.
The Euribor rate was based on trimmed and averaged estimates. Each business day, just prior to 11 a.m. Central European Time (“CET”), submitters at each panel bank (up to 48 banks) would submit their assessment, to the best of their knowledge, of the rate at which Euro interbank term deposits were being offered within the EMU zone by one prime bank to another at 11 a.m. CET (“the best price between the best banks”). The highest and lowest 15% of the submissions were eliminated and trimmed from the calculation of the rate. The remaining submissions were averaged and rounded to three decimal places, producing the daily rate which was then published by Thomson Reuters. No panel bank was permitted to see any other panel bank’s submission during the relevant window before 11 a.m.
10.
Until June 2008 the Euribor setting process was governed by the 1999 Euribor Code of Conduct, and thereafter it was governed by the 2008 Code of Conduct. The Euribor Code was a contract governed by Belgian Law and made between Euribor-EBF and the participating banks.
11.
The investigation in this case was principally focussed on individuals employed by Barclays Bank, Deutsche Bank and Société Générale. The prosecution’s case of fraud was, in essence, that the submissions into the Euribor setting process were procured and made dishonestly, with the intention of creating an advantage to the trading positions of the derivatives traders,
and in deliberate disregard of the proper basis for setting the daily Euribor rate according to the Euribor Code of Conduct. It was alleged, therefore, that these submissions were false or misleading, and as a result the economic interests of the counterparties were prejudiced. In addition, any manipulation of the Euribor rate had the potential to have an impact on other financial products throughout the world that were referenced to it, including interest rate swaps taken out by large corporations, insurance or pension companies and others. In 2014, the estimated value in US dollars of financial products referenced to Euribor was in excess of $150 trillion.
12.
The conspiracy was said to have three essential aspects, which came under the following headings:
-
Interbank
The first central allegation was that traders in different banks liaised with each other to arrange for their cash desks to make submissions on a concerted basis with a view to achieving a rate that benefitted the various banks’ economic positions. The prosecution accepted that, unlike Palombo, there was no evidence that Bermingham or Bohart had any knowledge of the Interbank aspect of the conspiracy.
-
Intrabank
The second critical assertion was that traders at Barclays Bank including Palombo
made requests of their cash desk for a higher or lower submission to benefit the bank’s economic position. This criminality was said to have involved Bermingham and Bohart.
-
Cash
-
pushing
The third limb was the prosecution’s allegation that Bermingham and Bohart (but not Palombo) agreed to make bids and/or transactions in the market in order to manipulate the actual market price.
13.
The
prosecution case
against
Bermingham, therefore,
was that he was involved in the Intrabank conspiracy, in that he received and acted upon a number of requests from traders on the Barclays swaps desk. It was alleged he accommodated those requests by adjusting the submissions higher or lower, knowing that this was designed to give a trading advantage to the swaps traders. In his case, there were 15 occasions during the indictment period when communications showed requests being made to, and acknowledged by, Bermingham. He was employed by Barclays at the relevant time as the senior manager on the Euro money markets desk (the “cash desk”), and he was a senior, long-standing, influential figure at the bank. He supervised Bohart, a junior employee, throughout her period on the money markets desk. He accepted that he would sometimes be aware that Bohart received similar requests and that she would have followed his lead in accommodating them. The allegations of cashpushing against him were that on three occasions he discussed bids to manipulate the market.
14.
The prosecution case against Palombo was that he was mainly involved in the Intrabank aspect of the conspiracy, making requests of the Barclays cash desk for a higher or lower submission to benefit the bank’s economic position. In addition, the prosecution alleged that on two occasions, Palombo was involved in the Interbank aspect of the conspiracy when he asked traders at other banks to request a particular rate.
15.
As to the central evidence relied on by the prosecution, Christian Bittar’s guilty plea to the indictment and Philippe Moryoussef’s conviction proved the existence of the conspiracy. The Crown introduced the archived communications recovered from Barclays Bank and other panel banks relating to Euribor submissions during the indictment period to establish the criminal activities of the applicants. These included the audio and written electronic communications which had been recorded for compliance purposes, including emails, Bloomberg electronic messages, transcripts of telephone and intercom calls, the individual submissions and the published Euribor rates. Expert evidence was called to deal with the history, definition and setting of the daily Euribor rate and an explanation of the products on which it was used. Additionally, the jury were provided with an explanation of the basic workings of an investment bank, including derivatives trading and the trading strategies that featured in this case. Similarly, expert evidence addressed the Euribor Code of Conduct which was directed at the conduct of panel banks.
16.
Bermingham denied being party to any dishonest agreement with the Barclays’ derivatives desk (or any trader working on it) to manipulate the Euribor rate. He maintained he was unaware of any agreements between Barclays’ traders and traders at other panel banks to coordinate the Euribor submissions. He accepted he had received the 15 requests from the swaps traders relied on by the prosecution and that he might have taken them into account in choosing which figure to submit, whether higher or lower, but he said he had never submitted a figure which was outside the range of valid figures. He considered his figures (and those of Bohart) to be honest and true to the Euribor definition and justified by the rates on offer in the market. His case was that there was no guidance or published methodology. He suggested no one could remember when the practice of making requests of the kind relied on in this case began. He maintained it was not considered an issue at the time, and the activity took place openly and with the knowledge of senior management.
17.
It was emphasised that Bermingham did not stand to gain anything directly or indirectly from accommodating the traders’ requests, albeit he accepted that he knew it would give a commercial advantage to Barclays Bank. He agreed to accommodate these requests because he believed that it was appropriate to assist colleagues within the bank when he was able to do so. He denied the cash-pushing allegations and suggested there was no evidence that any suspicious transactions occurred on the relevant occasions or that any inappropriate bids had in fact been made.
18.
Palombo accepted a degree of involvement in seeking to influence Barclays’ Euribor submissions on particular dates. He denied, first, that he had been part of any conspiracy; second, that he had attempted to procure submissions that were false or misleading; or, third, that there was any element of dishonesty in his actions. He had not worked in banking prior to joining Barclays as a graduate trainee. He suggested he received no specific training on applying the Euribor Code. He was told instead to learn on the job, particularly from Moryoussef when he was assigned to work with him. It transpired that the cash desk might arrive at more than one figure which could be the ‘proper basis’ for a submission. If there was a range of figures, it was considered honest for the cash desk to submit any of the figures that fell within the definition. It was suggested the entire Euro swaps desk worked on this basis and if a member of the desk wanted a higher or lower submission, a request would be made of the cash desk on the basis that the figure was within the legitimate range. The practice was openly discussed and conducted without subterfuge. Whilst he accepted his role in the requests made to the cash desk, he was unaware of the interbank nature of Moryoussef’s dealings, and if he (Palombo) was said to be involved to any extent, it was as a proxy for Moryoussef. He accepted that on two occasions he had asked traders at other banks to request a particular rate. This was done at the specific direction of Moryoussef on days when the latter was not present, and when he had to deal with considerable responsibilities which caused him significant anxiety. Consequently, he gave no thought to the directions but simply carried them out as instructed, along with many other tasks.
19.
Against that background, the central issues for the jury were, looking at each defendant separately: a) was he or she knowingly involved in a conspiracy deliberately to disregard the proper basis for making Euribor submissions, and b) if so, was he or she dishonest?
The Grounds of Appeal
Ground 1: the various jury issues (both applicants)
Submissions
20.
The jury retired on the morning of Friday 15 March 2019, and continued their deliberations on 18 and 19 March 2019, but not 20, 21 or 22 March 2019 for reasons which included juror illness.
21.
On Monday 25 March 2019, having resumed their discussions, at 12.30 pm the jury sent the judge a note:
“Your Honour, we are at a unanimous decision on one defendant, we have a majority for another defendant + are at an impasse for the remaining defendant. Could you please advise how you would like us to proceed?”
22.
Verdicts were not taken at that stage, but a majority direction was given at 12.57 pm, after which deliberations continued during the afternoon.
23.
On Tuesday 26 March 2019, the jury went back into retirement. The judge decided he would take any verdicts that had been reached at 4.10 pm before adjourning for the evening. Palombo was convicted by a majority of 10 to 2 and Bohart acquitted. The jury indicated that they had not reached a verdict in respect of Bermingham.
24.
The jury were then sent home. They did not deliberate on Wednesday 27 March 2019 because a juror was unwell.
25.
On Thursday 28 March 2019 the jury went back into retirement. At 11.00 am they sent a note to the judge as follows:
“Your Honour, we are currently at an impasse whilst deliberating Mr Bermingham. This situation has not changed since of [sic] first note to you on Monday. We feel that this is unlikely to change. Please advise how you would like to continue.”
26.
The judge discussed the note with counsel
.
The judge raised whether a
Watson
direction
was appropriate but agreed not to follow this course. In due course he directed the jury as follows:
“Members of the jury, thank you very much for your note which I have read with care. I'm not going to read it out, you will all be aware of what the note says. It asks for advice as to how you should continue. I'm going to ask you to retire again and continue to try and reach a verdict firstly on which you are all agreed and, if you can't do that, on which at least ten of you are agreed. However, if the time comes when you can't do that, please send me another note. Thank you very much.”
27.
The jury continued their deliberations at 11.14 am. They returned at 13.07 and convicted Bermingham by a majority of 10:2.
28.
The following day, Friday 29 March 2019, one of the jurors (‘M1’) returned to the court building and asked to speak with the judge to raise certain concerns. He was asked to express these in a letter. M1 prepared and provided two documents.
The first:
“Dear [Judge],
I was a juror on the trial of Messrs Palombo and Bermingham and Miss Bohart. I would like to speak to you to discuss a potential breach of the rules by another juror [“Juror
A”].
I deeply regret not bringing it to your attention whilst the trial was still in progress, and so have come in today to try and make amends. I sincerely apologise and ask for your understanding. Please see the attached note for the details. Yours sincerely [M1]”
The second:
“
Details
On the morning of Thursday 28
th
March, after we had delivered the verdicts on Mr Palombo and Miss Bohart, we returned to the jury room to discuss the case of Mr Bermingham. At this point [Juror A], in open discussion, brought up the following facts:
1)
The sentences handed out to Mr Bittar and Mr Moryoussef, and the fact that Mr Moryoussef was convicted in absentia, and remains at large.
2)
That Barclays Bank received a considerable fine for ‘rate rigging’.
3)
That UBS Bank were alleged to have set up a spreadsheet specifically to expedite the process of submitting rates that suited their position.
None of these facts were presented in evidence during the trial. It is possible that [Juror A] concerned knew these things before the trial started, however either way I do not believe that it was proper to introduce them into the discussion.
[M1]”
29.
The judge immediately replied via a member of staff:
“The Judge has read your letter and its attachment and is considering what, if any, action is required. It may be that you will be contacted about the matter in the future. In the meantime, as the deliberations of a jury are absolutely confidential, it is very important that you do not discuss the content of the letter and attachment with anyone, including even with members of the jury in this case.”
30.
An investigation into the juror’s conduct was undertaken by the Metropolitan Police at the request of the Registrar of Criminal Appeals. All the members of the jury were asked about what had occurred in the context of the suggested internet research during the trial.
31.
In his statement to the Metropolitan Police, M1 alleged that on the morning of 28 March 2019, Juror A introduced the following three pieces of information during their discussions:
“a) The sentences handed out to Mr Bitter and Mr Moryoussef and the fact Mr Moryoussef was convicted in his absence and remains at large. b) Barclay were given a considerable fine, for ‘rate rigging’.
c) That UBS bank were alleged to have set up a spreadsheet specifically to expedite the process of submitting rates that suited their position.”
32.
It would appear that b) in the preceding paragraph related to the findings of the Financial Services Authority in its combined report (“Final Notice”) on Libor and Euribor which was published on 27 June 2012 and which resulted in a penalty of £59.5 million.
33.
MI stated “
At the time it was not obvious to me these comments had any bearing on the decision of the jurors to change their mind and break the deadlock”
and contradicting part of what he had written to the judge as set out above [28] (
viz.
“
It is possible that the juror concerned knew these facts before the trial started …
”), he added “
In my opinion the only way
[Juror A]
would know these facts is if he researched the case while he was serving on the jury”.
34.
Juror A explained in his statement to the police that M1 had been very opinionated, irrational and, at times, aggressive throughout the trial (an assessment that was to a significant extent supported by other jurors), and M1 appeared to have taken a dislike to him (
viz.
Juror A). Juror A denied the allegations. He suggested:
“At no point throughout my time on the Jury did I research the case, all the information I had was from what the court gave to us and my financial knowledge. The terminology and information I informed the rest of the jury of came from my background knowledge and not from any research. I am around this language and information in my day to day role.”
35.
Save for M1, the consistent indication from the jurors when they were interviewed by the police was that nothing was said, at any stage, that tended to indicate one of their number had carried out any independent research into the case. Furthermore, their accounts made it clear that activity of this kind would have been reported immediately to the judge if it had occurred. Against this background, the officer with oversight of the investigation concluded that there was no evidence that Juror A had conducted his own enquiries and given he worked in the financial sector, there was a reasonable explanation for his “enhanced knowledge”.
36.
The conclusion of the investigation, therefore, was that there was no evidence that any of the jurors, and particularly Juror A, had conducted their own research and the police were satisfied that reasonable lines of enquiry had been completed and there was no evidence of any offence having been committed.
37.
As set out above, the focus of the investigation was into internet research. However, as part of the information provided to the Metropolitan Police, Juror A indicated he had asked to be excused at the beginning of the trial. He explained what occurred in his statement as follows:
“At the beginning of the trial we were given a conflict of interest form, I ticked many of the boxes on this form and specifically asked the judge not to be on the trial. My reasons were, I had worked at UBS and with certain Brokers who I had an affiliation with. The judge did not dismiss me from the case, saying the dates I had worked in the industry did not correspond with the dates of the case.”
38.
Against that background, under this ground of appeal, both applicants suggest that the conviction are unsafe on the basis of two principal contentions.
39.
The first contention relates to the suggested misconduct during the trial, namely
the extraneous information allegedly researched by or known to Juror A and provided to the other jurors before Bermingham was convicted.
40.
The second contention involves the suggestion that the verdict is vitiated on account of apparent bias on the part of Juror A. In this regard, it is argued there is an appearance of bias because the juror had worked for one of the banks implicated in the Euribor investigation (UBS) and – in part referring back to the first contention – he is said to have shared specialist knowledge of the relevant financial markets during the jury’s deliberations. The judge is criticised for having not informed counsel about Juror A’s previous employment and for failing either to reveal the dates of his employment at UBS and the role/roles in which he worked or to investigate the extent of the juror’s knowledge of the markets, the training he received and the extent of his knowledge of “Libor” and/or “Euribor”.
41.
It is emphasised that the judge would not necessarily have had in mind that in the preceding decade the questionable activities of traders at a number of banks had been put “under the spotlight”. For instance, Jay Merchant, a former US dollar interest rate derivatives/swaps trader at Barclays Bank, who later worked at UBS, was convicted on 29 June 2016 in the Crown Court at Southwark of conspiracy to defraud in respect of fixing the Libor rate for the US dollar whilst at Barclays to advantage the bank’s trades. Similarly, on 3 August 2015 in the Crown Court at Southwark, Tom Hayes, a Tokyo-based trader at UBS and Citigroup, was convicted of eight counts of conspiracy between 2006 – 2010 to defraud in relation to the manipulation of the Japanese Yen London Interbank Offered Rate (the Yen Libor). UBS had itself faced disciplinary proceedings and on 19 December 2012 it agreed to pay regulators in various countries $1.5 billion for its role in the Libor scandal. The investigations revealed that UBS traders had colluded with other panel banks and had made multiple written requests for movements in rates from at least January 2005 to at least June
2010 to benefit the bank’s trading positions. It is suggested that Juror A may have had some detailed knowledge of, or have been involved in, these events which bore material similarities to the present allegations.
42.
On this basis, it is suggested that Juror A’s position on the jury created a real possibility of bias or a conflict of interest. We are reminded particularly that he is said to have shared specialist information on the morning that the jury overcame their apparent deadlock and Bermingham was convicted. On the basis that “appearance is everything” in this context, it is submitted that the test for bias is met, in that a fair-minded and informed observer would have concluded that there was a real possibility of unconscious bias. In this regard the applicants rely on the following observation of Lord Denning M.R. in
Metropolitan Properties Co. (F.G.C.) Ltd v Lannon and Others
[1969] 1 QB 577 at 599:
“[…] The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. [...] Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough […]”
(The applicants rely also on
Porter v Magill
[2001] UKHL 67
;
2002 AC 357
and
R v
Abdroikov
(
[2007] UKHL 37
;
[2008] 1 Cr App R 21
, as summarised in the latter headnote, “[…]
justice was not seen to be done if, on the particular facts of a case, a fair-minded and informed observer would conclude that there was a real possibility of jury bias, whether conscious or unconscious
[…]”)
43.
It is emphasised, finally, that the decision to convict Bermingham was “
exceptionally finely balanced
”.
Discussion
44.
Addressing the first contention, namely the suggested misconduct during the trial by way of internet research on the part of Juror A, the starting point in our view is the decision in
R. v
Baybasin and others
[2013] EWCA Crim 2357
;
[2014] 1 Cr App R 19
in which Lord Thomas C.J. stated in the context of a case involving alleged juror impropriety and irregularity:
“60. We would add that great care has to be exercised before this kind of appeal proceeds. In
R v Lewis
[2013] EWCA Crim 776
, this Court observed at [25] that the inference that complaints after verdicts simply represent a protest by a juror at verdicts with which he or she disagrees are likely to be overwhelming.
[…] 62. […] the fact that complaint of irregularity was first made after the verdict should henceforth be a very firm indication against the initiation of any inquiry into the way the jury acted, absent other compelling evidence. Juries are now told in very clear terms to report irregularities during the trial. The evidence from this and other cases demonstrates that juries take their responsibilities with great seriousness and care, as one would expect of citizens called to perform such a high civic duty. The evidence is that they do report irregularities if they occur.
63. We therefore have little doubt that if one of the jurors during the trial falls below the standards expected of a juror, the other jurors will report that to the judge during the trial and before the verdict. That is the presumption upon which this court should act, if the complaint is first made after the taking of the verdict. Inquiries should therefore not be ordered in such cases and the finality of the verdict accepted, absent other strong and compelling evidence. To do otherwise is neither fair nor just. Jurors doing their public duty should not in such circumstances be put through an examination of their conduct some considerable time after the performance of their civic duties.”
45.
This complaint by M1 was only made after the final relevant verdict, that relating to Bermingham, had been delivered. There is evidence that M1 was markedly dissatisfied with the result, in that the police investigation tends to indicate he left the court after the jury had been discharged in a rage. On the basis of the police report, there is no strong or compelling evidence that there had been any irregularity of the kind alleged, in that it is M1 alone who suggests the possibility that this information was provided by Juror A, gathered, as M1 averred, from internet researches and shared with other members of the jury. As set out above (see [33]), MI contradicted himself as to the source of this suggested material when he conceded “
it is possible that [Juror A]
[
…
]
knew these things before the trial started
”. Aside from M1, the other members of the jury generally reported that they were keenly aware of their duty to report any untoward behaviour to the judge and that none occurred. Juror E, for instance, stated to the Metropolitan Police, “
During my time serving on the jury I
(heard)
nothing that suggested any of the other jury members had been conducting their own research during the trial. If I had suspected this to be the case or
(heard)
anything of this nature I would have immediately told the court”.
That, as it seems to us, is determinative of this aspect of the argument. There is no prima facie evidence that Juror A behaved inappropriately either by conducting internet searches or sharing information that went beyond his professional experience or general knowledge. There is, therefore, no strong or compelling evidence that Juror A behaved improperly. There is no evidence, apart from what is said by M1, that he introduced the three pieces of information set out at [31] above.
46.
We add that, in any event, the three pieces of information allegedly provided by Juror A (see [31]) would have had no material impact on the issues the jury needed to resolve. The prosecution had introduced Christian Bittar’s guilty plea and Philippe Moryoussef’s conviction to prove the existence of the conspiracy. The £59.5 million fine imposed on Barclays by the Financial Services Authority for significant failings in relation to Libor and Euribor had been prominently in the press in 2012 and was not in any sense determinative of whether either applicant was knowingly involved in a conspiracy deliberately to disregard the proper basis for making Euribor submissions, and, if so, whether he had acted dishonestly. Finally, the defence of both applicants involved an acceptance that the Euribor rates were on occasion submitted to suit the bank, but it was averred this was considered an appropriate and honest step if the figure chosen was within “the range” of valid potential figures. Accordingly, a spreadsheet designed by UBS to expedite the process of submitting rates that suited the Bank’s position was not necessarily inconsistent with the defence of either applicant.
47.
We turn to the second contention, namely that there was an appearance of bias. The jury panel were asked, before the selection process began, to complete a questionnaire which included whether:
a)
they had booked and paid for a holiday during the relevant period (question 1).
b)
they were expected to be admitted to hospital as an inpatient during the next three months (question 2).
c)
they had caring responsibilities for dependant relatives or small children (question 3).
d)
any member of their immediate family for whom they would be expected to act as carer was to be admitted to hospital as an inpatient during the next three months (question 4).
e)
they were undergoing long term medical treatment (question 5).
f)
they or a member of their immediate families had ever worked for any of those named in a list of banks or interdealer brokers (including UBS) (question 6) and other organisations such as the Serious Fraud Office and Euribor-ACI and -EBF (question 8) (if the answer was “yes” to either question, they were asked to state in what capacity and when).
g)
they knew any of the people set out in a three-page list of named individuals (question 7).
h)
they or any of their immediate family had been professionally engaged on Euriborrelated or Libor-related work (if the answer was “yes”, they were asked to state in what capacity and when) (question 9).
i)
they had recently taken an active interest in Euribor or Libor, such as by reading books or articles about it, or by looking it up on the internet (if the answer was yes, they were asked to state in what way and when) (question 10). and
j)
they were a shareholder of Barclays Bank, Deutsche Bank or Société Générale during the period 2005-2009 (question 11).
48.
As already set out (see [37]), in his witness statement to the Metropolitan Police, Juror A stated that he ticked many of the boxes on the questionnaire and asked the judge to excuse him from serving on the jury in this case. His reasons were that he had worked at UBS and with certain brokers with whom he had an affiliation. His account is that the judge did not accede to his request, simply stating that the dates he had worked in the industry did not correspond with the dates of the case
.
49.
The forms completed by the jury panel are usually not retained by the court service once the trial is completed and, as a consequence, at the hearing in this court there were no means of determining whether Juror A had raised additional concerns by answering “yes” to other questions on the form, as he indicated in his statement. The judge, furthermore, did not alert counsel to the fact a juror had stated he had been employed at a bank implicated in the criminality concerning the Euribor rate and that he knew “
certain brokers
”. At the end of the hearing, we raised with the parties the question of whether it would be of assistance for further enquiries to be made of Juror A. The Crown supported this approach whilst the applicants primarily suggested the court should resolve the matter on the basis of the available material, highlighting that the trial concluded in March 2019 and that the juror may now be unable accurately to recollect how he answered all the questions.
50.
We were of the view that in the exceptional circumstances of this case, there were persuasive reasons for approaching Juror A given he was highly likely to remember the detail of how he answered questions 6 to 11 on the questionnaire, as they related to important aspects of his professional life. Accordingly, at the conclusion of the hearing on 29 October 2020, we directed that the officer who had overseen the original questioning of the jury should contact Juror A and provide him with a copy of the questionnaire. He was to be asked how he answered the part of question 6 which requested, “
If yes, please state in what capacity and when
” (see [47]). This related to Juror A’s employment at UBS. Similarly, he was asked whether he answered positively any of questions 7, 8, 9, 10 and 11 and if he did, the nature of his answers. We directed that the response was to be provided to the court if possible within 14 days, giving the parties the opportunity thereafter to file any written observations, including as to whether a further oral hearing was necessary.
51.
Although ordinarily an investigation of this kind would be conducted by the Criminal Cases Review Commission, the matter having been referred by the court (see the Criminal Practice Directions 26M.57), given the earlier involvement of the Metropolitan Police and the fact that this query arose directly out of the statement the officer had taken from Juror A, it was in our view appropriate for the police to complete this exercise. These were supplemental questions arising out of a potentially important aspect of Juror A’s statement to the officers. It would not have been in the interests of justice to ask another organisation to ask these follow up questions.
52.
The answers to the questions were as follows:
i)
Question 6
: “Have you or any member of your immediate family (i.e. parents, siblings or children) ever worked for any of the following banks or interdealer brokers (a list was set out)?
Answer
: “I would have answered that I worked at UBS AG.”
ii)
Question 6 (supplementary):
“If yes, please state in what capacity and when.”
Answer:
“I would have answer that I completed a summer internship from July to August 2013. I would have said that I was in the rates and credit side of the bank as an intern. I do not believe I went into any massive detail on this form, however I was later called by the judge, where I think I explained a bit more detail.
Further information that may assist the court regarding my role and time spent at UBS.
I was a summer intern, which means you work on some small projects that people ask you to complete (nothing of any real value). I remember speaking to the judge about this and he mentioned that the dates did not cross, as well as some other points and allowed me to continue.
At UBS, I remember being tasked with a list of words, and I had to go around the business speaking to various people, in order to define each of them (I was not allowed to look them up). It was a task to try and build my knowledge as well as meet people. I later sat on the Hybrid Derivatives desk, and they tasked me with reading a textbook as well as building a cross currency credit default swap hedging model, to analyse the impacts of different hedging strategies.
As you can tell, these tasks are fairly meaningless and just to test/occupy the interns around the more ‘core’ structured training programmes run by UBS for all interns. Once the summer internship was complete, I went back to university, so it was just a couple of months at the banks.
iii)
Questions 7, 8, 9, 10 and 11:
(set out above)
Answer:
(in each instance) “No”.
53.
The applicants’ central submission, following receipt of Juror A’s answers, is that the “initial impression” created by the original information relating to the juror should not be discounted and that, for good reason, the relevant test focusses on the appearance of bias. The applicants rely on the dates of the juror’s employment, which coincided with Palombo’s time at Barclays Bank. Over this period, Tom Hayes was charged regarding events that occurred between 2006 – 2010; UBS traders attended interviews; and the bank received a £160 million regulatory fine. This was a period when UBS was, say the applicants, “in the eye of
the storm” in the national and the specialist press. It is suggested there was a procedural failure in that the judge did not discuss the contents of the questionnaire with counsel before Juror A was sworn. It is underscored that “rates and credit” involved the part of the bank in which the applicants worked. The suggested circumstances of the unfolding scandal consequential to the investigation into Libor and Euribor, together with the extent to which it affected UBS and various UBS employees, are set out in some considerable detail, including the contention that more than 40 individuals in UBS were involved. It is argued that there are significant inconsistencies between Juror A’s original statement to the investigating officer and the answers he has now provided.
54.
Following the further investigation by the Metropolitan Police, in our judgment this second contention is equally without foundation. We do not consider that a
fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the juror was biased. He was an intern at UBS four years after the end of the indictment period and nearly 6 years before serving on the jury. He was there for only two months, and the scope of the internship was clearly superficial. He was not engaged in Euribor- or Libor-related work and he had not taken an active interest in either. He was involved in building a cross currency swap hedging model to analyse the impacts of different hedging strategies which has no bearing on the subject matter of this case. Credit default swaps in particular are not the same form of instrument as interest rate swaps, which the trial concerned. His tasks were fairly meaningless, as he described the position. He did not know any of the witnesses in the trial or anyone identified in the questionnaire, including Tom Hayes.
55.
Jurors are not expected to be without any knowledge or experience of the criminal justice system or of the issues that arise in cases, as demonstrated by the opportunity since 2004 for police officers to sit as jurors (unless the credibility or reliability of police evidence is a central issue). Similarly, judges and lawyers, and others previously ineligible, now serve as jurors. As Lord Judge C.J. observed in
R v Thompson and others
[2010] EWCA (Crim) 1623
;
[2010] 2 Cr. App. R. 27
, “5. […]
each juror brings to the decision-making process, his or her own experience of life and general knowledge of the way things work in the real world; that is part of the stock in trade of the jury process, and the combination of the experience of a randomly selected group of twelve individuals, exercising their civic responsibility as a collective body, provides an essential strength of the system
”. Indeed, jurors with some understanding of banking practices and principles in a case of this kind will bring benefits to the deliberations of the jury. Instead, individuals should not sit on a jury if they have special knowledge either of the individuals involved or the facts of the case outwith the evidence presented during the trial. We emphasise that anyone working in the City of London or who followed the business media would have been aware of the Libor and Euribor scandal, and the ways in which the relevant offences were said to have been committed.
56.
The applicants rely on
Ramin Pouladian-Kari
[2013] EWCA Crim 158
, a case in which a conviction for an attempt to export prohibited or restricted goods contrary to section 68(2) Customs and Excise Management Act 1979 was quashed when a juror revealed that he had special knowledge and experience that was directly related to the issue which arose for decision in the trial. Globe J described the position thus:
84. […] The jury had to decide whether, in the circumstances, the defendant was entitled to act as he did or whether his actions were prohibited. In the juror's professional knowledge and experience, his unconscious prejudice was that there were “definite red signals” and there would be “automatic rejection” of the transaction such that the defendant's actions would have been prohibited. […]
57.
On this basis, the court determined that “
a fair minded and informed observer would have concluded that there was a real possibility of unconscious jury bias such that a fair trial was not possible
” (see [85]). That is at significant remove from the present situation. As set out above, the issues here were whether the defendant under consideration was knowingly involved in a conspiracy deliberately to disregard the proper basis for making Euribor submissions, and, if so, whether he or she was dishonest. Nothing revealed by Juror A tended to indicate that he had any personal knowledge of whether such a conspiracy existed which involved the relevant individuals. Juror A disclosed he had worked at UBS, but not during the five-year indictment period and we emphasise there is no suggestion that he had any connection with any brokers who had any connection with this alleged criminality. UBS was not directly implicated in the Serious Fraud Office Euribor investigation and it did not feature in any significant way in the evidence. As the Crown observe, this particular investigation was principally focused on Barclays and Deutsche Bank and, to a lesser extent, the position of Société Générale was under consideration. Additionally, traders who had worked at Credit Agricole, HSBC France, JP Morgan, BNP Paribas and Citibank were said to be involved.
58.
Accordingly, nothing revealed by Juror A prior to being sworn in, during the trial or in his statements to the Metropolitan Police revealed that he had special knowledge either of the individuals involved or the facts of the case. It follows we are unpersuaded that a fair minded and informed observer would have concluded that there was a real possibility of jury bias such that a fair trial was not possible (see
Porter v Magill
).
59.
Juror A originally indicated that he had ticked many boxes on the questionnaire but when a copy was provided to him, he reconstructed the answers he gave during the jury selection process. It is unsurprising that he needed to see the form again to remember how he had filled it in. There is no basis for concluding that he has been unreliable or dishonest in his present statement.
60.
This ground of appeal was arguable, given the matters raised by Juror A in his first statement to the police and by M1, and we grant leave to appeal on this limited basis. However, for the reasons set out above, we do not consider the safety of the conviction of either applicant is undermined by the arguments analysed above. We dismiss this ground of appeal.
Postscript
61.
By way of a postscript, we are of the view, first, that the matters raised by Juror A as to why he should not serve on this jury were paradigmatic of the circumstances when the judge should have discussed with counsel the significance of what had been revealed by a potential juror, in the absence of the panel and before the jury were sworn. This might add slightly to what is in any event something of a cumbersome exercise, but it will serve to ensure that the risk is avoided that the entire proceedings are vitiated because, for instance, unbeknown to the judge the prospective juror had special knowledge either of the individuals involved or the facts of the case. These remarks, we stress, do not apply to the answers to questions one to five which are strictly personal to the juror, and ordinarily the judge will be able to resolve them without seeking the assistance of counsel.
62.
Second, whenever questionnaires are given to the jury panel, those completed by the individuals selected to serve (including any “shadow jurors”) should be uploaded onto the relevant private section of DCS (they should not be shared with the parties without judicial approval) and retained at least until the completion of any appeal against conviction or the 28-day period for submitting grounds of appeal has expired. Otherwise, the handling of these forms should be governed by the applicable data retention policy.
Ground 2: the judge’s direction on the “proper basis” for the Euribor submissions was wrong
(both applicants)
Submissions
63.
At a hearing on 22 September 2017 designated as a preparatory hearing before the commencement of the first trial, the judge ruled on the interpretation of Article 6 of the applicable Euribor Code. As set out above, his decision was the subject of an interlocutory appeal to the Court of Appeal (
R v Bittar
[2018] EWCA Crim 73
) by Christian Bittar, one of
Bermingham and Palombo’s co-accused. The appeal was dismissed. Bermingham and Palombo were parties to the preparatory hearing. They agreed that the proper interpretation of Article 6 should be decided at that stage, and they did not seek to introduce any evidence in addition to that already before the judge. Neither applicant participated in the interlocutory appeal in
Bittar
, notwithstanding their entitlement to do so. The present arguments were raised for the first time in this appeal given the applicants did not suggest in either trial that the judge should revisit his original ruling.
64.
It is argued before us that the judge’s direction to the jury in the present trial, which applied the decision in
Bittar
as regards the “
proper basis
” for Euribor submissions, was wrong in law, and most particularly that the jury were incorrectly directed that a submitter is never entitled to take into account the commercial interests of the submitting bank. On this issue, the judge directed the jury that:
“A submitter is not entitled to take into account that which would or might advance his or her own or another bank’s commercial interests or those of a trader putting forward his or her Euribor submissions. To take such commercial matters into account would be to act in a way that was contrary to the Euribor Code of Conduct, as it plays no part in an assessment to the best of his of his or her knowledge of the borrowing rate.”
65.
Furthermore, it is contended that the jury were left with a confused picture given the judge’s directions were inconsistent with a part of the evidence of two witnesses called at trial, Guido Ravoet and Helmut Konrad (the jury, according to Mr Thomas Q.C. on behalf of Bermingham, were left in a “legal no man’s land”).
66.
The hearing on the interlocutory appeal in
Bittar
lasted two days. This court upheld the judge’s decision that under the provisions of Article 6 of the Euribor Code, as interpreted in accordance with the principles of Belgian law, the panel banks were prohibited from making submissions which were intended to create an advantage to the trading positions of one or more of the banks when setting the daily Euribor rate.
67.
The Preface to the Code, in its 1999 version, sets out as follows:
"The EURO Interbank Offered Rate – "EURIBOR" – is the new money market reference rate for the euro. This Code lays down the rules applicable to EURIBOR and the banks which will quote for the establishment of EURIBOR.
EURIBOR is the rate at which euro interbank term deposits are being offered within the EMU zone by one prime bank to another at 11.00 am. Brussels time ("the best price between the best banks"). It is quoted for spot value (two Target days) and on actual/360 day basis."
68.
By Article 6:
"Obligations of Panel Banks
1.
Panel banks must quote the required euro rates:
-
to the best of their knowledge, these rates being defined as the rates at which euro interbank term deposits are being offered within the EMU zone by one prime bank to another at 11.00 am. Brussels time ("the best price between the best banks")
-
for the complete range of maturities as indicated by the steering committee
-
on time as indicated by the screen service provider
-
daily except on Saturdays, Sundays and Target holidays
-
accurately with two digits behind the comma
2.
Panel banks must commit themselves to transmit to the European System of Central Banks all the necessary figures to establish an effective overnight euro rate, and in particular their aggregate loan volume and the weighted average interest rate applied.
3.
Panel banks must make the necessary organisational arrangements to ensure that delivery of the rates is possible on a permanent basis without interruption due to human or technical failure.
4.
Panel banks must take all other measures which may be reasonably required by the steering committee or the screen service provider in the future to establish EURIBOR.
5.
Panel banks must subject themselves unconditionally to this Code and its enclosures, in their present or future form.
6.
Panel banks must promote as much as possible EURIBOR (e.g. use EURIBOR as reference rate as much as possible) and refrain from any activity damageable to
EURIBOR."
69.
The judge decided that the common intention of the parties to the Code was clear from the Euribor definition, as set out in Article 6.1, and that the panel banks were not permitted to take into account their own trading advantage when submitting the daily rate. Each bank was to make an independent and genuine assessment of the rate submitted. Although there was a subjective element given this was the expression of an opinion, the rate was to be assessed objectively as the rate at which deposits were to be offered by one prime bank to another at the relevant time.
70.
The judge determined that the common intention of the parties to the Code was apparent from the Euribor definition, as set out in Article 6.1. In those circumstances, the judge concluded that Belgian law did not require him to consider extraneous evidence on this issue. He accepted the evidence of Professor Nuyts that Belgian law established that if the common intention is clear from the contract itself, taking into account its wording and other intrinsic elements of the contract, the court need go no further. However, the judge added [39 VIII]:
“[…] However, I am conscious that such (extraneous) evidence will be relevant, or at least some of it will be, at the trial. It is admissible if it goes to the issue of the defendant's state of mind, and in particular, to whether he or she was acting honestly. Indeed, it may very well be that the real issue in this case is whether the prosecution can prove that the defendant was dishonest, within the meaning as set out by the Court of Appeal (Criminal Division) in the case of
R v Ghosh 75 Cr. App. R. 154
."
71.
Having declined to hear extrinsic evidence, the judge therefore did not consider the testimony of Helmut Konrad (one of the authors of the Code of Conduct and a member of the Euribor Steering Committee) and other suggested witnesses during the preparatory hearing on the issue of the common intention.
72.
Davis LJ, in giving the judgment of the court on the interlocutory appeal, stated that it was hard to conceive of the system working if the trading advantage of the individual submitting banks could be influential (see [55]). Instead, it required a genuine assessment of the rate, to the best of the submitter’s knowledge, not least because the justifiable range risked being skewed if all panel banks are serially entitled to submit rates to their own advantage (see [56]). Furthermore, the court agreed with the trial judge that since the common intent was clear from the intrinsic terms of the Code itself, it was a proper exercise of his discretion to decline to admit extrinsic evidence/extraneous materials on this issue (see [59]).
73.
It is submitted by the applicants that the judge’s interpretation of the Euribor Code of Conduct, as approved by the Court of Appeal, was unsustainable in light of evidence given at trial by the two witnesses mentioned already and summarised below, as to the operation of the euro interbank market and their understanding of the approach taken to the Euribor Code of Conduct.
74.
Dr Guido Ravoet (the head of EBF and Euribor-EBF) was called by the prosecution during the present trial and he stated that that the bank’s own position could be taken into account
“as a parameter” for activity in the derivatives market done on the bank’s own account but not as regards derivatives for customers. He was clear, however, that the submitter should not take into account a request from a derivatives trader and that the Euribor rate would not be an accurate benchmark if the submission was influenced by a particular bank’s commercial interests.
75.
Helmut Konrad, called by Bermingham, gave evidence that the institution’s commercial interests could be an influence so long as the submissions remained within the range of the valid rates offered on the market. His evidence was challenged by the prosecution who suggested that although he had been a founder of Euribor, he had ceased involvement at an early stage following retirement and was distanced from the way the scheme had been operating in practice. He agreed that his reputation and that of the Euribor benchmark were intertwined.
76.
On this basis, it is submitted that the decision in
Bittar
was plainly wrong and was reached
per incuriam
.
Discussion
77.
We are of the view that this proposed ground of appeal is, on analysis, unarguable. The starting point is the decision in
R v Rashid (Yahya)
[2017] EWCA Crim 2
;
[2017] 1 Cr App R 25
. In that case the trial judge, at a preparatory hearing, ruled that the accused’s confession was admissible. This decision was upheld on an interlocutory appeal [27]. Following conviction, Rashid applied for leave to appeal,
inter alia
, raising the same arguments as regards the admissibility of the confession. In refusing permission to appeal on this ground, the court observed:
“58. As we have set out […] this court had already determined the issue of admissibility of the interview on the interlocutory appeal brought by the defendant. It was not open to the defendant to re-open that issue as the question of the admissibility had been determined by this court. The defendant’s advocate, having made the decision to contest the correctness of the ruling on admissibility by way of the interlocutory appeal from the ruling at the preparatory hearing, took a course that was open to him. The decision of this court on the interlocutory appeal determined the issue of admissibility. That is the end of the matter.”
78.
In the present case, this issue was resolved after full argument. The Court of Appeal should only revisit an earlier decision if satisfied that it was reached
per incuriam
in accordance with the exceptions to
stare decisis
identified in
Young v Bristol Aeroplane Co Ltd
[1944] K.B. 718
, or because this step is necessary in the interests of justice vis-à-vis an appellant because the law had been misapplied or misunderstood, and the accused had been improperly convicted (
R v Taylor
[1950] 2 K.B. 368
;
R v Spencer
[1985] QB 771)).
79.
The evidence now relied on was irrelevant to the issue of the correct approach to be taken to the interpretation of the common intention of the parties to the Code. The judge had concluded, wholly sustainably, that the intention of the parties was clearly established by the Euribor definition, as set out in Article 6.1. It has not been challenged on this appeal that Belgian law provides that if the common intention is clear from the contract, there is no need to rely on extraneous evidence. Accordingly, there is no suggestion that the judge or the Court of Appeal misapplied Belgian law in this regard.
80.
We consider, furthermore, that the decision of this court is unassailable in upholding the judge’s decision that the meaning of Article 6.1 was clear (see
Bittar
at [52]). As Davis LJ observed, the Code required that the rate is to be “the best price between banks”, and this is by reference to hypothetical prime banks and not particular individual banks. Panel banks are required to have high ethical standards and enjoy an excellent reputation. The submission by the bank has to quote the rate “accurately with two digits behind the comma”. The Panel banks were expected to refrain from any activity damaging to Euribor. We agree that these points strongly indicate that individual panel banks could not have regard to the institution’s own advantage in making its submission. Furthermore, this was an objective test to the best of the individual’s knowledge, which further tends to exclude considerations of trading advantage (see
Bittar
at [54]).
81.
It follows that the aspects of the evidence of Guido Ravoet and Helmut Konrad that are submitted to be determinative of this ground of appeal, to the contrary, were irrelevant on this issue. Testimony of this kind, as foreshadowed by the judge in his ruling (see [70] above), was germane,
inter alia
, to the defendants’ state of mind and, in particular, as to whether they acted honestly: this material potentially assisted on how the applicants interpreted the Code by throwing light, for instance, on the discussions concerning the banks’ commercial interests at the design stage and during the Steering Committee meetings. Any evidence of an interpretation of the Code that tended to contradict the judge’s direction in law did not create a “legal no man’s land” for the jury. It was clear that the jury were
obliged to follow the judge’s directions, and the jury would have focussed on the evidence of Helmut Konrad (and to a markedly lesser extent to Guido Ravoet) when considering the applicants’ contention that they had not knowingly and dishonestly participated in a conspiracy to disregard the proper basis for making Euribor submissions.
82.
It follows that it is unarguable that the decision in
Bittar
was wrong in law or was decided
per incuriam
, or that the jury were provided with inadequate guidance by being left in a
“legal no man’s land”
.
We decline to grant leave to appeal on this ground.
Ground 3: i) conspiracy to defraud and the need for legal certainty and ii) the element of
recklessness
Submissions
83.
Mr Owen Q.C. (who, together with Ms Hardcastle, did not appear below) on behalf of Palombo developed in his application for leave to appeal certain new and additional grounds, encapsulated in various written documents served on the court and in his oral submissions that were not set out in the original Grounds of Appeal settled by trial counsel. Put shortly, he sought to advance a far-reaching submission that in the circumstances of this case the count of conspiracy to defraud brought against Mr Palombo and his co-defendants failed the test of legal certainty at common law, as reinforced by Article 7 of the European Convention on Human Rights (enacted into domestic law by the Human Rights Act 1998). The latter provides:
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed [...]”
84.
Mr Owen frankly acknowledged that this submission conflicted with several recent decisions of the Court of Appeal that are binding on us. In part, therefore, his submissions were directed to the possibility of seeking to review this line of authority in the Supreme Court.
85.
By way of background to this contention, Mr Owen draws our attention to
Norris v Government of the United States
[2008] 1 AC 920
;
[2008] UKHL 16
. In this decision the House of Lords concluded that there was no substantive offence in English law of price fixing and that extradition under the dual criminality principle was not possible by reason of the common law offence of conspiracy to defraud where the equivalent US offence did not require proof of dishonesty.
86.
Under the heading ‘legal certainty’ from paragraphs 52 to 62 the Committee reviewed the legal requirement of certainty and approved at [53]
et seq
Lord Bingham’s decision in
R v Rimmington
[2006] 1 AC 459
at [33] that:
“no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done”.
87.
As part of a composite opinion at [61] the Committee observed:
“[…] it would be dangerous and impractical, particularly for the judges, to introduce a general principle that there is some sort of representation that the price at which goods are offered has been arrived at a certain basis. Finally, the very fact that it was not until 2005 that it was first suggested that secret price fixing could of itself constitute a common law offence in the 1990s.”
88.
At [62] the conclusion was expressed that without ‘aggravating features’ the test was not met in this case.
89.
We interpolate to note, however, that at the same time as this decision was handed down, the
Committee in
R v Goldshield Group PLC and others
[2008] UKHL 17
;
[2009] 1 Cr App R 33
, concluded that the aggravating feature was made out in a price fixing conspiracy to defraud against the NHS when lies and deception were deployed. More recently, in
R v Barton and Booth
[2020] EWCA Crim 575
;
[2020] 2 Cr App R 7
this court observed:
“122. Conspiracy to defraud does not apply to agreements to achieve a lawful object by lawful means. But there is no requirement of “unlawfulness” or “aggravating feature” over and above a dishonest agreement which includes an element of unlawfulness in its object or means. This approach was endorsed by the House of Lords in
R. v Goldshield Group Plc and Others
[2008] UKHL 17
;
[2009] 1 Cr. App. R. 33
(p.491).” […]
90.
The court in
Barton
noted approvingly as regards the summing up in that case:
“126. […] In our judgment there can be no doubt that the jury understood that the prosecution needed to establish that there was a dishonest agreement on the part of the defendants, by deceit or lies, to prejudice the proprietary rights or interests of the victims by obtaining property to which they were not entitled. […]”
91.
The conduct pleaded in the present indictment was said to have taken place between 1 January 2005 and 31 December 2009 and was alleged to have consisted of the following elements:
“i) Knowing or believing that the (relevant) Banks were party to trading referenced to the Euro Interbank Offered Rate (Euribor)
ii) Dishonestly agreed to procure or make submissions of rates into the Euribor setting process by one or more Euribor Panel Banks which were false and misleading in that they:
a)
Were intended to create an advantage to the trading positions of employees of one or more of the above mentioned banks and
b)
Deliberately disregarded the proper basis for the submission of those rates
Thereby intending that the economic interests of others may be prejudiced.”
92.
We observe that in a late additional submission Mr Owen contended that the last line of these particulars, along with the directions given by the judge in this context, watered down the requirement of dishonest intent to prejudice of others, creating the possibility that mere recklessness as to whether his conduct caused economic prejudice or the risk of economic prejudice to another would be sufficient. We shall consider this ground separately.
93.
Mr Owen developed his principal submission along the following lines:
i)
Although Parliament had preserved the offence of conspiracy to defraud in 1977 when it otherwise replaced common law conspiracies with statutory ones, its dimensions were protean and have given rise to legitimate criticism that in some cases it amounted to no more than a general allegation of dishonest conduct.
ii)
Conspiracy to defraud criminalises an agreement by two or more people to undertake particular conduct when a person acting alone may not have committed any indictable offence or have acted tortiously.
iii)
Interest rate manipulation was not made a specific offence in the UK until section 91 Financial Services Act 2012 was implemented, despite earlier opportunities to have legislated for such an offence.
iv)
The unlawfulness relied on here was a breach of the provisions of the Euribor Code of Conduct that were incorporated into the terms of commercial dealings by Euribor banks pursuant to the requirements of Belgian law.
v)
These contractual terms were imprecise and uncertain; they had never been the subject of a decision by the Belgian Court; and at least some of those who had drafted the Code in 1999 and 2000 (such as Helmut Konrad, see above at
[75]) did not consider that commercial advantage to a bank was precluded from consideration when participating banks made a submission.
vi)
It had only been held by the Court of Appeal in 2018 pursuant to the preparatory hearing in the instant prosecution (
Bittar
) that it was impermissible to submit a rate designed to advantage the submitting bank (see [57]). It is suggested that this practice had never been the subject of adverse comment by the regulator in the period 2005 to 2009. Mr Owen recognises that similar rulings to that in the present case were made in the context of the Libor prosecutions:
R v H
[2015] EWCA Crim 46
;
R v Hayes
[2015] EWCA Crim 1944
;
[2018] 1 Cr App R 10
; and
R v Merchant
[2017] EWCA Crim 60
;
[2018] 1 Cr App R 11
. However, he suggests all this learning was far too late to inform the defendants during the indictment period of whether they could be punished for their conduct.
vii)
The defendants in this prosecution were not personally bound by these contracts. They received little or no training or guidance from their employers or others as to their meaning and ambit. They required no special qualifications to undertake their work. They were entitled to believe that taking the commercial advantage into account in the way contended for here was lawful and not dishonest according to trade practice and custom.
viii)
Insofar as the element of dishonesty was concerned, it was seriously damaging to legal certainty that the second limb of the test propounded by the case of
R v Ghosh
[1982] 1 QB 1053 and applied for some 35 years had been changed by the dictum of the Supreme Court in the civil appeal of
Ivey v Genting Casinos (UK) Ltd
[2017] UKSC 67
;
[2018] AC 391
, a case in which issues of legal certainty were not paramount. Mr Owen reserved the right to challenge elsewhere the decision of this Court in
Barton
applying
Ivey
as the correct test to be applied in criminal cases including cases where a count of conspiracy to defraud is charged.
Discussion
94.
It is regrettable that there was no authoritative guidance as to whether taking account of a submitting bank’s commercial interests was unlawful before the trial judge’s ruling in this case was confirmed by way of the interlocutory appeal in
Bittar
. It is also regrettable that the test of what constituted dishonesty changed during the proceedings. However, despite Mr Owen’s eloquent and erudite submissions to the contrary, we are satisfied that the requirements of legal certainty were fully met in this case by both the indictment and the agreed legal directions on the elements of the offence given by the trial judge.
95.
The judge’s directions, as relevant, were as follows:
“[…] So, I begin with the definition of “to defraud”. To defraud or to act fraudulently is dishonestly to prejudice another’s right knowing that you have no right to do so.
Prejudicing another’s right includes causing economic loss or exposing another to the risk of economic loss.
[…]
Before you can convict any defendant of conspiracy to defraud, you must be sure:
(1)
That there was a conspiracy to defraud.
[…]
There is no dispute that there was such a conspiracy. Bittar pleaded guilty to the count on 2 March 2018 and Moryoussef was convicted of the count on 29 June 2018. The convictions prove that there was a conspiracy and that Bittar and Moryoussef were parties to it. The convictions do not prove, of course, that any of the defendants in this trial were a party to the conspiracy. That is what you are here to decide.
If you are sure there was a conspiracy, then you go on to consider the second element of the alleged offence:
(2)
That the defendant you are considering knew or believed that the banks were party to trading referenced to the euro interbank offered rate (Euribor).
Again, there is no dispute that the defendants, all of them, did know or believe that the banks were parties to trading referenced to Euribor.
The third element:
(3)
(If you are sure about the second) […] the defendant you are considering was a knowing party to the conspiracy in that he or she agreed with one or more employees of a panel bank to make or procure submissions of Euribor rates which were false or misleading in that they:
a)
were intended to create an advantage to the trading positions of employees of one or more of the panel banks; and
b)
deliberately disregarded the proper basis for the submission of those rates, thereby intending that the economic interests of others may be prejudiced. In other words, intending to prejudice or risk prejudicing another’s right knowing that he or she had no right to do so.
[…]
Deliberate disregard, that's a reference of course to element (b) of (3) which we are dealing with at the moment: the prosecution must prove so that you are sure in the case of each defendant that he or she agreed to procure or make submissions that deliberately disregarded the proper basis for the submission of those rates.
For a defendant to "deliberately disregard" the proper basis, he or she must have known what the proper basis for the submissions was at that time. He or she must have known that the submissions deliberately disregarded that proper basis for the submissions.
So that's how you look at deliberate disregard and I end now dealing with element 3 by saying if you are not sure of each part of element 3 of the offence, you will acquit. If you are sure, then you go on to consider the fourth element:
(4)
That the defendant you are considering intended that the criminal agreement should be carried out by himself or herself and one or more of the conspirators.
You decide intent in respect of this element in exactly the same way I directed you in respect of element 3 above. If you are not sure of this element, you will acquit. If you are sure, then go on to consider the fifth element, indeed the final element:
(5)
That the defendant you are considering was acting dishonestly.
I'm going to give you a specific direction as to dishonesty […] in a few moments time. Before I do that, those are the five elements, and you must be satisfied so that you are sure on all five elements before you could convict.
As the indictment alleges a conspiracy, the prosecution does not have to prove that any agreement actually resulted in the submission of a rate which was intended to advantage the trading position of an employee or employees of a panel bank, or that any agreement in fact affected the published Euribor rate.
You may think that it is only in a rare case that a jury would hear direct evidence of a criminal conspiracy. When people make arrangements to commit crimes, you would expect them to do so in private. You would not expect them to do so in front of others or to put their agreement into writing. But people may act together to bring about a particular result in such a way as to leave you in no doubt that they are carrying out an earlier agreement.
Accordingly, in deciding whether there was a criminal conspiracy, and if so whether the defendant you are considering was a party to it, look at the evidence as to what occurred during the relevant period, including the behaviour of each of the defendants and the alleged conspirators. If having done so you are sure that there was a conspiracy and that he or she was a party to it, you must convict. If you are not sure, you must acquit.
[…]
So finally at this stage, dishonesty, fifth element. In a criminal trial, where it is alleged that a defendant was dishonest, it is for the prosecution to prove that the defendant was dishonest. It is not for the defendant to prove that he or she was honest. The burden of proof remains throughout the trial on the prosecution. The question of whether a defendant was dishonest is therefore for you the jury to determine.
Dishonesty is a central issue in this case. When considering the question of dishonesty, you must firstly, ascertain the defendant's actual knowledge or belief as to the facts; that is, ascertain what the defendant genuinely knew or believed the facts to be.
When considering the defendant's belief as to the facts, the reasonableness or unreasonableness of his or her belief is a factor that is relevant to the issue of whether the defendant genuinely held the belief. However, it is not an additional requirement that the belief must be reasonable. The question is whether the belief was genuinely held.
Secondly, having determined the defendant's state of knowledge or belief, go on to determine whether the defendant's conduct, as you have found it to be, was honest or dishonest by the standards of ordinary decent people.
There are no different standards of honesty which apply to any particular profession or group in society whether as a result of market ethos or practice. If you are sure that the defendant's conduct was dishonest, by the standards of ordinary decent people, the prosecution does not have to prove that the defendant recognised that the conduct was dishonest by those standards.”
96.
There was, accordingly, a close connection between the two issues relating to intention on which the prosecution needed to satisfy the jury to the criminal standard of being “sure”. First, that each defendant deliberately disregarded the proper basis for the Euribor submissions when they either made or procured them. Second, that they did so dishonestly according to the reformulated
Ivey
test. Under the first requirement, a defendant could only deliberately disregard the proper basis if he or she knew what the proper basis was and despite this made or acted on false representations not permitted by the Code. Under the second, a jury could only be sure that the defendant had acted dishonestly if they had established (subjectively) the state of the individual’s knowledge or belief as to the facts and, in the light of that, that the conduct was dishonest by the (objective) standards of ordinary decent people. Applying the first element of the
Ivey
test meant that the jury must have rejected the defendants’ account of what they said they knew and believed as to the proper basis of making submissions to Euribor.
97.
Together this set a demanding test for the prosecution to meet. In these circumstances, we are to an extent unsurprised that in the absence of authoritative guidance on the requirements of the Code a number of traders in the Euribor and Libor prosecutions have been acquitted. In this case, however, the jury must have concluded that the defendants’ evidence as to their states of mind was false, and their deliberate disregard of what they knew was the proper basis for setting the rate was dishonest, applying the objective test of the standards of ordinary decent people to the defendant’s state of mind. It is apparent from a number of questions the jurors asked during the trial that they were acutely aware of the difference
between the state of knowledge of the defendants at the time they did the acts alleged and what is now known about the proper meaning of the Euribor Code of Conduct.
98.
The judge decided to admit evidence (
e.g.
Helmut Konrad) on the views of the drafters of the Code, as being relevant to the defendant’s subjective state of mind although it was not clear that these views had been communicated to them, and he did not intervene to limit counsel’s use of this material in their final speeches.
99.
We observe that there was notably strong evidence in the relevant emails involving Moryoussef and Bittar of a climate of secrecy and a desire to mask what was happening consistent with knowledge that this conduct was dishonest. Mr Owen’s submissions on the legal certainty of the charge would suggest that both of these accused were wrongly convicted as well as the present applicants.
100.
In the present case, both unlawfulness and dishonesty needed to be established; these ingredients were the subject of clear and comprehensive directions; and they were established to the jury’s satisfaction, as reflected in their verdicts. We are satisfied that the principle of legal certainty was not impugned in this regard. Furthermore, the clarification of the law in
Ivey
fell within the proper parameters of the developing common law, consistent with Article 7. As the European Court of Human Rights stated in
SW v United Kingdom
21 EHRR 363
(the case concerning the retrospective application of the criminal law in the context of a man raping his wife):
“36/34. However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law- making is a well entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.”
101.
In the recent decision in
Barton
, this court expressly rejected the suggestion that the offence of conspiracy to defraud lacks certainty, thereby falling foul of Article 7 (see [124]), emphasising the clear way that the indictment revealed the offence on which the jury were entitled to convict. As in
Barton
, these applicants would have been able readily to identify the case they had to meet.
102.
We do not accept that these defendants were disadvantaged by the change in the standard dishonesty directions from
Ghosh
to
Ivey
. The first limb of the
Ivey
test gives a substantial measure of protection from the application of an objective test unrelated to the state of mind of the defendant under consideration. As this court observed in
Barton
:
“107. That said, we wish to endorse the respondent’s submission that the test of dishonesty formulated in
Ivey
remains a test of the defendant’s state of mind—his or her knowledge or belief—to which the standards of ordinary decent people are applied. [...]
108. […] All matters that lead an accused to act as he or she did will form part of the subjective mental state, thereby forming a part of the fact-finding exercise before applying the objective standard. That will include consideration, where relevant, of the experience and intelligence of an accused. In an example much used in debate on this issue, the visitor to London who fails to pay for a bus journey believing it to be free (as it is, for example, in Luxembourg) would be no more dishonest than the diner or shopper who genuinely forgets to pay before leaving a restaurant or shop. The magistrates or jury in such cases would first establish the facts and then apply an objective standard of dishonesty to those facts, with those facts being judged by reference to the usual burden and standard of proof.”
103.
Furthermore, we are bound by
Barton
but even if we were free to depart from it, we would not do so as we consider it is undoubtedly correct.
104.
In these circumstances there is simply no basis for a submission that the applicants were unfairly convicted because they did not realise at the relevant time that what they were doing was wrong and the conduct made them criminally liable.
105.
This leaves Mr Owen’s submissions that the judge impermissibly gave a recklessness direction.
106.
It was common ground between the parties before us, first, that in a conspiracy to defraud – just as in a statutory conspiracy – a party to the agreement must intend that each of the relevant elements of the offence will be carried out and, second, that prejudice to another’s rights encompasses both actual economic loss and the risk of loss occasioned by the conduct. Put otherwise, as regards the second element, it is necessary that a proprietary right or interest of the potential victim is actually or potentially injured or put at risk (see
Barton
at [121]). The way the judge left this to the jury in his directions has been set out above at [95].
107.
Mr Owen suggests that by directing the jury that the prosecution needed to establish that the accused under consideration “
deliberately disregarded the proper basis for the submission of those rates, thereby intending that the economic interests of others may be prejudiced
.
In other words, [intended] to prejudice or risk prejudicing another right knowing that he or she had no right to do so
” he thereby diluted the direction on intent by introducing recklessness as an alternative. The Crown respond by suggesting that the use of
the word “may” merely qualified prejudice and not the intent to prejudice. It was emphasised by Mr Waddington Q.C. that it is immaterial that the quantum of any economic loss might be difficult to establish. This was a “zero-sum” enterprise, and even a marginal difference to the Euribor rate by reference to impermissible considerations would mean that one party’s gain was at the expense of another’s loss. Equally, the case law makes plain that the fact that the defendant’s motive in making the inducements or the submission are the gain to the bank and individual trader rather than loss to another party are irrelevant.
108.
We agree with the Crown’s submissions on this point. It is inconceivable that over two trials experienced leading and junior counsel for each of the parties could have imagined that the directions they agreed with the judge and that were given by him somehow rendered the defendants at peril of conviction for something less than an intent to prejudice the rights of others. We have no doubt that the jury fully understood the directions to mean that they must be sure that the defendants intended by their actions to prejudice the rights of another, but those rights would be prejudiced whether or not economic loss resulted, and it was sufficient if the other party might suffer such loss. As set out above, the judge made this clear in his direction:
“To defraud or to act fraudulently is dishonestly to prejudice another’s right knowing that you have no right to do so. Prejudicing another’s right includes causing economic loss or exposing another to the risk of economic loss.”
109.
In the circumstances we conclude that there is nothing in Mr Owen’s supplementary grounds that throw any doubt on the safety of these convictions. Accordingly, we refuse leave to appeal.
Postscript
110.
For the avoidance of doubt, indictments in the future would be better framed in this context using, for instance, the expression “
thereby intending to prejudice the economic interests of others”
rather than “
thereby intending that the economic interests of others may be prejudiced
.”
Other grounds (Bermingham)
111.
No oral argument was advanced in support of two other Grounds of Appeal by Bermingham that were based on inconsistency: first, as to conviction in that it is suggested that his conviction is inconsistent with the acquittal of Bohart and, second, that his sentence (5 years’ imprisonment) is inconsistent with the sentence imposed on Palombo (4 years’ imprisonment). Neither argument has any credible foundation. The evidence against Bohart (who was a member of the money markets desk at Barclays Capital from June 2004) was not the same as the evidence against Bermingham. As the respondent observes, it was entirely open to the jury to conclude that Bohart, a junior trader, was unaware of the proper basis at the time of the relevant transactions and did not know that making submissions intended to create a trading advantage to employees at the bank deliberately disregarded that proper
basis. The jury were equally entitled to conclude that Bermingham, with his many years of experience on the Euro Money Markets Desk at the bank and of making benchmark submissions was fully aware of these matters. Furthermore, it was common ground between the parties that Bohart simply learnt how to do her job from Bermingham and followed his lead. As to sentence, the difference between the two applicants was entirely justified by the particular roles played by the two men during the period of the conspiracy, the judge having assessed them during the trial.
112.
Finally, for completeness, in written submissions that were not pursued at the hearing of the applications, it was argued that the order by the judge that Bermingham should pay £300,000 towards the costs of the prosecution within two years was wrong and manifestly unreasonable on the grounds that the Legal Aid Agency has failed to respond to a request that it will modify its claim for a Capital Contribution Order following the judge’s order in this regard. This submission is without any proper basis. As submitted by the prosecution, given there has been a change in the applicant’s financial circumstances pursuant to the order for costs, upon being notified of the change by the applicant the Director of Legal Aid Casework is obliged to reassess the applicant’s disposable capital, and if necessary to vary the Capital Contribution Order (see Regulation 35 The Criminal Legal Aid (Contribution Orders) Regulations 2013/483). The applicant is therefore seeking a remedy in the wrong court.
113.
Leave to appeal is refused on these additional grounds.
Conclusions
114.
It follows that we refuse to grant the applications for leave to appeal under Grounds 2 and 3 and the “other grounds”. We grant leave to appeal under Ground 1 and dismiss the appeal.
|
{"ConvCourtName":["Crown Court at Southwark"],"ConvictPleaDate":["2019-03-26","2019-03-28"],"ConvictOffence":["Conspiracy to defraud"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Southwark"],"Sentence":["Colin Bermingham: 5 years’ imprisonment","Carlo Palombo: 4 years’ imprisonment"],"SentServe":[],"WhatAncillary":["Bermingham: £300,000 prosecution costs order (section 18 Prosecution of Offences Act 1985)"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Company"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Archived communications (emails, messages, calls)","Expert evidence (Euribor, banking, derivatives)","Explanation of investment bank workings"],"DefEvidTypeTrial":["Denial of dishonest agreement","Denial of knowledge of interbank conspiracy","Claim of acting within range of valid figures","No direct personal gain"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["No direct or indirect personal gain (Bermingham)","Acted under direction and anxiety (Palombo)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction","Sentence","Costs order (Bermingham only)"],"AppealGround":["Jury irregularity and bias (Ground 1)","Error in judge’s direction on 'proper basis' for Euribor submissions (Ground 2)","Lack of legal certainty in conspiracy to defraud and recklessness (Ground 3)","Inconsistency of conviction and sentence (Bermingham, not argued orally)","Costs order manifestly unreasonable (Bermingham, not argued orally)"],"SentGuideWhich":["Section 18 Prosecution of Offences Act 1985 (costs order)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No evidence of jury impropriety or bias; police investigation found no irregularity (Ground 1)","Judge’s direction on Euribor submissions correct in law; prior Court of Appeal decision binding (Ground 2)","Legal certainty and dishonesty directions adequate; no unfairness or misapplication of law (Ground 3)","No inconsistency in conviction or sentence; evidence and roles justified outcomes (Bermingham)","Costs order challenge not properly before this court; remedy lies elsewhere (Bermingham)"]}
|
Neutral Citation Number:
[2015] EWCA Crim 1630
Case No.
201501985 B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 22nd September 2015
B e f o r e
:
LORD JUSTICE LLOYD JONES
MR JUSTICE BLAKE
MR JUSTICE HADDON-CAVE
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R E G I N A
v
J VG
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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)
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Mr J Arsenio
appeared on behalf of the
Appellant
Mr J Gadsden
appeared on behalf of the
Crown
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J U D G M E N T
1.
LORD JUSTICE LLOYD JONES: On 27th March 2015, in the Crown Court at Kingston before Recorder Featherby, the appellant was convicted of two counts of assault of a child under the age of 13 by penetration (counts 3 and 7) and two counts of causing or inciting a child under the age of 13 to engage in sexual activity (counts 4 and 8). On 1st May 2015, before the same judge, he was sentenced as follows: on count 3, a term of four years' imprisonment; on count 4, a term of two years' imprisonment concurrent; on count 7, a term of five years' imprisonment, that sentence to be consecutive to the other terms; and on count 8, a sentence of three and a half years concurrent to the other terms. So the total sentence was one of nine years' imprisonment.
2.
Having been convicted of an offence listed in schedule 3 to the Sexual Offences Act 2003, the appellant is required to comply with the provisions of Part 2 of that Act indefinitely. Having been convicted of an offence specified in the schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, the appellant is included in the relevant list by the Independent Safeguarding Authority. In addition, the judge made a Sexual Offences Prevention Order.
3.
Counts 5, 6, 12, 13, 14 and 15 were ordered to lie on the file against him on the usual terms.
4.
He now appeals against conviction by leave of the single judge, who limited leave to grounds 1 and 2. We have been assisted by the submissions of Mr Arsenio, who has also renewed his application for leave to appeal against conviction on ground 3.
5.
The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. 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 it is waived or lifted under section 3 of the Act. We have invited submissions today and no submissions have been made to us.
6.
The appellant originally faced an indictment of 15 counts. He was tried in October 2013 and was acquitted of the three counts of rape and two counts of sexual assault. The jury were unable to agree in respect of the other counts. At the re-trial the prosecution proceeded with four counts only. The remaining counts were left on the file on the usual terms.
7.
All of the counts were based on allegations of the same complainant. I shall refer to her as AB".
8.
Counts 1 and 2 of the trial indictment covered the first incident, which she stated occurred in 2005 or 2006, when the complainant had been five to six years old. Counts 3 and 4 mirrored the allegations but covered the period when the complainant was aged six to 12 years old, that is 2005 to 2011. She essentially reported that the appellant had over those periods of time repeatedly digitally penetrated her vagina and had repeatedly made her masturbate him.
9.
Her first report was made to a general practitioner in January 2013, when she was then 13 years old. She had attended the police station and was interviewed on 17th January 2013 and on a second occasion on 2nd March. After the first interview, and after the tape machine had been turned off, she informed the officer that there was a stain of blood on the appellant's mattress from when she had been menstruating on one occasion.
10.
The appellant was arrested and interviewed. He made no comment.
11.
The prosecution case was that the complainant was telling the truth and that what she said had happened. The defence case was that the complainant was lying and that nothing remotely improper had ever occurred as claimed.
12.
On behalf of the prosecution, AB gave her evidence in chief via her Achieving Best Evidence Interview and she was cross-examined in the usual way over a video link. At the date of her evidence she was 15 years of age.
13.
Her evidence was that when she visited the appellant from an early age they would sleep naked in the same bed. On every Saturday night in bed, and on Sunday morning in front of the fire, the appellant would insert his fingers into her vagina, touch her breasts and play with her nipples. He also guided her hand to rub his penis and masturbate him. On approximately five occasions this led to ejaculation. She said that he used words such as "bitch", "cunt" and "fuck" when this was happening. This happened repeatedly from when she was aged six to when the appellant had heart surgery in 2012, when she was 13 years old.
14.
On one occasion when they had been naked in bed she had been menstruating and blood had stained the appellant's mattress. She said that she had on occasion helped him change his sheets and turn the mattress. She said that he had been unable to do it on his own because of his age.
15.
She said that she did find the appellant controlling but that this was not a motive to lie and she denied that she was lying.
16.
She accepted that she had sent affectionate Christmas and birthday cards to the appellant, but she said that her mother had made her write what she had written. When she had refused to sign the Christmas card at Christmas 2012, her mother had forged her signature.
17.
The complainant's mother gave evidence that she had asked the appellant to have the children of a weekend. She agreed that her children did argue and bicker between themselves. She remembered a conversation with the appellant when he had told her that the complainant had not wanted to sleep in the bedroom on her own and she told the complainant that she must. The complainant, she said, had refused to sign the Christmas card for the appellant in 2012. The complainant would not say why. She had signed the card herself on behalf of her daughter, fearing that otherwise the appellant would be very upset.
18.
A statement of Dr Chill was read. The complainant had attended on Dr Chill, a general practitioner, with her mother on 2nd January 2013, reporting low mood and sadness. She reported avoiding the appellant after an incident a year previously which had not been sexual.
19.
There was then read a statement from Dr Rayman, who attended the complainant and her mother on 9th January. He asked the mother to leave and the complainant then reported that the appellant had been sexually abusing her since she had been aged about four years old. She reported that the appellant had digitally penetrated her and had her touch his penis when she stayed with him on a Saturday night. It had stopped a year previously following an operation which had meant that the appellant could no longer look after her. As a result of this report the police and social services were notified.
20.
There was evidence of the examination of the mattress on the appellant's bed, which bore two blue stains which tested positive for blood. The area of the mattress had been cut and was submitted for laboratory examination. There was evidence from a forensic scientist who had conducted tests on the mattress sections and had compared the blood found to the DNA of the complainant, with which it matched.
21.
The appellant gave evidence in his defence that initially AB and her brother had stayed with him on Saturday nights to give their mother a break. It had been at their mother's request. AB had then been six years old. However, the siblings had constantly argued and he had found it too much. He had suggested that he have them separately, and as a result the complainant visited every three weeks initially, but that had then decreased over the years. The complainant's mother would telephone to make arrangements and the complainant had never seemed reluctant to come.
22.
There had been two occasions when he had shared a bed with the complainant and they were when she was maybe six years old. Her father had left and had just started visiting. She had been nervous and had been scared of the dark and of the room. They had worn pyjamas on both occasions. He had spoken to his daughter, who had told the complainant that she must stay in her own bed.
23.
He said that he had never seen the complainant naked, nor had she seen him naked. He had supplied the complainant with a taste of wine once when she was eight or nine years old and she had not liked it. She had not consumed half a bottle and had never been intoxicated. He had never digitally penetrated the complainant's vagina or touched her sexually. She had never masturbated him. He said that he did not swear. His evidence was that these things which were alleged against him had never happened.
24.
He confirmed that on occasion when she visited, her mother had said that she was menstruating. He was surprised because she was only ten years old. He had left the complainant at his address, and when he had come back at about 6.30 to 7 that evening she was asleep, fully clothed, on his bed. There had been laundry on one of the beds in her usual room. He tried to rouse her, but she told him to leave her alone and he had returned downstairs to eat. When he retired to bed, he had gone to the other bedroom.
25.
On the Sunday he had noticed that there was blood on the mattress. He thought it looked unsightly and unhygienic and tried to clean it, but it had remained and so he put ink over it and flipped the mattress over. The complainant had been wearing the same clothes on the following day but he had not seen any blood on them. He had not told the complainant that she had bled on to his bed. On her next visit, some weeks later, he had shown her the ink and told her that she had stained the mattress.
26.
He could not explain why he had not answered questions at the police interview. He said he had been advised not to do so by his solicitor. He said he was shocked and appalled at the allegations being made. He had not wanted to be misunderstood. He also said that he had been sexually dysfunctional for some years, since the last two years of his marriage. He had no sexual desire or feelings. He had had no relationships and he could not attain an erection.
27.
His evidence was that the Christmas and birthday cards from the complainant showed entirely appropriate affection from the complainant towards him.
28.
He could give no reason for the complainant to tell lies. He said he had never been horrid to her and they had never had any arguments. He wondered whether she missed her father or a father figure.
29.
There was character evidence called in his support from his son and his former wife.
30.
The single judge gave leave to appeal on two grounds.
31.
The first ground is that the judge erred when he gave a defective and diluted good character direction regarding the appellant.
32.
Here, Mr Arsenio says that although the judge initially gave an adequate direction, he later diluted it, rendering it defective. The initial direction was entirely conventional: the judge reminded the jury of the appellant's good character, that he had no convictions and that witnesses had given evidence of his positive qualities. He directed the jury that they should take this into account in relation to his credibility and in relation to the likelihood that he had committed these offences. The judge gave both limbs of the direction. If it had ended there, it seems to us, and indeed Mr Arsenio accepts, no objection could be made to the direction. However, first, objection is taken to the further statement by the judge:
i.
"You should bear in mind however that the prosecution's case is that these alleged crimes took place over a number of years and were concealed."
33.
It is said that this provides an explanation as to why the apparent good character existed, and by doing so undermines the direction.
34.
In our view, this additional statement was unfortunate. However, the sentence complained of comes immediately after this sentence:
i.
"You are entitled to take into account everything you have heard about the defendant, including his age and what his son and former wife have said about him."
35.
When the sentence to which objection is made is read in that context, it simply makes the point that those witnesses would have been unaware of what the complainant says was taking place at a time when they considered his character to be a good character.
36.
Furthermore, it seems to us, a measure of balance is restored by the words which immediately follow:
i.
"Having said that, considering what you know about the defendant you may think he is entitled to ask you to give weight to his previous good character when you are deciding whether the prosecution have satisfied you that he is guilty."
37.
However, objection is made to those words on other grounds. The judge used the words "you may think that he is entitled to ask you to give weight to his previous good character", and it is said that the inclusion of the word "previous" is "deplorable, wrong and misleading".
38.
On the face of it, it may appear that the use of the word "previous" inappropriately qualifies the direction. However, we do not understand the judge to be suggesting by the use of the word "previous" that the appellant committed the offences with which he is charged. The word "previous" is used three times in the direction and it is only of the last appearance that complaint is made. The fact that the last reference is consistent with the previous usage dilutes any potential adverse effect of the direction. In our view, the word is used to distinguish the fact of his earlier good character from the allegations which he now faced and was, and would have been understood to be, neutral.
39.
Then it is said that the direction gives the impression that it is open to the jury not to consider the evidence at all. The purpose of the direction is to convey to the jury that they ought to take account of relevant evidence of good character. The specimen direction is not a mantra that has to be repeated word for word; the question is whether the direction, taken as a whole, conveyed the need to take character appropriately into account.
40.
Here the appellant relies on
Moustakim
[2008] EWCA Crim 3096
. There the words "she is entitled to have it argued on her behalf" were held to be inadequate. However, we consider that
Moustakim
is distinguishable. There this court concluded that the direction was inadequate for a number of reasons. First, there was no explicit positive direction that the jury should take the appellant's good character into account in her favour. Secondly, the judge's version of the first limb of the direction did not say that her good character supported her credibility. The judge only said that she was entitled to say that she was as worthy of belief as anyone. It went, he said, to the question of whether the jury believed her account. Thirdly, the judge's version of the second limb of the direction did not say that her good character might mean that she was less likely than otherwise might be the case to commit the crime. He said that she was entitled to have it argued that she was perhaps less likely to have committed the crime, and the use of the word "perhaps" is a significant dilution of the required direction. Fourthly, in the judge's direction each limb was expressed as what the defendant was entitled to say or argue, not, as it should have been, a direction from the judge himself.
41.
In the present case the form of words was "you may think". The use of these words was unfortunate. The jury were required to take account of this evidence. What weight they gave it was a matter for them. However, none of the vices identified in
Moustakim
was present in this case. Here the jury can have been in no doubt that the evidence of good character was evidence which they should take into account in the appellant's favour. They had been told so in terms by the judge.
42.
Ground 2
43.
It is said that the judge made improper comments in the summing-up and that he was biased towards the prosecution. Here the appellant relies on a number of matters to which I shall refer in turn.
(i)
Evidence of a child's perception
44.
The judge said this:
i.
"There is an important point to bear in mind about [AB]. When a child is six she may well not be able to see clearly or understand that sexual activity is wrong or inappropriate, especially with an adult. She will already have been conditioned, quite properly, to trust an adult relation. She might even be flattered by the attention. But when the child is 12 or 13 however, knowing much more about the world and having learned more about what makes sexual activity appropriate or inappropriate, feelings that things are wrong may well come to dominate and allegations may explode forth where there was previously silence and no suspicion of them. These are considerations that you should bear in mind."
45.
Mr Arsenio objects to these statements on the ground that while this may be so in many cases, the judge should not have stated this as a general rule. He says that this was directly linked to the question of not having any inhibitions in undressing before her grandfather, a matter which was explored in cross-examination. He says that there was no evidence to support those comments and that they consequently empowered and assisted the prosecution case, lending undue credibility to the complainant's account that she did not have any inhibition or problems undressing in front of her grandfather.
46.
However, as Mr Gadsden for the Crown points out, there was in fact an evidential basis for the judge's comments. The complainant had given evidence that she loved her grandfather when she was young and had thought that his sexual behaviour towards her was a normal way for that love to be reciprocated, but that by the time she turned 12 she had come to realise that such behaviour was abnormal and improper.
47.
Furthermore, we agree with Mr Gadsden's submission that the fact that a six-year-old child may think that there is nothing wrong with getting undressed in the presence of her grandfather is very difficult from a six-year-old child thinking that there is nothing wrong in engaging in sexual behaviour with her grandfather, and would be understood by the jury as such.
48.
In any event, we consider that the judge was entitled to remind the jury that a child of 13 may have a different perspective of sexual impropriety with a grandfather than a child of six.
49.
(ii) Swearing
50.
The complainant gave evidence that her grandfather swore during the alleged sexual activities. However, it was the evidence of the complainant and others, his ex-wife and his son, that he never swore, and Mr Arsenio complains of the judge's observation in relation to this. The judge said this:
i.
"She said he would use sexual words while this was happening, bitch, cunt and fuck. This has been described at various stages [as] swearing.
ii.
... when a person hits their thumb with the end of the hammer you might swear, use one of those words, but using those words in a sexual context is quite different you might think. Some people might use them for stimulation or to heighten the experience, and that is effectively what [AB] is saying took place. It's not swearing as such, it is the use of words which we associate as swear words in a sexual context."
51.
Mr Arsenio submits that the judge sought to neutralise the defence evidence on this point by distinguishing the use of such words for sexual stimulation and the same words used in other contexts, implying that it was possible that the appellant did not swear in general but would say such words in a sexual context. This is said to be particularly grave because it undermined an important point for the defence, which also called into question the complainant's credibility as a witness. Offering an alternative explanation for the complainant's account would have had the effect of augmenting her credibility.
52.
In our view, the judge's observations were not unfair to the appellant. The judge was right to draw a distinction between abusive language directed at a child or other person that was out of context and the use of obscene language as part of a sexual experience. It was not the prosecution case that the appellant swore at the complainant; rather, that he used these words to increase his sexual gratification. The latter was obviously a matter on which his son could not comment. In these circumstances, the judge was entitled to draw attention to the difference.
53.
(iii) Day clothes worn at the time of the menstrual leakage
54.
The appellant complains that the judge gave great emphasis to the fact that, according to the appellant, the complainant was wearing her day clothes at the time of the menstrual leakage and was still in her day clothes the next day but he had seen no blood on them. The judge, in his directions to the jury, said this:
i.
"Well there are several things for you to think about this, to consider about this. Firstly, how can [AB] have been fully clothed and yet leak menstrual blood onto the bed without staining her clothes and/or making them damp?
ii.
The defendant said in evidence there was no blood on her trousers 'If there had been blood on her trousers I would have seen it. She was still in her day clothes the next day'.
iii.
Well, if that is right, how did the blood pass from [AB's] body to the bed without staining or dampening her clothes? Defence counsel suggested that AB might have changed her clothes between the leak of menstrual blood and the defendant seeing her fully clothed.
iv.
Well, that was not put to [AB] so she has not been able to deal with that point and it is not supported by the evidence and there is no evidence that [AB] had a spare set of clothes with her into which she could change.
v.
Is the truth of the matter, so that you can be sure, that what [AB] says, namely that she was naked on the bed and with the defendant and leaked? Well that is a question for you."
55.
Mr Arsenio accepts that the judge was correct in stating that there was no evidence of a spare set of clothes, but makes the point that there was no evidence to the contrary and that this point had been made in his closing speech. In fact, there was no evidential basis for the suggestion that AB may have had a spare set of clothes to change into. Neither the complainant, nor the appellant, had suggested that.
56.
Furthermore, we are told by Mr Gadsden on behalf of the Crown that at the conclusion of the defence speech the judge, in the absence of the jury, had informed Mr Arsenio that there was no evidence on this point and that he proposed to sum up to the jury in the manner in which he in fact did. He invited submissions on the point and none was forthcoming.
57.
It seems to us that this was a good point for the Crown. It was put to the appellant in cross-examination. It was an important point going to whether AB was telling the truth when she said that he was naked when she menstruated.
58.
(iv) The turning of the mattress
59.
It was the appellant's evidence that he had turned the stained mattress alone. Mr Arsenio criticses the judge for casting doubt on this part of the appellant's evidence. The judge said this:
i.
"Next: how was it that [AB] knew to tell the police after the end of the first recorded interview, after the machine had been switched off, that there was a stain of blood on the bed ... Remember, there is no doubt whatever that the blood was [AB's] menstrual blood, any other suggestion would be quite wrong.
ii.
The defendant said yesterday: 'On Sunday I saw the stain. [AB] didn't even know. I never told her she had leaked on the bed'. Well, never was the word he used.
iii.
Mr Gadsden, prosecuting counsel, then put it to [her] how then did she know about the blood to tell the police and the defendant said this ... 'Later on I said to her: "Look at the mattress, that's what you've done to the bed". When she came on the next visit I pointed it out to her, that was two or three weeks later. I turned the mattress back and showed her the blue stain'.
iv.
Well none of this was put to [AB] so she has had no opportunity to deal with it. What [AB] did say, and I quote, 'Sometimes I helped him change the sheets ... we would flip the mattress to keep it fresh. The defendant couldn't flip the mattress himself because he was old'.
v.
Well, you are entitled to ask yourself whether the defendant, as he says, turned the mattress over himself. Also, did the defendant find himself fatally caught out by this point and then invented a story about showing [AB] her blood some time later to try and get himself out of the trap that prosecution counsel sprang. Well, these are matters for you but they are examples of issues that mean that this case may not just be a matter of one person's word against another."
60.
Mr Arsenio criticises the judge's comment that this might be more than just one person's word against another, and he says that this resulted in an unbalanced summing-up.
61.
It was the prosecution case that the appellant had been caught out on a lie and had tried to escape by inventing a story about showing the complainant the stain on a later occasion. In the circumstances, we consider that the judge was entitled to sum up on this issue in the way in which he did.
62.
(v) Sexual dysfunction
63.
Mr Arsenio objects to the judge's statement that there was no independent evidence that the appellant had sexual dysfunction and that it would not have been difficult to obtain such evidence. The judge said this:
i.
"The defendant must know if this were true it would demolish the prosecution case. Although the defendant does not have to prove anything, it is for the prosecution to prove the facts so that you are sure, you are entitled to take into account the fact that ... there is no independent evidence to back this up, which you might think it is not difficult to obtain but has not been part of the evidence."
64.
This, the appellant says, casts doubt on the appellant's evidence and that, in any event, any such evidence would have related to the time after the appellant's heart operation and not to the period of time encompassing the allegations.
65.
In our view, the judge was entitled to draw attention to this matter. Moreover, the point made by the prosecution was that in the light of the appellant's positive assertion that he had been sexually dysfunctional for the last two years of his married life, it was surprising that there was no reference to this in his statement taken by his solicitors from his former wife which was read to the jury.
66.
(vi) Birthday and Christmas cards
67.
The appellant relied on cards from the complainant as evidencing an entirely normal relationship. The complainant's mother gave evidence that the complainant had written on the cards willingly, with the exception of the 2012 Christmas card which she refused to sign. The complainant gave evidence in relation to one birthday card that "my mother would make me write what's there".
68.
The judge said this in his summing-up about this matter:
i.
"The defendant relies on these. He says they indicate that all was well and that [AB] was affectionate towards him, not regarding him as her abuser. 'Look', he says, 'they're messages of affection entirely appropriate for a granddaughter to her grandfather'. Well indeed they are, but what is important is what was really going on in [AB's] head at the time. Were her messages really what she thought or was she writing them, as it were, between gritted teeth to appease the rest of her family perhaps so as not to ... arouse suspicion."
69.
Mr Arsenio complains that the judge offered an explanation to assist the complainant's evidence and support her credibility, in circumstances where her mother had contradicted her evidence. He complains that the judge failed to remind the jury of her mother's evidence.
70.
It seems to us that the jury would have been well aware of the differing accounts of the complainant and her mother. It seems to us that there is no substance in this complaint.
71.
(vii) Mr Arsenio submits that the judge suggested to the jury that the complainant was not lying
72.
The judge said this:
i.
"Well, the central issue in this case then is that [AB] and the prosecution say that she is telling the truth and you can be sure of that. The defendant says it is a pack of lies. He is not saying there was some misunderstanding or that [AB] is too mentally ill to give a reliable account, or is hallucinating or something of that sort. No, the defendant accuses her of lying and that she knows she is lying, it is as simple as that.
ii.
Well, if [AB] has been lying, she's been lying now for two years to people in authority and has done so on several occasions. Her lies, if lies they are, would have split an otherwise apparently perfectly healthy, happy family, it would have been a very wicked thing to do. There is no suggestion that [AB] might be lying, for example, because the family was already unhappy and sides were being taken in some family split, or because she had some malicious but false motive for taking revenge on the defendant. There is no suggestion that [AB] is a fantasist habitually, or a habitual liar, or that she has lied on some other occasion."
73.
Mr Arsenio submits that this strongly suggests to the jury that the complainant could not have been lying.
74.
It seems to us that the judge is here identifying the central issue for the jury's decision and then goes on to deal with possible motivation. No motive had been suggested by the appellant at the trial for malicious fabrication other than the suggestion that she might be missing a father figure. Mr Arsenio referred to this in his closing submissions but it was not put to the complainant. The judge was right to refer to this.
75.
We do not consider that the judge exceeded his proper function in addressing the matter in these terms.
76.
(viii) The discussion of the jury note
77.
Here it is submitted on behalf of the appellant that the judge's comments in relation to possible verdicts revealed an approach to the case which was biased in favour of the prosecution.
78.
We should make clear that we are unable to find any support for this submission. Moreover, the discussion in the absence of the jury is irrelevant to the safety of the conviction.
79.
To conclude then in relation to ground 2, the judge, in our view, went some way in commenting on the evidence in the case. However, we do not consider that he did so in a biased or unfair way. Moreover, he had directed the jury at the start of his summing-up that if he appeared to have a view of the case, the jury was not bound to accept it. In our view, there is no basis here to doubt the safety of the conviction.
80.
Finally, I turn to the renewed application for leave to appeal against conviction. Here, the appellant submits that the guilty verdicts at the re-trial were inconsistent with the not guilty verdicts at the first trial.
81.
Leave to appeal has been refused on this ground by the single judge, who in his written observations said:
i.
"This [ground] is in my view misconceived. This is not a case of a single jury, in a single trial, returning verdicts which could be regarded as inconsistent. The first jury reached verdicts on some counts, but not on others. Counsel has confirmed that no submission was made that a retrial would be an abuse of the process, and I do not see how such an argument could have been advanced. The second jury were entitled to reach their own verdicts as to the counts which were before them."
82.
Accordingly, Holroyde J refused leave on that ground.
83.
We agree with the single judge. The fact that one jury had a doubt does not mean that a second jury acted irrationally in not having a doubt.
84.
Accordingly, the appeal will be dismissed and the renewed application will be refused.
|
{"ConvCourtName":["Crown Court at Kingston"],"ConvictPleaDate":["2015-03-27"],"ConvictOffence":["Assault of a child under the age of 13 by penetration","Causing or inciting a child under the age of 13 to engage in sexual activity"],"AcquitOffence":["Rape","Sexual assault"],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Kingston"],"Sentence":["Count 3: 4 years' imprisonment","Count 4: 2 years' imprisonment concurrent","Count 7: 5 years' imprisonment consecutive","Count 8: 3.5 years' imprisonment concurrent","Total: 9 years' imprisonment"],"SentServe":["Combination"],"WhatAncillary":["Sexual Offences Prevention Order","Comply with Part 2 of Sexual Offences Act 2003 indefinitely","Inclusion in relevant list by Independent Safeguarding Authority"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[6,12,13],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","DNA match","Forensic report (blood on mattress)","Mother's testimony","General practitioner statement"],"DefEvidTypeTrial":["Offender denies offence","Character evidence (son and former wife)"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender has no previous convictions","Positive character evidence"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Defective and diluted good character direction","Improper comments in summing-up and bias towards prosecution","Inconsistent verdicts between first and second trial"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge's good character direction was adequate","Judge's comments in summing-up were not unfair or biased","No basis to doubt safety of conviction","No inconsistency between verdicts of two juries"]}
|
Case No:
2012/05567/B5
Neutral Citation Number:
[2013] EWCA Crim 326
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
HIS HONOUR JUDGE KELSON QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
25/03/2013
Before :
PRESIDENT OF THE QUEEN'S BENCH DIVISION
MRS JUSTICE SWIFT
and
MR JUSTICE CRANSTON
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Applied Language Solutions Ltd
(now known as Capita Translation and Interpreting Ltd)
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ian Wade QC and L Marshall
for the
Appellant
Hearing dates : 28 February and 7 March 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
President of the Queen's Bench Division :
1.
Although the sum in issue in this appeal was only £23.25, it raised an important point as to the circumstances in which a court could exercise its power to make a third party costs order where a private contractor has been given the responsibility of performing duties hitherto performed by the State.
The background facts
2.
The appellant, now known as Capita Translation and Interpreting Limited, has an agreement with the Ministry of Justice in relation to the provision of interpreters, including interpreters for criminal proceedings. At 3.21 p.m. on 12 April 2012 the appellant received from Her Majesty’s Courts and Tribunals Service (HMCTS) on behalf of the Crown Court at Sheffield, a booking through a portal established under the agreement for a Slovak interpreter to attend the Sheffield Crown Court on 27 April 2012 at 10.30 a.m. for a sentence hearing.
3.
The appellant at 4.42 p.m. that day contacted a Slovak interpreter to attend on 27 April.
4.
On the day before the sentencing hearing, at about 2.41 p.m. on 26 April 2012, the appellant was requested by HMCTS to arrange that the interpreter attend earlier, as the hearing had been re-scheduled for 9.45 a.m. That request was made by telephone. The employee of the appellant who received the call then e-mailed the “Relationship Co-ordinator Team” to amend the booking to comply with the court’s request. The Relationship Co-ordinator Team was the wrong department within the appellant. The request should have been sent to the “Interpreting Administration Team”; the employee was told at 2.59 p.m. to re-send her e-mail to that team. However, she did not do so. In the result no-one told the interpreter.
5.
On the day of the sentencing hearing it appears the interpreter did not attend the court where the hearing was listed at 9.45 a.m. At 10 a.m. on 27 April 2012 a complaint was made by HMCTS on behalf of the Crown Court at Sheffield through the portal. However HMCTS did not ring the appellant to find out what had happened. Instead, at 10.11 a.m., the sentencing hearing was adjourned. The interpreter arrived in court very shortly afterwards, expecting the hearing to start at 10.30 a.m. It subsequently transpired that he/she had been present in the court building since before 9.45 a.m.
6.
In due course the judge who was to hear the sentencing appeal, His Honour Judge Kelson QC, directed that he would consider making an order under s.19B of the Prosecution of Offences Act 1985 requiring the appellant to pay the costs that had been thrown away by the prosecution.
The power to make a Third Party Costs Order
7.
S.19B provides as follows:
“(1) The Lord Chancellor may by regulations make provision empowering magistrates' courts, the Crown Court and the Court of Appeal to make a third party costs order if the condition in subsection (3) is satisfied.
(2) A “third party costs order” is an order as to the payment of costs incurred by a party to criminal proceedings by a person who is not a party to those proceedings (“the third party”).
(3) The condition is that—
(a) there has been serious misconduct (whether or not constituting a contempt of court) by the third party, and
(b) the court considers it appropriate, having regard to that misconduct, to make a third party costs order against him.
(4) Regulations made under this section may, in particular—
(a) specify types of misconduct in respect of which a third party costs order may not be made;
(b) allow the making of a third party costs order at any time;
(c) make provision for any other order as to costs which has been made in respect of the proceedings to be varied on, or taken account of in, the making of a third party costs order;
(d) make provision for account to be taken of any third party costs order in the making of any other order as to costs in respect of the proceedings.
(5) Regulations made under this section in relation to magistrates' courts must provide that the third party may appeal to the Crown Court against a third party costs order made by a magistrates' court.
(6) Regulations made under this section in relation to the Crown Court must provide that the third party may appeal to the Court of Appeal against a third party costs order made by the Crown Court.”
8.
The procedure is set out in paragraphs 4.7.1 to 4.7.8 of the Consolidated Criminal Practice Direction.
Judge Kelson’s decision
9.
The appellant was notified in accordance with the provisions of the Consolidated Criminal Practice Direction that the Crown Court was considering making such an Order.
10.
After the submission of written argument, the matter came on before Judge Kelson on 17 August 2012. After hearing oral argument, he concluded that the appellant had won a contract under which it accepted responsibility as a “go-between” between the courts and interpreters. He found that the appellant did not do its job properly as a result of negligence on its part. He concluded that the appellant had a major responsibility and that courts must not find their time wasted. Negligence of the kind shown in this case had to constitute serious misconduct. However, there might have been some force in the contention made on behalf of the appellant that HMCTS should have telephoned the appellant when it found an interpreter was not present. Applying the discretion he had under paragraph 3(f) of the Costs in Criminal Cases (General) Regulations 1986 (the Regulations), he ordered that the appellant pay half of counsel for the prosecution’s fee for the hearing of £46.50, namely £23.25.
The appeal to this court
11.
Exercising its rights under Regulation 3(h) of the Regulations and the provisions of the Consolidated Practice Direction, the appellant brought an appeal against the Order of the judge. The principal contention in the appeal was that the judge had been wrong in finding there had been serious misconduct.
The approach to a finding of serious misconduct
12.
What constituted serious misconduct for the purposes of s.19B was considered in this court by McCombe J and Gross J (as they both then were) in
R v Ahmati
[2006] EWCA Crim 1826
. After pointing out that there was no statutory definition of the term serious misconduct, the court concluded:
“Misconduct in this context would include deliberate or negligent failure to attend to one’s duties or falling below a proper standard in that regard.”
The court, after referring to an observation of Sir Anthony Mason in
Shum Kwok Sher v HKSAR
(2002) 5 HKCFAR 381, considered it had to bear in mind the nature of the person whose misconduct was in question. In that case the misconduct was that of the Home Office. The court made clear it did not need to dwell upon the importance which all courts placed on receiving prompt and reliable information where it was required from Government departments.
13.
It is clear that the provision of an interpreter for a witness or a defendant in a criminal case is an obligation of the State which is regarded as an integral part of its obligations to provide a fair and just system of criminal justice. At common law, the position of defendants has been clear since at least 1915 – see
R v Lee Kun
[1916] 1 KB 337
;
Kunnath v The State
(1993) 98 Cr App R 455
; it is now established that there is a similar position under Article 6 of the ECHR (see
Luedicke v Germany
(1978) 2 EHRR 149
;
Kamasinski v Austria
(1999) 13 EHRR 36
;
Cuscani v UK
[2002] ECHR 625 (24
September 2002). Directive 2010/64/EU sets out further provisions in respect of this right of a defendant. The position of witnesses is set out in
R v Sharma
[2006] EWCA Crim 16
at paragraph 11.
14.
If a private company takes on the discharge of an obligation of the State, it assumes the responsibility to do so in accordance with the terms it has agreed.
15.
It therefore became important, in our view, to examine the role played by the appellant in the provision of the State’s obligation to provide interpreter services, not only to determine the extent of its responsibility for providing interpreter services on behalf of the State as an essential part of the system of justice upon which the courts were bound to rely, but also to determine what its obligations were for the purpose of seeing whether there had been a deliberate or negligent failure to perform those obligations. It seemed to us clear that we could not determine whether there was misconduct without knowing the nature of the obligations it had undertaken. As we have set out at paragraph 10, Judge Kelson’s decision had proceeded on the basis that the appellants were a “go-between”.
16.
When, at the first hearing on 28 February, we asked for information about the contractual obligations, we had to adjourn the matter briefly to allow a copy of the agreement to be provided to the court. When the agreement was provided, it turned out to be a document of some 177 pages in length and, after discussion with counsel, it became apparent that it would have been unfair to the appellant to determine the scope and scale of the obligations undertaken by it without giving it an opportunity to develop the argument as to these matters. We therefore adjourned the hearing.
17.
We notified the Ministry of Justice and HMCTS of the issues and invited them to attend. We regret to record that no-one attended to assist the court.
The scope of the obligation
(a)
The terms of the agreement
18.
The agreement is an agreement between the appellant and the Secretary of State for Justice through the Director-General of Finance, for the provision of language services to the Ministry of Justice and other bodies including HMCTS.
19.
It is said to be a “Framework Agreement”. It includes what appear to have been a number of separate documents collated into the agreement in sections; it therefore provides at page 5 for “an order of precedence” in case of conflict between the provisions in the different sections.
20.
The second section of the agreement is entitled “Particular Conditions”. It ranks second in the order of precedence. At page 11, it provides at paragraphs 1.8 and 1.9:
“1.8
The Contractor will provide the Service 24 hours per day, 365 days per year and will provide a single dedicated phone number which must be manned at all times. Calls to this number should be answered within 20 seconds.
1.9
The Contractor will ensure that they have an appropriate communication system between themselves and the Interpreter/ Translator to enable the individual to carry out their duties within the agreed response times.”
21.
The definition of Service is set out in the third section of the agreement, “General Terms and Conditions” which ranks third in precedence. It provides at page 22, condition 1.1:
“
Services
means the services to be supplied as detailed in the Specification Schedule.”
Because of the provision of condition 1.2(a) (page 22) the word Services can be read as meaning Service. Condition 3.13 (page 26) provides that the appellant should be subject to the provisions of the Schedules. Under condition 11.5 (page 31) payment may be reduced if the contractor either fails to provide services or provides them inadequately, without prejudice to any other rights or remedies.
22.
The Services Schedule is part of the fourth section of the agreement. It defines Services at page 68 in the same terms:
“The services to be supplied as detailed in the Specification Schedule.”
Clause A2 of the Services Schedule (page 69) provides that the appellant as the contractor must supply the services as set out in the Specification and Tender. It also provides:
“The Contractor shall perform the Services in accordance with all applicable Service Levels referred to in the Specification or Tender.”
23.
The Specification provides at page 102:
“The overarching deliverable from this work, which the Contractor must ensure in the provision of the Services, shall be:
1.
Ensuring an interpreter/translator of the appropriate agreed standard (qualifications, experience and vetting) is provided for each individual assignment.”
The Specification goes on to provide for robust procedures to deal with poor quality interpretation/translation and inappropriate behaviour, for continuing training and other such matters. Under the heading “Additional Requirements”, paragraph 26 of the Specification (at page 105) provides:
“All booking management, payments, account management, quality, skills and service levels shall be controlled by the Contractor.”
24.
The fifth section of the agreement is the “Tender Response”. This provides at page 115:
“Our understanding is that the Authority is seeking a national prime contractor with a single point of contact available 24/7/365, that will provide all language services including telephone and face-to-face interpreting, written translation and transcribing plus language services for the deaf and deafblind.
The demand for these services is unpredictable and often requires a linguist to attend urgently.
This prime contractor will deliver economies of scale, provide substantial cost and time savings, introduce better processes and use their expertise and experience coupled with technology and innovation to produce a service that is significantly superior to the current provision. The Authority has outlined 13 key points that must be delivered, all of which we have addressed in this executive summary and throughout our response.
……
Applied Language Solutions offers a single access point 24/7/365 for all language services, a simple booking process, a guarantee of the highest quality interpretation …..”
It also goes on to provide at page 117:
“Moreover, staff will no longer have to call interpreters themselves, often phoning several linguists with no success. Our service will offer a single point of contact and there will be nothing else for the staff member to do. The savings in staff time will therefore be very significant.
Staff making a booking through our online portal will have instant access to their management information at any time. However, we will supply extensive management information each month by default and on an ad hoc basis when requested or through the schedule reporting system at no charge.
Our very experienced Business Development team will provide support to collaborative partners on all issues of contract or account management. This team is lead by our Public Services Director who will also be the lead for the overarching management of this contract. He has over twenty years experience in delivering major public sector contracts.”
(b)
An absolute obligation to provide interpreters
25.
Judge Kelson was apparently told on the basis of what counsel had been told by the appellant that the agreement was essentially one where the appellant acted as a “go-between”, in other words a booking facility. It is clear, however, that the obligations of the appellant are much more than that. The appellant is bound to provide 24 hours a day, 365 days a year an interpreter or translator of the appropriate agreed standard for each individual assignment.
26.
It was contended that this was not an absolute obligation but one under which the appellant was only bound to provide that service on 98% of occasions when interpreters were booked. As we understand it the argument was that the Monitoring Schedule (part of the fourth section of the agreement) identified in Section 2, Clause J5 (page 99) as one of the Key Performance Indicators (KPI):
“Evidence that 98% of all assignments requested were fulfilled (excluding cancellation by collaborative partner).”
It therefore followed that the obligation was only an obligation for 98% of bookings.
27.
We cannot accept this argument.
i)
We have set out at paragraph 22 above Clause A2 of the Services Schedule; under it the appellant was obliged to perform the services in accordance with the applicable Service Levels referred to in the Specification or Tender. However there is no reference to the Service Levels in the Specification or the Tender Request.
ii)
Clause A11.1 of the Services Schedule (page 76) provides that if Services do not meet the Service Levels the appellant was automatically bound to credit the Ministry of Justice with Service Credits as calculated in accordance with the agreement. The Finance Schedule (the sixth section in the order of precedence) provides (at page 173) as follows:
“
Service Credits
KEY PERFORMANCE INDICATORS
Fulfilment of all assignments 98%
(excluding cancellation by collaborative partner)
For every % outside of the 98% a 10% charge will be credited to that collaborative partner at month end against the combined unfilled bookings 1
st
hour value.
An example of this would be if 4 bookings were unfilled out of 100 (96%) then a 10% credit of the first hour’s value on 2 bookings would be paid. 2 bookings at £31 = £62 = £6.20 credit.
On time delivery of all assignments 98%
For every % outside of the 98% a 10% charge will be credited to that collaborative partner at month end against the combined late bookings 1
st
hour value.
An example of this would be if 3 bookings were unfilled out of 100 (97%) then a 10% credit of the first hour’s value on 1 booking would be paid. 1 booking at £31. 10% of £31 = £3.10 credit.
Emergency or same day bookings would be excluded from this service credit.”
iii)
Although there is a reference to Service Credits, the 98% refers to the KPI at Clause J5 which is in the Monitoring Schedule. This Schedule deals with performance management meetings between the appellant, the Ministry of Justice and its associated departments. It does not in any way refer to Service Levels.
28.
As we have set out at paragraph 13, the provision of an interpreter where either a witness or a defendant does not speak English (or Welsh), is essential. Without one a case cannot proceed. It seems to us inconceivable that the Ministry of Justice would have entered into a contract where the obligation set out in paragraph 1.8 (page 11) of the Particular Conditions of the agreement (to which we have referred at paragraph 20) was framed in any terms other than an absolute obligation. It is simply no use to a court having an interpreter there on 98% of occasions when interpreters are required, because if an interpreter is required justice cannot be done without one and a case cannot proceed. An interpreter is required on 100% of such occasions.
29.
This must have been understood and known both to the appellant and the Ministry of Justice and was an essential part of the factual matrix against which the agreement must be interpreted.
30.
Therefore taking into account the factual matrix and “order of precedence” of the sections of the agreement and construing the agreement in a purposive manner, it is clear that interpreters would have been required on each occasion and the obligation was to provide interpreters on each such occasion, subject to
force majeure
which we consider at paragraph 32. There might be some financial adjustment of the kind set out in the Service Credits to which we have referred at paragraph 27ii) above, but that was simply an adjustment of moneys due. It did not in any way affect the obligation to provide interpreters on each occasion.
(c)
Liquidated damages and Force Majeure
31.
In the third section of the agreement - General Terms and Conditions – there are two clauses to which it is necessary to refer. First there is a liquidated damages clause, Clause 34 (page 51), under which the appellant is obliged to indemnify the Ministry of Justice up to £1 million for claims and there are general exclusions of liability. Although these terms may affect the position of HMCTS and the Ministry of Justice, it would be inappropriate for us to express any view upon them as we are only concerned with delineating the obligation of the appellant.
32.
There is a
force majeure
clause, Clause 42 (page 63-64), but it has no effect on the obligations under the contract unless there is
force majeure
. Clause 42.2 provides:
“Any failure or delay by the Contractor in performing its obligations under the Contract which results from any failure or delay by an agent, sub-contractor or supplier shall be regarded as due to Force Majeure only if that agent, sub-contractor or supplier is itself impeded by Force Majeure from complying with an obligation to the Contractor.”
This makes it clear that any non-performance resulting from a failure by an interpreter to attend is not excused unless that interpreter’s failure is caused by
force majeure
. There is no suggestion that a
force majeure
event arose in this case.
(d)
Conclusion
33.
It therefore follows, in our view, that the appellant has undertaken far more than a booking facility. It is bound to provide interpreters on each occasion unless there is a
force majeure
that affects the appellant. A failure by an interpreter to attend does not avail the appellant unless that interpreter was prevented by
force majeure
; if there is no
force majeure
on which the interpreter can rely the appellant has failed to discharge its obligation.
The concession on duty
34.
The appellant did not accept that the court should consider the obligations that it owed to the Ministry of Justice under the agreement as forming a basis for considering its conduct in relation to its responsibility for the provision of interpreters.
35.
The appellant’s contention was, as advanced by Mr Ian Wade QC on the resumed hearing, that if the courts required an interpreter and ordered one for a particular day, then it was the duty of the appellant to provide the interpreter in terms of the request made by the court. As this concession was made after we had put the analysis of the agreement (which we have set out above) to him it follows that the provisions of the agreement and the concession made arrive at the same result – namely the conduct of the appellant was to be considered in the light of the responsibility to discharge the State’s obligation to provide an interpreter in criminal proceedings; a simple failure by the interpreter to attend was a failure for which the appellant was responsible.
36.
We therefore turn to the question in issue in the appeal as to whether the failure to provide the interpreter on 27 April 2012 amounted to serious misconduct within the terms of s.19B.
Serious misconduct under s.19B
37.
Although the Secretary of State is entitled to make regulations specifying the types of misconduct in respect of which a third party costs order may not be made, no such regulations have been made.
38.
It is clear, in our view, that a single failure on its own and of the kind that occurred on 27 April 2012 cannot viewed in isolation amount to serious misconduct. The case is similar to an unreported matter that came before this court where the interpreter did not attend at this court at a revised time because of a failure in the appellant’s administration; on that occasion it was not the fault of the interpreter who came at the time originally booked but the appellant had not updated its booking record to record a changed time and the interpreter did not know of the change. That emerged in the explanation given by the appellant to the court on that occasion
.
39.
In the present case, as in the earlier case before this court, there was no evidence that the failure was anything other than an isolated failure. There was no evidence of a number of other previous failures by the interpreter in question or failures in the appellant’s system.
40.
However, we would observe that a case of serious misconduct might arise if there was before the court considering making an order under s.19B, evidence that the non-attendance occurred in circumstances where there had been a failure to remedy a defect in the appellant’s administrative systems which had caused non-attendance in the past. Equally the failure of a particular interpreter to attend where there was evidence that there had been similar failures in the past might constitute serious misconduct for which the appellant was responsible.
41.
We have reached that conclusion in the light of the following:
i)
Courts have to alter times not to suit judges but to suit advocates and witnesses in cases to ensure that trials which are in progress proceed on time. Judge Kelson plainly altered the timing of the case to accommodate counsel so as not to interfere with the progress of a part heard trial. In such a case it is essential that the strict obligations under the agreement are complied with by the appellant.
ii)
The Crown Prosecution Service and, on many occasions, those instructed on behalf of the defence are paid out of the public purse. If a case cannot proceed then this has an effect on funds available to the CPS and to the Legal Services Commission who fund much of the defence work. The CPS lawyer and the defence lawyer will have lost the time that they could otherwise have spent. The loss to the public purse is real.
iii)
Having efficient systems and good and reliable interpreters is expensive. A contractor cannot be allowed to maximise its profit or reduce its loss in the context of court proceedings by not having in place the best systems and the best interpreters. It cannot transfer its costs of failing to do so to the CPS or the defence.
iv)
As the appellant is providing an integral part of the State’s obligations, then it must discharge that obligation for the reasons we have set out.
v)
Taking, therefore, this wider public interest into account, a court is entitled to view successive non-attendance of an individual interpreter or successive failures in systems as amounting to serious misconduct, thus rendering the appellant liable for the costs thereby incurred to the CPS and the defence.
42.
We are very grateful to Mr Ian Wade QC, who appeared, as we have said, on behalf of the appellant, for making it clear that the appellant is determined to discharge the duty with which it had been entrusted by the Ministry of Justice. The appellant states through him that it will therefore assist the court on any occasion where an interpreter does not attend by providing the reasons to the court and, if the court considers it appropriate, by giving full disclosure in respect of any failure of systems or any other previous failures by that interpreter.
43.
In any future case, therefore, it will always be open to a court to ask the appellant to attend, to provide the explanation and, if appropriate, to provide the necessary disclosure. A court should not generally, in the future, consider making an order under s.19B without clear evidence of serious misconduct in the sense we have described in paragraph 40 above, unless there are unusual circumstances which justify the making of an order.
Conclusion
44.
In the present case, there was no serious misconduct on the evidence before the judge. This appeal is allowed and the order quashed.
|
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|
Neutral Citation Number:
[2019] EWCA Crim 2093
No: 2019 03824 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday 19 November 2019
B e f o r e
:
LORD JUSTICE HOLROYDE
MR JUSTICE WILLIAM DAVIS
HIS HONOUR JUDGE LODDER QC
REFERENCE BY THE ATTORNEY GENERAL UNDER SECTION 36 CRIMINAL
JUSTICE ACT 1988
R E G I N A
v
NICOLA TOWNSEND
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.
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Mr Tom Little QC
appeared on behalf of the
Attorney General
Mr Peter Binder
appeared on behalf of the
Offender
J U D G M E N T
1.
LORD JUSTICE HOLROYDE
: After a trial in the Crown Court at Bristol, Nicola Townsend was convicted of the manslaughter of her father, Terence Townsend, and witness intimidation in relation to her brother-in-law, Douglas Campbell. She later pleaded guilty to an offence of breach of a restraining order in respect of her sister, Deborah Makin. For these three offences she was sentenced on 20th September 2019 to a total of 2 years 8 months' imprisonment. Her Majesty's Attorney General believes that sentence to be unduly lenient. Application is accordingly made, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing may be reviewed.
2.
Miss Townsend is now aged 50. At the time of the offences she was living alone in a house which her parents had bought for her. Her mother died some years ago but she frequently spent time with her father at his home. Terence Townsend was aged 78 at the date of his death. He suffered from emphysema and osteoporosis. His breathing was laboured, his mobility was restricted, and he had suffered a number of falls. He was light in weight and very frail. His daughter was of course well aware of his general condition and his frailty.
3.
Miss Townsend has had a number of health problems during her life, including epilepsy, which began in her childhood and worsened, but which has not affected her since about 2004 following surgery. As a young adult she developed a skin condition and then severe acne.
4.
Miss Townsend has also shown herself over a number of years to be emotionally volatile. She has been aggressive and on occasions violent towards members of her family. In particular, she had on occasions lost her temper with her father and had sometimes scratched or bruised him. Such incidents were kept within the family and not reported.
5.
On 27th December 2017 Miss Townsend and her father had been out together during the day and were then in his house. Miss Townsend lost her temper. She threw a television remote control at her father. It struck him on the back of the head, causing a cut which immediately began to bleed. Mr Townsend went into the kitchen in order to clean the cut. Miss Townsend followed him in. In the kitchen she pushed him, causing him to fall to the floor. The result of that assault was that Mr Townsend (no doubt because of his osteoporosis) sustained fractures of six ribs on his right side and the right transverse processes of five of his thoracic vertebrae. There was also some soft tissue bruising to the left side of his chest. The fractured ribs damaged his right lung, with the result that he suffered a pneumothorax. Miss Townsend did not summon any medical assistance; it was Mr Townsend who dialled 999. When the ambulance arrived, Miss Townsend pointed to where her father was, but then left the house saying, "No, I can't do this.
I haven't got time. I've got to go."
6.
Mr Townsend was taken to hospital, where the full extent of his injuries was established, and he was admitted. Whilst he was an in-patient, he told his son-in-law (Douglas Campbell) that he and Miss Townsend had had what he described as "some fisticuffs" in the kitchen, she had pushed him, and he had fallen over.
7.
On 28th December (the following day) Miss Townsend telephoned her sister Sally (the wife of Douglas Campbell) and said, "I pushed him. Yes, I admit that. I did push him out of the way because he was pissing me off and then he landed on the floor." She also said that she had chucked the remote control at their father because she was annoyed with him.
8.
Mr Townsend's condition deteriorated whilst he was in hospital. He developed pneumonia and sadly died on 8th January 2018. The medical cause of his death was acute bronchopneumonia following chest trauma, on a background of pre-existing chronic obstructive pulmonary disease.
9.
Miss Townsend was arrested and interviewed under caution both before and after her father's death, but the prosecution, for unexplained reasons, did not begin until January 2019. From that point onwards, Miss Townsend repeatedly tried to contact Douglas Campbell, who was obviously an important witness against her. She persisted in these attempts despite being told not to. Over a period of about six weeks, she left 46 voicemail messages on his phone, threatening that if he continued to give evidence against her she would tell the court that he had pushed her. She also made a veiled threat to take some unspecified action against his brother. It seems she wrote similar letters or left similar messages to the officer in charge of the case.
10.
As we have said, Miss Townsend subsequently stood trial on the charges of manslaughter and witness intimidation and was convicted of both. Sentence was adjourned so that reports could be prepared.
11.
In the interim, a restraining order was made prohibiting her from contacting named members of her family, including her sister Deborah Makin, who suffers from health problems of her own. Despite that order, Miss Townsend sent to Deborah Makin a letter which purported to be sent by a legal adviser on the subject of Mr Townsend's will. The letter claimed a larger share of Mr Townsend's estate for Miss Townsend, saying that that was what the deceased had wanted. The letter, which was handwritten and therefore did not bear the appearance of coming from a legal adviser, ended with these words:
i.
"As an executor you have to sort out the finances of your father and make sure the will is distributed correctly to your sisters ... If you don't respond then the magistrates' court will have to get involved, and if there is any meddling with the will then a prosecution will be likely to happen."
12.
Deborah Makin immediately recognised the handwriting as being that of her sister. The matter was reported. Miss Townsend was charged with breach of the restraining order. She pleaded guilty at the first opportunity and was committed for sentence. So it was that the three matters came before the judge for sentence on 20th September 2019.
13.
Miss Townsend had no previous convictions.
14.
The judge was assisted by both a pre-sentence report and a psychiatric report. Miss Townsend had told the author of the pre-sentence report that she struggled to manage her emotions and her temper, which she attributed to hormonal complications. She said that she had thrown the television remote control because her father had seemed offhand and uninterested in what she was saying. She said that it had struck him "accidentally". She said that subsequently in the kitchen she moved her father aside so that she could pass and he had "toppled over". This too she described as an accident. She showed no acceptance of responsibility, no remorse and limited empathy. She felt that her actions towards Mr Campbell were justified and blamed him for her being prosecuted.
15.
Dr Tomison, the consultant forensic psychiatrist who had prepared a report, found Miss Townsend to be of average intelligence, with no evidence of mental illness or mental impairment. However, the history of frequent aggression towards parents and family members upon whom Miss Townsend was emotionally dependent suggested a possible personality disorder. Dr Tomison also noted a history of anxiety disorders, which he felt might be linked to the early onset of disabling epilepsy and subsequent disfiguring acne. No firm diagnosis was possible. Dr Tomison concluded that it was at least possible that Miss Townsend's personality development had been compromised and that she had a personality disorder. He referred to the history of anxiety disorders and said this:
i.
"Whilst these observations as to her personality might provide some explanation, at least in part, for the circumstances obtaining on the day in question, there is nothing to suggest that at the material time she was suffering from any disease of the mind and neither is there any evidence of current mental disorders."
16.
It is convenient to note at this stage a further report which has been prepared for the assistance of this court. This too records that Miss Townsend shows no remorse for her father's death, blames her brother-in-law for her being in custody and regards herself as the victim. She displayed anger towards her parents, blaming them for her epilepsy and her skin complaints.
17.
The judge considered the Sentencing Council's Definitive Guideline on sentencing for offences of Unlawful Act Manslaughter. He noted that Miss Townsend knew her father to be frail. He described Miss Townsend as having unlawfully assaulted her father by "giving him a shove in the kitchen, which meant he fell to the floor and broke his ribs". He identified as an aggravating feature the history of incidents of domestic violence in which Miss Townsend had lost her temper and inflicted minor injuries on her father despite knowing of his frailty and his vulnerability. The judge took into account the matters advanced in mitigation, the reports which he had received, and his own observations of Miss Townsend over a period of about six days during the trial. He noted -- correctly -- that the guideline specifically says that the court should avoid an overly mechanistic application of the culpability factors listed at step 1.
18.
The judge concluded that the case could not easily be fitted within either category C or category D of the guideline because the features of the case were "unusual and fairly unique". He regarded the proper sentence as falling at the bottom of level C or the top of level D. He said (at page 30G of the transcript):
i.
"The features of your case do involve you having been reckless as to whether harm would be caused. I am not of the view that there was no obvious risk of anything more than minor harm because you knew of your father's health conditions very closely, and indeed your younger sister had highlighted these when you and she were together with your father on a number of occasions. But for your mental health issues and your general health issues, it would have been my view that the proper sentence, before considering also matters of mitigation, would have been a sentence of 3-and-a-half years' imprisonment for the manslaughter; but you have no previous convictions, you are aged 50, and that provides you mitigation. You have problems with your mental health, which in my view do reduce your responsibility somewhat for your offending. You had this hanging over your head for well over a year before you were charged. You have lost all support networks now, and you have received the public naming and shaming which has occurred as a result of your offending and your conviction."
19.
The judge went on to quote an observation of Mr Douglas Campbell to the effect that Miss Townsend's life was tragic, with little support other than from members of her family in the past.
20.
Taking into account the mitigation and his assessment of Miss Townsend's level of responsibility, the judge imposed a sentence of 2 years 6 months' imprisonment for the offence of manslaughter. On each of the other two offences he imposed consecutive sentences of 1 month's imprisonment, thus making the total term 2 years 8 months.
21.
On behalf of the Attorney General, Mr Little QC submits that on the court's own findings this case fell within category C of the guideline. He submits that the judge was in error in placing the case into category D; that the judge gave insufficient weight to the aggravating features and too much weight to the mitigating features; and that the judge failed properly to reflect the seriousness of the offence of witness intimidation.
22.
Mr Little identifies as aggravating features of the case the following: the vulnerability of Mr Townsend through a combination of his age and his health; the previous history of losses of temper and some violence towards Mr Townsend; the injury to Mr Townsend's head which Miss Townsend had caused; the fact that the manslaughter was committed in the victim's own home by his own daughter; the failure to provide any assistance having injured Mr Townsend; his suffering prior to death whilst in hospital; and the sustained nature of the witness intimidation, which related to a very serious offence.
23.
As to mitigation, Mr Little recognises that there was an absence of previous convictions, though points out that that fact must be seen in the context of undisclosed previous incidents in which Miss Townsend had injured her father. He accepts that there was no premeditation of the assault which led to death. He accepts that mitigation is to be found in the mental health difficulties suffered by Miss Townsend, in the unsophisticated nature of the offences of witness intimidation and breach of the restraining order and in the guilty plea for the latter offence. He accepts that the judge was entitled, having regard to Miss Townsend's mental health problems, to move downwards from the category C starting point of 6 years' imprisonment. But, he submits, the sentence of 3-and-a-half years, which the judge appears to have regarded as appropriate after considering all the aggravating features but before taking account of mitigation, was itself far too low and the eventual sentence, totalling 2 years 8 months' imprisonment, was unduly lenient.
24.
Mr Binder, representing Miss Townsend before this court as he did below, emphasises that the judge was in the best possible position to assess the appropriate sentence, having presided over the trial and thus had the opportunity to both see and hear the defendant Miss Townsend. Mr Binder submits that every aspect of this case was highly unusual, including the character and conduct of Miss Townsend herself. He argues that this case provides a vivid illustration of the essentially fact-specific nature of sentencing for offences of manslaughter and he places emphasis on the direction in the guideline that the court should not apply an overly mechanistic approach when considering the culpability factors which are listed.
25.
As to the witness intimidation offence, Mr Binder points to a phrase in the judge's sentencing remarks in which the judge spoke of Miss Townsend tending to "get things stuck in a loop" so that they went round and round in her head. Mr Binder emphasises that it was obvious to everyone that the messages to Mr Campbell had been left by her,
and equally obvious that the letter purporting to come from a legal adviser had also been written by her. She had indeed sent comparable messages, to the general effect that she was being most unfairly treated, to the officer in charge of the case.
26.
Mr Binder invites this court to conclude that the judge, being in the best position to do so, made a most careful consideration and assessment of all relevant factors and that the sentence he imposed was not even lenient, still less unduly lenient.
27.
He points out that one of the category D culpability factors is described in these terms:
i.
"... the offender's responsibility was substantially reduced by mental disorder, learning disability or lack of maturity."
28.
In this regard he relies on Dr Tomison's report.
29.
We are grateful to both counsel for their submissions and we have reflected on them. The judge was faced with a difficult sentencing process and we recognise that he had the advantage, which we do not, of having presided over the trial. We understand why Miss Townsend's health problems over the years, the contents of the psychiatric report and the forlorn future which Miss Townsend faces would have attracted the judge's sympathy. It is, however, important to bear in mind that Miss Townsend admitted, and the judge expressly found, that she knew of her father's frailty and vulnerability. One of the category D factors in the guideline is that death was caused in the course of an unlawful act "where there was no intention by the offender to cause any harm
and
no obvious risk of anything more than minor harm" (emphasis added). It is clear from the judge's findings that this was not such a case. It is not a case of a failure to foresee a risk of injury which would have been apparent to a sober and reasonable person: Miss Townsend shoved her father, knowing that he easily could be injured and being reckless as to whether he was injured. She did so, moreover, when she had already inflicted minor injury on him and at a time when he was trying to treat that injury. Far from showing dismay and remorse at the consequences of what she claims was an accident, she left it to her father to summon help for himself and she departed the house when that help arrived. The psychiatric report certainly identified factors which the judge needed properly to take into account, but it did not show that Miss Townsend's responsibility for her acts was "substantially reduced".
30.
In those circumstances we conclude that, on the judge's own findings, this was a category C case within the guideline. The judge was entitled to conclude that the mental health history of Miss Townsend did to some extent reduce her responsibility for her actions, and for that reason entitled to move downwards from the category C starting point before considering the aggravating and mitigating factors. Having done so, however, the remaining mitigation was, at the most, counterbalanced by the aggravating features which the Attorney General has identified, if not outweighed by them.
31.
We conclude, again emphasising that we do so on the judge's own findings, that in all the circumstances of the case, and making the most favourable allowances we can, the sentence for manslaughter could not properly be less than 4 years 6 months' imprisonment.
32.
The witness intimidation was not the most serious offence of its kind, but it involved persistent conduct, including unpleasant threats, and it was a type of offence which calls for an element of deterrence in sentencing. Had it stood alone, that offence would, in our view, have merited a sentence of the order of 6 months' imprisonment. However, we must make allowance, as did the judge, for totality. We must make a similar allowance when considering the breach of the restraining order, an offence which was serious because it was committed whilst on bail awaiting sentence, but which was committed in the most clumsy manner, involving a handwritten letter which was immediately identified as coming from Miss Townsend and not from a professional lawyer. Having regard to totality, and again making all allowances that we can in Miss Townsend's favour, we conclude that those two offences should collectively have increased the sentence for manslaughter by at least 3 months.
33.
For those reasons, we grant leave to refer. We quash the sentences imposed below as being unduly lenient. We substitute for them the following: for manslaughter, 4 years 6 months' imprisonment; for each of the offences of witness intimidation and breach of the restraining order, 3 months' imprisonment, those two sentences being concurrent the one with the other but consecutive to the sentence for manslaughter. Thus, the total sentence is increased to one of 4 years 9 months' imprisonment.
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|
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|
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making are that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
I
N THE COURT OF APPEAL
CRIMINAL DIVISION
Case No: 2023/01977/B4
Neutral Citation Number:
[2024] EWCA Crim 499
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 30
th
April 2024
B e f o r e:
LORD JUSTICE LEWIS
MR JUSTICE GOSS
HER HONOUR JUDGE MONTGOMERY KC
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
____________________
R E X
- v -
JUAN RAMON ALONSO CARRASCO
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Mr C Witcher
appeared on behalf of the Applicant
Mr J Sirwardena
appeared on behalf of the Crown
____________________
J U D G M E N T
____________________
Thursday 30
th
April 2024
LORD JUSTICE LEWIS:
1.
On 14
th
April 2023, in the Crown Court at Lewes, the appellant, Juan Ramon Alonso Carrasco (then aged 43) pleaded guilty to three offences, namely: two offences of non-fatal strangulation (counts 1 and 3) and one offence of common assault (count 4). On the same date the appellant was sentenced to 12 months' imprisonment on count 3; to a concurrent term of nine months' imprisonment on count 1; and to a concurrent term of four months' imprisonment on count 4. The total sentence, therefore, was 12 months' imprisonment.
2.
One feature of the case is that the appellant is not a British citizen. By virtue of the fact that he has been sentenced to at least 12 months' imprisonment, he is subject to automatic deportation by reason of the provisions of the United Kingdom Borders Act 2007.
3.
The issue in this case arises out of the fact that the appellant was incorrectly advised by his counsel that if he pleaded guilty he would only be subject to automatic deportation if he received a sentence of more than 12 months' imprisonment. That advice was wrong. A sentence of 12 months' imprisonment would lead to automatic deportation. Against that background the appellant applied for leave to appeal against conviction out of time. The sole ground of appeal is that:
"the appellant's pleas were induced by erroneous legal advice upon which he relied, and therefore the pleas were not freely made in circumstances where he had a defence, which quite probably would have succeeded and, as a result, a clear injustice has been done".
4.
The application for leave to appeal was referred to the full court by the single judge. At the start of the hearing we granted an extension of time (31 days) and leave to appeal against conviction. We then heard full argument about whether or not the appeal should succeed.
5.
The background is this. The appellant was in a relationship with Sinead Schooley. There was a complex procedural history of the appellant being charged with various offences, and various applications were made in relation to those offences. For present purposes it is sufficient to note that, ultimately, on 12
th
April 2023, he appeared before the Crown Court at Lewes. At that stage he faced four counts. The Recorder agreed that one count (count 2), which charged the appellant with controlling or coercive behaviour, should be dismissed. The other three counts were these.
6.
Count 1 was an allegation that the appellant had strangled Miss Schooley on the night of 21
st
/ 22
nd
September 2022. The evidence in relation to the allegation included the following. First, a police officer had attended Ms Schooley’s home and had observed injuries to her neck and throat. It may well have been that it was, in fact, the appellant who had called the police. Secondly, Miss Schooley gave an account to the police officer which was recorded on the officer's body-worn camera. In that account she said that the appellant had strangled her.
7.
Miss Schooley was not available to give evidence. Sadly, on 5
th
October 2022, about three or four weeks after this incident, she attempted to commit suicide. She was found hanging in her bathroom. She was resuscitated, but suffered brain injury due to a lack of oxygen. She was unable to give evidence or to attend trial. On 13
th
April 2023, having heard submissions from both counsel for the prosecution and for the appellant, the recorder ruled that the evidence on the body camera would be admitted as hearsay evidence.
8.
In relation to count 3, the allegation concerned an incident which took place on 29
th
September 2022. The evidence in relation to that allegation of non-fatal strangulation was to include oral evidence from Miss Schooley's cousin, Craig Smith, who was at the property at the time. He had given a statement in which he said that he woke up and saw the appellant strangling Miss Schooley from behind and had his foot on her back. There were photographs of an injury to Miss Schooley's neck.
9.
Count 4 charged an assault by beating on Craig Smith. It was proposed that Mr Smith would give evidence. He had, it seems, attended court and was ready to give evidence.
10.
The appellant had made a defence statement in which he denied strangling Miss Schooley on either 22
nd
or 29
th
September. He said that any force used against her was used in self-defence or to stop her from harming herself. As to the assault, the appellant denied assaulting Mr Smith. He said that any force used was used in self-defence.
11.
On 12
th
April 2023, when the matter was first the subject of discussions at court to consider hearsay applications and other matters, the Recorder had said that the matter was listed for trial before him, but that if the appellant's counsel wanted an indication of likely sentence, he could ask for it.
12.
On the following day, 13
th
April, after discussions relating to the admissibility of the hearsay evidence and confirmation that there would be a trial on counts 1, 3 and 4, the parties returned to court at 3.20 pm. Counsel who appeared for the appellant at trial said that he had been asked by the appellant to ask for a
Goodyear
indication – that is an indication of the likely sentence if the appellant pleaded guilty. There was some discussion, and the Recorder indicated a starting point of nine months' custody and a reduction of ten per cent for a guilty plea. However, the Recorder indicated that he would hear submissions from counsel on that matter on the next day.
13.
On 14
th
April 2023, there were detailed submissions from counsel for the appellant and for the prosecution. The Recorder gave an indication of sentence at 12.29 pm. He indicated that the total sentence would be 14 months' imprisonment, less ten per cent for the guilty plea. Defence counsel had said early on that the appellant had a particular concern about whether the sentence would be over 12 months in length. Counsel for the prosecution referred to the immigration position if the sentence passed were to be below a certain level. The Recorder indicated that sentencing did not take account of immigration matters. The discussion concluded with the Recorder stating that the sentence he would impose if there was a plea of guilty would be 12 months' imprisonment. The Recorder also made it clear that the appellant was not under any time pressure in relation to responding to the indication. The court then adjourned.
14.
The appellant has waived legal professional privilege, and we have the comments of trial counsel and solicitor about what happened. Counsel confirms that it was the appellant who decided finally to ask for an indication as to sentence if he pleaded guilty. Counsel confirms that one of the things in the appellant’s mind when he was deciding whether or not to plead guilty was the possibility of automatic deportation. Counsel honestly admits that he advised that sentences of custody of
over
12 months would result in deportation. In fairness, that advice was based on one of the leading practitioner books, Blackstone's Criminal Practice, which in the 2023 edition (and indeed still in the 2024 edition) says that sentences
over
12 months can lead to automatic deportation. That is wrong. It is sentences of
at least
12 months' custody – that is, a sentence of 12 months or more - which can lead to automatic deportation. Counsel also confirms that no pressure was put on the appellant to plead guilty; he was free to continue with a trial if he wished to do so. The appellant also signed an endorsement which confirms that. The endorsement says this:
"1.
I understand that the judge has indicated sentences of 12 months' imprisonment if I plead guilty to the three matters today.
2.
Taking all circumstances into account, I wish to take this offer.
3.
I will plead guilty to counts [1], 3 and 4 on the indictment.
4.
This is my own choice, based upon a variety of different factors.
5.
This statement has been interpreted into Spanish for me and I am happy with the contents."
The endorsement then bears the appellant's signature.
15.
There is also a response from the appellant's instructing solicitor who was present on 14
th
April 2023. He confirms that the appellant was fully advised as to his options and the potential advantages and disadvantages of each. He confirms that the options included continuing with the trial.
16.
In the event, the appellant pleaded guilty to the three offences. He was sentenced to a total of 12 months' imprisonment. As a result, he is subject to automatic deportation as a foreign national criminal.
17.
The appellant has been represented today by Mr Witcher (who did not represent him at the Crown Court). We are grateful to Mr Witcher for his clear written and oral submissions. Mr Witcher accepted that where an appellant was fit to plead, and pleaded guilty without equivocation, a court would be cautious about overturning a conviction. However, he submitted that if incorrect legal advice had been given and the facts were so strong as to show that the plea of guilty was not a true acknowledgement of guilt, then a court may quash a conviction. He relied upon the dicta of this court in
R v Tredget
[2022] EWCA Crim 108; [2022] 2 Cr App R 1, at [157]. Mr Witcher further submitted that the court may quash a conviction which is based on erroneous legal advice and which deprived a defendant of a defence which would in all probability have succeeded. He relied on [158] of the judgment in
Tredget
and the cases cited there. He submitted that the appellant had received erroneous legal advice about the effect of the UK Borders Act. He submitted that the appellant did not enter a free guilty plea; it was not a true acknowledgment of guilt; it was the result of a plea bargain by which the appellant was trying to preserve his immigration status and not be subject to deportation. He submitted that the prospects of success at trial were good. Further, he relied on
R v Whatmore
[1999] Crim LR 87.
18.
The starting point is the Court of Appeal's decision in
R v Asiedu
[2015] EWCA Crim 714; [2015] 2 Cr App R 8. In that case the appellant pleaded guilty to conspiracy to cause explosions. He contended that there had been a failure by the prosecution to disclose expert evidence. At [19] the court said this:
"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."
19.
As the court explained in that case at [30] onwards, whether or not a defendant would be acquitted is a matter of speculation. A defendant always has a difficult choice to make as to whether or not to admit guilt but that does not of itself limit his freedom of choice. As the court said at paragraph 31 a defendant:
"31.
… will always have it made clear to him that a plea of guilty, should he choose to tender it, amounts to a confession. Only he knows the true facts, which usually govern whether he is guilty or not and did so here. If he is guilty, the fact that the choice between admitting the truth and nevertheless denying it may be a difficult one does not alter the effect of choosing to admit it. We do not begin to agree that Asiedu had no real choice but to plead guilty. He had a completely free choice. Nor do we agree with the further submission made on his behalf that the conviction of the others in some way altered the climate against him. That would be irrelevant to his freedom of choice, but as a matter of fact the disagreement of the first jury in his case, when he had distanced himself from the hoax defence advanced by those whom it convicted, might if anything have been taken as some encouragement.
32.
Because it is of cardinal importance that a defendant makes up his own mind whether to confess by way of plea of guilty or not, and because only he knows the true facts, it is not open to him to assert that he was led to plead guilty by mistaken overstatement of the evidence against him. As Sir Igor Judge P observed in
R v Hakala
[2002] EWCA Crim 730 at paragraph [81], the trial process is not a tactical game. A defendant knows the true facts; he ought not to admit to facts which are not true, whatever the evidence against him, and this will always be the advice he is given. If he does admit them, the evidence that they are true then comes from himself, whatever may be the other evidence advanced by the Crown."
20.
This court has recognised that there are categories of cases where, nevertheless, a conviction based on a guilty plea may not be safe. The various categories of such cases were considered in
R v Tredget
. First, one category of cases is where the defendant has been given incorrect legal advice, as a result of which he has been deprived of relying on a defence available in law: see
Tredget
at [158]. This category of cases was reviewed in
R v PK
[2017] EWCA Crim 486, where the court held that this situation might arise if the person was not advised about the possibility of a defence available in law and the person concerned would have been able to advance such a defence successfully. As the appellant in that case had not been advised that he had a statutory defence to an immigration offence, and where it was probable that the defence would have succeeded, the appeal was allowed. More recently in
R v BRP
[2023] EWCA Crim 40, the defendant was not advised of a defence available in law under section 45 of the Modern Slavery Act 2015, but the defence would not have succeeded in any event. The appeal in that case therefore failed. Another type of case in which an error was found to vitiate a guilty plea was
R v Boal
[1992] QB 591. There the defendant was advised that he would be treated as a manager of a shop and so he had no defence available to the charge. But, on the facts, that advice was incorrect; he might have had a defence to the charge.
21.
A second category of cases said to be recognised by this court in
R v Saik
[2004] EWCA Crim 2936. There the appellant pleaded guilty. He had been given erroneous advice about the consequences of conviction, namely, that if he pleaded guilty there would not be confiscation proceedings and his house would not be at risk. The court said this:
"57.
For an appeal against conviction to succeed on the basis that the plea was tendered following erroneous advice it seems to us that the facts must be so strong as to show that the plea of guilty was not a true acknowledgment of guilt. The advice must go to the heart of the plea, so that as in the cases of
Inns
and
Turner
the plea would not be a free plea and what followed would be a nullity."
22.
However, that quotation should be read in context. The two cases referred to were cases in which the defendant had been the subject of improper pressure (in one case by counsel and in the other by the judge) to plead guilty. Moreover, at [55] and [56] the court said:
"55.
There are no doubt many defendants who, although they know they are guilty of the offence alleged against them, nevertheless enter a plea of not guilty in the hope of being acquitted. In making the decision one way or the other many factors may fall to be taken into account. The Bar Council's Code of Conduct makes clear that defence counsel should explain to the accused the advantages and disadvantages of a guilty plea. It goes on that he must make it clear that the client has complete freedom of choice and that the responsibility for the plea is that of the accused. It is common practice, endorsed by paragraph 12.5.1, to tell an accused that he should plead guilty only if he is guilty. In the present case the Bar Council's code was followed to the letter. The appellant deliberated over his plea over the best part of a working week. He was very keen that his counsel should strike the best possible deal with counsel for the prosecution. This involved limiting his involvement in the conspiracy to a minimum. He was under no pressure or illusions as to the position he was in. True the advice he was given on sentence and particularly on confiscation was somewhat optimistic but the reality, in our judgment, is that he entered his plea of guilty without any pressure from counsel, the court or anyone else. The only pressure was, like with many defendants, from the situation in which he found himself. In our judgment it cannot be said that the appellant's plea was not a true acknowledgment of guilt and was entered only because of erroneous advice. In so far as the advice he was given fell short of what might reasonably have been expected (and this really only applies to the house) it was in our judgment peripheral to the plea, albeit that the appellant would now have us believe it was not.
56.
There is no doubt that at all times the appellant was fully in command of his faculties. His plea of guilty was tendered after a very great deal of thought and negotiation. He admitted the offence to his lawyers by endorsing a document acknowledging his plea. He then tendered his plea in open court and listened to his counsel mitigating on his behalf without questioning what he said. The evidence against him was extremely strong. His bureau was a concern with a small turnover of less than a £1,000 per week and yet he changed some $U.S 5.8m to £4m. The exchange transactions took place in streets or cars and he received sacks of money, which he exchanged for large denomination notes. The plain inference is that he pleaded guilty because he was guilty."
At [58] and [59] of that case, the court said this:
"58.
It is very difficult to see how erroneous advice as to the length of sentence could ever go to the heart of a plea – except perhaps where the maximum penalty for the offence is understated – for the decision on length of sentence lies with the judge or the Court of Appeal. The appellant knew that in this case. He knew there was no certainty as to the length of sentence the judge would impose upon him. He also knew there was no certainty what would happen to his house following confiscation proceedings.
59.
In our judgment the advice that the appellant received does not invalidate his plea of guilty."
23.
The third case on which Mr Witcher relies is
R v Whatmore
[1999] Crim LR 87. The appellant in that case was charged with a number of offences. Two related to sexual assault against his daughter in the 1970s, and three related to sexual offences in the 1980s. Counsel advised the defendant that the evidence of his daughter on the 1970 offences would be highly prejudicial to his defence in relation to the 1980 offences. Counsel further advised, erroneously, that if the defendant pleaded guilty to the 1970 offences, there was no way that the evidence could be used at the trial for the 1980 offences. The defendant had already served time in prison equivalent to the likely sentence for the 1970 offences. Although he did not admit guilt, he accepted his counsel's advice to plead guilty to the 1970 offences. Counsel's advice about the non-admissibility of that evidence was wrong. The judge subsequently was asked, and agreed, to admit the guilty plea about the 1970 offences as similar fact evidence in the trial for the 1980 offences. He refused the defendant the opportunity to change his plea to the 1970 offences. In the limited extract of the report that we have, it was said that the defendant had not admitted his guilt, but was content to plead guilty on the basis that the 1970 offences would not become part of the trial for the offences in 1980. The extract continues by noting that the guilty pleas would not have been sufficient to use for the purposes of similar fact evidence, and that if the incidents were to be explored at the trial, counsel's advice would also have to come out. In all those circumstances the conviction was not safe; it was quashed and a retrial was ordered.
24.
We turn to the present case and the position of the appellant. First, in our judgment, there is no doubt that the appellant was fit to plead. He was advised about all of the options, including continuing the trial. He decided to plead guilty. That in itself is an admission of the facts. Normally, there is nothing unsafe about a conviction based upon the voluntary admission by a defendant that he is guilty of the offences charged.
25.
Secondly, there was no element of improper pressure on the part of the Recorder to try to induce the appellant to plead guilty. The Recorder was asked to give an indication as to sentence. He did so. He said that it would be a sentence of 12 months' imprisonment. He did not make any representation about the consequences of that sentence in immigration terms. Indeed, he correctly made it clear that immigration matters were not relevant to sentencing for the offences. There was no error on the part of the Recorder.
26.
Thirdly, counsel did not put pressure on the appellant to plead guilty. He did, however, give erroneous advice about the consequences of sentencing for the appellant's immigration status. However, as the court said it
Saik
, it is very difficult to see how erroneous advice as to the length of sentence would undermine the safety of a conviction based on a guilty plea. In our judgment, it is also difficult to see how erroneous advice about the immigration consequences of a sentence would affect the safety of a conviction.
27.
Fourthly, we do not accept that the erroneous advice of counsel in this case deprived the appellant of a defence available in law, in the way that that concept is used in the case law. The advice did not fail to identify any defence available in law and did not give misleading advice as to the non-availability of a defence, as was the case in
R v PK
and
R v Boal
respectively. The advice given did not narrow the defences available to the appellant; nor did it make it more difficult for him to put forward any defence he had to the charges. It was ultimately for the prosecution to prove that the appellant had strangled Miss Schooley on each of the two occasions which formed counts 1 and 3, that he did so unlawfully and not in self-defence or because he was trying to stop her from self-harming. Similarly, it would be for the prosecution to prove that the appellant unlawfully assaulted the complainant on count 4. The advice on the immigration consequences of the sentence did not affect those matters at all.
28.
Fifthly, we do not accept that on the material available there is any proper basis for considering that the guilty plea was anything other than a true acknowledgement by the appellant of his guilt of what had been alleged. The appellant had a free choice as to whether or not to plead guilty. As the court recognised in
Saik
, there may be a number of different factors in play. It was ultimately a matter for the appellant to decide whether to plead guilty or not. He was advised of the potential advantages and disadvantages, and of his possible options, including continuing with a trial. The appellant decided that he would admit what he had done and would plead guilty. As the endorsement signed by the appellant himself says, "taking all circumstances into account" he wished to plead guilty in the light of the Recorder's indication as to sentencing. As the appellant himself said in his endorsement, that was his "own choice based on a variety of different factors". One factor – perhaps even the principal factor – may have been the appellant's concerns about his immigration status. That does not, in our judgment, however, mean that his guilty plea was anything other than a true acknowledgement of his guilt for these offences.
29.
Accordingly, for those reasons, this appeal against conviction is dismissed.
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{"ConvCourtName":["Crown Court at Lewes"],"ConvictPleaDate":["2023-04-14"],"ConvictOffence":["Non-fatal strangulation (count 1)","Non-fatal strangulation (count 3)","Common assault (count 4)"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":["after Goodyear indication, before trial"],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Lewes"],"Sentence":["12 months' imprisonment (count 3)","9 months' imprisonment concurrent (count 1)","4 months' imprisonment concurrent (count 4)"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[43],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Police officer observation","Body-worn camera recording (hearsay)","Photographs of injury","Oral evidence from witness (Craig Smith)"],"DefEvidTypeTrial":["Denial of strangulation","Claim of self-defence","Denial of assault"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Guilty plea induced by erroneous legal advice regarding deportation consequences"],"SentGuideWhich":["United Kingdom Borders Act 2007"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Erroneous advice did not deprive appellant of a legal defence; guilty plea was a true acknowledgement of guilt; no improper pressure; conviction safe"]}
|
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
2018/01811/A4
Neutral Citation Number:
[2018] EWCA Crim 2362
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 4
th
October 2018
B e f o r e:
LORD JUSTICE HOLROYDE
MR JUSTICE GOOSE
and
HIS HONOUR JUDGE WALL QC
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
- - - - - - - - - - - - - - -
R E G I N A
- v -
NADEEM HUSSAIN
- - - - - - - - - - - - - - -
Computer Aided Transcript of Epiq Europe Ltd, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Mr I Howard
appeared on behalf of the Appellant
- - - - - - - - - - - - - - -
J U D G M E N T
Thursday 4
th
October 2018
LORD JUSTICE HOLROYDE:
I shall ask Mr Justice Goose to give the judgment of the court.
MR JUSTICE GOOSE:
1. This is an appeal against sentence brought with the leave of the single judge.
2. On 16
th
April 2018 in the Crown Court at Sheffield, His Honour Judge Kelson QC imposed nine years' imprisonment after the appellant, Nadeem Hussain who is aged 33, was convicted after trial. The sentence was made up as follows: for possession of a prohibited firearm, contrary to
section 5(1)
(aba) of the
Firearms Act 1968
(count 1), nine years' imprisonment; for possession of ammunition without a firearm certificate, contrary to
section 1(1)
(b) of the
Firearms Act 1968
(count 2), three years' imprisonment; having an imitation firearm in a public place, contrary to
section 19
of the
Firearms Act 1968
(count 3), nine months' imprisonment; and having an imitation firearm in a public place, contrary to
section 19
of the
Firearms Act 1968
(count 4), nine months' imprisonment. All of the sentences were ordered to run concurrently with each other. Orders for forfeiture and disposal of the firearms and ammunition were made.
3. The appellant was arrested on suspicion of having committed an offence, following which a search was undertaken at his home address at Kashmir Gardens, Sheffield on 30
th
September 2015. Inside the bedroom of the property, car keys were found which belonged to the appellant for use in a red Volkswagen vehicle which was parked nearby. In the boot of that car, police found a black holdall containing a prohibited firearm, a .38 calibre Arminius revolver with a barrel length of less than 60cm, which was a prohibited weapon. It had previously been deactivated and attempts had been made to reactivate the gun to restore it to working order. The evidence at trial established that the firearm could easily have been reactivated. This firearm comprised count 1 on the indictment.
4. Also found within the vehicle was a quantity of ammunition, including eight Browning 7.65 calibre rounds. A further quantity of other live ammunition was also recovered, including a blue shotgun 12 gauge cartridge, six hollow tip rounds measuring .38 millimetres, two shotgun 12 gauge cartridges, and a hollow top round and three Superfast fibre 7½ shotgun cartridges. An unspent Browning bullet was recovered from the footwell of the vehicle. In addition, some blank-firing ammunition was found. The appellant's fingerprints were found on a partial piece of a carrier bag that contained the shotgun cartridges.
5. Counts 3 and 4 related to two imitation firearms: a decommissioned UZ 9mm submachine gun with the outward appearance of a firearm (count 3); and a BBM silver/black metal self-loading pistol (count 4).
6. The appellant denied that the firearms or ammunition belonged to him and sought to blame others for having placed them in the vehicle which, he said, they had accessed with another set of car keys. The appellant's mobile telephones were seized. When they were analysed, they were found to contain various messages and images which referred to firearms. These included photographs that were dated 3
rd
October 2014, a WhatsApp conversation dated 14
th
August 2015, and messages relating to the appellant's desire to obtain an AK47 rifle with images of such a weapon. It was this evidence that led the judge to reach the conclusion that the appellant was not a mere custodian but was involved in the sourcing and obtaining of these firearms. Mr Howard, who appears on behalf of the appellant, criticises that finding.
7. The appellant has no relevant previous convictions. He was cautioned for an assault occasioning actual bodily harm in 2002 and more recently, fined for a driving offence in 2012. Effectively, therefore, the appellant is a man of good character.
8. In sentencing the appellant, the judge took into account his relatively good character, together with letters of reference from those who described the appellant in favourable terms.
9. On behalf of the appellant it is submitted that the sentence of nine years' imprisonment was manifestly excessive. It is accepted that the judge was entitled to impose a global sentence in respect of all offending when imposing the sentence on count 1. Further, it is accepted that the sentence upon count 1 required the imposition of a minimum term of five years' imprisonment on the facts of this case. No argument is raised against the sentences upon counts 2, 3 and 4 of themselves.
10. In passing sentence, His Honour Judge Kelson QC referred to and took into account the case of
R v Avis
[1998] 1 Cr App R 420
. The judge took account of the sort of weapons involved – in particular, the prohibited firearm with its relative ease to be reactivated, and within which was live ammunition that was compatible with the weapon. Further, there was no lawful purpose for possession of the firearm. There was no clear evidence as to what use was being made of the firearm in count 1, nor those in counts 3 and 4. There is no evidence of the intention of the appellant in possessing the firearms, although he had plainly displayed a clear interest from the evidence obtained in his mobile phones.
11. Having considered the relevant factors identified for determination in
Avis
and the factors in mitigation, the judge, who had tried the appellant, correctly imposed a sentence of nine years' imprisonment, to take into account the totality of offending. The remaining sentences were ordered, in our judgment correctly, to run concurrently. We consider that whilst such a sentence might be said to be at the upper end of the range, it cannot be described as manifestly excessive or wrong in principle. The possession of such weapons, particularly those that are easily adaptable to be active is a very serious offence. We are also satisfied that the judge was correct to conclude that the appellant was not just a mere custodian. The possession of ammunition which was capable of being fired by the prohibited firearm is a seriously aggravating factor to be taken into account when fixing the overall sentence.
12. We are not persuaded that the sentence of nine years imprisonment for these offences was either manifestly excessive or wrong in principle. Accordingly, we dismiss this appeal.
_____________________________________
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|
{"ConvCourtName":["Crown Court at Sheffield"],"ConvictPleaDate":["2018-04-16"],"ConvictOffence":["possession of a prohibited firearm, contrary to section 5(1)(aba) of the Firearms Act 1968","possession of ammunition without a firearm certificate, contrary to section 1(1)(b) of the Firearms Act 1968","having an imitation firearm in a public place, contrary to section 19 of the Firearms Act 1968"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Sheffield"],"Sentence":["nine years' imprisonment (count 1)","three years' imprisonment (count 2)","nine months' imprisonment (count 3)","nine months' imprisonment (count 4)"],"SentServe":["Concurrent"],"WhatAncillary":["Orders for forfeiture and disposal of the firearms and ammunition"],"OffSex":[],"OffAgeOffence":[33],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["fingerprint evidence","mobile phone messages and images","photographs","WhatsApp conversation"],"DefEvidTypeTrial":["denial of ownership","blamed others for placing items in vehicle"],"PreSentReport":[],"AggFactSent":["possession of ammunition which was capable of being fired by the prohibited firearm","firearm could easily have been reactivated"],"MitFactSent":["relatively good character","no relevant previous convictions","letters of reference"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["sentence of nine years' imprisonment was manifestly excessive"],"SentGuideWhich":["R v Avis [1998] 1 Cr App R 420"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["sentence might be at the upper end of the range, it cannot be described as manifestly excessive or wrong in principle","possession of such weapons, particularly those that are easily adaptable to be active is a very serious offence","possession of ammunition which was capable of being fired by the prohibited firearm is a seriously aggravating factor","judge was correct to conclude that the appellant was not just a mere custodian"]}
|
No: 200201125/Y4, 200206186/Z5, 200203554/Y3, 200205806/X4, 200203226/W1, 200204561/Z3, 200205349/Z4, 200201675/W4, 200203918/Y5, 200204488/X4, 200205399/X4, 200205556/X5,2002200124,W3,200203333/X3,20020554/W5
Neutral Citation Number:
[2003] EWCA Crim 194
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2
Date: Thursday. 30th January 2003
BEFORE:
LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE AIKENS
MR JUSTICE MACKAY
- - - - - - - - - - - -
REGINA
-v-
PARVAIS NAJEEB & ORS
- - - - - - - - - - - -
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 MANSFIELD QC & MISS T MYLVAGANA
appeared on behalf of the APPELLANTS LATIF, AZAD, HUSSAIN, HANIF, QURBAN, KHAN & RAZA
MR S MYERS
appeared on behalf of the APPELLANT KHALIL
MR S WOOD
appeared on behalf of the APPELLANT NAJEEB
MR R GIOSERANO
appeared on behalf of the APPELLANT QAZI
MR T BAYLISS
appeared on behalf of the CROWN
- - - - - - - - - - - -
JUDGMENT
1. THE VICE PRESIDENT: The cases of four appellants and eleven applicants have been heard together in this Court because, although they were sentenced at Bradford Crown Court on different occasions by three different judges, they all took part in a riot in Bradford on 7th/8th July 2001.
2. The circumstances were these. There had been disturbances in Oldham 2 months before, and in Burnley, two weeks before. In relation to Burnley, the Recorder of Preston subsequently identified as racist attacks which had been made on Asians, and a jury at Preston acquitted all the Asian defendants on the basis that they had been acting in self-defence.
3. On 6th July 2001, the leader of the British National Party made a speech in Ravenscliffe, Bradford. The Bradford City Council had cancelled a World Inner City Festival which had been scheduled to take place in the city on 7th July. On 7th July, at 10.00 am, Anti Nazi league party supporters began to gather in Centenary Square, Bradford, in response to an assembly by the National Front party which had been contemplated but which the police in Bradford had banned. During the course of the morning, small groups of national front members were in Centenary Square handing out leaflets. There were a number of minor scuffles between opposing factions and a considerable number of Asian youths in the square.
4. The Asian community were, understandably, concerned about the need to defend themselves against right wing extremists. By 2.30 pm, the city centre was awash with groups of up to 200 people and serious disorder ensued between rival Asian and white males in the Ivegate and Market Street areas. A number of arrests were made, but the majority present were dispersed and made their way towards the Sunbridge area of Bradford. Missiles were thrown by groups of Asian youths at premises, smashing windows. From about this time, police officers were targeted.
5. At a little after 4.30 pm an Asian man received serious stab wounds at the hands of a white man in Sunbridge Road. Another man was also stabbed in the leg. There were reports to the police by members of the public about Asian males running amok in the city centre. Confrontations between white and Asian youths continued along Ivegate, where a number of those who were ultimately to appear before the courts were arrested. There were further reports to the police about the carrying of an array of sticks and baseball bats and attacks on city centre pubs and shops.
6. At that stage, the police decided to drive the increasing number of youths out of the city centre to prevent further destruction. At 6.30 pm, this group, which was largely Asian, had been pushed back to the White Abbey Road area. Premises were then attacked by stone throwing Asian youths who appeared to be selecting their targets. At this time, the police came under a heavy barrage of missiles, ranging from petrol bombs to stones. All available police were asked to attend White Abbey Road. Two police horses were stabbed. At one time the police were heavily outnumbered. They were attacked with sections of metal fencing, a cross bow was used and the mob then retreated and began to build barricades, using stolen motorcars which had been set alight. Further public houses were damaged and some set alight. Stolen cars were driven at the police ranks, some of those cars being, as we have said, deliberately set on fire. On one occasion, a car was reversed into the police ranks, the driver trying to knock the officers down.
7. By 10.00 pm many police officers had been injured and there were no more ambulances available. At 11.30 pm a police commander believed that lives were at risk and other forces were contacted for assistance. Almost 400 police attended from other forces. Other premises were then targeted, including a local labour club, where burning vehicles were put at the front and back, and petrol bombs were thrown trapping those inside. The police arrived soon after and the people inside were released. But the premises were completely destroyed.
8. At 1.15 am, the mob focused its attention on two garages, Listers Motors in Oak Lane and Sunwin motors on Keighley Road. Both were looted and cars stolen. Both premises were damaged by fire and Listers Garage was completely gutted. Other premises in the Oak Lane area were also badly damaged, as were four further public houses.
9. By 5.00 am, the troubles were coming to an end. A Do It Yourself in Oak Lane was ramraided at that time by a stolen car and the shop was looted by Asian males.
10. By reason of these events, over 300 police officers, from a number of police forces, were injured. The damage was estimated at one stage at £27 million. Businesses were ruined. Thirty-five people were arrested during the time of the tumult and others, including most of the defendants before us, surrendered and/or were arrested later, after analysis of video films of the riot had been completed and pictures had been published in the media of some of those who had been involved. At the Bradford Crown Court, videos were shown which depicted the nature and scale of the riot and, in the case of most of the defendants before this Court, some of their activities. All these defendants save Maskin, who pleaded guilty to violent disorder, pleaded guilty to riot. Four of them, Najeeb, Qazi, Mahmood and Raja, each of whom was sentenced to 4 years' imprisonment, appeal by leave of the Single Judge. The other eleven renew their applications for leave to appeal following refusal by the Single Judge. Of those eleven, Maskin was sentenced to 2 years and 9 months and the other 10 to periods of imprisonment between four and six-and-a-half years. A twelfth applicant, Ranzeb, who was sentenced to four-and-a-half years' detention in a young offender institution, abandoned his renewed application for leave to appeal on the day before the hearing began in this Court.
11. In total, so far, over 100 defendants have been sentenced, the great majority for riot and almost all following pleas of guilty. Leaving aside a sentence of eight-and-a-half years passed on a man called Rashid, who was convicted by the jury of throwing petrol bombs, an activity in which only Khalil of the present defendants was involved, the sentences passed on adults, subject to very few exceptions, have been within the range of 4 to six-and-a-half years, on a plea of guilty to riot. For those under 18 at the time of the offence, terms between 6 and 18 months' detention have been imposed, since this Court, differently constituted, in
Ghafoor
on 19th July 2002, reduced from four-and-a-half years to 18 months the sentence on a defendant who was 17 at the time of the offence, the Court saying that, in that case, there was no good reason to depart from the maximum of 2 years generally available for a 17 year old.
12. In relation to violent disorder, on 7th July, in Infirmary Fields, there was disorder involving, initially, about 20 people. Apart from one community penalty, the sentences imposed on the 16 defendants who have appeared before the courts in relation to that matter have been within the range of 9 months to 3 years. It was this episode in Infirmary Fields in which the defendant Maskin was involved.
13. In this context, it is convenient to refer to another decision of this Court, differently constituted, in
Chapman
Neutral Citation 2002 EWCA Crim 2346 Court of Appeal (Criminal Division) transcript of 16th October 2002. There, a sentence of 3 years' detention in a young offender institution, on a young man who was 19 at the time of the offence and was of good character, was upheld by this Court, following his plea of guilty to violent disorder. He had been involved, for about 15 minutes, throwing stones in the direction of the police in the course of disorder at the Ravenscliffe Estate in Bradford which took place two days after the riot with which we are concerned, that is on 9th July 2001. That disorder lasted about 4 hours, and was less serious and violent and caused conspicuously less damage than the Manningham riot with which we are concerned. The sentences imposed on the seven defendants other than Chapman, who all pleaded guilty to violent disorder, were, save for one community penalty, within the bracket of 15 to 30 months' imprisonment or detention in a young offender institution. In giving the judgment of the Court, dismissing Chapman's appeal, Judge LJ quoted extensively and with express approval from the sentencing remarks of Judge Gullick, the Honorary Recorder of Bradford who, as will appear, sentenced almost all these defendants and who, on 23rd November 2001, sentenced a man called Ashraf, who was the first defendant to be dealt with for his part in the Manningham riot. Those remarks of Judge Gullick demonstrate, as is accepted, that he had considered the relevant authorities. Indeed several passages in his remarks expressly reflect the principles which they state. In particular, he stressed the importance of looking at the overall level and nature of the violence used on the occasion in which a particular defendant was involved, the extent of any premeditation, the numbers of persons involved and, in the context of the overall picture, the specific acts of the individual defendant. Judge Gullick repeated those remarks verbatim on many occasions when sentencing other defendants. It is right to say that the remarks approved by the court in
Chapman
did not include a passage, to which exception is taken before us, in which Judge Gullick said that he was not concerned with the origins of the prolonged violence.
14. For two of the appellants, Mahmood and Raja and all of the applicants save Khalil, Mr Mansfield QC, while accepting that this was a case of extremely serious disorder calling for custody, submits that the general level of sentences passed was manifestly excessive, having regard first to the judge's express exclusion of reference to the origins of the violence, whereby a deterrent component in the sentence became determinative, and secondly to the level of sentences suggested by the authorities, in particular
Keys
8 Cr App R(S) 444 and
Pilgrim
5 Cr App R(S) 140. In imposing a sentence of 4 years on those who were the least involved, bearing in mind that the defendants almost all gave themselves up, expressed remorse and pleaded guilty at the first opportunity, Mr Mansfield submits that the judge must have given a one-third discount, indicating that his starting figure was 6 years; this, submits Mr Mansfield, was too high.
15. The authorities stress the importance of the distinction between riots which are premeditated and preplanned and those which are spontaneous. Although the police were targeted, the origin of this riot began in the fear within the Asian community, to which almost all of the defendants referred in their police interviews, of racial attack from right wing elements.
16. The judge's starting point, submits Mr Mansfield, should have been 2 years not 6 for those who did nothing. Throwing missiles might take the starting point to 3 years, after a trial, but less in view of the pleas and personal mitigation. The sentences should have been, he submits, in the range 18 months to 3 years, not 4 years and upwards. The imposition of severe deterrent sentences can aggravate the position because the Asian community may be deterred from cooperating, as they did in the present case, by bringing forward defendants once they had been identified by pictures in the media.
17. Miss Mylvaganam made specific submissions in relation to Shazad Ali, Mr Wood in relation to Najeeb, Mr Gioserano in relation to Qazi, Mr Myers in relation to Khalil and Mr Ryder in relation to all the other defendants.
18. Before turning to the individual defendants, it is convenient to make some general observations as to how we have approached our task. The task of the sentencing judges was, as is accepted, a difficult one, in view of the number of defendants, the large amount of video and other evidence and the necessity to deal with the cases over a period of months. Furthermore, this Court must attach great weight to the knowledge of three judges of local conditions. We have been assisted by the authorities to which we have been referred. But it is necessary to approach them with caution in three respects. First, although in
Keys
some guidance was given, in particular as to the minimum sentence appropriate for a defendant involved, however slightly, in serious rioting and in relation to sentences of 7 years and upwards being called for in relation to ringleaders,
Keys
was not a guideline cases in the way those words are presently understood. In particular, the Crown was not represented; there was no comprehensive analysis of aggravating and mitigating features and no clear bands of sentence were identified. Secondly, in the present case, unlike the position in earlier reported cases, there is, in relation to almost every defendant, a video record which clearly identifies him and shows at least some of what he did. This, as we shall seek to explain, is of particular relevance in relation to discount. Thirdly, all riots differ in origin, numbers involved, aim, duration and effect. The riot in the present case was of the utmost gravity. It involved many hundreds of people. It was aimed at the police. It lasted about 12 hours. Many police officers were injured and put in fear and many millions of pounds worth of damage was done. We accept that it was not initially premeditated, for it was almost certainly triggered by the incident after 4.30 in the afternoon, when the Asian man was stabbed. We also accept that there was, on 7th July, anxiety, understandably, in the Bradford Asian community, arising from the cancellation of the Inner City Festival, which had been due to be held that day, and from the presence in the city that day of white racists, who, in recent weeks, had fomented trouble in Burnley and Oldham. But the riot was directed from its early stages at the police, who were seeking to prevent conflict between two rival groups by moving the Asian youths from the town centre and confining them to the Manningham area where most of them lived.
19. As the hours passed, we have no doubt that there were clear signs of organisation among the rioters (some of whom were communicating by mobile telephone) particularly in missile throwing, in setting alight vehicles and in preparing and distributing petrol bombs. In consequence, what had initially, no doubt, been spontaneous became marked by premeditation: hence those rioters who covered their faces because of what they intended to do and those who left the scene but later returned after changing clothing or having a meal.
20. It is enormously to the credit of the senior members of the Asian community that they played the role which they did in seeking to calm matters and to restrain the younger members of their community from acting as they did. That attempted peace keeping role is repeatedly apparent in the videos. The defiance of the young of those in entreaties makes the outcome all the more regrettable. It is also enormously to the credit of the senior members of the community that they prevailed on many of the young to surrender to the police when pictures of those involved were published in the media. It is, however, the young, not the senior members of the community, who are before the Court. We have no doubt that deterrent sentences were called for, so that previous good character and circumstances of individual personal mitigation are of comparatively little weight.
21. We would have expected, in relation to this riot, and we stress that we are not referring to other riots, that, if any ringleader had been caught and convicted following a trial, a sentence at or near the statutory maximum of 10 years would have been imposed. Immediately below that highest level of culpability, we would have expected an active and persistent participant, who threw petrol bombs or used a cross bow or drove a car at the police to be sentenced, following a trial, to between 8 and 9 years, as was Rashid, to whom we referred earlier, who threw petrol bombs.
22. Below that level, for those who participated over a number of hours, and threw missiles less dangerous than petrol bombs but potentially more damaging than stones, such as gas cylinders, knives, metal fences or poles, or who set fire to cars, we would have expected, following a trial, sentences of 6 to 7 years. Below that level, for those present for a significant period and repeatedly throwing missiles such as bricks or stones, we would have expected sentences of 5 years following a trial. Lesser degrees of participation would, we would have expected, attract sentences at a lower level. All the figures which we have mentioned would need to be discounted in an appropriate way for pleas of guilty and early co-operation with the police.
23. So far as the sentences actually passed on these defendants are concerned, it is unfortunate that Judge Gullick, in his sentencing remarks, said that he was not concerned with the origins of the prolonged violence. It may be that what he meant was that it was not the court's task to investigate the precise origins of the violence and, in any event, that those origins paled into insignificance compared with the many hours of rioting which followed. But his words could well be understood as meaning that the reasons why the riots started were entirely irrelevant. If he meant that, he was wrong.
24. For the purposes of the proceedings before us, the defendants have been divided into different bands according to the sentences they received. In band one, are those sentenced to 4 years; in band two, those sentenced to four-and-a-half years or 4 years 9 months; in band three, those sentenced to 5 years; and in band 4, Maskin alone, who was dealt with for violent disorder. Khalil, who, as we have said, received six-and-a-half years, is in a fifth band. None of the Crown Court judges put the defendants in bands in this way.
25. It is to be noted that none of these defendants was sentenced for mere encouragement by presence. All were present for a significant period of time, in some cases for many hours, and almost all threw missiles more than once. The appropriate starting point in relation to each was therefore very significantly above the 2 years indicated in
Keys
. We do not accept that Judge Gullick's starting point for the defendant's before him who were least involved, was 6 years. It is, of course, well established that, in general, a discount of the order of one-third will be given for a plea of guilty. But, depending on the particulars circumstances, the discount may be higher or lower. It is of a particular relevance here that the courts have consistently said that the discount for plea may be substantially less than one-third, when the evidence against a defendant is overwhelming and his prospects of acquittal on a trial are negligible. It is a striking feature of the present case that, as we have already pointed out, video film clearly identified virtually all the defendants by face and clothing and showed some of their activity. In these circumstances, a discount as great as one-third was not, in our view, to be expected for pleading guilty. In consequence if, as seems likely, Judge Gullick's starting point for the least involved was in the region of 5 years, the question arises as to whether that was too high.
26. We have already indicated, in the remarks we have made about our general approach, that it was not. Ultimately, of course, the question we must ask in relation to each defendant is whether the sentence passed on him was manifestly excessive for his part in this riot.
27. We turn to the individual defendants and we will deal with them in the order in which they appear in the Court list. The principal factors on the basis of which we draw distinctions between them relate to the stage at which each was present, the duration of his presence and what he did while there. Najeeb pleaded guilty on 11th December 2001 and was sentenced by Judge Gullick on 8th February 2002. He was born in August 1974, so he is now 28. He was first captured on video in Centenary Square a little before 4.00 pm. He was seen on a couple of occasions later, with the crowd, in both Sunbridge Road and Ivegate and he was also seen running through a pedestrian precinct with a larger crowd. At 6.48 pm he was in the hostile crowd on White Abbey Road, where barricades had been erected and missiles were being thrown at police lines. At 6.54, he jumped from behind others, swinging his right arm forward, in a throwing motion, sufficient to lift him off his feet and spin his body through 90 degrees although no missile was visible. He handed himself in within hours of seeing his photograph in the newspaper. His explanation, at that time, for the throwing action was that he was just moving his arm in a throwing motion without a missile because he was drunk. His counsel, however, accepted that he had thrown one missile. He pleaded guilty at the first opportunity. There were character references upon him, in particular, from his employers.
28. On his behalf, Mr Wood submits that there need not have been a long-term sentence, having regard to the limited part which he played in these events. Mr Wood stressed the early plea and the appellant's remorse. With those submissions we have some sympathy. Accordingly the appeal of Najeeb is allowed, the sentence of 4 years upon him is quashed and we substitute a sentence of 3 years' imprisonment.
29. Qazi pleaded guilty on 3rd April 2002 and was sentenced by Judge Gullick on 27th September. He was among those in the front line of the riot early in the evening, throwing a missile at the police and arming himself with a broken lamp pole and he was among a group which attacked a police van, the appellant striking it three times with the pole. He then picked up a shopping trolley, which he threw at one of the police vans. At about 8.00 pm he was seen with a gas cylinder, which he threw towards the police, knocking an officer over. Subsequently, he was seen gesticulating towards the police, and he left the scene after about two-and-a-half hours. However, after a change of clothing he returned at about 10.15 pm, about 2 hours after he had left. His face was covered. He gesticulated towards the police. He picked up a burning object which he threw at a stolen car. He hurled a gas cylinder, from a short distance, at the police lines knocking an officer down. He left the scene of the riot and went to a nightclub in Sheffield. He was arrested some time later, after he had been recognised from his photograph.
30. The learned judge, in passing sentence, said that, but for his mental condition, to which in a moment we shall turn, a sentence of five-and-a-half years' imprisonment would have been imposed. The sentence passed was of 4 years.
31. Qazi was born in April 1980. There were upon him and are before this Court psychiatric reports from Dr Scala, dated 13th February 2002, and from Dr Harrop, dated 21st March 2002 with an addendum, dated 16th May 2002. This appellant suffers from a mental illness, namely mania, whereby he shows an elevation in mood out of keeping with his circumstances, accompanied by overactivity, grandiose ideas and over confidence. In consequence, his behaviour may be reckless or foolhardy. In Dr Scala's view, the appellant's thought processes and reasoning were, at the time of the riot, affected by a manic episode, whereby he did not retain full responsibility for his actions. At the time of Dr Scala's report, he was receiving appropriate treatment for his condition. It appears from Dr Harrop's reports, that he had earlier, that is to say before the riot, been receiving inappropriate treatment for his bi-pola effective disorder, as she describes it. But it was made clear in the addendum to her report that that misprescription cannot, because it had not taken place over a sufficiently long period, have contributed to his conduct at the time of the riot. He was, however, at that time, hypo manic.
32. Mr Gioserano, on behalf of this appellant, did not take issue with the judge's starting point of five-and-a-half years. That is unsurprising. For the reasons which we have already given conduct might well have attracted a starting point somewhat higher than five-and-a-half years. Mr Gioserano conceded that Qazi played a most serious part in this riot. As against that, he submitted, it cannot safely be said that he would necessarily have been involved at all, had he not been suffering from the mental disorder to which we have referred.
33. The learned judge, Mr Gioserano submitted, effectively found, in a phrase from a different context, diminished responsibility on the part of this appellant. In consequence, it was submitted that there should have been a much greater reduction on the otherwise appropriate sentence than to the term of 4 years which the judge imposed. Mr Gioserano suggested that it could be reduced to such an extent as might permit a sentence to be suspended.
34. We agree with the submission that the learned judge made an insufficient reduction. We are not persuaded that it was appropriate for a suspended sentence to be imposed. We shall allowed Qazi's appeal, by quashing the sentence of 4 years and substituting for it a sentence of 2 years' imprisonment.
35. Mahmood pleaded guilty on 7th May 2002 and was sentenced by Judge Gullick. He was present for about 5 hours and was seen in the crowd several times. Once he threw an object at the police lines. He was also seen making gestures towards the police. He was seen in the vicinity of two cars which were being damaged and also nearby when a petrol bomb was thrown, although there was no suggestion that he himself threw such a bomb. He was arrested on 31st January 2002. He admitted his part in interview. He has previous convictions, the only one which is possibly relevant being for common assault some time ago. He was born in January 1978.
36. On his behalf, Mr Ryder submitted there was significant personal mitigation in relation to Mahmood. He has a sick child with a serious congenital heart defect. His wife does not speak English. Mr Ryder conceded, rightly, that Mahmood's activity was not at the lowest end of activity, because he threw missiles and was there for five hours. Those submissions we have considered. We are unpersuaded that the sentence of 4 years which was passed upon him was excessive and accordingly his appeal is dismissed.
37. Raja pleaded guilty on 30th July 2002 and was sentenced by Judge Gullick on 6th September. He was present between 6 and 7 hours. He was seen making threatening gestures towards the police and, on four separate occasions, threw missiles between the police lines. He covered his face intermittently with a towel. He surrendered to the police in April 2002. Because of the deeply distressing circumstances surrounding his infant child, who sadly died in December 2002, Raja was released on bail, on the clear understanding that no inference was to be drawn from that as to what the ultimate outcome of this appeal would be. Mr Ryder submitted that Raja was in the same category as Mahmood, being involved above the minimum level. He drew attention to the fact that the appellant has a disabled younger sister, whom Raja looks after. He refers to impressive written references speaking of Raja's character.
38. In our judgment, there is no distinction to be drawn between Raja and Mahmood. We cannot accede to a submission that a sentence of 4 years upon him was manifestly excessive. Accordingly his appeal must be dismissed.
39. Maskin, as we have said, pleaded guilty to violent disorder. He did so at the first opportunity, on 26th March 2002. He was sentenced by Judge Bartfield on 10th May. He was, as earlier indicated, a participant in the early disturbances in Infirmary Fields, which involved, initially, some 20 people. In the course of that, he was seen to make a gesture at the police and, on two other occasions, he threw stones towards the officers. He voluntarily surrendered after his picture was in the local papers. He declined to comment on his part when he was interviewed.
40. Mr Ryder submitted that the sentence which was passed upon Maskin, having regard to his comparatively small role in the early incident, was higher than it needed to be. We agree. We give Maskin leave to appeal against sentence. We quash the sentence of 2 years and 9 months and substitute for it a sentence of 2 years.
41. Shazad Ali pleaded guilty on 14th May 2002 and was sentenced by Judge Gullick to 4 years on 5th July. On several occasions, over a 20 minute period, he was seen throwing missiles. He was depicted in a video. He was, at one stage, masked. He surrendered to the police on 9th February 2002, after his photograph had appeared in the local press. He denied at that time that it was a photograph of him, but he, in due course, pleaded guilty at the first opportunity. He was born in May 1980 and is of good character. He is, as Miss Mylvaganam points out, the senior male in the family because his mother, unusually in this community, is divorced. He is the backbone of the family. He has written a letter to the Court which we have read and Miss Mylvaganam relies on character references upon Ali. Those references include an indication that he was a highly motivated student for whom a university place was available. Having regard to all of these matters and, in particular, the short period for which he was involved in this incident, we take the view that the sentence of 4 years imposed by the learned judge was longer than it need have been. We give leave to appeal. We allow the appeal. We quash that sentence and we substitute for it a sentence of 3 years' imprisonment.
42. Pandoor pleaded guilty on 23rd July 2002. He was sentenced by Judge Scott on 16th August to 4 years' imprisonment. His first involvement was at about 6.30 pm and he remained in the crowd until the early hours of the following morning. On three separate occasions, at about 9.00 pm, when he was wearing a mask, he threw a missile at the police. At about 11.00 pm, again, he threw a missile and, again, shortly after midnight, when he was wearing a different coloured mask, he threw another missile at the police. Video film shows him at or near the front of those confronting the police, on a number of separate occasions.
43. He did not surrender. He was arrested. Following arrest he made frank admissions. He was of good character.
44. Mr Ryder submitted that Pandoor should not have received a sentence of 4 years. He points out, rightly, that Judge Scott specifically referred to the underlying causes of the riot. In our judgment, there was nothing wrong with the sentence passed upon Pandoor and accordingly we refuse him leave to appeal.
45. Latif pleaded guilty on 12th December 2001 and was sentenced to 4 years 9 months by Judge Gullick on 15th February 2002. Latif was present for a three hour period. He was seen once with a metal bar in his hand, and on a number of occasions he threw stones at the police lines. He surrendered to the police in August, after a picture had appeared in newspapers which resembled him. He said it was not him because, he claimed, he had been either at work or in Birmingham. Those false alibis had to be investigated. Eventually, in November, he made full admissions and expressed remorse. He was born in November 1968. He has no relevant previous convictions as an adult.
46. Mr Ryder, on Latif's behalf, draws attention to written references upon him and to the pre-sentence report. In our judgment, his participation in these events was at a slightly higher level than those defendants with whom, so far, we have dealt. We are unable to accept that the sentence of 4 years and 9 months was manifestly excessive. His renewed application is therefore refused.
47. Azad pleaded guilty on 25th May 2002 and was sentenced by Judge Gullick on 21st June. He was around between 5.00 pm and shortly after midnight. On a number of occasions he was seen to throw stones and missiles at the police, one of which hit the shields of one of the officers. He was also seen near a burning barricade and near an overturned car. He was at or near the front of the rioters throughout. On occasions he was hooded. On others his sweater was pulled up to conceal his face. He was taken home by his father. But, as we have said, by that time he had been there for some seven hours.
48. He surrendered to the police following the publication of his picture in the local paper. He expressed remorse and admitted taking part in these events. He was born in February 1976. He is of good character.
49. On his behalf, Mr Ryder draws attention to the fact that he surrendered and was not a participant in looting or arson and to the contents of the pre-sentence reports. In our judgment, the role of this defendant was rightly assessed at a level higher than that of those least involved. Accordingly, we refuse leave to appeal against his sentence of 4 years and 9 months.
50. Hussain pleaded guilty on 16th April 2002 and was sentenced by Judge Gullick on 1st July. He was first seen with a large group of men in a park, and he there threw a missile towards the police. He was present, among the hostile crowds, for about eight hours, and he was repeatedly throwing missiles at the police. At one stage, he left for a meal and then returned to the riot. He was seen with a stone or brick in his hand, and he pulled up the hood on his jacket to try to conceal his identity. He was later seen at the front of the crowd, with a stone in his hand about to throw it but, as the police advanced towards the crowd, he melted back. He surrendered in January 2002, and said he could not remember the extent of his involvement but, when he was shown the video which had been made of him, he made full admissions. He was born in May 1975. He has no relevant previous conviction. He is described in the pre-sentence report as showing little remorse, although in a letter he has expressed regret. There are three character references upon him.
51. The submission by Mr Ryder is that there may well have been some untoward lack of harmony between Hussain and the probation officer who made the pre-sentence report upon him. That we take into account. We are, however, unpersuaded that the sentence of four-and-a-half years passed upon him was manifestly excessive. Accordingly his renewed application is refused.
52. Hanif pleaded guilty on 8th May 2002 and was sentenced on 14th June by Judge Gullick to 4 years and 9 months. He participated for over 2 hours and, on six separate occasions threw stones, or other missiles, at the police. He was also involved in an attack on a police van and picked up a metal fence, which he threw at a police van. He was hooded for most of the time. He encouraged others with victory gestures. He surrendered in January 2002, and admitted throwing stones, he said, because everyone else was. He was born in September 1979. Save possibly for one offence of obstructing the police, he has no previous relevant convictions.
53. On his behalf, Mr Ryder draws attention to the explanation given by Hanif to the officer who prepared the report upon him as to his presence, namely because of the British National party and its activities. We are unpersuaded that the sentence of 4 years and 9 months was a manifestly excessive sentence having regard to his role in these events. Accordingly his renewed application for permission to appeal is refused.
54. Qurban pleaded guilty on 17th April 2002, and was sentenced by Judge Gullick on 28th May. He participated for a period of 4 hours or so and was seen to throw a total of nine missiles at the police. He was also videoed brandishing a large light tube, not so much as a weapon, but, no doubt, by way of encouragement to others. He surrendered in August 2001. He admitted being in the city centre but denied throwing missiles. He denied, initially, that he was the person who looked like him in the video. The explanation for that denial was, he said, that he had actually been out drinking and did not want his parents or his family to know about that. He was born in June 1980. He was of previous good character. His pre-sentence report stresses his remorse, and there are three character references which speak well of him.
55. Mr Ryder submitted that the sentence of 4 years and 9 months was manifestly excessive. We do not agree. Accordingly it becomes unnecessary to consider whether it would be appropriate to grant an extension of 12 weeks which is needed for the purposes of his application. In our judgment, there is no arguable ground for appeal and his renewed application is refused.
56. Khalil pleaded guilty on 13th November 2001 and was sentenced by Judge Scott on 5th December. He was present for about 3 hours. He was seen carrying a road sign as a makeshift shield on two separate occasions. He was twice seen throwing missiles at police officers. He carried burning debris on one occasion and he tried to ignite something which was in his hand on one occasion. He was seen at the rear of a vehicle which others were trying to set fire to and was seen to place objects in the rear of that vehicle. He rolled a beer barrel towards the police lines. He held a petrol bomb in his hand. Another person ignited it, the applicant rushed towards the police lines and threw the bomb directly at the officers. He was then, unsurprisingly, followed by a police helicopter and that led to him being arrested at or not far from the scene. He made no comment in interview.
57. He was born in October 1972. He has a previous conviction for obstructing the police, but no conceivably relevant other convictions. The prison report speaks of him presenting no problems.
58. Mr Myers, on his behalf, submits that the judge must have taken too high a starting point and erred in expressly withholding the full credit for a guilty plea. Mr Myers drew a distinction between the way in which the judge apparently accorded full credit to another defendant called Shah, who appeared with him in the dock. It is apparent, from what Mr Myers told us that that defendant, who was sentenced to 4 years, was younger, of good character and his involvement in these events was conspicuously less than that of Khalil.
59. In our judgment, the sentence of six-and-a-half years passed upon Khalil, however unhappily expressed the judge's words in relation to giving of discount may or may not have been, was an appropriate one. It certainly cannot be said that it was arguably manifestly excessive. Accordingly, his renewed application is refused.
60. Khan pleaded guilty on 12th April 2002. He was sentenced by Judge Bartfield on 10th May. He went to the city centre at about 1.00 pm to protest against the British National Party. He was seen first on video at 1.15, in the city centre, behaving perfectly peacefully and responsibly. A little after 8.30 pm, by which time he had changed some of his clothes, he was in White Abbey Road throwing missiles at the police. At about 8.45 he was carrying a milk crate towards a metal fencing, which had been placed in the road by rioters. He was one of a large group which damaged a motor vehicle, although he was not himself seen to be doing any damage. Later he was seen, with a mask on the lower part of his face, helping to erect a barricade in the road by placing a metal barrel and road sign in the roadway. He was also seen carrying a wooden stick. At about 9.30 he was again seen on the video, throwing missiles towards the police lines. He surrendered to the police, after his picture had appeared in the newspapers. He initially lied about his involvement and asked to go on an identification parade although that was not ultimately pursued. He pleaded guilty at the first opportunity.
61. He was born in December 1980. He has no relevant previous convictions. Character references speak of him working hard at college. The learned judge, in passing sentence, said that the full discount was not appropriate, because he had not admitted his participation at the outset.
62. Mr Ryder drew attention to the terms of the pre-sentence report and to the fact, as is plain from the proper way in which he was initially behaving, that he was, at the outset, no more than a spectator. He became, later in the evening, in the way which we have described, far more than a spectator. We are unpersuaded that the sentence of 5 years which was passed upon him, was arguably manifestly excessive. Accordingly his renewed application is refused.
63. Raza pleaded guilty on 27th March 2002, and was sentenced thereafter by Judge Gullick. He was present for just over 5 hours. He was seen on a number of occasions in a group of hostile youths, at the front of the group, the group throwing stones at the police. He himself threw missiles several times, and on one occasion was seen apparently instructing others how to damage a car, which was subsequently set on fire and pushed towards the police lines. He is repeatedly depicted in the videos, in the front line of those facing the police. He made, having surrendered in February 2002, on return to this country from abroad, frank admissions to the police and expressed his remorse. He was born in September 1980. He was of good character. There are six character references upon him. The prison report upon him indicates that he has presented no problems.
64. On his behalf, Mr Ryder submits that a sentence of 5 years was excessive. We are unable to agree, having regard to the length of time during which this applicant was present and that which he did. In those circumstances, his renewed application is refused.
65. MR MANSFIELD: If I detain you just for a moment. As your Lordships are aware there were a large number of cases here, certainly in relation to those that I represent there were 12. I appreciate in four cases leave has been granted and people represented and I would ask your Lordship consider, in those cases, bearing in mind the background, and the matters of public importance so far as sentencing is concerned that are raised in that matter, that your Lordship would consider extending legal aid in one of two ways. One, to cover my instructing solicitor in preparation, as your Lordship has seen, in relation to bundles and also in terms of my own presence.
66. THE VICE PRESIDENT: In relation to four matters on which you succeeded. (Pause) Yes, Mr Mansfield.
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{"ConvCourtName":["Bradford Crown Court"],"ConvictPleaDate":["2001-12-11","2002-04-03","2002-05-07","2002-07-30","2002-03-26","2002-05-14","2002-07-23","2001-12-12","2002-05-25","2002-04-16","2002-05-08","2002-04-17","2001-11-13","2002-04-12","2002-03-27"],"ConvictOffence":["Riot","Violent disorder"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at the first opportunity"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Bradford Crown Court"],"Sentence":["3 years imprisonment","2 years imprisonment","4 years imprisonment","4 years 9 months imprisonment","5 years imprisonment","6 years 6 months imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[28,22,24,22,32,22,26,33,26,27,22,21,29,21,21],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Stranger"],"VictimType":["Individual person","Organisation"],"VicNum":["over 300 police officers","multiple businesses"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Video evidence","Photographic evidence"],"DefEvidTypeTrial":["Character references","Psychiatric reports","Admissions in interview"],"PreSentReport":[],"AggFactSent":["offence involved large scale public disorder","offence involved violence against police","offence involved use of weapons and petrol bombs","offence caused significant property damage","offence lasted many hours"],"MitFactSent":["pleaded guilty at first opportunity","expressed remorse","surrendered to police","good character","personal/family circumstances","mental health condition"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[15],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["general level of sentences passed was manifestly excessive","insufficient discount for guilty plea","insufficient weight to personal mitigation","mental health condition not sufficiently considered"],"SentGuideWhich":["Keys 8 Cr App R(S) 444","Pilgrim 5 Cr App R(S) 140"],"AppealOutcome":["Allowed & Sentence Reduced","Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["insufficient reduction for mental health condition","limited role in riot","short period of involvement"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["sentence not manifestly excessive","role in riot above minimum level","appropriate starting point for seriousness of offence"]}
|
Neutral Citation Number:
[2014] EWCA Crim 963
No: 201301556 A3, 201301586 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 19 February 2014
B e f o r e
:
LORD JUSTICE TREACY
MR JUSTICE KING
HIS HONOUR JUDGE KRAMER QC
(Sitting as a Judge of the Court of Appeal
Criminal Division)
-------------------
R E G I N A
v
DANIEL HERRITY
and
ROSS LUSCOMBE
-------------------
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 RF Linford
appeared on behalf of the
Appellant, Herrity
Mr J Young
appeared on behalf of the
Appellant, Luscombe
-------------------
J U D G M E N T
1.
MR JUSTICE KING: On 26 February 2013, in the Crown Court at Plymouth before HHJ Cottle, these two appellants, together with a co-accused Liam MacDonald, each pleaded guilty to count 2 of the amended indictment alleging arson being reckless as to whether life was endangered. The offence had been committed on 27 August 2012. The indictment had been amended that day to add count 2. It had originally contained only count 1 alleging arson with intent to endanger life. Following the pleas the prosecution offered no evidence on that count and a not guilty verdict was entered. We shall return to the circumstances in which these pleas came to be made, and the indictment came to be amended, when we consider the grounds of appeal.
2.
Each appellant was sentenced to 6 years' imprisonment. In the course of his sentencing remarks the judge made clear that the credit for which he was giving them for their guilty pleas was one of 25%. Again we will return to the circumstances in which that was indicated. Luscombe also fell to be dealt with for the consequential breach of a suspended sentence order imposed at the Crown Court, on 13 February 2011, for two offences of sexual activity with a child under the age of 16. That order had been one of 12 months' imprisonment suspended for 24 months. The judge activated that sentence consecutively, but with a reduced term of 6 months. He did so expressly having regard to the principle of totality. The total sentence in Luscombe's case was accordingly one of 6 years and 6 months.
3.
In the case of the co-accused, MacDonald, the sentence passed on the arson count was that of 5 years. In addition, he received a consecutive sentence of 2½ years for the possession of a Class A drug. The judge made clear that he had reduced the sentence on count 1, compared with the others, to take account of totality.
4.
The facts of the arson in the round involved the appellants, as an act of revenge, some time between 7 o'clock and 8 o'clock in the morning, pouring petrol onto the outside of the front plastic door of a semi-detached dwelling house, and through the letterbox, and then igniting the petrol. The appellants then left. At the time of the fire two occupants were in bed, the third was getting ready for work, which fortunately enabled him to be alerted to the fire at the front door, and to take steps to call the fire brigade who put out the fire to the door without anyone being harmed.
5.
We return to the facts in a little more detail. It was something like 6.45am on 27 August 2012 that the appellants and the co-accused were involved in an altercation with a man called Jamie Phillips, during which Herrity was set upon by a group of men. After the incident the appellants and MacDonald went by taxi to the home address of Phillips, stopping en route to the garage where Luscombe purchased a lighter while MacDonald bought a 5-litre petrol can which he filled. They continued their journey and were dropped off close to Philips' home address.
6.
Between 7.30 and 8 o'clock in the morning Graham Phillips, Jamie's father, was getting ready to go to work. Also present in the house was his wife and another son, not Jamie, both of whom were in bed. Jamie was not there. Graham Philips heard a bang and then a whoosh sound and went downstairs. He saw the flames and the front porch was full of smoke. He tried to put the fire out, but was unsuccessful. The fire brigade arrived quickly. A witness described seeing the porch on fire with large flames and two males casually walking down the road. He shouted at them and gave chase, but neither was caught. One of them discarded a jerry can. The fire officer who attended the scene said it was clear that petrol had been used on the outside of the door. Some had possibly been put through the letterbox in order to start the fire. The damage was valued at some £700.
7.
The appellants were later arrested and interviewed. Luscombe denied the offence and said he had not purchased a lighter. He did admit being with two Liverpudlian males that night and on exiting a taxi noticed that one had a petrol can. Herrity and the co-accused made no comment.
8.
Luscombe is 24 years of age, his date of birth being 2 October 1989. He had previous convictions. One of them was for arson committed in July 2005 when he was 15, for which he received a referral order from the Plymouth Juvenile Court. The information about that offending before the court set out in the pre-sentence report, and accepted by the sentencing judge, was that it amounted more to "mindless vandalism". This was in contradistinction to the appellant being fascinated with fire. It evidently involved a group of teenagers setting fire to a pipe on wasteland which had got out of control. Luscombes' other convictions were those for the sexual activity, for possessing cannabis, common assault and disorderly behaviour.
9.
Herrity is 22 years of age. He had previous convictions, namely for possessing cannabis, being drunk and disorderly and failing to pay rail fares.
10.
MacDonald is 26 years of age. He had five previous convictions for 12 offences, including theft, aggravated vehicle taking and associated driving offences. In addition, of course, he fell to be sentenced for the possession of cocaine with intent to supply.
11.
In his sentencing remarks the judge made clear he drew no distinction between the roles taken by any of the defendants. There appeared to him to be no sensible basis on which to make any such distinction. They were all equally responsible for the offence. This had been in the context of submissions made on behalf of Luscombe, that he had played a lesser role and that he himself had not gone to the house or played any part in the physical act of setting fire. However, he of course had bought the lighter.
12.
The judge stated that he considered the offence belonged at the upper end of the bracket for offences of reckless arson. It was only through good fortune that the consequences had not been more serious. The offence had been premeditated: an act of revenge. The house had adjoined others and the fire had potential to spread. Nothing had been done by any of the defendants to raise the alarm. He said there was little mitigation apart from the pleas of guilty, each having previous convictions "to a greater or lesser extent". There had been no expressions of remorse.
13.
We turn to the grounds of appeal. Mr Luscombe in his original grounds of appeal, considered by the Single Judge, sought to argue that the sentence was manifestly excessive because it failed to reflect his limited role in the offending. This has not been pursued before us and rightly so. There was no basis for distinguishing the appellants by reference to their different roles, as the judge said, each was equally responsible for this joint enterprise.
14.
Mr Linford, on behalf of Herrity, has sought to argue that the judge should have made a distinction between his client and the other two by reference to what he submits were the more limited lesser convictions of his client compared to the others. We see nothing in this point. It is true that Luscombe had a conviction for offending for arson, but this did not justify any distinction being made in the circumstances of the case. As we have already indicated, that was an offence of some years before when he was a very young man and reflected mindless vandalism.
15.
Mr Linford has also pursued before us, although not with great enthusiasm, an argument that the starting point taken by the judge, before giving credit for the pleas, was too high and outside the bracket appropriate to the facts of this case. Given the 25% reduction for the plea, the sentence represented a starting point of 8 years.
16.
We have been referred to
Attorney General's Reference (No 68 of 2008
)
[2008] EWCA (Crim) 3188
. The judge himself expressly referred to this authority. In that decision this court, following a review of the authorities, indicated that the appropriate starting point for arson with intent to endanger life, following a trial, would be "in a range of eight to 10 years" with the range for cases involving reckless arson being "rather below that". The court made the point however that the dividing line between the worse cases of reckless arson and the least serious cases of arson with intent to endanger life is a fine one.
17.
Mr Linford sought to persuade us that this sentence was manifestly excessive because it could not rightly be put at the upper end of the bracket for offences of reckless arson. We do not agree. The judge in his sentencing remarks had careful regard to the decision in the
Attorney General's Reference
. He noted that the court in that case, in which the offender had pleaded guilty, had indicated that a proper sentence on an initial sentencing exercise was at least 6 years, that this had been in a case in which the aggravating features identified at paragraph 14 of the judgment in
Attorney General's Reference
were not dissimilar to those in the present, but was also a case in which the offender could lay claim to mitigation not available to these appellants. That included his being a man of previous good character, with substantial mitigating positive features in his life, and his having shown genuine remorse.
18.
We have already identified the aggravating features in this case. We repeat them: the offence was premeditated; it was an act of revenge; the house adjoined others; accelerant had been used and the fire had potential to spread; and nothing had been done by the defendants to raise the alarm. Not only that, the fire was started in the main entry and exit point of the house. As we have indicated, given the time of day it was not surprising that there were occupants in the house and occupants who were in bed. As the judge said, it was purely by good fortune that the consequences were not more serious. There is nothing in the point that the sentence in principle was manifestly excessive.
19.
We turn to the principal point which has been argued before us, which goes to the credit given for the pleas of guilty. The appellants had pleaded not guilty to the count 1 offence at a hearing on 10 December 2012 before HHJ Darlow. The sentencing court in this case, HHJ Cottle, described that hearing as the "plea and case management hearing".
20.
Mr Linford, on behalf of Herrity, has informed us that as far as his client was concerned it was not such a hearing, but it was a preliminary hearing. This was a case in which the offence was triable only on indictment and had been transferred to the Crown Court pursuant to the material statutory provisions. We do not have a transcript of what occurred on that occasion on 10 December. However, HHJ Cottle in his sentencing remarks accepted that on that occasion it had been indicated, on behalf of all defendants, that were it acceptable to the Crown each would be willing to plead to the count of reckless arson. Within a very short time of that hearing confirmation of their intentions was given to the prosecution and accepted by them. The judge said in those circumstances the credit to which they were entitled was "in the region of 25%". They were not entitled to the full credit that goes with the plea of guilty, he said, because "that is reserved for people who accept their guilt at the time of interview". It is clear from the remarks made by the judge at the mitigation hearing, on 12 February 2013, that he was intending to put the appellants in the same position as they would have been "had [they] pleaded guilty, acceptably, at the PCMH, which they intended to do" (see transcript at page 3F).
21.
Mr Linford, who appeared on behalf of Herrity before HHJ Darlow, has informed us that the judge there had indicated that if the defendants wished to retain credit for their guilty pleas to lesser offences, those pleas should be communicated to the prosecution within seven days, which was duly done. He says that accordingly the Sentencing Judge should have given maximum credit for the guilty pleas. He submits that on the authorities this was a plea to a lesser offence at the first available opportunity, given that it was a preliminary hearing. Mr Young, on behalf of Luscombe, adopts the arguments of Mr Linford.
22.
We have looked at the guidance given by this court in
R v Caley
[2012] EWCA (Crim) 2821
, which itself had regard to the guidance given by the Sentencing Guidelines Council. The key feature which emerges from
Caley
is that the essential question is whether the defendant indicated his willingness to plead at the first reasonable opportunity. Absent particular circumstances the first reasonable opportunity for a defendant so to indicate is not the PCMH and is normally either at the Magistrates' Court, or on immediate arrival at the Crown Court at a preliminary hearing (see paragraph 18 of Caley). The court in
Caley
did not however endorse the principle apparently adopted in the present case by the Sentencing Judge, that the first reasonable opportunity arose in the police interview (see
Caley
at paragraph 12). As regards pleas to lesser offences, the court in
Caley
said this at paragraph 20:
"20. By 'indicate plea of guilty' we mean to include the case where, either in the magistrates' court or at or soon after arrival in the Crown Court, the defendant through counsel or solicitors notifies the Crown that he would admit a lesser charge or invites discussion as to the appropriate charge, at any rate where the position taken up is a reasonable one."
23.
Had we been satisfied that the hearing at which the indications were given on 10 December was properly to be characterised as a plea and case management hearing, then it would have been difficult to interfere with the Sentencing Judge's assessment of a 25% reduction. The court in
Caley
at paragraph 19 indicated that the stage of a PCMH, or shortly thereafter, was a stage at which the guideline contemplated a reduction of about a quarter.
24.
However, we cannot be so satisfied in this that the occasion on 10 December was not the first opportunity at which the indications to plea to these lesser charges could have been given. It is clear that the prosecution up to that date were not indicating any willingness to accept lesser pleas. There was only count 1 on the indictment, that of arson with intent. In the round we accept, given the submissions made by Mr Linford, that the Sentencing Judge should have treated these indications as having been given at the first reasonable opportunity in the particular circumstances of this case. We therefore will allow the appeal in both cases here to ensure that a full one-third credit is given for the guilty pleas.
25.
The only other matter to which we should refer to is this: in the papers there has been suggestion that there was a failure by the judge to direct that time spent in custody on remand, or in relation to qualifying electronic curfew, should count towards sentence and that as a result one or other of these appellants has been prejudiced because proper credit for these matters has not been given to him. In fact, it is clear from the remarks made by the Sentencing Judge at the mitigation hearing, on 12 February 2013, that he did give the appropriate direction. He said at page 8D:
"Well I will make it clear that those periods that have been spent in custody by the defendants will count towards their release date."
26.
This court in
R v Boutell
[2010] EWCA (Crim) 2054
this court made clear at paragraph 16 that where a judge uses words that refer to "remand in custody", that is sufficient to enable proper credit to be given to a defendant for both the period spent on remand in custody and for qualifying curfew.
27.
In these circumstances no ground of appeal, as such, in relation to these matters has been pursued. However, for the avoidance of doubt, we make clear that in the case of Luscombe 76 days spent in custody and 33 days reflecting one half of the days spent on qualifying curfew, that is to say a total of 109 days, are to be credited against the sentence he received. We understand from Mr Linford, on behalf of Herrity, that in fact in his client's case the matter has been appropriately and administratively dealt with by the authorities.
28.
In all these circumstance, therefore, we allow this appeal in each case, but only to this extent: by reducing the sentence of 6 years on count 2 to one of 5 years and 4 months, to reflect full credit for the pleas. All other orders will stand. We should add that Mr Young, on behalf of Luscombe, did seek to pursue before us a ground of appeal which has never previously been put before the court, namely that the judge was in error in activating the suspended sentence at all. This, it was submitted, was because of the difference in character between the offence for which the suspended sentence was passed and the present offending. We see nothing in that point at all. The activation by the judge of 6 months of a suspended sentence of 12 months was an entirely proper order. We do not therefore give leave to Luscombe to pursue that ground.
|
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|
Neutral Citation Number:
[2013] EWCA Crim 987
Case No:
201300176 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM INNER LONDON CROWN COURT
HIS HONOUR JUDGE SEED
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18/06/2013
Before :
LORD JUSTICE PITCHFORD
MR JUSTICE GRIFFITH WILLIAMS
and
HIS HONOUR JUDGE FORD QC
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Appellant
- and -
JUNIOR LODGE
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Rhodri James
(instructed by
Registrar Criminal Appeals
) for the
Appellant
Tom Little
(instructed by
CPS
) for the
Respondent
Hearing date: 6 June 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pitchford :
1.
On 6 June 2013 the court heard argument in support of the appellant’s appeal against conviction brought with the leave of the single judge. At the conclusion of argument the court dismissed the appeal. These are the court’s reasons.
Conviction and grounds of appeal
2.
On 5 December 2012 at Inner London Crown Court before His Honour Judge (“HHJ”) Seed the appellant was convicted upon count 1 of inflicting grievous bodily harm on Richard Stickler, contrary to
section 20 Offences Against the Person Act 1861
and upon count 2 of assault by beating Veito Freitas, contrary to
section 39 Criminal Justice Act 1988
. On 18 February 2013 the appellant was sentenced to a term of 18 months imprisonment upon count 1 and 6 months imprisonment concurrent upon count 2.
3.
The appellant raises two grounds of appeal: The first is that the judge failed to exercise his discretion under
section 78 Police and Criminal Evidence Act 1984
to exclude evidence adduced from the complainant Richard Stickler as to his own good character. The second ground (which Mr James, on behalf of the appellant, at the outset of his submissions, conceded was unlikely on its own to support a conclusion that the verdict was unsafe) is that the judge intervened inappropriately during the evidence of a defence witness and by that means demonstrated a bias against the defence case which was compounded by a failure in the summing up to summarise the witness’s evidence. Mr Little who represented the respondent in the appeal did not appear as counsel for the prosecution at trial.
Evidence at trial
4.
The evidence established that in the early hours of 29 January 2012 three men, Richard Stickler, Veito Freitas and Paul Stedder were in Clapham High Street, opposite Clapham Common underground station, waiting for a bus to take them home. Earlier that day they had been playing rugby following which they had been drinking steadily. While they were at the bus stop the appellant drove his red Fiat Punto motorcar into the bus pull-in. He was accompanied by two female passengers, Nicole Reid, with whom he was then in a relationship, and her friend, Natasha Clarke. Nicole Reid opened the rear passenger door and vomited violently on to the road surface. This was the cause of some hilarity among bystanders who included Stickler, Freitas and Stedder. It was their evidence that the appellant took exception. He approached them in an angry manner, using terms of abuse. Mr Stickler told him to calm down and look after his girlfriend. The appellant used his leg to sweep Mr Stickler off his feet causing him to fall back and hit his head on the pavement. He was temporarily knocked out. When he came round Mr Stickler asked, “What did you do that for, you prick?” The appellant responded “I dare you to call me a prick again”. Mr Freitas did so at which point the appellant squared up to him. Mr Stickler removed his jacket intending to intervene but Mr Freitas was immediately punched to the ground. According to the three men, both girls, Nicole and Natasha, were attempting to restrain the appellant. The appellant re-directed his attention to Mr Stickler who was again struck to the ground.
5.
The end of the incident was captured by CCTV. By the time the police arrived the appellant had gone, leaving his car at the side of the road. Their attention was drawn to the two girls who had walked a short distance away from the car. PC Borthwick asked the girls what had happened. She said in evidence that they responded they had seen nothing and they refused to co-operate.
6.
Mr Stickler was taken to hospital where he received treatment for bruises, a damaged ear canal, a minimally displaced fracture of the lower jaw and a small fracture of the left eye socket.
7.
At 5.15 am, just over an hour after the incident took place, the appellant was found in his red car. He had altered his clothing and when approached gave a false name. The explanation which he gave later was that he had changed his clothing because he was cold and he had given a false name because he did not possess a full driving licence. At interview under caution the appellant declined to answer questions but produced a prepared statement. In that statement it was alleged that Mr Stickler’s group had been laughing and shouting, “Look at that coon being sick”. The appellant claimed that he had asked them to moderate their racist language. They continued to abuse and threaten the two girls with racist language. He said that he was outnumbered and defended himself from assault by the three men.
8.
In evidence the appellant said that after the confrontation he went to his father’s house and changed his clothes before returning later to fetch his car. Although he claimed at trial to have suffered injury he told the reception officer at Brixton police station that he had not. At 11.00 am the next day he requested a doctor saying that he had an injury to his hand and blurred vision. In evidence he gave an account consistent with that in his prepared statement. He denied sweeping Mr Stickler off his feet. He admitted that he had punched all three men but said he had acted in self-defence. He claimed that he was suffering a panic attack and as soon as he could he left the scene.
The admission of rebuttal evidence
9.
In the course of cross-examination of the complainant Richard Stickler, which took place on Thursday 29 November, it was put to Mr Stickler that he had directed to Ms Reid the remark, “Look at that coon throwing up” and to the appellant the words, “Dirty nigger”. Mr Stickler replied:
“I find that offensive … I am not racist. I would never be racist. I have got friends who are all different ethnic minorities. I am godfather to a daughter who is half Antiguan and half Asian. Why in earth would I say such things?”
At the conclusion of cross-examination Mr James again suggested to Mr Stickler that he had called Ms Reid a coon and the appellant a nigger. Mr Stickler responded “definitely not” and said that his best friend, Ben, was black.
10.
On Monday 3 December Mr Benson for the prosecution applied to recall Mr Stickler to give further evidence. In October 2007 Mr Stickler had been one of a number of people who had made an expedition to climb Mount Kilimanjaro to raise money for a charity which did work in Tanzania. During his stay a photograph of Mr Stickler carrying a young black Tanzanian boy was taken. The prosecution was unaware of this evidence when Mr Stickler had first been in the witness box and wished to adduce it in rebuttal of the defence assertion that the witness had started the violence by his racially aggressive behaviour towards the appellant and his girlfriend.
11.
In his ruling the judge acknowledged that the prosecution could not be permitted to adduce evidence of the general good character of its own witness. However, he identified an exception to the general rule when the evidence went to a specific issue raised in the case. He said at page 4G of the transcript of his ruling:
“It actually goes to the propensity of the witness to behave in the way that the defence alleged he did behave on the night in question, which gave rise to this incident turning out the way it did and the fact that Mr Stickler is quite happy to be seen holding a black boy, in a friendly, avuncular way, and is prepared to go and raise money for the benefit of deprived communities in Africa, very much will affect whether or not the jury consider he is the sort of person who would have started this incident and caused it to develop in the way it did by using expressions such as “nigger”, “filthy nigger” and “coon”, and in my judgment this is exactly the sort of evidence about a prosecution witness’s character which can be admitted, because it goes to a central issue in the case and not just bolstering his credibility.”
The judge went on to find that the admission of the evidence would not result in unfair prejudice to the appellant.
12.
Mr Stickler was recalled to describe the nature of his charitable work in Tanzania and to produce the photograph as exhibit 2. The photograph was posted on a website called “beerandrugby.com”. He explained that the photograph was taken at a hospital called the Amani Centre which was also an orphanage for 250 children of whom the little boy in the photograph was one. In cross-examination Mr James asked the witness whether he was responsible for a posting on the website applauding the act of “taking the ugly bird home”. He admitted that he was. Mr James suggested that that was a sexist comment. The witness replied that it wasn’t meant to be sexist. It was a bit of fun.
Judge’s intervention
13.
Natasha Reid was called to give evidence in the course of the defence case. She purported to support the appellant’s account that she, the appellant and Natasha Clarke were subjected to racial abuse. She said that as Mr Stickler’s group was hurling abuse at the appellant she became terrified and walked away from the car with her friend Natasha. She suggested that it was the appellant who was the victim; a punch was aimed at him and he responded. She and Natasha moved away before the incident developed further. She claimed not to have seen any of the men go to the ground.
14.
In cross-examination Mr Benson for the prosecution invited the witness to watch the CCTV film. It was apparent that the two girls had walked a short distance away from the car. It was suggested to her that she must have seen at least one person go to the floor. The witness denied it. She was shown part of the CCTV that showed her standing on the pavement close to the incident. She insisted that she went away not because the police arrived but because she was frightened and wanted to go home. She was asked why, when she was approached by PC Borthwick, she claimed to have seen nothing and did not wish to get involved. She was asked why she did not tell the policewoman that her boyfriend had been attacked by three men. She replied “I wanted to get out of there”.
15.
It was suggested to her that her friend Natasha was not with her because Natasha could be seen getting out of the car at the same time as the appellant after the incident was over. The following passage took place:
“Benson:
You just told me that when this incident was taking place you and Natasha moved a safe distance away and neither of you re-approached it. You then walked off from a safe distance.
Witness:
Say that to me again, when what happened?
Judge:
You said that Natasha got out at the same time as you and you left this incident. We have just seen Natasha getting out of the car after the incident is all over. Where is the truth in all this?
Witness:
I don’t know how Natasha got back into the car.
Benson:
You are not telling us the truth are you?
Witness:
No, I am telling you the truth.”
16.
Mr Benson pressed the witness with the fact that far from leaving the area the CCTV demonstrated that she remained and must have seen what was happening. She had only walked towards the tube station after the incident was over and when the police were arriving. Mr Benson asked:
“Q:
You are suggesting are you that in the 3 or 4 minutes footage that I have just played you, you covered the distance of maybe this courtroom?
A:
Listen. Maybe I was standing there going, “Oh my God”. I was in shock I didn’t know what had just happened. I was terrified. Whether it took me 5 minutes to get to there, I wasn’t hanging around to see what had happened. Why wouldn’t I have come around to the front then?
Judge:
You just answer questions, preferably honestly.
Benson:
Your first reaction when confronted by the police was to say that you had not seen anything, was it not?
A:
I can’t remember exactly what I said, all I said was that I wanted to get out of there.”
Mr Benson pressed the witness upon the fact that, on the one hand, she was saying that she was crying and screaming and needed to get away when, on the other, the CCTV film demonstrated that she remained in the immediate vicinity. The witness replied that she was not hanging around. The judge intervened to ask:
“You only started moving when the police appeared. We have just seen that. It was only when a police officer came over towards you that you started leaving the scene – why?”
There was no direct answer to the question and the judge formed the view that the witness was “bantering” with him. The witness was shown the CCTV a second time and Mr Benson continued to challenge the witness’s account that she did not respond to the police because she was frightened and wished to get away. Finally, Mr Benson put to Ms Reid:
“Q:
The truth is that at one stage during this incident you and Natasha actually tried to stop Junior Lodge when he lost his temper did you not? …
A:
Maybe I said to Jay, “Stop, come on let’s go”. I can’t remember that actually, but all I know is that I was frightened and I wanted to get out of the situation. I didn’t know if I was going to get hit. I didn’t know if there was more than three of them. I don’t know. I was frightened.”
17.
At the end of cross-examination the judge asked:
“On that picture you see frozen on the screen, that officer on the right is Police Constable Borthwick. She came over to ask you about this incident and you told her that you had not seen anything. Why did you say that?
A:
I don’t know I just wanted to get out of there to be honest. I just wanted to get out of the situation.”
Ground 1: Admission of Good Character Evidence
18.
It is a well recognised rule of evidence that “in general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up” (see the judgment of Lawton LJ in
Turner
[1975] 1 QB 834 at page 842C). However, Mr James recognised that there were circumstances in which evidence of the specific disposition of a witness may be relevant to an issue in the case and, therefore, capable of proof. In
IWAT (
also known as
Amado-Taylor)
[2001] EWCA Crim 1898
(Keene LJ, Garland and Burton JJ) the court was reviewing the conviction of the appellant for an offence of rape the trial of which, it should be noted, took place before the enactment of the bad character provisions in the
Criminal Justice Act 2003
. During the course of the evidence for the prosecution the complainant’s boyfriend had been permitted to give evidence that the complainant had strict sexual morals. She was a virgin and firmly believed in her Catholic faith. On appeal it was argued that the evidence was inadmissible because it amounted to “oath-helping” (see
Beard
[1998] Crim LR 585 and
Robinson
[1994] 98 Cr App R 370
).
19.
At paragraph 21 of his judgment Keene LJ said:
“21.
But the general principle is that evidence which is relevant to an issue in the trial is admissible unless, of course, excluded by reason of one of the normal exclusionary rules of evidence. Cases may arise where evidence of the victim’s dispositional character may well be relevant to an issue in the case. One of the more obvious instances would be where the defence of self-defence is raised on a charge of personal violence. For example, on a murder charge, it appears to be accepted that the accused may adduce evidence to establish that the victim was of a violent disposition if self-defence is being run as a defence. We note that in
Phipson
on Evidence, 15
th
Ed, the following passage is to be found:
“If the accuser’s defence to a charge of some crime of violence is that he was defending himself against an attack launched by the complainant, it is apparent that the non-violent character of the latter is no less relevant as a matter of logic than that of the former”: 19-02.
22.
We agree with that proposition. Since the defence in such a case can in any event call evidence of good character of the accused, as is recognised by the very existence of
section 1(f)(ii)
of the
Criminal Evidence Act 1898
, it would seem anomalous if the complainant were not able to seek to establish his non-violent disposition”.
20.
The court noted that in a number of cases involving allegations of sexual offences evidence had been admitted to establish a relevant disposition of the complainant in the face of assertions by the defence that she consented to particular sexual activity. It was concluded that upon the facts of the case the judge had properly admitted evidence of the complainant’s disposition to resist any form of pre-marital sexual intimacy.
21.
In
RG
[2002] EWCA Crim 1056
, [2003] Crim LR 43 (Auld LJ, Newman and Roderick Evans JJ), the court considered the application of the principles identified in
Amado-Taylor
to a case of alleged murder with the use of a knife. The issue between the prosecution and the defence was one of self-defence. The appellant claimed that he had disarmed the deceased and used the knife in self-defence. The prosecution was permitted to adduce the evidence of the deceased’s friends to the effect that to their knowledge he was carrying no knife on the night of the killing and had never done so. One of the witnesses went further and said:
“In the time I knew him I have never known him to carry a knife. He was a gentle, laid-back, beautiful man.”
The first ground of appeal was that the judge had permitted the witnesses to speak in general about their belief, and one witness to provide a description of the deceased’s character which went beyond the factual issue whether the deceased had taken a knife to the scene. Secondly, the judge had, without further explanation or warning, simply repeated the witness’s evidence to the jury. In his judgment on behalf of the court, Roderick Evans J noted that the principles to be applied were those identified by the court in
Amado-Taylor
. The appeal was allowed on the ground that in the absence of explanatory directions from the judge the admission of the evidence was unfair. The appellant had felt compelled to introduce his own convictions, which the prosecution had not sought to do, in order to counter the implied assertion that he must be a man who was likely to arm himself with a knife. The court concluded that although relevant evidence was admissible upon the issue of self-defence the admissible evidence from the victim’s friends was of so little probative value that the judge should have provided the jury with specific directions upon its limitations. The judge’s directions tended, in the view of the court, to have shifted the focus away from the central issue, namely whether the knife had been used in self-defence, to a secondary issue as to which of them was more likely to have carried the knife to the scene. The court also allowed the appeal upon a second ground relating to the judge’s comment upon the absence of a witness who may have been, but was not for good reason, called on behalf of the defence.
22.
Mr James accepts that in his response in cross-examination to the allegation of racist abuse which formed an integral part of the defence of self-defence, Mr Stickler was not limited to a monosyllabic denial. He was entitled to demonstrate that his disposition was the opposite of that alleged. Either in cross-examination in response to Mr James’ questions, or in re-examination, evidence of Mr Stickler’s charitable work in Africa and his disposition towards a black child was admissible. He also concedes that it was open to the prosecution before the close of its case to seek permission to recall the witness in order to deal further with the allegation made. Mr James’ criticism is that the judge failed to exclude the evidence as unfairly prejudicial within the meaning of
section 78
Police & Criminal Evidence Act 1984.
23.
Mr James’ argument is that the production of the photograph and the detail of the rebuttal evidence may have had the effect of diverting the jury from the central issue in the case which was one of self-defence. They may have been tempted to concentrate on the issue whether or not Mr Stickler was a man likely to have used racial abuse rather than on the issue whether the appellant responded to a physical attack upon him by Mr Stickler and his friends.
24.
We do not accept this submission. The fact that the evidence in response to the allegation may have been compelling is not a reason why the jury should have been deprived of the opportunity to consider it. We accept that it did not follow inexorably that a man well disposed towards black people would not, when in drink and challenged as to his behaviour, use racist language towards a black man and a black woman. That was an argument available to Mr James’ which he used in his address to the jury. However, the commencement of the incident as alleged by the appellant seems to us, as it seemed to the judge, to be inseparable from the question whether the jury could be sure that it was the appellant and not Mr Stickler who was the aggressor. This was not a collateral issue but a central one. The appropriate balance was to be struck by appropriate directions to the jury in summing up.
25.
It was conceded by the defence that the attack upon the credit of the prosecution witnesses laid open the defendant to the admission of his own bad character. That was limited to two offences of common assault in 2005 and 2006. The judge was explicit in his directions that the only relevance of the convictions was the effect they had on a judgment whether the defendant’s allegations as to Mr Stickler’s racist behaviour were to be believed. It was not open to the jury to use those convictions for the purpose of reaching any other conclusion favourable to the prosecution. When he came to direct the jury as to the effect of Mr Stickler’s evidence in response to the allegations of racist aggression the judge said this:
“Similarly, and it is the other side of the coin in a way, you have exhibit 2, the details of Mr Stickler’s work with charity and his charitable activities, particularly for Tanzanian orphans and others. They are not before you and you do not use them for you to see what good character Mr Stickler has, because that is not relevant. They are there to assist you with whether or not he is telling the truth when he says he is not a racist and did not and would not make racist remarks. That is why you have had exhibit 2 put before you. It is on that issue, to decide whether or not someone who does that sort of work and has that sort of relationship with Tanzanian orphans, would make the remarks alleged here.”
26.
The judge’s directions upon the issue of self defence are not the subject of criticism; nor could they be, because the judge’s direction was full and fair. In our judgment there was no unfairness to the defendant generated by the admission of this evidence. The jury understood the relevance of the evidence and its limitations and were well able to make the judgement whether on the night of the incident Mr Stickler may have acted out of character.
Ground 2: Evidence of Nicole Reid
27.
We accept that the judge was unwise to become embroiled in the argument between Nicole Reid and prosecuting counsel as to the effect of the CCTV evidence. However during his first interruption the judge was attempting to draw the witness’s attention to the question she was being asked. When the judge asked the witness, “Where is the truth in all this?” it does not seem to us that the jury would have construed his question as a sign of bias one way or the other. The judge was simply repeating the effect of counsel’s questions. Notwithstanding the judge’s intervention the witness continued to make her assertions without confronting the evidence that, far from escaping because she was frightened, she was clearly at the scene while the violence was taking place. We do not consider that the judge should have told the witness to answer questions “preferably honestly”, because that may have conveyed to the jury the impression that the judge did not believe that the witness was already at least attempting to tell the truth. The judge’s third intervention was another attempt to direct the witness to the question she was being asked. He was, in our view, entitled to express his view that the witness was being argumentative rather than facing the question put to her.
28.
Mr James asserts that the judge’s interventions were capable of rendering the subsequent verdicts unsafe. His error was compounded, he submits, by the judge’s failure to summarise the evidence during the course of his summing up. The judge said at page 33E of his summing up:
“Nicole Reid.
What you made of that evidence is a matter for you. You will treat it fairly with all evidence it is fresh in your mind and I do not remind you of it.”
The witness’s evidence was given between 10.07am and 10.45am on 5 December 2012; the judge’s summing up commenced at 11.29 am and was concluded by 3.20 pm. In our view the judge was entirely right to observe that the evidence would be fresh in the jury’s memory and that it was unnecessary for him to summarise it. At the commencement of his directions of law the judge made it abundantly clear that decisions as to the reliability and effect of the evidence was a matter for the jury and not for him. Having read the transcript of Ms Reid’s evidence it seems to us that her evidence was discredited by her refusal to confront the inconsistency between her explanation of her movements and her movements as seen in the CCTV film. It was, of course, the prosecution case that both she and Natasha Clarke had intervened in an attempt to stop the appellant from continuing his attack upon Mr Stickler and his friends, and this was why the police were directed to the two girls when they arrived on the scene. It seems to us that any summary of the evidence by the judge was bound to underline for the jury the difficulties presented for the appellant’s case by Nicole Reid’s evidence. There was no rational explanation why, if the appellant had been subjected to a racist attack, Ms Reid should not have said so when she was approached at the scene by the police. Her explanation that the incident had been so frightening that she felt compelled to leave was contradicted by the CCTV film. Contrary to the witness’s evidence, she had not left the vicinity while the violence was ongoing. She was at the scene when the police arrived and only then began to move away. While we consider that one of the judge’s interventions was imprudent, none of them, individually or cumulatively, would have had any significant effect upon the jury’s consideration of her evidence. We do not consider there is a risk that the safety of the verdicts is compromised.
29.
It was for these reasons that the appeal was dismissed.
|
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|
No:
200604627 A1
Neutral Citation Number:
[2006] EWCA Crim 2757
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Thursday, 19th October 2006
B E F O R E:
LORD JUSTICE LATHAM
Vice President of the Court of Appeal Criminal Division
MR JUSTICE HENRIQUES
MRS JUSTICE GLOSTER DBE
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 097 OF 2006
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR J LAIDLAW
appeared on behalf of the ATTORNEY GENERAL
MR P ARNOLD
appeared on behalf of the OFFENDER
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE LATHAM: This is an application by the Attorney General for leave to refer to this court under
section 36 of the Criminal Justice Act 1988
a sentence imposed on this offender on the grounds that it is unduly lenient. The sentence was one of 2 years' imprisonment imposed concurrently on the offender in respect of two offences of possessing Class A drugs with intent to supply. The drugs involved were 1.3 grams of crack cocaine and a further quantity of 1.5 grams.
2.
The basis of plea which was tendered in circumstances to which we will return was that the drugs were not in his physical possession, but he accepted that he had involved himself in their possession by indicating by means of text messages that those two packages of drugs were available for sale. The drugs had in fact been found by the police on 13th May 2005 when they searched a flat in Pershore where the offender's co-defendant, Miss Gillet, lived. She had a bag in which were found the two quantities of cocaine to which we have referred. She was arrested and in her interview made no comment.
3.
The offender was subsequently arrested, interviewed and denied any knowledge of the drugs. His mobile phone was taken; and £1,815 cash was found. A list was found in his wallet which contained a number of names which the police claim was a dealing list. His DNA was found on both the wraps of drugs.
4.
Ultimately, the case was listed for trial on 12th June 2006 before Mr Recorder Evans. The charges then were different and more extensive. But the prosecution indicated that they were prepared to amend the indictment to add the two counts to which ultimately the offender pleaded guilty on the basis of plea that he had put forward. Counsel for him indicated that he would ask the judge for what is now known as a
Goodyear
direction, were his client to plead guilty to the indictment as so amended. The Recorder, having heard the facts and the offender's previous history, which included a conviction in 1995 of possession with intent to supply heroin for which he received 5 years' imprisonment, indicated that if the offender was convicted after trial, he would sentence him to 3 and a half years' imprisonment.
5.
In the light of that indication, the offender intimated his preparedness to plead guilty. The prosecution then made the application for the amendment of the indictment. It was amended; and the offender then pleaded guilty. Sentence was adjourned and on 15th August 2006 the offender, together with his co-defendant, came back before the Recorder when the offender was sentenced, as we have indicated, to 2 years' imprisonment on each of those counts currently.
6.
On behalf of the Attorney General, it is submitted that the indication given by the Recorder as to sentence was inappropriate in two respects. Firstly, he submits that the Recorder did not, as
Goodyear
indicates he should, have given consideration to what the consequences of the plea of guilty would be, as opposed to an indication as to the sentence were there to be a plea of not guilty. Secondly, and more fundamentally, he submits that the indication was too low. He submits that the Recorder should have considered this to be a case which was on a par with the case of
Daljit
, to which we have been referred, and that accordingly the minimum sentence, if he was giving an indication in the form that he did, should have been one of 6 years' imprisonment. He submits that accordingly, whatever mitigation may have been available to the offender, the ultimate sentence here was plainly unduly lenient and that accordingly it is a sentence with which we should intervene. He submits that the fact that the offender pleaded guilty after the indication is only one factor that we should take into consideration, and certainly is not sufficient to justify the conclusion that this sentence can properly stand.
7.
In our view they overstated the case. First of all, the offender was in possession of, on his plea, a relatively small quantity of drugs.
Daljit
was accordingly not a direct comparator. On the other hand, this was the second occasion upon which he had been convicted of possession with intent to supply. In those circumstances, we would have expected the judge, if he felt it appropriate to give an indication as he did in the way that he did, to have indicated to the offender that he faced the risk of a sentence in the region of 5 years' imprisonment. He pleaded guilty, albeit at the last possible opportunity. He was therefore entitled to credit for that plea of guilty.
8.
There was other significant mitigation which this offender was entitled to pray in aid at the time which would have justified a further significant reduction in the sentence on its own. This complicated the case; and indeed makes it a problematic case for a reference by the Attorney General.
9.
We have to consider the matter not only in the light of those matters but also bearing in mind the fact that the offender pleaded guilty as a result of an indication which is a matter which we should take into account, albeit that it does not preclude the Attorney General on the facts of this case from referring the matter to this court. But finally, we also have to take into account the question of double jeopardy in this case, because the appellant faces the possibility that instead of being released as he would otherwise have been yesterday, he may have to face a further period of imprisonment after he had expected to be free. That, of course, does not entitle him to the same consideration as those who have been sentenced to non-custodial sentences and who then face imprisonment or detention, but nonetheless it is clearly a matter which we are entitled to take into account.
10.
Despite the misgivings we have referred to, we give leave to the Attorney General to refer because we consider that this sentence was indeed lenient, bordering on the unduly lenient. But in the exercise of our discretion, for the reasons that we have given, we do not consider that it would be in the interests of justice to interfere with the sentence that the Recorder imposed in this case. For those reasons, we refuse to interfere with the sentence.
|
{"ConvCourtName":[""],"ConvictPleaDate":["2006-06-12"],"ConvictOffence":["Possession of Class A drugs with intent to supply"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on day of trial"],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["2 years' imprisonment (each count, 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":["DNA match","Text messages","Cash found","List of names (dealing list)"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["High risk of reoffending"],"AggFactSent":["Previous conviction for possession with intent to supply heroin (1995)"],"MitFactSent":["Relatively small quantity of drugs","Significant mitigation (not specified)","Plea of guilty"],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Recorder gave inappropriate Goodyear indication","Indication as to sentence was too low"],"SentGuideWhich":["section 36 of the Criminal Justice Act 1988"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":["Recorder did not give proper consideration to consequences of guilty plea","Indication as to sentence was too low compared to precedent (Daljit)"],"ReasonDismiss":["Sentence was lenient but not unduly so; significant mitigation and double jeopardy considered; not in interests of justice to interfere"]}
|
Neutral Citation Number:
[2019] EWCA Crim 20
Case No:
201804447 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOD GREEN CROWN COURT
HIS HONOUR JUDGE AUERBACH
T20180022
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
24 January 2019
Before:
Lord Justice Davis
Mr Justice Jay
and
His Honour Judge Dean Q.C. (sitting as a Judge of the Court of Appeal)
-
- - - - - - - - - - - - - - - - - - - -
Between:
R.
Respondent
- and -
Biffa Waste Services Limited
Appellant
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
David Travers QC and Richard Banwell
(instructed by
CMS Cameron McKenna Nabarro Olswang LLP
) for the
Appellant
Sailesh Mehta and Howard McCann
(instructed by
the Environment Agency
) for the
Respondent
Hearing date: 18 December 2018
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Judgment Approved by the court for handing down
Lord Justice Davis:
Introduction
1.
This is an appeal by the defendant company against a ruling given in the Wood Green Crown Court on 18 October 2018 at a hearing designated as a preparatory hearing. Leave to appeal against the ruling was granted by the Crown Court Judge (Judge Auerbach). The appeal involves consideration of the true meaning and effect of Article 36(1) of what may be called the Waste Shipment Regulation: Regulation (EC) No 1013/2006 (“the Regulation”). Notwithstanding the ostensible complexity of the points initially raised there perhaps has proved to be rather less to this appeal than first met the eye.
2.
There were and are in this case very significant disputes as to the facts asserted by the prosecutor (the Environment Agency). In the ordinary way, those are matters for the jury. But an issue was raised as to what the law requires for the purpose of this prosecution satisfying the requirements of Article 36 of the Regulation. It was considered advantageous that that issue be resolved in advance so that the trial could, from the outset, proceed on the proper legal basis and so that there could be clearly identified just what the jury was to be required to decide.
3.
In the result, the judge’s ruling was essentially in accordance with the way in which the prosecution had argued that the case should proceed.
4.
In the circumstances, the trial initially scheduled to start on 15 October 2018 has had to be adjourned, without a jury being sworn. At the conclusion of the hearing in this court, all three members were of the clear view that the appeal should be dismissed. We so announced, indicating that the matter should now be relisted for hearing in the Crown Court at the first practicable date. We stated that we would give our reasons in due course. These are those reasons.
Background facts
5.
The defendant is a company in a substantial way of business, engaged in waste recycling.
It operates from (among other facilities) a large recycling facility in Edmonton, North London. Part of its operations involves collecting mixed recyclable waste from households and sorting it for onward export or other use.
6.
In May 2015, two waste consignments left the Edmonton facility. One consignment comprised two containers. The other consignment comprised five containers. The consignments were destined for two separate recovery facilities located in China. The total weight involved was some 175 tonnes. The consignments were described in the transportation documentation as “mixed waste paper”; we were told that such consignments would be further recycled and converted into paper products at the relevant facilities in China. It was and is common ground that if the consignments were indeed properly described as “mixed waste paper” then there was nothing unlawful involved.
7.
The containers in question were to form part of a larger consignment of containers (448 in total) destined for China. In May and early June 2015 they were the subject of interception and examination at the port of Felixstowe by officials of the Environment Agency. It is asserted that such examination revealed that these particular containers, or some of them, included significant contamination by items which were not mixed paper items at all; for example, soiled nappies and sanitary wear, sealed bags of excrement, clothing, food packaging, plastic bottles and so on. It is asserted that this was indicative of the consignments being mixed household waste rather than mixed paper waste: it being common ground that household waste, as such, could not be lawfully exported in this way to China. In due course, an indictment was preferred containing two counts of transporting waste contrary to
Regulation 23
of the
Transfrontier Shipment of Waste Regulations 2007
.
8.
As is well known, waste recycling not only has environmental benefits it also presents commercial opportunities as well. It was precisely the function of a waste recycling facility such as the one at Edmonton that it should process mixed recyclable wastes so as to extract separate, reusable wastes; be it paper or glass or plastics or metals and so on. There is an international market for such waste streams: China being one significant importer. The policy requirements for the effective sorting of mixed recyclable waste before any export are obvious: failure to do so would simply transfer to a third country the environmental and health and safety hazards inherent in undifferentiated waste.
9.
In the present case, it is the contention of the prosecution that there had been inadequate and insufficient sorting such that the two consignments in question were not in truth paper waste (which could be legally exported) but were household waste (which could not be legally exported). It is the defendant’s case that the waste in question had been the subject of rigorous mechanical and manual sorting processes at its Edmonton facility, which had achieved a high degree of separation of the relevant elements; and that any remaining degree of contamination was residual and minimal.
The legal context
10.
The overarching principles and objectives in this field are to be found in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal of 1989. That Convention highlights the potential damage to human health and to the environment of hazardous wastes and their transportation. Likewise, various Articles in the Treaty on the Functioning of the European Union stress the importance of environmental protection.
11.
The Regulation itself is designed to further these objectives, as various of its recitals spell out. Of particular specific relevance for present purposes is Recital (28) which provides as follows:
“It is also necessary, in order to protect the environment of the countries concerned, to clarify the scope of the prohibition of exports of hazardous waste destined for recovery in a country to which the OECD Decision does not apply, also laid down in accordance with the Basel Convention. In particular, it is necessary to clarify the list of waste to which that prohibition applies and to ensure that it also includes waste listed in Annex II to the Basel Convention, namely waste collected from households and residues from the incineration of household waste.”
Recital (37) specifically provides for the adoption of Annexes.
12.
Article 2 of the Regulation contains various definitions. “Environmentally sound management” is defined to mean:
“… taking all practicable steps to ensure that waste is managed in a manner that will protect human health and the environment against offences which may result from such waste.”
13.
Article 18 imposes certain requirements as to the provision of specified information to categories of waste which is intended to be shipped, as identified in Articles 3(2) and (4). Those categories extend to waste listed in Annex III or IIIB, over a certain weight.
14.
Article 36 (which is central for present purposes) relates to exports to non-OECD decision countries. It is common ground that China is such a country. Article 36(1) provides as follows:
“
Exports prohibition
1.
Exports from the Community of the following wastes destined for recovery in countries to which the OECD Decision does not apply are prohibited:
(a)
wastes listed as hazardous in Annex V;
(b)
wastes listed in Annex V, Part 3;
(c)
hazardous wastes not classified under one single entry in Annex V;
(d)
mixtures of hazardous wastes and mixtures of hazardous wastes with nonhazardous wastes not classified under one single entry in Annex V;
(e)
wastes that the country of destination has notified to be hazardous under Article 3 of the Basel Convention;
(f)
wastes the import of which has been prohibited by the country of destination; or
(g)
wastes which the competent authority of dispatch has reason to believe will not be managed in an environmentally sound manner, as referred to in Article 49, in the country of destination concerned.”
15.
Annex III to the Regulation relates to Green Listed Waste, the list originating from the OECD Decision, Appendix 3:
“
LIST OF WASTES SUBJECT TO THE GENERAL INFORMATION REQUIREMENTS LAID DOWN IN ARTICLE 18
(‘GREEN’ LISTED WASTE)
Regardless of whether or not wastes are included on this list, they may not be subject to the general information requirements laid down in Article 18 if they are contaminated by other materials to an extent which
(a)
increases the risks associated with the wastes sufficiently to render them appropriate for submission to the procedure of prior written notification and consent, when taking into account the hazardous characteristics listed in
Annex III to Directive 91/689/EEC; or
(b)
prevents the recovery of the wastes in an environmentally sound manner.
Part 1
The following wastes will be subject to the general information requirements laid down in Article 18:
Wastes listed in Annex IX to the Basel Convention (
2
).”
Footnote (2) explains that Annex IX to the Basel Convention is listed in the Regulation as Annex V, Part 1, List B.
16.
Annex V to the Regulation provides at the outset as follows:
“
WASTE SUBJECT TO THE EXPORT PROHIBITION IN ARTICLE 36
Introductory notes
1.
This Annex applies without prejudice to Directives 91/689/EEC and 2006/2/EC.
2.
This Annex consists of three parts, Parts 2 and 3 of which apply only when Part 1 is not applicable. Consequently, to determine whether specific waste is listed in this Annex, an initial check must be made to ascertain whether the waste is listed in Part 1of this Annex, and, if it does not, whether it is listed in Part 2, and, if it does not, whether it is listed in Part 3.
Part 1 is divided into two sub-sections: List A lists wastes which are classified as hazardous by Article 1(1)(a) of the Basel Convention, and therefore covered by the export prohibition, and List B lists wastes which are not covered by Article 1(1)(a) of the Basel Convention, and therefore not covered by the export prohibition.
Thus if a waste is listed in Part 1, a check must be made to ascertain whether it is listed in List A or in List B. Only if a waste is not listed in either List A or List B of Part 1, must a check be made to ascertain whether it is listed either among the hazardous waste listed in Part 2 (i.e. types of waste marked with an asterisk) or in Part 3, and if this is the case, it is covered by the export prohibition.
3.
Wastes listed in List B of Part 1 or which are among the non-hazardous waste listed in Part 2 (i.e. wastes not marked with an asterisk) are covered by the export prohibition if they are contaminated by other materials to an extent which
(a)
increases the risks associated with the waste sufficiently to render it appropriate for submission to the procedure of prior written notification
and consent, when taking into account the hazardous characteristics listed in Annex III to Directive 91/689/EEC; or
(b)
prevents the recovery of the waste in an environmentally sound manner.”
17.
In Part 1, List B (which corresponds to Annex IX of the Basel Convention) there is included item B3020, described as follows:
“Paper, paperboard and paper product waste.”
18.
In Annex V, Part 3, there is included as hazardous waste item Y46, which is thus described:
“Waste collected from households
(2)
.”
Footnote (2) states: “Unless appropriately classified under a single entry in Annex III”.
19.
Domestic effect was given to the Regulation by the Transfrontier Shipment of Waste Regulations 2007: SI 2007/1711 (“
the 2007 Regulations
”). It is, as recorded above, by reference to
the 2007 Regulations
that the indictment is framed. For present purposes, it suffices to refer only to
regulation 23
of
the 2007 Regulations
. That provides as follows:
“
Prohibition on export of certain waste for recovery to non-OECD Decision countries
A person commits an offence if, in breach of Article 36(1), he transports waste specified in that Article that is destined for recovery in a country to which the OECD Decision does not apply.”
Two points may here be noted. First, the offence under
the 2007 Regulations
is one of strict liability. Second, the offence is in terms drafted by reference to breach of Article 36(1) of the Regulation itself.
20.
The essential workings of the Regulation, and the objective behind Article 36 itself, are self-evident enough. A very full and detailed exposition of the underpinning objectives and of the whole scheme can be found helpfully set out in the judgment of a constitution of this court (delivered by Cranston J) in the case of
KV and others
[2011] EWCA Crim 2342
. That decision also makes clear, in accordance with settled interpretative principles, that the Regulation is to be read purposively (or “teleologically” as it is sometimes put).
21.
There will be cases – of which the present is one – whereby there is a dispute as to whether waste is or is not prohibited from transportation as being hazardous: in particular, depending on the degree of contamination involved. Such a case was
I, N and B
[2011] EWCA Crim 3237
. In that case, rather as in the present case, the issue was whether what was being exported was within category B3020 (“paper, paperboard and paper product wastes”), as it purported to be, or whether it was within category Y46 (“waste collected from households”).
22.
The court in that case, in a judgment delivered by Pill LJ, gave valuable guidance as to the required approach. It noted the decision of the European Court of Justice in
Beside BV v Minister van Volkshuisingvesting
[1993] Env LR 328, which among other things stated that municipal household waste did not come within the green list unless it “has been collected separately and properly sorted.” The Court of Appeal went on to hold that there was no imprecision in the language used: it was a matter of fact and degree in each case as to whether or not a particular consignment was properly to be designated as household waste for the purposes of the Regulation. The court rejected an argument that the Regulation had left matters so uncertain and so insufficiently precise as for it to be an abuse of process for there to be a prosecution in that case. The court said that “a very high standard is required of operators in this field” (paragraph 42). It acknowledged the potential difficulties in the task of the jury and of the trial judge in summing up the case; but went on at paragraph 44 to say this:
“Having said that, we are quite unpersuaded that to proceed with a trial as to whether this particular consignment is proved to be household waste is an abuse of the process of the court. The judge will have regard to the 2006 Regulation and
the 2007 Regulations
when giving his directions to the jury. We would contemplate his raising the possibility of a breach being so small as to be minimal and not preventing waste from ceasing to be household waste and becoming waste paper under B3020. That will depend on the circumstances, including the nature and the quality, of the contamination and the amount of it. We are confident that a judge will be able to give sufficient directions to a jury to enable them to make the decision as to whether a particular consignment is properly described as household waste and for them to perform their task by applying that test to the facts.”
The arguments
23.
That being the legal framework, one might have thought that in the present case it was then a matter for the jury to determine, on the facts, as to whether they had been made sure that the consignments in question were, as the prosecution was contending, household waste, in breach of Article 36(1). That was on the face of it the only issue; for it was otherwise common ground that the defendant had been engaged in transportation of waste for recovery in a country to which the OECD Decision does not apply. It was also common ground that the transportation commenced when the consignments in question left the defendant’s facility in Edmonton. Further, the prosecution have throughout made it clear (and as is particularised in the indictment) that they rely solely on an alleged breach of Article 36(1)(b), contending that the waste in question was listed in Annex V, Part 3: namely as Y46. That is their case: no more, no less.
24.
It was also common ground, and as the judge found, that the accepted fact that the waste had originally been collected from households did not necessarily mean that it remained household waste when transportation thereafter commenced. As the judge said, the original source of the waste could not of itself be determinative of what the jury had to decide. Indeed, the prosecution had conceded that waste arriving at the facility could be processed or sorted in such a manner as thereafter to acquire a different categorisation status for export purposes (and as accords with the
Beside
case).
25.
On that basis, the judge held that categories B3020 and Y46 were, as he put it, “mutually exclusive”. If, in view of its nature and content when it left the facility, a consignment was fairly to be described as B3020 paper waste it could not appropriately be described as Y46 waste; and vice versa. “It cannot be both”, as he in terms held (at paragraph 63 of his ruling). He went on to hold that footnote (2) to Y46 in Annex V, Part 3 simply was confirmatory of that; and was consistent with the underlying broad policy that if waste
was household waste at the point of export then it was prohibited but if, at that point, it was, rather, appropriately described as B3020 waste paper then export was lawful (paragraph 75 of his ruling).
26.
One final point nevertheless remained. The defence had sought to argue that, in addition to being required to prove to the criminal standard that these consignments were of Y46 household waste, the prosecution
also
were required to prove that the waste was contaminated by other materials to an extent which prevented the recovery of waste in an environmentally sound manner. Thus it was and is said that paragraph 3 of the
Introductory Notes (styled in the court below and before us as “the chapeau”) formed a fundamental part of the elements which the prosecution had to prove both in this case and indeed in every such case: albeit reliance was placed by the defence for the purposes of this particular case on paragraph 3(b), but not paragraph 3(a), of the chapeau. It was and is said that the chapeau could not be “disaggregated” from the approach required.
27.
The judge rejected that argument for the purposes of the case before him. The prosecution had throughout made clear that its case was, and was only, that the consignments were properly to be described and categorised as Y46 (household waste), a waste listed in Annex V, Part 3. It had and has not sought to rely on, for example, Article 36(1)(g). On that basis, as the prosecution had said and as the judge agreed, if the prosecution proved to the criminal standard that this was Y46 household waste the case succeeded without more. If, on the other hand, the jury were to conclude that this
was
(or may have been) B3020 paper waste then the chapeau could only potentially apply if the consignment was contaminated by
other
material in a way contravening the chapeau. Since the prosecution had always disclaimed such a case, the chapeau was irrelevant for the purposes of this case (see paragraph 89 of his ruling).
Disposition
28.
Some points need to be stripped away.
29.
For example, the written arguments of the defendant on this appeal went into very great detail as to the true meaning and effect of footnote (2) to Y46. But this is nothing to the point. It was common ground before us (even if it had not been below) that the judge had been right to find categories B3020 and Y46 as mutually exclusive. That being so, debate about the descriptive or legal status of the footnote is arid. But in any event it is clear enough that the footnote is intended to be explanatory and that it is, in the judge’s words,
“confirmatory” of the position in any event arising. Thus to the extent that Ground 2 of the written Grounds of Appeal queries the true status of the footnote that ground is of no true substance or relevance.
30.
Thus the only real point arising on this appeal is whether (contrary to the judge’s approach) the prosecution was to be required, in addition, to prove the matters set out in paragraph 3(b) to the chapeau as well as proving that the consignments comprised Y46 household waste; and whether the jury was to be instructed in the summing-up accordingly.
31.
The chapeau is undoubtedly part of Annex V. At the same time, it is prefaced by the words “Introductory Notes”. It can nevertheless be said that paragraph 1, viewed objectively, is designed to be of substantive, even if clarificatory, effect. Paragraph 2 is perhaps more of descriptive effect; but paragraph 3, it can be accepted, is again more obviously of substantive, even if clarificatory, effect.
32.
We are prepared for present purposes to accept, as was the judge, that paragraph 3 of the chapeau may, in a particular case, come into play and may properly be the subject of evidence and of a summing-up. But we agree with the judge that this is not such a case.
33.
Here, the prosecution have never sought to say that these were consignments which were indeed essentially B3020 waste paper but nevertheless contaminated by other materials not collected from households (for example, corrosive fluids or dangerous metals etc). so as to prevent recovery of the waste in an environmentally safe manner: it being recalled that paragraph 3 of the chapeau in this regard replicates the language of Annex III. In the present case, the prosecution had not relied on Article 36(1)(g) but relied solely on Article 36(1)(b). For that purpose, it had relied solely on Y46 as the relevant waste listed in Annex V, Part 3. The question for the jury was thus, in our judgment, simply whether that was proved. If it was, then the waste in question could not be B3020 waste paper (which is within in the “green” list of waste which may legitimately be exported). If it was proved that the relevant consignments were indeed Y46, then that was within Article 36(1)(b) of the Regulation and that was the end of the matter. If, on the other hand, the prosecution failed to prove that the relevant consignments were indeed Y46, then that too was the end of the matter and the defendant was entitled to be acquitted. That approach, moreover, accords implicitly with the approach approved by the court in the case of
I, N and B
; accords with the policy and objectives of the Regulation; and involves no unfairness to the defendant. Indeed, the approach of the defendant in this case would, as we see it, in fact if anything tends to undermine the objective of Article 36(1)(b) in providing a specific list of prohibited wastes and the objective of Annex III in providing, by Annex V, Part 1, List B, a list of permitted green wastes.
34.
Accordingly, whether there was sufficient household waste contamination for these consignments properly to be styled as Y46 household waste (rather than the B3020 mixed paper designation given in the export documentation) was a matter of fact and degree for the jury. To seek further to introduce the subject-matter of the chapeau into a case of this particular kind, given the nature of the prosecution here
undertaken, would in our view be to introduce an irrelevant and complicating distraction (we note in fact that Mr Travers QC rather struggled in argument to formulate appropriate jury directions when pressed on the point). The judge, we consider, was right to reject the argument.
Conclusion
35.
It is for these reasons that we have dismissed this appeal.
36.
We would not wish to part with this appeal without paying tribute to the ruling of Judge Auerbach. In a matter which is by no means the common currency of Crown Courts, he speedily produced a comprehensive reserved written ruling which set out in full detail the legislative background and authorities; fully analysed and discussed the competing arguments; and explained the reasons for his conclusion with crystal clarity. It is just because of the care and detail underpinning his ruling that this court has been able to approach matters rather more succinctly than otherwise might have been the case.
Note: Reporting restrictions on this judgment were lifted on 26 June 2019.
|
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|
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202400218/A5
Neutral Citation Number:
[2024] EWCA Crim 474
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
RAJAK MIAH
__________
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)
_________
MS H AHMAD
appeared on behalf of the Appellant.
_________
J U D G M E N T
1.
MR JUSTICE HILLIARD: On 18 October 2022, in the Crown Court at Leeds, the appellant (then aged 27) pleaded guilty to possessing MDMA (count 2). On 4 December 2023, at the same court, the appellant pleaded guilty on re-arraignment to possessing cannabis with intent to supply (count 1); offering to supply cannabis (count 4); possessing cannabis with intent to supply (count 5) and possessing ketamine with intent to supply (count 6). On 21 December 2023, he was sentenced to concurrent terms of 18 months’ imprisonment on each count, with no separate penalty on count 2. He now appeals against sentence with leave of the single judge.
2.
On 15 May 2020, police officers stopped a vehicle in Leeds. The appellant was the front seat passenger. The driver was in possession of cash and five mobile telephones. The appellant was in possession of cannabis, MDMA and cash. Two further mobile telephones were found in the vehicle. The drugs were analysed. Fifteen bags of cannabis weighed 44.9 grams, with a street value of £430. The MDMA weighed 0.88 grams and had a value of £40. Examination of the mobile telephone showed that the appellant was involved in the supply of cannabis. At his home address, the police found dealer cards and three more mobile telephones. When interviewed, the appellant said that the drugs were for his own use. He was released under investigation.
3.
On 8 March 2021, police officers stopped a vehicle in Chapeltown Road, Leeds. The appellant was the sole occupant. He was in possession of £1766 in cash, two mobile telephones, three bags of cannabis and four bags of ketamine. The drugs had a street value of £140. Telephone contact showed that the appellant was dealing in drugs. When interviewed, he again said that the drugs were for his own use.
4.
The appellant had three convictions for three offences. None of them involved drugs. He was in breach of a community order for possessing a bladed article when he committed the first offence.
5.
A pre-sentence report said that the appellant was understanding and remorseful of his behaviour. He said that he had lost his job during the pandemic. His own drug use at the time had left him with a drug debt. He was told to sell drugs to pay off the debt. He had married in 2023. His wife was expecting a baby in March 2024. He stayed with his wife occasionally at her flat. He had been approved for a mortgage and was expecting to move into a new house in March 2024. He no longer took drugs. He was self-employed in his own property refurbishment business which he had had for 2½ years. If a community penalty was considered, an order with an unpaid work requirement was recommended.
6.
The appellant’s wife had written a letter to the judge. She had been in a relationship with the appellant for 3 years. He had sought to make something of his life with his refurbishment business. She was anxious about how she would manage without his financial and practical support during pregnancy and with a baby.
7.
When he passed sentence, the judge referred to the fact that the appellant had offended when subject to a community order and after he had been released under investigation. He said that the offences involving the supply of Class B drugs fell into category 3 significant role
of the applicable sentencing guidelines. Each offence had a starting point of 12 months’ imprisonment, with a range extending up to 3 years’ imprisonment.
8.
The judge raised the starting point for the first offence to 15 months’ imprisonment because the appellant had been subject to a community order and for the second offence to 18 months, because the appellant had been released under investigation at the time. Taking account of totality, the judge decided to impose concurrent sentences of 20 months’ imprisonment for each offence, which he then reduced by 10 per cent because of the pleas of guilty which had been entered on the morning of the appellant’s trial.
9.
The judge said that the custody threshold had clearly been passed. He considered whether the sentences could be suspended. He concluded that they could not. The appellant had continued to offend in breach of a community order and when released under investigation. The judge said that there was no rehabilitative element that he could consider which would stop the appellant from offending. He referred to the absence of “over and above strong personal mitigation”. Immediate custody would have an impact upon his wife but in the judge’s view that was not “overly significant”.
10.
It is now argued on the appellant’s behalf by Ms Ahmad that the sentence should have been suspended and that the judge did not give sufficient weight to the appellant’s personal mitigation, to the fact that no rehabilitation activity requirement was proposed in the pre-sentence report and to the current level of the prison population. Reliance is also placed on a positive prison report which we say at once is to the appellant’s credit and which says that he will be released on home detention curfew on 7 May, so in 13 days’ time. We are grateful to Ms Ahmed for her submissions and we have given them careful consideration.
11.
The judge was right to conclude that the case crossed the custody threshold. That is agreed. Nor is any complaint made about the length of the sentence. The judge evidently had well in mind the sentencing guidelines for the imposition of community and custodial sentences. He expressly referred to the appellant’s personal mitigation and to the impact that immediate custody would have upon others. There were grounds for some optimism when the appellant had not offended since March 2021, had developed new responsibilities in his personal life and had achieved some success in his business. Nonetheless, the obstacle faced by the appellant then and now is that, as the judge identified, he had not only offended while subject to a community order, but he had then continued to offend after being released under investigation. The prospect of rehabilitation was only one matter that fell to be considered in accordance with the Imposition Guideline. The constraints the appellant was under, or should have been, and his failure to have regard to them made the offences more serious. In our judgment, it was reasonably open to the judge to conclude that they made the offences so serious that only immediate custody would constitute appropriate punishment, after considering all the circumstances of the case and all the factors in the Imposition Guideline, which it was his role then to balance.
12.
In these circumstances, and notwithstanding Ms Ahmad’s submissions, this appeal must be dismissed.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
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|
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|
Neutral Citation Number:
[2014] EWCA Crim 1594
Case No:
201401590/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 22nd July 2014
B e f o r e
:
PRESIDENT OF THE QUEEN'S BENCH DIVSISION
(SIR BRIAN LEVESON)
MR JUSTICE GLOBE
SIR RODERICK EVANS
- - - - - - - - - - - -
R E G I N A
v
VINCENT HAROLD GRAHAM
- - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
Mr M Shrimpton appeared on behalf of the Henry's Solicitors
- - - - - - - - - - - -
J U D G M E N T
PRESIDENT OF THE QUEEN'S BENCH DIVISION
:
1.
On 12th June 2014, this court, differently constituted, considered a Reference by the Registrar of Criminal Appeals, pursuant to
section 20
of the
Criminal Appeal Act 1968
, to make a summary determination whether an application for leave to appeal a confiscation order should be dismissed as frivolous or vexatious.
2.
It arose in these circumstances. On 14th June 2011 in the Crown Court at Inner London before His Honour Judge Leeming QC the applicant, Vincent Graham, pleaded guilty to one count of conspiracy to supply controlled drugs of Class A.
3.
Some 18 months later a confiscation hearing was conducted by His Honour Judge Knowles which received comprehensive written submissions on behalf of the applicant and led to a detailed and comprehensive ruling.
4.
The application for leave to appeal on form NG was completed in the name of Henry's Solicitors 72-74 Wellington South, Stockport, SK1 3SU. The Reference provided was GRA/087/03. The application for leave to appeal was signed "Mr Mark O'Connor Henry's Solicitors" after which the address is repeated. The grounds were general and unparticularised; they did not refer to the ruling or the submissions notwithstanding the obvious care that had been put into both. There was no suggestion that counsel instructed at the hearing had been consulted.
5.
On 12th June Mr O'Connor appeared before us, making clear that he was not a solicitor with rights of audience, that the solicitor with conduct of the case was in Stockport Magistrates' Court and that although (as we presumed) he was a legal executive, he was not in a position to consider the detailed merits of the appeal or to address the apparent absence of arguable grounds. It was in those circumstances that we said:
"Given the absence of the solicitors and notwithstanding that the court refused to adjourn the case when asked to do so two days ago, we are driven now to put off the hearing and we will do so on the basis that at the next occasion we do expect the solicitor with overall responsibility for the conduct of this case to appear in court in order to deal with the issues to which we have referred."
To that end Mr Kieran Henry, the Director of Henry's Solicitors, has appeared with Mr Shrimpton of counsel, to whom we are indebted. Mr Henry recognises that the notice of appeal appears to place his firm as the instructing solicitors. He acknowledges that he was in fact in Stockport Magistrates' Court on 12th June and further acknowledges that his firm is aware of Mr O'Connor whom he says is a self-employed outdoor clerk, with no authority to institute proceedings in the name of the firm and with no employed status of any sort.
6.
When it was put to Mr Shrimpton that on two occasions the office of the Registrar had contacted his firm and one occasion speaking to Mr O'Connor and the other speaking to someone who at least the officer of the court understood to be the secretary of Mr O'Connor. Mr Shrimpton repeated his instructions that although Mr O’Connor might have had access to reception at one of the offices, he had no other connection with the firm save that to which we have referred.
7.
The court has also received correspondence which purports to come from Henry's Solicitors in the form of a letter; we were told that the letterhead, which is in the name of the firm and which identifies four sub officers is old stationary and has been replaced by newer stationery. We were alsoo told that Mr O'Connor might well have had access to the old stationery while moving into and out of the office. The letter was a fax and the fax number from which it originates also appears to be a fax number from Henrys.
8.
We deal, first, with the Reference pursuant to
section 20
of the
Criminal Appeal Act 1968
, which is to consider whether the grounds of appeal were properly formulated, whether appropriate steps had been taken to investigate the allegations made against prior solicitors and whether the appeal should be struck out
in limine
. Mr Shrimpton, who does not appear for Mr Graham, has made it clear that as far as his instructions from Henry's are concerned they entirely disavow the notice of appeal. Mr Shrimpton readily accepts that it contains no arguable ground of appeal and is properly struck out. Although not acting for Mr Graham, that view reflects our own conclusion: the application for leave to appeal is summarily dismissed.
9.
As regards the remainder, it is a matter of great concern to the court that somebody is able to pass himself off as representing a firm of solicitors and has sufficient access to the firm to be able to use its stationery, albeit old stationery, and at least on the face of it both respond to telephone communication and use the fax.
10.
There are clearly issues of compliance and governance for the solicitors to address but in the meantime we are not in a position to get to the bottom of what has transpired and we refer the papers to the Solicitors Regulatory Authority accordingly.
11.
Mr Shrimpton, we are very grateful to you for your attendance. We are grateful to Mr Henry for coming although we did not give him much of a choice.
12.
MR SHRIMPTON: The issue of costs my Lord.
13.
PRESIDENT OF THE QUEEN'S BENCH DIVISION: Do not even think about it.
14.
MR SHRIMPTON: I will say no more.
|
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|
Case No:
2017/0995/A1
Neutral Citation Number:
[2017] EWCA 849 (Crim)
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday 8 June 2017
B e f o r e
:
LORD JUSTICE HICKINBOTTOM
MR JUSTICE HOLROYDE
THE RECORDER OF BIRMINGHAM
HIS HONOUR JUDGE INMAN QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
RAFIULLAH ALIKHEL
- - - - - - - - - - - - - - - - - - - - -
Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited trading as DTI
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr N Karbhari
appeared on behalf of the
Appellant
The
Crown
did not appear and was not represented
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE HOLROYDE: On 18th August 2016 in the Crown Court at Woolwich, this appellant pleaded guilty to an offence of aggravated burglary. On 10th February 2017 he was sentenced to four years' detention in a young offender institution. By leave of the single judge he now appeals against that sentence, contending that it is manifestly excessive in length, in particular because the judge gave insufficient weight to the powerful personal mitigation which the appellant was able to put forward.
2.
The appellant was born in 1998 and is now 19 years old. He was only 18 when he committed the offence in April 2016. He had however already been convicted of a number of previous offences, including burglaries and robbery. The present offence was a very serious one. It was committed at about 3.00 am in a lodging house, part of which was being used for an illicit tobacco business. The appellant was one of several young men who forced their way into the building and broke into the individual rooms in search of tobacco and cash. Those engaged in the tobacco business were not in fact present, but other residents were and must have been terrified. As the sentencing judge observed, it was a well-planned operation carried out by a gang in which property of significant value was stolen and damage caused. The property stolen included one resident's savings of over 5,000 euros. That money was found in the appellant's pocket when the police arrived in time to detain the burglars as they were leaving the scene.
3.
The appellant pleaded guilty at an early stage and the judge rightly gave him credit for that early plea. Other accused stood trial, with the result that the sentencing of this appellant was delayed for a number of months.
4.
The learned judge provided a helpful indication of the way in which he had decided the appropriate sentence. He indicated the starting point which he had taken in accordance with the relevant sentencing guideline. He regarded the mitigating feature of the appellant's youth as being balanced out by the aggravating feature of the appellant's previous convictions. No complaint is made by Mr Karbhari on the appellant's behalf about either the starting point or the balancing of those two considerations.
5.
We observe that the judge then fell into an error of approach in that he gave the full credit for the guilty plea before considering the impact of the personal mitigation. That, with respect, was the wrong way around. The judge should have considered all the aggravating and mitigating features in order to reach his conclusion as to the appropriate sentence after a trial, and should then have given the appropriate credit for the guilty plea as the final step in the process.
6.
Separately from that error of approach, it is submitted that the judge gave insufficient credit for the personal mitigation. Counsel has set out the relevant matters in his most helpful advice which we have read with care. We have also read with care the various documents on which he relies. He has invited our attention to the relevant case law including in particular
D
[2011] 1 Cr. App.R(S) 69 and
Hood
[2013] 1 Cr.App.R (S) 49.
7.
In the particular circumstances of this case, we think it important to have especial regard to the young age of the appellant when assessing the weight to be given to his personal mitigation. Mr Karbhari's submissions persuade us that, in addition to the error of approach which we have identified, the judge gave less weight than he should have done to the overall force of the mitigation, with the result that the sentence was manifestly excessive in length.
8.
Taking the same starting point as did the judge, but giving greater weight to the mitigation, we conclude that the sentence of four years' detention should be quashed and that a sentence of two years eight months' detention should be substituted. The appeal accordingly succeeds and is allowed to that extent.
|
{"ConvCourtName":["Crown Court at Woolwich"],"ConvictPleaDate":["2016-08-18"],"ConvictOffence":["Aggravated burglary"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["early stage"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Woolwich"],"Sentence":["four years' detention in a young offender institution"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[18],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["previous convictions","well-planned operation","property of significant value was stolen","damage caused"],"MitFactSent":["youth of the appellant","personal mitigation"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["sentence is manifestly excessive"],"AppealGround":["insufficient weight to personal mitigation","error of approach in sentencing sequence"],"SentGuideWhich":["relevant sentencing guideline"],"AppealOutcome":["Appeal allowed and sentence reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["insufficient weight to personal mitigation","error in sentencing approach"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
|
Case No:
201206451 B1
Neutral Citation Number:
[2015] EWCA Crim 1791
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT WOOLWICH
Her Honour Judge Robinson
T20111073
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18/11/2015
Before:
LADY JUSTICE RAFFERTY
MR JUSTICE HICKINBOTTOM
and
RECORDER OF WESTMINSTER (HIS HONOUR JUDGE MCCREATH (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
Respondent
- and -
Christopher Brown
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
James Wood QC
for the
Appellant
Christiaan Moll
for the
Crown
Hearing date: 27
th
October 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lady Justice Rafferty:
1.
On 12 October 2012 in the Crown Court at Woolwich the appellant Christopher Brown
was convicted of 6 counts (2-3 and 9-12) of making indecent images of children contrary to
s 1 (1)
(a)
Protection of Children Act 1978
. On 15 November 2012 he was sentenced to a suspended sentence order on each count concurrent. He was acquitted of 6 further counts of making indecent images of children (Counts 1 and 4-8) and of 2 counts of attempting to make indecent images of children (13-14). He appeals with the leave of the Full Court.
2.
On 20 April 2012 the appellant was arrested as a result of police monitoring of a peer-to-peer file sharing computer application “Frostwire.” Indecent images of children were on his computer. In interview he admitted installing Frostwire. He said he had inadvertently accessed indecent images of children whilst trying to download mainstream pornography then deleted or tried to delete the images of children. He sometimes left the computer on all night for a download and the indecent images had come through accidentally. He made no comment in a subsequent interview.
3.
The Crown’s case
was that he had viewed all the indecent images. It relied on the expert Simon Field who concluded that some images had been deleted or were not accessible to the ordinary user. The appellant was acquitted of these counts. However, an automatically generated folder, “thumbcache”, was invisible and inaccessible and the ordinary user of a computer would not know of its existence. The appellant was convicted on these counts as well as a rolled-up count (12) relating to the balance of the images.
4.
The Crown contended that the file titles made it obvious they contained indecent images of children and that some had clearly been selected for download as a result of his searches. Searches by Mr Field using terms supplied by the appellant did not result in indecent images of children. The Crown thus suggested that the appellant had actively sought out indecent images of children.
5.
The defence
was that the downloads were accidental and he had deleted all he could. He was of previous good character. He had reconfigured the software so it could not automatically connect to the internet and incomplete files could no longer be automatically downloaded. Mr Field conceded that the filenames were not such that from them the contents could be discerned and one could not tell what would appear on the screen before the images were opened.
6.
The appellant in interview said he worked for solicitors in their IT department. At a further interview after more detailed examination of the hard drive he read a prepared statement in which he said that he had fully commented in his first interview and had nothing to add.
7.
Stephen Faulkner, police forensic computer analyst,
found associated with “Frostwire” 10 indecent images with filenames indicative of child abuse. 10 images of adult pornography in the same folder were accessible to someone looking at the contents of “Frostwire.” Many files contained names indicative of child abuse material but it was not possible to view them because they had not fully downloaded. There was evidence files had been accessed, and evidence of their names, but he could not find them. It was possible they had been moved, deleted or renamed. He found about 500 adult pornographic images and a further 8 indecent images of children.
Expert evidence
8.
The overwhelming inference was that all images came from the use of Frostwire whose basic operation was agreed. It enabled “person-to-person” sharing, as opposed to accessing a file from a central server. An user opened Frostwire, typed in a search term and clicked “search.” He would see a list of files and filenames on other computers presently connected to the internet and whose names matched his search terms. He would click “download” on files he wanted and downloading would begin, if in large number then in tranches. As soon as “download” was clicked the file would go into a folder marked “incomplete” and once fully downloaded would leave it and be saved in “new folder” created in response to prompts. Once the download began the user would have the option of more searches.
9.
After the appellant installed Frostwire on 28th March and created the new folder, the downloads were saved in it. The default configuration meant Frostwire connected to the internet as soon as the computer was switched on. He altered that default setting so that it connected to the internet only were Frostwire opened though the experts could not say when he did so.
10.
For the defence Dr Tipe’s undisputed evidence was that this was consistent with his trying to prevent further downloading. On 28/29th March of four files viewed in one session, one from “incomplete” three from “new”, three had names indicative of indecent images of children, the fourth indicated both child and adult pornography. All had been deleted.
11.
The virtual store (“VS”) was created by the computer when an user first installed Frostwire. Were the user to delete “incomplete” and “new” subfolders and reopen Frostwire, it tried to create a new folder to store downloads in a location protected by its operating system so as to prevent accidental deletion. This new folder was created in the VS, hidden from the user unless actively sought.
12.
Mr Field said
one could access files in the VS without specialist software. Dr Tipe
said the appellant could not have looked using Windows Explorer without first altering the computer settings, viewing, deleting, then changing the settings back to the default settings. This was consistent with his account in interview that he clicked on Explorer to view a folder he believed to be in Frostwire and was prompted that the file did not exist.
13.
There was no dispute that if one opened Frostwire one could access all files, as the appellant had done several times, including on 31st March when in the VS he viewed three files whose names suggested indecent images of children. Dr Tipe said that whilst it was not possible to access those files via Windows Explorer they could be accessed by running Frostwire and double clicking on the filename.
14.
On 17th April Frostwire was started at 2250 and images downloaded (Counts 1 and 7-8, of which the appellant was acquitted). They included two of children, opened or viewed and not deleted, pleaded in Count 12. Dr Tipe
said they had been viewed in the same way as the three on 31st March, by double clicking on the file in Frostwire.
15.
The two files viewed on 17th April but not deleted, on the face of it not consistent with his account that he had deleted all images of children, prompted further tests. (There was no evidence he had tried to delete the files and the experts agreed an user did not have to open a file to delete it). Frostwire automatically made any downloaded file available for sharing assuming the other person was connected to the internet and the search term was “Return one of your files”. It was not possible to delete a file in the process of being shared.
16.
On 18th April his account was connected to the internet but did not start Frostwire. On 19th April it did and files were selected for download which was not completed. Mr Field felt ninety-nine files names suggested images of children but others referred to adult or gay pornography. The incomplete download could have been for a number of reasons - loss of internet connectivity, the user stopping the download or closing Frostwire.
17.
The effect of the expert evidence was that the appellant selected “all files” for download on 17th and 19th April. His account was that he had not clicked “download” so he assumed a malfunction but neither expert was invited to deal with this. Mr Field said twenty images in the VS, fully downloaded on 17th April but not deleted, had been selected for download at 23.03. Fewer than seventeen were indecent images of children. Ten were pleaded in Count 12.
There was no evidence any had been viewed.
18.
In Thumbcache, a location upon he computer to which deleted gallery images were sent, his
account held more than eleven hundred images ranging in dimension from postage stamp to 2” square. Of the one hundred and sixty with sexual content seventy-five were of children.
19.
The images were in a named folder which, when opened, automatically put some images on the screen in thumbnail form. Until a folder was opened one did not know which ones would be displayed on the screen. If it held a large number only a few would be displayed. Were a folder deleted the only images entering thumbcache were those which had been displayed. One could delete a file containing an image without opening it.
Areas of dispute
20.
There were two areas of dispute between the experts: which search terms might have been used by the appellant and what conclusions could be drawn from the file names. Dr Tipe’s
view was that his searches were consistent with the appellant’s account and that it was not possible to be sure that he searched exclusively pre-teen material. Mr Field, who had not precisely replicated the search as done by the appellant, was less confident.
21.
Mr Field
agreed that some file names were designed to mislead but if a filename suggested an indecent image of a child he would not risk downloading it. Dr Tipe told the jury that files shared person-to-person often had sexually explicit names but unrelated content. Distributors employed a scattergun approach in the hope of more downloads. The names of some of the files in the instant case contained references to underage, overage and gay sexual content, so that one did not know what would be in particular files.
Ruling on submission at the close of the case for the Crown
22.
The judge reminded herself of R v Smith and Jayson
[2002] EWCA Crim 683
on what constituted a making for the purpose of
s 1 (1)
(a)
Protection of Children Act 1978
. On Counts 1-12 the downloaded images fell into three categories described as accessible, inaccessible and a thumbcache. The files in the VS were created and downloaded intentionally. The issue was whether he downloaded them with the requisite knowledge. On all the evidence, including a lot of file names indicative of indecent images of a child and two files viewed containing such, a jury could be sure [of guilt]. That he was seeking to download adult pornography and could not be sure of the content of the file without opening it was not sufficient for her to withdraw the case.
Material was described as inaccessible because images downloaded but deleted made it impossible to say when they had been downloaded, by whom, the file name or where it came from. There was therefore evidence that the image had been intentionally downloaded. The jury would be entitled to infer he was aware of the likely content because they must have come from Frostwire and were likely to be named similarly to the others. It was common ground that the thumbcache images were sufficiently clear on the screen to enable one to see the image. True, there was no evidence he was aware of the thumbcache but there was evidence on which the jury could be sure of a deliberate downloading and that the files contained indecent images of children.
The defence case
23.
The appellant, 30 and of good character, married with children, told the jury his IT knowledge was that of the average home user. In March/April 2011 he installed “Frostwire” to download and view adult pornography without internet connection. On 28
th
March he searched using terms such as “teen,” “fuck” and “girlfriend” which would give results for adult pornography. He selected “all” results, clicked “download” and left the files to download whilst he did another search. He was not present during all downloads. He followed the Frostwire “wizard” and created a new folder. When he noticed the results of the initial search he thought he had done something wrong and deleted whole and incomplete folders.
24.
He had opened four files but notwithstanding their names none held indecent images. He deleted everything as a result of what he had seen. On 31st March he tried Frostwire again but when he looked at the pictures realised it had not downloaded what he had expected. He stopped using his computer. All thumbnails in thumbcache had been deleted between 28th and 31st March. He had viewed the images very briefly once he realised what they were and did not study the file names. Duplicate thumbcache images were not from anything he had done. He opened three files on 31
st
March via Frostwire, which took one to Windows Explorer, and displayed in thumbnail what had been downloaded, exactly as on 28-29th March. He could not explain how he had viewed the first four files in the original new folder created by Frostwire whereas the three viewed on 31st March were in the VS which could not be accessed via Windows Explorer. He assumed it was to do with the computer. He had not used it again until 17th April.
25.
His wife on 17th April found it slow and temperamental. He first realised it was set to download files automatically when he saw a tiny icon showing Frostwire was “
trying to do stuff.
” and he disabled auto-connect. Commenting on the experts’ agreement that the files created on 17th April must have been selected to be downloaded he said “
Computers don’t always do what you want, otherwise you wouldn’t have experts.
” He did not know why Frostwire had not begun downloading earlier in the evening when his wife had briefly connected to the internet, but files had not begun to download until two minutes after the internet connection started.
26.
He did not know of the VS or of thumbcache. He double-clicked on the files via Internet Explorer but could not find them so as to delete them. He accepted that in the process two images of children came up. He had been trying to delete all images when interrupted. He had not intentionally searched for, downloaded or made indecent images of children.
27.
On 19th April he opened Frostwire to delete any remaining images but failed. In interview he told the truth. In the second interview he followed advice.
Grounds of appeal
28.
Grounds of appeal advanced by Mr James Wood QC who did not appear below are that the guilty verdicts were logically inconsistent with the acquittals. The judge erred in written directions on Counts 2-3 and 9-12, wrongly asserting that the folder containing those images must have been opened because they were viewed on screen and therefore downloaded and viewed intentionally rather than by accident and the issue was whether he knew the files did or were likely to contain an indecent image of a child, whereas the true issue was whether he had deliberately downloaded and viewed the images. The direction that the issue was “…the circumstances in which[the images] came to be on the computer in the first place…” was a serious misdirection; the appellant was charged with “making” the thumbcache images and the Crown thus had to prove that he knew the images were automatically saved. The essential elements of the offences as particularised had to be made out in connection with the particular “making” alleged. The indicted “making” was an unknowing and unintentional act and the jury was never properly directed as to it.
29.
Whether the images had been made and viewed intentionally should have been left to the jury. An image was not “made” in a deliberate and intentional act but by an unknown automatic process of the computer which generated the image in thumbcache. The second limb of the direction did not address the timing of when the appellant knew the files did or were likely to contain an indecent image of a child. The knowledge had to be at the time of the “making.” On the evidence this was not upon entry into Frostwire of search terms generating automated download but when the file names were listed and thumbnails simultaneously and automatically stored in thumbcache.
Grounds of opposition
30.
For the respondent Crown Mr Moll who also appeared below relied on what he described as a simple factual analysis: The appellant deliberately searched for indecent images of children and knew the images had such a content when he opened them. There was a clear consensus that he had viewed then deleted the thumbcache images and the verdicts were plainly centred upon
where on the computer the particular indecent images of children were.
31.
He reminded us of the appellant’s evidence
“Once I had viewed and seen what was there it was only briefly on the screen…I went “Oh my God” and got rid of it.”
The agreed evidence was that the thumbcaches had been viewed at some stage whereas there was only an inference the others had been viewed
32.
The images in Counts 1, 7 and 8 and the attempts in Counts 13-14 had been downloaded or selected for download on 17th April when, he said, his computer was malfunctioning and was downloading automatically. The experts disagreed as to whether files titled to suggest indecent images of children would in fact contain such (Counts 13-14). There was no evidence that the items in the unallocated space (Counts 4-6) had been viewed or even how they came to be on the computer in the first place. There was a logical basis for the verdicts.
33.
The judge directed the jury on the Counts of which the appellant was acquitted that it had to be sure he intentionally downloaded the files and knew they contained or were likely to contain an indecent image of a child. There were seventy-five indecent images of children in the thumbcache and having viewed a few he must have known they contained such images. The issue was not whether he deliberately downloaded and viewed the images. His evidence was that he had. There was ample evidence from which jury could infer he knew exactly what he was downloading.
Discussion and conclusion
34.
A good deal of attention was devoted in written submissions, for which we were grateful, to technical aspects of how the computer and any relevant software worked. Oral advocacy revealed that the issue was far narrower and did not require detailed analysis of technology. The first and most powerful of Mr Wood’s arguments, that the verdicts defied logic, proved dispositive and we have not found it necessary to reach a conclusion on the balance of the submissions.
35.
Although the indictment was not specific as to the dates when material was downloaded some events could be dated. as we have already set out.
36.
On 31
st
March Frostwire settings were changed so that files were stored in the VS, created by the computer itself in the systems folders which, on the evidence of Dr Tipe, ordinary users cannot access for fear of wrecking the workings of the computer. Mr Field disagreed,. Whichever expert view did prevail or should have prevailed, three files were viewed and deleted.
37.
The VS counts (1, 7 and 8) were left to the jury on the basis that the files were downloaded on 17
th
April, not deleted, and found in the VS. Summing up the judge said:
“The issues which you have to decide in respect of these three counts of these. Are you sure the defendant downloaded these files intentionally?… Are you sure that the defendant knew the files did or were likely to contain an indecent image of a child? If the answer to both these questions is yes the defendant is guilty. If the answer to either question is no, he’s not guilty.”
The jury returned verdicts of not guilty.
38.
The thumbcache counts (2, 3, 9, 10 and 11) were left on the basis that the files had been downloaded viewed and deleted. The judge said:
“There is no dispute that these were downloaded by the defendant using FrostWire. Further, the folder they were contained in must have been opened because they were viewed on screen. Therefore, they were downloaded and viewed intentionally rather than by accident. Therefore in respect of these counts there is only one issue for you to decide which is this: are you sure the defendant knew the files did or were likely to contain an indecent image of a child? If the answer that question is yes, the defendant is guilty if the answer is no, he is not guilty.”
The jury returned verdicts of guilty.
39.
As to the unallocated space counts (4, 5 and 6) the judge said:
“Although there is no evidence as to the original filename for these images, the date or time and there were downloaded or by which user account, the defendant accepts that they can only have been downloaded by him via FrostWire. Because there is no evidence as to how these files came to be downloaded the prosecution seeks to draw an inference from all of the circumstances that they were downloaded intentionally and with knowledge as to the likely contents………….So, again, the issues in respect of these three counts which you have to decide are as follows. First are you sure that the defendant downloaded these files intentionally and, secondly, are you sure that the defendant knew they did all were likely to contain an indecent image of a child?”
The jury returned verdicts of not guilty.
40.
As to the attempt counts (13 and 14) the judge said:
“The issues which you have to decide in respect of these two counts are as follows. Are you sure that the defendant intended to download an image which she knew did contain all was likely to contain an indecent image of a child and, secondly, are you sure………….
The jury returned verdicts of not guilty.
41.
The rolled-up count (12) encapsulated the balance of the downloaded images in whatever category. The judge said:
“So the issues arise on this count as in relation to counts 1 to 11 for each of those three locations. If you are sure that one or more of the images, the subject of this count, was downloaded or viewed on the screen by the defendant intentionally and with the knowledge that the file did or was likely to contain an indecent image of a child then the defendant is guilty on count 12. It is not necessary for the prosecution to prove its case as to all 131 images referred to in the indictment."
The jury returned verdicts of guilty, which could have reflected only the thumbcache images within that catch-all category.
42.
Mr Wood QC argued, as to the thumbcache, that the making was the result of the downloading, not of the viewing. It was the state of mind of the appellant at the point of downloading not at the point of viewing which was relevant, whether in thumbnail or full screen format.
43.
The primary difficulty for the respondent Crown lies in identifying a rational reconciliation between the verdicts of not guilty and of guilty. They are not explicable by reference to the time at which the thumbcache images were downloaded. The Crown argued (contrary to the case it led at trial) that a point must have been reached by which the appellant must have known that the files were likely to contain indecent images. Leaving aside how matters were led below, the difficulties for the Crown are the acquittals on counts 13 and 14 as well as those on counts 1, 7 and 8, which related to attempted and actual downloads in April. In any event, as it conceded, it is impossible to give a date when the thumbcache images, or any of them, were downloaded: all thumbcache images might have been downloaded in the first download in the period 28-31 March and none later
44.
Nor can the verdicts be explained by the appellant having viewed these images. He had also viewed images other than those in the thumbcache but been acquitted as to them. The proposition, not advanced below, that the thumbcache images may have been the same as the “other” images, was not supported on the evidence. The thumbcache images were clearly left to the jury on the basis that they were distinct from the “other” images and it was not open to the jury to convict on any other basis.
45.
There was clear evidence that when the appellant saw indecent material, he deleted it. This was as true in respect of the “other” images as of the thumbcache images. Indeed the evidence was plain that these images were only created in this format as a consequence of deletion.
46.
In the course of submissions counsel for the respondent Crown was invited to offer a reasoned explanation for these apparently inconsistent verdicts. He did his valiant best but was unable to help us. We had little difficulty identifying irrationality and inconsistency but had no success when we sought to understand any possible logic in the verdicts.
47.
Thus, as we indicated, these apparently complex arguments, although stratified and requiring close attention to detail, revealed a ground of appeal familiar and simply stated. It was unnecessary for us to attempt a masterclass in computer software analysis or revisit the meaning of statutory terms. It was enough to conclude, on these facts, that the verdicts were inconsistent.
48.
This appeal is allowed.
|
{"ConvCourtName":["Crown Court at Woolwich"],"ConvictPleaDate":["2012-10-12"],"ConvictOffence":["Making indecent images of children contrary to s 1(1)(a) Protection of Children Act 1978"],"AcquitOffence":["Making indecent images of children (Counts 1 and 4-8)","Attempting to make indecent images of children (Counts 13-14)"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court at Woolwich"],"Sentence":["Suspended sentence order on each count concurrent"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[30],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Male"],"VicAgeOffence":[0],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Expert report/testimony","Forensic computer analysis","Interview admissions"],"DefEvidTypeTrial":["Offender denies offence","Expert report/testimony","Good character evidence"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":[""],"MitFactSent":["Offender has no relevant previous convictions"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Verdicts were logically inconsistent with the acquittals; misdirection by the judge regarding the elements of the offence"],"SentGuideWhich":["s 1(1)(a) Protection of Children Act 1978"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["The verdicts were inconsistent and irrational; no logical basis for the distinction between counts on which the appellant was convicted and those on which he was acquitted"],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
|
Neutral Citation Number:
[2007] EWCA Crim 3312
No.
2007/04799/C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Thursday 15 November 2007
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE MACKAY
and
MR JUSTICE LLOYD JONES
- - - - - - - - - - - - - - - - - - - - -
APPLICATION BY THE CROWN PROSECUTION SERVICE No. 23 of 2007
UNDER SECTION 58 OF
THE CRIMINAL JUSTICE ACT 2003
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
- v -
R
- - - - - - - - - - - - - - - - - - - - -
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 R Chishti
appeared on behalf of the Applicant
Mr L Kazakos
appeared on behalf of the Respondent
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
LORD JUSTICE LAWS:
1. This is an application by the prosecution for leave to appeal against a terminating ruling under
section 58
of the
Criminal Justice Act 2003
. The ruling in question was made by Mr Recorder Owen Davies QC at the Harrow Crown Court on 30 August 2007. The respondent faced his trial before the Recorder on an indictment containing a single count which alleged an offence of having in his possession an offensive weapon, namely "a pair of sand gloves". At the end of the prosecution evidence the Recorder of his own motion stopped the case, holding that the gloves in question were not in law capable of being regarded as an offensive weapon within the meaning of the relevant statute, the
Prevention of Crime Act 1953
. This is the ruling which the Crown seeks to appeal. The application is brought under
section 61
of the
Criminal Justice Act 2003
. We are asked to grant leave and to reverse the Recorder's ruling on the ground that it was wrong in law.
2. The facts are very short. On Christmas Day 2006 the respondent was arrested on suspicion of having been involved in an assault by another person on a third party. He was exonerated in relation to that matter. However, at the police station a pair of gloves was recovered from his pocket. He was thereafter charged with having an offensive weapon contrary to
section 1(1)
of the
Prevention of Crime Act 1953
. In interview he said that he used the gloves to keep himself warm.
3. It is of some importance to note that, at any rate at the outset of the trial, Crown counsel had disavowed any allegation that the respondent had the gloves with him intending to use them to cause injury. Mr Chishti who represented the Crown at trial has appeared before us this morning. He says that although that is so, he raised the question of a case possibly based on the respondent's intention at the time he addressed the Recorder at the close of the prosecution evidence. It seems to us that it is proper that we should leave such a potential case aside. It was not the Crown's case at any point while the evidence was called. The real question here is whether, under the Prevention of Crime Act and the learning in the cases, the respondent's guilt of this offence could be established by proving that the gloves were either made or adapted for use as a weapon.
4. In giving reasons for his ruling, which he did in the presence of the jury, the Recorder described the gloves as follows:
"You have been shown a pair of black leather gloves, and in the area, over the knuckles, there appears to be some padding which is part of the manufactured glove. That appears to contain a substance which has been described as sand."
We have been shown the gloves in court this morning. It is noticeable that they are very heavy.
5. There was also evidence adduced before the jury as part of the Crown's case of the contents of a website which advertised gloves of this kind for sale. They were advertised as "self-defence gloves". They were described as having powdered lead in a pouch over the knuckles. Apparently the website also stated that the owner should check the legality of the gloves in his home state.
6. The prosecutor says that these facts suffice to establish that the gloves were made, or at least adapted, for use as a weapon. At any rate it is asserted that the evidence which we have briefly summarised would have justified a jury in so concluding.
7. The respondent says that the nature of the gloves was at least as consistent with their being ordinary gloves designed or adapted for use as such. In particular their nature is consistent with their having been designed to protect the hands from injury when undertaking certain activities such as motor-cycling.
8. The case is a very short one. In our judgment there was material consisting of the evidence of the nature of the gloves as described by the Recorder (and which we have seen) and the evidence of the internet advertisement from which a reasonable jury could infer that the gloves had been made for use as a weapon. That being so, the Recorder was wrong to stop the case. It was for the jury to decide whether that inference should be drawn and whether that was the correct conclusion to reach. The Recorder could only properly have stopped the case if there was not evidence upon which a reasonable jury could have based such an inference.
9. In those circumstances we are satisfied that the Recorder's ruling was wrong in law. We grant leave and allow the appeal. We will hear argument as to what order we should make under
section 61(4)
of
the Act
.
MR CHISHTI:
My Lord, it is at page 1137. My Lord, that section says that the Court of Appeal may order subsequent proceedings or a fresh trial if they consider it is necessary in the interests of justice to do so. In my humble submission, my Lord, it is in the interests of justice. As I said earlier, there have been other cases at Harrow Crown Court where there have been convictions following proper directions being given by a judge.
MR JUSTICE MACKAY:
By what route, if you are right, would we do that? This jury is still in charge of this defendant. Is that not right?
MR CHISHTI:
My Lord, no. My Lord, this case was not expedited and on that basis the jury was discharged. The view taken was that if the appeal is allowed at the Court of Appeal, on that basis --
LORD JUSTICE LAWS:
It is notable that
section 61(4)
(a) and (b) draws a distinction between resuming the proceedings and ordering a fresh trial.
MR CHISHTI:
My Lord, yes.
MR JUSTICE MACKAY:
The Recorder did not ask for a verdict, he simply discharged the jury?
MR CHISHTI:
He did. I specifically asked him not to take a verdict. The jury did not give a verdict. They were simply discharged and the matter was left to the Court of Appeal. I expressly gave the undertaking that if the Court of Appeal --
LORD JUSTICE LAWS:
How long ago was all this? It was only 30 August 2007.
MR CHISHTI:
Indeed, my Lord.
LORD JUSTICE LAWS:
Let us see what your opponent has to say. The application is for a fresh trial under
section 61(4)
(a), Mr Kazakos.
MR KAZAKOS:
My Lord, I resist that application. The respondent is a 35 year old man. He has one very minor conviction in 1996. The offence (if it was such) occurred on Christmas Eve last year. He is unlikely to face a fresh trial until the spring of next year. There have been two previous listings for this trial. One wonders, given the likely penalty if convicted for a 35 year old man who is very lightly convicted, whether it is in the interests of justice (and also looking at the public expense) to have a fresh trial. I note the last words in subsection (5): "The Court of Appeal may not make an order unless it considers it in the interests of justice to do so".
LORD JUSTICE LAWS:
Certainly.
(
The court conferred
)
LORD JUSTICE LAWS:
We have concluded that it is in the interests of justice that this respondent should face a fresh trial for the offence with which he was originally charged. We order that there be a fresh trial.
MR CHISHTI:
My Lord, I will make arrangements for that. My Lord, would your Lordships direct that there be a mention in this case for listing the trial within the next fourteen days?
LORD JUSTICE LAWS:
I am not sure that it is for us to tell the Crown Court when to hear mentions. It is up to your people to get on with it, or ask the court to do so.
MR CHISHTI:
Indeed. My Lord, there is one further application I would make and that relates to reporting restrictions. This case comes under an interlocutory hearing and on that basis there can be no reporting of it. But I see no prejudice to the defendant if this case were to be reported --
LORD JUSTICE LAWS:
Why can the reporting not be postponed until after the hearing in case anybody on the defence case is worried about it? Mr Kazakos?
MR KAZAKOS:
That certainly is one submission. The other submission is that, if it is to be reported, the case could be given a neutral citation --
LORD JUSTICE LAWS:
And anonymised.
MR KAZAKOS:
-- and given an initial.
LORD JUSTICE LAWS:
Yes, we are agreed that that is the right thing to do. It can be reported, but it is to be referred to by the neutral citation and the name anonymised.
_________________________________
|
{"ConvCourtName":["Harrow Crown Court"],"ConvictPleaDate":["2007-08-30"],"ConvictOffence":["Possession of an offensive weapon (a pair of sand gloves) contrary to section 1(1) of the Prevention of Crime Act 1953"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[35],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Physical evidence (the gloves)","Website advertisement for gloves"],"DefEvidTypeTrial":["Defendant's statement (used gloves to keep warm)"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Respondent is very lightly convicted (one very minor conviction in 1996)"],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Terminating ruling (stopping the case)"],"AppealGround":["Recorder was wrong in law to stop the case; there was evidence on which a reasonable jury could infer the gloves were made for use as a weapon"],"SentGuideWhich":["section 1(1) of the Prevention of Crime Act 1953","section 58 of the Criminal Justice Act 2003","section 61 of the Criminal Justice Act 2003"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
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No:
200400810/A3
Neutral Citation Number:
[2004] EWCA Crim 1528
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 20th May 2004
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE GRIGSON
MR JUSTICE ANDREW SMITH
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 11 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)
- - - - - - -
MR J REES
appeared on behalf of the ATTORNEY GENERAL
MR D TRAVERS
appeared on behalf of the OFFENDER
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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 38 years of age, having been born in January 1966. On 7th January 2004 he pleaded guilty to an offence of being concerned in the supply of a controlled drug of Class A, namely crack cocaine, to another and also to three offences of supplying crack cocaine on one occasion and heroin on two occasions. He was sentenced by His Honour Judge Holloway at Liverpool Crown Court on 12th January 2004 to 5 months' imprisonment on each offence to run concurrently.
3.
The circumstances were that Operation Manton targeted those involved in the supply of Class A drugs in the centre of the city of Liverpool. Such supply in that city is well-known to this Court to be a matter of considerable concern. The operation involved the use of undercover police officers acting as test purchasers. Other officers using concealed equipment to record potentially incriminating conversation and other officers engaged on surveillance duties. The offences to which the offender pleaded guilty spanned a period of about a month from the end of May to the end of June 2003.
4.
In each of the four supplies the person supplied was an undercover officer known as 'Sam'. The first count related to 104 milligrams supplied on 29th May. The offender was selling the Big Issue magazine. He was approached by the officer whom he asked if he was looking for Jed and he told the officer that Jed had been locked up the previous night. There was a subsequent meeting when a discussion between the two of them took place, involving the possibility of the officer and the offender pooling their money in order to buy drugs. Thereafter the officer returned several times to speak to the offender and to discuss whether sufficient money was to hand.
5.
The offender asked the officer whether he wanted 'white', which was a reference to cocaine, or 'brown', which was a reference to heroin and the officer said 'white'. Later that day the offender made a couple of telephone calls and soon afterwards a male arrived on a bicycle, approaching the offender and he gave the name 'Twinny'. It was clear to the undercover officer that the offender and 'Twinny' knew each other. The offender handed over £13 in cash and the officer handed £8 in cash to 'Twinny' in exchange for a bag of white substance. 'Twinny' asked the officer why he had only got £8 and the officer said he had thought that he and the offender were going in it together. The purity of that crack was high: it was 86%.
6.
Count 2 related to 141 milligrams of heroin on 5th June 2003. There was another meeting between the officer and the offender outside a McDonald's restaurant. The offender eventually made a telephone call to 'Twinny'. Three other males, together with the offender and the undercover officer, caught a bus in order to rendez vous with 'Twinny'. After they had alighted from the bus the undercover officer handed £10 to the offender and when 'Twinny' arrived, the offender handed him a quantity of money in exchange for a number of cellophane bags, two of which, containing a white substance, were handed to the offender and there were also three bags containing brown powder, two of which the offender handed to one of the other males, and one of which he handed to the undercover police officer. The purity of that heroin was low: it was only 20%.
7.
Count 3 related to supplying 107 milligrams of crack cocaine on 9th June. A little after midnight on 9th June the undercover officer spoke to the offender, who was in the company of another man referred to as 'Beard' and the officer arranged to buy a bag of 'white'. In that connection he took a bus with the offender and 'Beard' to another part of the city. During the journey the offender was handed money by 'Beard' and £10 by the officer.
8.
Shortly after reaching their destination, the offender made a telephone call and, within a very short time, the offender, who had met whoever had come from the dealer, handed the officer a bag of 'white' substance which was of 77% purity.
9.
Count 4 related to supplying 137 milligrams of heroin on 23rd June. On that occasion the officer met the offender and 'Beard' and asked the offender if he could supply a bag of 'brown'. The offender said that it would cost £10. The officer tried to barter, but the offender said that on this occasion he had no money.
10.
Later that day, the officer met the offender and 'Beard'. The offender made a telephone call. The three men took a bus to another part of Liverpool and there a further telephone call was made by the offender. At that stage, the officer handed £10 to the offender. Within minutes 'Twinny' appeared, to whom the offender handed a quantity of cash and received three bags in exchange, one of which contained brown powder which he handed to the officer. The offender asked 'Twinny' whether he was doing his job right by bringing the punters up, to which 'Twinny's' response was that the offender was "just doing it to get his freebies". That heroin was of 28% purity.
11.
The offender was arrested somewhat later, on 16th October 2003. In interview, he said that he was addicted to heroin and cocaine and had been using drugs since 1987. He used four or five bags a day, costing £30 or £40, which he funded by begging and selling copies of the Big Issue. He said he bought drugs on behalf of many people and, in consequence, would get a discount from the dealer by purchasing in bulk. For example, two rocks of crack would cost £15 but three rocks £20. Sometimes, rather than merely getting a discount, he would get his drugs free.
12.
The prosecution conceded, at the hearing before the trial judge, that the offences involved a pooling of resources by the offender and the undercover officer, which amounted to facilitating the acquisition of drugs for the officer. But, the prosecution said, there was a slight benefit by way of discount accruing to the offender.
13.
On behalf of the Attorney-General, Mr Rees draws attention to three aggravating features. First, four offences were committed over a period of about a month. Secondly, two of the offences took place during a period of two concurrent conditional discharges which had been imposed on the offender for quite different offences. Thirdly, the offender has recent previous convictions for possessing Class A drugs.
14.
Mr Rees draws attention to three mitigating factors. First, the quantities supplied were small. Secondly, the offender was clearly something less than a commercial dealer of the kind commonly encountered in cases such as this and was acting so as to reduce the cost of drugs to himself. Thirdly, Mr Rees points out that the offender not only pleaded guilty to all the offences, but fully admitted what he had been doing and did so frankly in the course of interview.
15.
The submission which is made is that the sentence of 5 months passed by the learned judge (deliberately passed, it should be mentioned, rather than a 6 month sentence to ensure that the offender who had been in custody was immediately released) was unduly lenient in failing to take into account adequately the gravity of the offence, the need to deter others and public concern about offences of this kind.
16.
Mr Rees drew attention to four authorities in particular. In
Attorney-General Reference No 84 of 2000
[2001] 2 Cr App R(S) 336, this Court, increasing a sentence passed in the court below, indicated that, on a guilty plea, for supplying crack to a police officer, a sentence of 4 or 5 years might properly be expected in the ordinary case of commercial supply. Mr Rees also drew attention to
R v Patel
[1998] 1 Cr App R(S) 170 and
R v Denslow
[1998] Crim LR 566, of the judgment in which, on 6th February 1998, the Court has been provided with a transcript. Mr Rees also drew attention to
R v Rumble
[2003] 1 Cr App R(S) 618, where a sentence of 3 years was reduced to 2, on a guilty plea, in relation to the supply of ecstasy without a commercial motive.
17.
Mr Travers, on behalf of the offender, placed reliance before the learned judge and sought to place reliance before this Court on the case of
Denslow
. That, it is to be noted, was an appeal against conviction, the appellant having been given an absolute discharge. The court concluded that, in the light of a decision of this Court in
R v Buckley and Lane
69 Cr App R, the appellant was technically guilty of an offence of possessing a Class A drug with intent to supply.
18.
In the course of giving the judgment of the Court, Mantell LJ questioned why it was thought necessary to charge supply, in the circumstances of that case, bearing in mind that a plea had been offered to a charge of possession which, in the view of the Court, ought to have been accepted.
19.
As Mr Travers rightly accepts, the circumstances of
Denslow
, which clearly had a considerable impact upon the sentencing judge in the present case, were conspicuously different from those in the present case. In particular,
Denslow
had possession of the relevant drug on only one occasion. As is apparent from what we have already said, this offender was involved in the supply of drugs on four occasions, spread out over a period of a month. Therefore, as it seems to us, this was plainly not a case of mere technical guilt of the offences to which he pleaded guilty.
20.
We would have expected, in the light of the authorities and the particular circumstances of this case, that a sentence of the order of 18 months to 2 years would have been passed on this offender in the court below.
21.
The question which then arises, however, on the basis that the sentence passed in the court below was unduly lenient, is whether this Court should interfere. We have concluded that we should not, for a number reasons. First, when regard is had to the principle of double jeopardy, that is to say that the offender is being sentenced a second time, whatever sentence ought to have been passed in the court below would inevitably have to be discounted in this Court. Furthermore, bearing in mind that the offender, by reason of the sentence passed by the Crown Court judge was immediately released, if this Court were now to increase the sentence, he would have to return to prison. That aspect calls for a further discount from the sentence which would have been appropriate in the court below.
22.
Next, it is apparent, so far as this offender is concerned, that he has done well in the 4 months since he was released. There is before us a reference from the community network which runs the hostel at which he has lived since 16th February. It is apparent that the offender is making positive moves in controlling his drug habit. He is attending the drug dependency unit in Liverpool, receiving counselling and support, and he is working diligently on a market garden project at the hostel. Furthermore, he has provided great assistance to the manager of the hostel in relation to another resident there who has been seriously ill.
23.
Having regard to those matters, it would not be appropriate, in the exercise of our discretion, to interfere with the sentence which was passed on the offender.
24.
Two further matters merit comment. First of all, lest anyone should think otherwise, the unduly lenient sentence which was passed by the learned Crown Court judge was not based in any way at all on any assistance which some people might think that the offender had given to the police. There has been no such assistance and the sentence was erroneously based upon the decision of this Court in
Denslow
and was not due to any perceived credit for other matters.
25.
The final matter which is of considerable significance is this. The sentence which was passed upon the offender resulted from a major operation by the police in Operation Manton. We have been told that, so far, the same judge has passed sentence on 43 defendants of whom this offender is but one. All that we know, in relation to those other defendants, is that the range of sentences which he has imposed has been between 18 months and five-and-a-half years' imprisonment. It is apparent that the learned sentencing judge regarded this offender as being in a wholly exceptional category, compared with others who had appeared before him. We have no details in relation to those other 43 defendants. But it is a matter of significance when this Court is invited to interfere with a sentence said to be unduly lenient, that the sentence passed was not in isolation in respect to a particular defendant but in the context of many other defendants being sentenced by the same judge in relation to the same or similar activity. That makes the task of this Court extremely difficult if called upon to interfere with one out of so many sentences.
26.
For the reasons which we hope we have adequately explained, although the sentence was unduly lenient, we do not interfere with it.
|
{"ConvCourtName":["Liverpool Crown Court"],"ConvictPleaDate":["2004-01-07"],"ConvictOffence":["Being concerned in the supply of a controlled drug of Class A (crack cocaine)","Supplying crack cocaine","Supplying heroin"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Liverpool Crown Court"],"Sentence":["5 months' imprisonment on each offence to run concurrently"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[37],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1 (undercover officer 'Sam')"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Undercover police testimony","Surveillance evidence","Recorded conversations"],"DefEvidTypeTrial":["Offender admitted in interview"],"PreSentReport":[],"AggFactSent":["Four offences over about a month","Two offences committed during concurrent conditional discharges","Recent previous convictions for possessing Class A drugs"],"MitFactSent":["Small quantities supplied","Offender less than a commercial dealer, acting to reduce cost to himself","Plea of guilty and frank admissions in interview"],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Sentence failed to take into account gravity of offence, need to deter, and public concern"],"SentGuideWhich":["Section 36 Criminal Justice Act 1988","Attorney-General Reference No 84 of 2000 [2001] 2 Cr App R(S) 336","R v Patel [1998] 1 Cr App R(S) 170","R v Denslow [1998] Crim LR 566","R v Rumble [2003] 1 Cr App R(S) 618"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["Sentence did not adequately reflect gravity, deterrence, and public concern"],"ReasonDismiss":["Double jeopardy principle (would require further discount)","Offender had been released and made positive progress","Sentence not in isolation but in context of many other defendants","Discretion exercised not to interfere despite leniency"]}
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Neutral Citation Number:
[2011] EWCA Crim 1183
Case No:
201005276 C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 5 May 2011
B e f o r e
:
LORD JUSTICE LEVESON
MR JUSTICE OPENSHAW
HIS HONOUR JUDGE GOLDSTONE QC
(Sitting as a Judge of the CACD)
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R E G I N A
v
B
- - - - - - - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - - - - - - -
Miss T Adkin
appeared on behalf of the
Appellant
Mrs A Toynbee
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE LEVESON: On 13 September 2010 in the Crown Court at Lewes before Mr Recorder Snowden QC and a jury, this appellant was convicted by a majority verdict of 10 to 2 of an offence of assault occasioning actual bodily harm. Sentence for the offence has been adjourned. On 13 December 2010 this court (differently constituted) granted leave to appeal on limited grounds and directed that an enquiry be made from the jury bailiff and the clerk of the court as to what transpired during the course of the jury's deliberations. That investigation has now been conducted.
2.
As was made clear in the judgment of this court on 13 December, the facts of the case are not important for the purposes of this application. They were then summarised in this way. On 29 May 2009 a fight broke out between the applicant and the complainant in a park at Copthorne. The prosecution alleged that the complainant was punched by the appellant during the fight. The complainant said that he was not the aggressor but was surrounded by a number of men who tried to punch him. Although he missed some punches, the appellant punched him on the side of the face from his right-hand side and behind him.
3.
It was the defence case that the appellant accepted that he punched the complainant and that as a result he had broken his jaw. The complainant had, however, acted aggressively and lunged towards him, whereupon he reacted by putting up his right hand in a clenched fist. Thus the issue for the jury was whether the appellant had acted in self-defence.
4.
The trial proceeded in a manner to which no objection is taken. The jury retired to consider their verdict at 1.10pm on 15 September. At 3.55pm the court was reconvened in the absence of the jury. The learned Recorder addressed counsel in these terms:
"I have had a note from the jury which indicates at the moment that they have not reached a unanimous decision. I have also been made aware that certainly one member of the jury is currently in the corridor outside the jury room a little distressed, I think caused by the discussions that are going on in the jury room, so she is just literally outside the jury room door; she has not separated otherwise from the jury but she has just left the room to say that she is a little distressed. Obviously what I propose to do is to bring the jury back and tell them that they are not going to have to consider their verdicts any longer this evening; that seems perfectly sensible. I was probably also going to simply give them a rather soft form of the Watson direction..."
Counsel made no observations upon the learned judge's view.
5.
At 4.05pm the jury were brought back into court and were then directed by the Recorder about their collective responsibility in these terms:
"Can I ... read some wise old words of a Lord Chief Justice, and they say this: 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 also 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."
6.
During the course of the application for leave to appeal, the court directed that enquiries be made of the jury bailiff and the clerk to the court, not only as to what precisely had transpired, but also as to the information passed to the Recorder in order that he could judge the appropriate approach. This court went on:
"In our judgment it is, or at least may be, of concern that the Recorder did not share with counsel whatever he learnt as to the cause of the juror's distress in order that submissions could be made as to the propriety of the course of action which he intended to adopt."
7.
Those enquiries have now been made, and we have statements from the court usher and the clerk of the court. The usher reports:
"Around 3.50pm on 16th September 2010 I was sitting outside the jurors' retirement room when a female juror burst out. She looked distressed and told me that she couldn't go back into the room as she couldn't get her point across and felt that it was unfair. She said that the foreman was putting a lot of pressure on her. At this point ... [the court clerk] appeared and overheard what was happening. [She] went to speak with the judge while I sat with the juror.
I told the juror to calm down as she wasn't meant to discuss the case with me. All jurors were then brought back into court before being sent home for the night. I told the distressed female juror before she left the court that if she had any concerns then she would have to write them down so they could be passed onto the judge. When I saw the juror the following day she passed me a note to pass to the judge. This note was not in relation to her distress of the previous day but a question about the case. The juror appeared much calmer than the previous day."
8.
The court clerk reports the incident in slightly different terms. She says:
"... the jury bailiff was sitting outside when a female member of the jury burst out of the room in a distressed state. The juror told the bailiff ... that she was being bullied by the foreman, couldn't get her point across and couldn't go back into the room.
I caught the tail end of the conversation as the juror kept on repeating herself. She wanted to tell us the specifics of what had been happening but I told her she couldn't do this."
The court clerk then reported the matter to the learned judge.
9.
It is abundantly clear that the Recorder's approach did not include informing counsel of the full nature of the events which had occurred. In that regard, in our judgment, the better course would have been for the Recorder to have asked both the court clerk and the usher to articulate in open court in front of the defendant and counsel precisely what had transpired in order that he might receive informed submissions as to the approach to be adopted with the jury. It is unfortunate that what he said to counsel about what had transpired did not present the full picture, and both Miss Adkin, on behalf of the appellant, and Mrs Toynbee, on behalf of the Crown, recognise that had they known the detail which is now in the papers before us, they would have made submissions as to the adequacy of the approach that the judge intended to adopt when directing the jury as to their task. Mrs Toynbee points to the fact that the juror did not return the following morning with a note complaining of the foreman's conduct, but it cannot be gainsaid that the judge's approach was not informed by the views of counsel. Further, in our judgment, it was inadequate in the circumstances of the allegations to which we have referred and did not sufficiently deal with the criticism being made.
10.
What transpired in the jury room thereafter is not of course a matter upon which this court can adjudicate. We repeat that the subsequent complaint by jurors to members of the family of the appellant is not a topic upon which further elaboration can now be sought: see the judgment of 13 December 2010 at paragraphs 11-14.
11.
In the light of our conclusions as to the approach adopted by the Recorder, who was faced with a difficult jury management situation with which he had to deal with no notice, we do conclude that he fell into error by failing to conduct a more open investigation, ensuring that he received informed submissions from counsel as to the approach to be adopted and then ensuring that the jury approached their task in an appropriate manner.
12.
In those circumstances, we conclude that this conviction is unsafe and must be quashed.
13.
MRS TOYNBEE: In relation to a retrial, my Lords, can I ask that there be some directions as to a fairly tight time schedule for re-arraignment?
14.
LORD JUSTICE LEVESON: First of all you have to ask for a retrial and then we have got to order one.
15.
MRS TOYNBEE: Indeed. Obviously, I am phrasing that question that way and that will be the next issue. I would make that request now, if I may take my Lord's time.
16.
LORD JUSTICE LEVESON: All right.
17.
MISS ADKIN: All I pray in aid is the delay. The matter is going back some time now as far as witnesses are concerned. I am in your Lordship's hands.
18.
LORD JUSTICE LEVESON: Right, thank you. (Pause)
19.
We shall direct a retrial. In the circumstances, we allow the appeal, quash the conviction and order the appellant to be retried for the offence of assault occasioning actual bodily harm. We direct that a fresh indictment be served, and that the appellant be re-arraigned on the fresh indictment within two months. The appellant's bail is continued on the same terms as before. We make an order under
section 4(2)
of the
Contempt of Court Act 1981
restricting reporting proceedings until after the conclusion of the retrial. The venue for the retrial should be determined by the presiding judge for the South Eastern Circuit, although the re-arraignment can take place at the Crown Court at Lewes. The appellant should be aware that an application for representation at that retrial must be made to Havering Magistrates' Court pursuant to paragraph 7 of the Criminal Defence Service (General) (No 2) (Amendment No 4) Regulations 2009, which amend the Criminal Defence Service (General) (No 2) Regulations 2001 by substituting new Regulation 9.
|
{"ConvCourtName":["Crown Court at Lewes"],"ConvictPleaDate":["2010-09-13"],"ConvictOffence":["assault occasioning actual bodily harm"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":["Conditional Bail"],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"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":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Recorder failed to conduct a more open investigation into juror distress and did not receive informed submissions from counsel"],"SentGuideWhich":["section 4(2) of the Contempt of Court Act 1981"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Recorder's approach was inadequate; failed to inform counsel of full nature of juror distress; conviction is unsafe"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
|
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2022] EWCA Crim 478
No. 202103058 A2
202103276 A2
Royal Courts of Justice
Thursday, 24 March 2022
Before:
LADY JUSTICE WHIPPLE
MR JUSTICE JEREMY BAKER
HIS HONOUR JUDGE LODDER QC, RECORDER OF RICHMOND UPON THAMES
REGINA
V
ROY BASSON
PAUL WORTHINGTON
__________
Computer-aided Transcript prepared from the Stenographic Notes of
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Tel: 020 7831 5627 Fax: 020 7831 7737
[email protected]
_________
MR J. HUGHESTON-ROBERTS
appeared on behalf of the First Appellant.
MS F DAVY
appeared on behalf of the Second Appellant.
________
JUDGMENT
LADY JUSTICE WHIPPLE:
Background
1
On 26 August 2021 in the Crown Court at Maidstone before Mr Recorder Elvin QC, the appellant Basson, then aged 39, and the appellant Worthington, then aged 41, pleaded guilty to the offence of conspiracy to supply class A drugs.
2
On 23 September 2021 HHJ Gratwicke sentenced both appellants to 11 years' imprisonment. Both now appeal against sentence with the leave of the single judge.
Facts
3
The facts in brief are these. At about 2.30 in the afternoon on 20 May 2021 police officers in Maidenhead witnessed an exchange of drugs between Worthington and Basson. The officers observed as Worthington got out of his Volkswagen Transporter van and walked towards Basson, who was stood at the door of his Citroen Berlingo. Worthington handed Basson a large tartan laundry bag, then both men turned towards their respective vehicles.
4
As the officers approached, they saw Basson was in the rear of his vehicle. He was wearing latex gloves and was unloading 1kg compressed blocks of cocaine from the laundry bag into a purpose-built concealed compartment in the floor of his van. The compartment was operated by remote control. By the time the officers got into the back of the van, Basson had unloaded 16 of the kilogram blocks of cocaine into the hide and there were four blocks left in the laundry bag. The vehicle was searched and £2,000 in cash was found in an envelope in a compartment above the steering wheel, along with two iPhones. Basson was arrested.
5
Worthington was approached by police whilst making a telephone call from inside his van. When he was arrested, police recovered two iPhones and a notepad, which had various post codes written on it. Worthington was found to be in possession of £270 in cash.
6
The drugs were examined by a forensic scientist who confirmed that there were 20kg of cocaine between 75 and 77 per cent pure. The wholesale value was in the region of £6,000 to £9,000, with a potential retail value of between £1 million and £2 million. One of Worthington's iPhones contained messages appearing to indicate that he was being directed to make multiple exchanges. These were drug-related messages, one of which showed that Worthington had been given a signal to make the exchange with Basson, another of which showed Worthington referring to "the afternoon shift tomorrow".
7
Basson and Worthington both gave no comment interviews.
Sentence
8
At the sentencing hearing on 23 September 2021, the Crown set out the facts. The Crown's submission was that both men had an operational and management function within the chain, both had an expectation of a significant financial advantage given the quantity of drugs involved, and, despite Worthington only in fact having a relatively small amount of cash on him at the time, both were aware of the scale of the enterprise they were involved in. Accordingly, the Crown said that they both played significant roles. This was the Crown's case based on the accepted bases of plea.
9
In sentencing, the judge noted the "exceedingly large amount" of cocaine involved, namely 20kg. He stated the defendants had made a choice and had gone into this enterprise with their eyes open. Turning to the guidelines, he concluded that this was a category 1 case, noting that the drugs involved were four times the indicative amount.
10
Turning to Basson, he said that Basson had some awareness of the scale of the enterprise that he was engaged in. Basson took delivery of the van, registered and insured it. Whether Basson built the concealed compartment mattered not, because he knew about it and that it would be used for transporting drugs. Basson was motivated by financial gain. Basson played a significant role. The judge noted Basson's lack of previous convictions for drugs and the rest of his personal mitigation. He concluded that after a trial Basson would have been sentenced to 15 years' imprisonment. He gave a discount of 25 per cent for the guilty plea and made an adjustment in light of
Manning
. The resulting sentence was one of 11 years' custody.
11
The judge then turned to Worthington. He said that Worthington also had some awareness and understanding of the scale of the operation, carrying 20kg in an ordinary bag to his waiting co-defendant Basson. Worthington too was motivated by financial gain. He too fell into category 1 and occupied a significant role. He too had no previous convictions for drugs and had personal mitigation in the form of alcohol problems. The judge also noted efforts made by Worthington while in custody to change his ways. The judge concluded that after a trial Worthington would have been sentenced to 15 years' imprisonment. Likewise, after giving 25 per cent credit for plea and making an adjustment for
Manning
, the sentence in Worthington's case was 11 years' imprisonment.
Grounds of Appeal
12
Mr Hugheston-Roberts appears for Basson. Mr Hugheston-Roberts did not represent Basson at the hearing below. Mr Hugheston-Roberts' written grounds of appeal advance two grounds. First, he criticises the judge for going above the guideline range for category 1 significant role; the starting point for that category under the relevant guideline is ten years in a range of nine to 12 years. Secondly, he argues that Basson should have got more than 25 per cent credit for his guilty plea. In oral submissions before us, Mr Hugheston-Roberts has adopted Ms Davy's written grounds in relation to Worthington's appeal.
13
Ms Davy appears for Worthington. She represented him at the sentencing hearing. She advances the following arguments in her written grounds. First, that the judge failed to sentence in accordance with the written basis of plea, which was not disputed by the Crown, in which Worthington accepted that he was a courier, but had no other knowledge or involvement. Secondly, the judge failed to have any or adequate regard to those factors suggested for lesser as opposed to a significant role, specifically the fact that Worthington performed a limited function under direction, that he had no influence on those above him in the chain, that he was being sentenced for his involvement on a single day, and that there was no evidence of substantial financial gain in his case. Third, the judge provided no explanation for assessing Worthington's role as significant. Fourth, the judge took too high a starting pointed. Fifth, the judge should not have increased the starting point by reference to the quantities seized, which had nothing to do with the role played by Worthington. In oral submissions before us today, Ms Davy has focused particularly on those aspects of Worthington's involvement which tended, in her submission, to lower his role to the lesser category or to the bottom end of the significant category.
14
We are grateful for the focused and succinct submissions which we have received from counsel, both in writing and orally.
Basson
15
We consider the appeal in Basson's case first. The sentencing judge put Basson in category 1 significant role. The role he occupied was significant, because Basson had some awareness and understanding of the scale of the operation. Harm was assessed by reference to the weight of the product. Category 1 in the guideline is predicated on 5kg of cocaine. In this case 20kg was being handled on the day in question. For a significant role, the guideline gives a starting point of ten years in a range of nine to 12 years. The guideline states that for cases where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than specified in category 1, sentences of 20 years and above may be appropriate. Given the very substantial quantity of cocaine involved in this case, on a single day, but in the context of repeat engagement in a drugs conspiracy, the judge was plainly entitled to go above the top of the range indicated in the guideline. The guideline itself suggests that in appropriate cases where the operation is on the most serious and commercial scale the top of the range should be exceeded. This operation was approaching that end of the scale. Thus, the judge's identification of 15 years as the notional determinate sentence after a trial cannot, in our judgment, be criticised. We reject Basson's first ground of appeal.
16
The judge reduced the sentence to 11 years applying a global reduction of around 27 per cent to take account of the guilty plea and
Manning
. We note that when the case was opened by the prosecution, the sentencing judge was told that Basson pleaded guilty at the PTPH. It does not appear that Basson's defence counsel at the hearing said otherwise. A reduction of 25 per cent is of course in accordance with the relevant guideline for a plea entered at that stage. In fact, it now appears that Basson indicated his intention to plead guilty at the Magistrates' Court. The notice to the Crown Court for sending for trial from the Magistrates' Court states in terms "plea of guilty indicated": see p.A3 on the DCS. It is regrettable that this was not drawn to the sentencing judge's attention.
17
In light of the early indication of guilty plea, Basson was entitled to a one-third reduction. Taking 15 years as the notional sentence after trial and reducing it by one-third arrives at ten years. We preserve the roughly three months' additional discount for
Manning
to arrive at a total sentence in Basson's case of 117 months or nine years and nine months.
18
We therefore allow the appeal against sentence in Basson's case. We quash the sentence of 11 years' imprisonment and impose in its place a sentence of 117 months: that is nine years and nine months.
Worthington
19
We turn to Worthington's appeal. The first ground of appeal is that the judge failed to sentence in accordance with the basis of plea, which was accepted by the crown and was in the following terms:
"(a) The extent of the defendant's involvement in the conspiracy on 20 May 2021 was that of a courier; namely, acting upon instruction from another. He collected and delivered the trucks in question from and to an address only provided to him that morning.
(b) Beyond his role as courier on 20 May 2021, he had no other knowledge or involvement.
(c) The extent of the defendant's benefit from his role as courier was payment of £300 in cash; £270 of this was seized from him on arrest."
20
The judge sentenced on the basis that Worthington had some awareness and understanding of the operation, such that his role was significant. In our judgment, that finding plainly was open to the judge on the material before him. As he noted, Worthington had handed over a laundry bag with 20kg of product in it. There were multiple messages on Worthington's phone dealing with exchanges. True it is that Worthington was found with only £270 cash in his possession, but the guidelines refer to the expectation of financial gain and it can readily be inferred that Worthington expected to make more money than this amount from his participation in this conspiracy. In short, the basis of plea, when put alongside other evidence in the case and known facts, is not inconsistent with the categorisation of Worthington playing a significant role. The first ground fails.
21
The second ground of appeal is connected to the first. It relates to factors which it is said point to a lesser role. We consider the judge to have been well placed to assess the role played by Worthington. The particular factors highlighted by Ms Davy represent, at best, a partial view. We have already identified those features of the evidence which put Worthington in the significant role category. This leads us to conclude that ground two also must fail.
22
By his third ground, Worthington suggests that the judge failed to explain why he put Worthington in a significant category. With respect, we disagree. The reasons given were sufficient. The third ground fails.
23
The fourth and fifth grounds have already been addressed in relation to Basson's case. The judge was entitled to take 15 years as his notional sentence after trial. We understand the judge to be saying that 15 years took account of the aggravating and mitigating factors and left only credit for plea to be deducted. The quantity of cocaine justified an uplift substantially above the top of the category range. These grounds fail.
Conclusion
24
We therefore dismiss these appeals.
__________
|
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|
No:
200702784/A2
Neutral Citation Number:
[2007] EWCA Crim 2215
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Wednesday, 4th July 2007
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE MCCOMBE
MR JUSTICE FIELD
- - - - - - - - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 61 OF 2007
(MICHAEL MADDEN)
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave 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 M FENHALLS
appeared on behalf of the ATTORNEY GENERAL
MR R MAIRS
appeared on behalf of the OFFENDER
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE HOOPER: The Attorney-General seeks leave to refer to the Court of Appeal a sentence which is said to be unduly lenient. We grant that leave.
2.
The offender is Michael Madden. He is 31 years old. On 21st March 2007 he was found guilty of wounding with intent, contrary to
section 18 of the Offences Against the Person Act 1861
. The case was adjourned for a pre-sentence report to be prepared. On 3rd May 2007 the offender was sentenced to 3 years' imprisonment by Miss Recorder Danji, sitting at Bradford Crown Court.
3.
In summary, on Sunday 22nd January 2006, the offender and the victim were drinking in a public house in Huddersfield. A fight broke out inside the pub, although it did not involve the victim. Both the offender and the victim came to be on the pavement outside the public house. The offender armed himself with a 12-inch carving knife and used this to stab the victim in the face in a downward motion. We have seen the photograph: it was a deep slashing wound to the side of the nose. There is no doubt, and this is not disputed, that the attack was entirely unprovoked.
4.
The facts in more detail are as follows:
(i) On the evening of 22nd January 2006 the victim, Joseph Rainey, went to Huddersfield and met up with two friends. He drank four pints of lager in two different public houses before the three men went to the "Ivy Green" public house at about 10.00pm. While there he drank a fifth pint. He considered that he was sober and stated that this was not a large amount for him to drink.
(ii) When he went to order a further pint, the barmaid asked if he was with 'the other two' referring to his friends. He confirmed that he was and she declined to serve him. As he went to leave the public house he made his way past a group of men who were fighting and went outside onto the pavement.
(iii) The victim noticed the offender approaching him along the pavement. The offender swung at him with his arm, connecting with the victim's nose and he felt a great deal of pain. In fact he had been stabbed and his nose began to bleed heavily.
(iv) An independent witness, Anne Hirst, saw the offender walk towards the pub carrying a large carving knife with a 12' blade. She saw him raise his knife above his head and attack the victim, striking him in a downward direction to his face.
(v) The victim describes how he moved away, but was followed by the offender who continued to challenge him to fight. He phoned the police who arrived swiftly.
(vi) Anne Hirst saw the offender being arrested by the police. She later identified the offender at an identification parade.
(vii) Two independent witnesses, Peggy Callaghan and Pauline Cadogan, who were passing in a car saw a man walking away holding a knife with a 12" blade concealed behind his back. Neither they nor the victim were able to identify the offender.
(viii) The victim received a 6cm laceration to the left nostril and septum of his nose. He went to Huddersfield Hospital where he received emergency treatment including 12 sutures administered in two layers, one internally and one externally.
(ix) The offender declined to answer questions when first interviewed on 23rd January 2006. He was re-interviewed on 22nd September 2006, when he admitted that he had been involved in a disturbance, claimed that he had been assaulted and then declined to 'go into any more detail'. He denied carrying or using a knife.
(x) The offender has two previous convictions. The first is for an offence of wounding contrary to
section 20 of the Offences Against the Person Act 1861
, on 25th June 1996. The second is criminal damage on 22nd October 2002. The facts of the 1996 wounding were described to the sentencing court by prosecution counsel as follows:
"The offender had been outside a public house when he hit a man on the head with a bottle. The bottle did not break but the blow knocked the victim to the ground. The offender then punched him repeatedly in the face. The victim suffered a cut to the rear of his head and to his lip."
We note that the offender was in the Army at the time of the
section 20
offence.
5.
The offender continued to deny his role in the offence to the author of the pre-sentence report. He claimed that the victim and his friends were troublemakers and, while he accepted fighting, he had no recollection of hitting the victim. He continued to deny that he had ever carried or used a knife. The author concluded that the offender posed a medium risk of harm. No mitigation was advanced suggesting the victim himself had provoked the attack.
6.
In the submission of the Attorney-General there are four aggravating features:
(i) The offence was to some degree a premeditated attack, in which the offender used a knife, which he had no lawful excuse for possessing.
(ii) The offender raised the knife above his head and struck the victim in the face, where it was likely to cause significant and lasting damage.
(iii) The attack was unprovoked, late at night, and in a public place.
(iv) The offender has a previous conviction for unlawful wounding in similar circumstances.
We agree.
7.
The following mitigating features are, in our view, present. First, the offender has served in the British Army and has served his country well in Bosnia and other places. We have been provided with a number of excellent character references. Those who write the references speak highly of the offender, both as a soldier and as a human being. In one of the references it is said:
"If it was not for the fact that Pte Madden was leaving the Army to pursue a Civilian Career, I do believe that in a few years he would have made a strong and robust JNCO."
8.
Another reference written by a Major refers to Private Madden as "a fine soldier, by far the best in the company and one of the most talented I have worked with."
9.
Another testimonial states in part:
"As an Infantryman he has demonstrated the ability to work in conditions of personal discomfort, often in difficult and sometimes dangerous circumstances. In all situations he has proved to be reliable and dependable. He has the ability to successfully absorb detailed theoretical information and perform important practical skills as part of a team."
He is described as "robust, fit, with strong leadership ability and a degree of technical aptitude."
10.
It is also important to note in mitigation that there has been almost a period of 10 years between the serious offence of violence to which we have referred and this offence. The Attorney-General draws our attention to the case of
Attorney-General's Reference No 18 of 2002
(Christopher Simon Hughes)
[2003] 1 Cr App R(S) 9
and particularly at paragraph 21, where the then Vice-President, Rose LJ, said that the sentences for offences against
section 18
involving a knife, would normally be within the bracket of 3 to 8 years.
11.
We also looked at
Attorney-General's Reference No 138 of 2006
[2007] EWCA Crim 1077
. In that case the offender, who was aged 20, with no previous convictions and a good character, stabbed the victim twice, once in the right arm and once in the left side. The second blow was administered with such force that the knife became embedded in the bone and had to be surgically removed. In the view of the Court, the appropriate sentence, after a trial, would have been approaching 6 years' detention.
12.
In passing sentence on the offender in this case the judge said:
"You have been found guilty of unlawfully and maliciously wounding Joseph Rainey with the intent to do him grievous bodily harm. On 22nd January 2006, you used a knife to slash his nose causing a 6cm laceration as a result of which he required twelve stitches. As you know this is a serious offence. You caused very significant injury to the victim in the nature of the offence, namely street violence involving the use of a knife, is also one which the public are rightly very concerned about and the incident must also have caused distress and fear to those people who witnessed it.
I have taken into account what is known about what happened that evening including the fact that you too had been struck a blow. I have also noted the role that alcohol appears to have played in this offence and that you seem unable to recall exactly what happened, but that is, of course, no comfort to the victim or to the public, nor does it excuse what you did.
I have taken into account all that has been said in your favour in a pre-sentence report and in Court today in relation to the circumstances of the offence and in relation to your personal and your work life. I have also noted in your favour what has been said about your attempts to avoid further trouble since the offence by moving out of your area and that there have been no difficulties since the date of the offence. These factors do weigh in your favour. I have taken particular note of the dossier containing your qualifications and references. These are clearly quite a large number of people who think very highly of you and some of the references, particularly from your time in the Armed Forces, are excellent. I have taken these into account in your favour but would also venture to say that it is a great shame for someone with your skills and potential to engage in criminal behaviour regardless of the circumstances and I very much hope you will conduct yourself in the future so as not to come before these Courts ever again.
It seems to me that alcohol has played a significant part in this offence and I am surprised by the indication in the pre-sentence report that you are comfortable with your level of alcohol intake. I think this is something you ought to seriously rethink if you want to build a kind of positive life which people who know you best seem to think you are capable of. In considering the appropriate sentence I have taken into account your two previous convictions for offences. In particular the offence involving violence although I have taken into account, also, that that was over ten years ago. I do not propose to invoke the dangerous offender provisions of the Criminal Justice Act because I do not consider that there is a significant risk to members of the public of serious harm occasioned by further specified offences being committed by you.
Nevertheless, as I am sure you have been told, your offence is so serious that neither a fine alone nor a community sentence can be justified. It is unavoidable that you must be sentenced to a term of imprisonment. This will be the very shortest which, in my opinion, matches the serious and circumstances of your offence and takes into account all the mitigating factors. The sentence I pass is one of three years' imprisonment."
13.
It is submitted that the sentence is unduly lenient having regard to the aggravating features of the case to which we have made reference. It is said that the sentence failed to reflect the gravity of the offence and the public concern about offences of this nature.
14.
Mr Mairs, who appears for the offender, accepts that the attack was unprovoked, although he refers to the fact that there had been difficulty between two groups of people. Whether the victim was a member of one of those groups is not clear. Mr Mairs mentions that only to try to explain why the offender, given his record in the Army and the references to which we have referred, might have resorted to violence on this occasion.
15.
Mr Mairs also points out that, although the injury was clearly a very serious injury, it was not of a life threatening character. It could, so he submits, have been far more serious than it was. He submits that we are entitled to take into account that the injuries were not as serious as they otherwise could easily have been.
16.
It is submitted by Mr Fenhalls, on behalf of the Attorney-General, that the proper sentence in this case would have been in the region of 6 years' imprisonment. We agree with that submission. We quash the sentence that was passed and, giving a small discount for double jeopardy, we substitute for it a sentence of five-and-a-half years' imprisonment.
|
{"ConvCourtName":["Bradford Crown Court"],"ConvictPleaDate":["2007-03-21"],"ConvictOffence":["Wounding with intent contrary to section 18 of the Offences Against the Person Act 1861"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Bradford Crown Court"],"Sentence":["3 years' imprisonment"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[31],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Victim testimony","Independent witness testimony","Identification parade"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["Medium risk of harm"],"AggFactSent":["Premeditated attack with a knife","Use of a weapon likely to cause significant and lasting damage","Attack was unprovoked, late at night, and in a public place","Previous conviction for unlawful wounding in similar circumstances"],"MitFactSent":["Service in the British Army with good character references","Almost 10 years since previous serious violent offence","Efforts to avoid further trouble since the offence","Good work and personal references"],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Sentence failed to reflect gravity of offence and public concern; aggravating features not sufficiently considered"],"SentGuideWhich":["Attorney-General's Reference No 18 of 2002 (Christopher Simon Hughes) [2003] 1 Cr App R(S) 9","Attorney-General's Reference No 138 of 2006 [2007] EWCA Crim 1077"],"AppealOutcome":["Allowed & Sentence Increased"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["Sentence failed to reflect gravity of the offence and public concern; aggravating features not sufficiently considered"],"ReasonDismiss":[]}
|
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2023] EWCA Crim 1252
No. 202300471 A4
Royal Courts of Justice
Wednesday, 11 October 2023
Before:
LORD JUSTICE WARBY
MR JUSTICE MURRAY
HIS HONOUR JUDGE LEONARD KC
REX
v
JOHN PAUL BURGON
__________
Computer-aided Transcript prepared from the Stenographic Notes of
Opus 2 International Ltd.
Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
[email protected]
_________
Mr B. Thomas
appeared on behalf of the Appellant.
The Crown were not represented.
_________
JUDGMENT
LORD JUSTICE WARBY:
1
On 30 January 2023, in the Crown Court at Leeds, John Paul Burgon was sentenced to a total of seven years and four months' imprisonment, having earlier pleaded guilty to two drug offences, one of dangerous driving and one of perverting the course of justice. He was disqualified from driving for 68 months. He now appeals against sentence with the leave of the single judge.
The Facts
2
The offences we have mentioned were the subject of three indictments.
3
On the first indictment (case T20217672), the appellant faced a single count of participation in a conspiracy to supply a class A drug between 1 May and 1 October 2020. The operation centred on drug dealing to a number of flats and apartments in a private block of flats at Armley. It employed two dealing lines. Customers would place orders by calling whichever line was active at the time. The holder of the phone would then attend and supply the drugs.
4
The leader of the operation was Marcus Thomas, who was known to police as a drug dealer. In June 2020 he and his sister were stopped by police in possession of over £6,000 in cash and a phone which had been used to send out bulk messages soliciting drug purchases. On 15 July 2020, another of those who became co-defendants of the appellant, one Leanne Ridings, was stopped in possession of cash contaminated with diamorphine and a phone linked to one of the dealer lines. Ridings's role, it emerged, was to deliver drugs. The phone records showed that another co-defendant, Michael Sharlotte, had performed the same role until the date of Ridings's arrest.
5
The appellant was stopped by police and arrested on 29 September 2020 when he was a passenger in a vehicle driven by Marcus Thomas and was found to be in possession of heroin and crack cocaine. The appellant was also holding the SIM card for the dealer line. That SIM card had been used in one of the appellant's mobile telephones for the previous six days.
6
The nature and scale of the operation emerged from these various arrests and seizures of money, drugs and mobile telephones. The evidence showed that the conspirators were dealing both heroin and cocaine. The dealer lines had received over 57,000 messages during the conspiracy period. Expert evidence calculated that if one in three of these had resulted in a supply of three wraps equating to £20, the quantity of drugs sold in the conspiracy period would have been over five kilograms, yielding just over £360,000 for the conspirators as a group.
7
On the second indictment (case T20227257) the appellant faced a single count of supplying a class A drug to another on 10 August 2021, the drug on this occasion being crack cocaine. That charge arose from a test purchase by a police officer deployed in the Harehills area of Leeds. The officer asked a female unknown to him where he could buy "rock" or "white". The woman made a call, an order was placed, and shortly afterwards the appellant arrived in a hire car and supplied the officer with two wraps of crack cocaine.
8
In interview, the appellant made no comment. But he pleaded guilty to the second drug offence at the plea and trial preparation hearing for that offence. Shortly afterwards he entered a guilty plea to the first indictment also. His pleas were on the basis, not challenged by the prosecution, that he had turned to drink and drugs in 2020 when the pandemic forced his employer out of business and he lost his job as a scaffolder and had family issues. He had accumulated a drugs debt, which resulted in others subjecting him to mental pressure and threats. It was these matters that drove him to agree, in September 2020, to help others in the supply of drugs to pay off his drug debt. He had not been involved in the supply of drugs before that time. Some of his debt remained outstanding after his arrest in late September. He was asked to, and he did, commit the offence on the second indictment in order to clear the outstanding amount.
9
Case T20227167, the third indictment, was concerned with events some months later. Just after 8 pm on 25 October 2021 the appellant was driving a black Audi A1 along South Farm Road when he was observed by officers who were in an unmarked police vehicle. He was turning right onto Coldcotes Circus, against the one-way system. He drove past the officers, waving at them as he did, going the wrong way down the road. When the officers pursued him the appellant drove on to Oak Tree Place where he collided with two parked vehicles in a driveway, causing some £2,200 worth of damage. He then fled the scene on foot. This gave rise to the charge of dangerous driving.
10
The charge of perverting the course of justice arose from what happened the following day. The appellant called West Yorkshire Police and made a false report that his car had been stolen. He gave the details of the Audi A1, claiming that he had left it parked on the street at 11 pm on 22 October 2021 before going to a house party. He said his keys had also been stolen. Unfortunately for him, not only had the officers seen him at the wheel of the car the previous day, he had also left behind a bank card with his name on it and a Nokia mobile phone belonging to him as he fled the scene of the crash.
11
Interviewed by police on 9 December 2021, the appellant admitted driving dangerously and making a false report of theft to the police. He entered an early guilty plea, meriting full credit.
Antecedents and other sentencing materials
12
The appellant was aged 40 at the date of sentence. He had 13 previous convictions for 21 offences between 3 October 2003 and May 2010. One of these was for simple possession of MDMA for which he had received a fine. That was in 2004. He had no convictions or cautions in the decade preceding the offending on the first indictment. There was no pre-sentence report, and we are satisfied that none was required. A number of character references were submitted on the appellant's behalf, setting out his personal circumstances, including the breakdown of his marriage and other matters of personal mitigation. There was also a letter from the appellant explaining how he came to offend, and expressing his remorse.
Sentencing Remarks
13
His Honour Judge Phillips KC began his sentencing remarks in respect of this defendant by referring to the material we have just mentioned and stating that he had taken it into account. The judge referred to the sad failure of the appellant's marriage, and his subsequent loss of self-control. He noted that there was extensive evidence over the course of time of
the appellant's good character, his good conduct whilst on remand and his efforts to turn his life around. These included documented efforts to address his addiction and the wish to start a new relationship.
14
Dealing with the first indictment the judge accepted that the background was as set out in the appellant's basis of plea. He proceeded on the footing of the defence contention that the appellant's role had been that of a street dealer in the later part of the conspiracy for a period of some six days. Addressing a dispute over the categorisation of the appellant's role the judge concluded that the offending fell
"at the top of the lesser role and there are elements of significant role that cannot be ignored in this case"
. On that basis, the sentence after trial would have been one of 54 months. He said that the appellant's guilty plea merited a reduction of
"at least 20 per cent".
The sentence after credit for plea was one of 44 months.
15
On the second indictment, the appellant's role involved a single incident of supply. He was not alleged to have been involved in the wider conspiracy of which that episode formed part. There was, however, again a dispute about the categorisation of his role. The appellant's case was that his role was limited, under supervision, his purpose being to pay off the debt. The prosecution case was that the appellant had an operational function indicated by his hiring a vehicle to deal drugs and his arriving swiftly on the scene following the call. The judge said:
"I am satisfied on the evidence that that is an appropriate assessment that is sustained by the evidence."
He thus identifed a starting point of 54 months, which he reduced to 44 months, before a further reduction to 40 months to reflect totality. Allowing a 25 per cent reduction for the guilty plea the judge arrived at a sentence of 30 months consecutive to the sentence on the first indictment.
16
On the third indictment, for the driving, the judge identified a sentence of 12 months after a trial which he reduced to eight months to reflect the early guilty plea. The charge of perverting the course of justice was serious, he said, but on this occasion it was short-lived, no one else was implicated, it was unlikely to succeed and the appellant did not escape liability. After trial the sentence would have been nine months. That came down to six months for the plea.
17
The judge concluded by saying to the appellant that
“Having regard to the fact that you had been charged in respect of the drugs offences at this point those sentences are consecutive”.
By this he meant that the sentences were to be consecutive to one another and to the sentences on the first and second indictments. The total sentence was, therefore, one of 88 months' imprisonment.
18
After that sentence had been passed the defence pointed out that the prosecution assertion in respect of the second indictment, that the appellant had hired a vehicle, was contrary to the evidence, which showed that someone else had done so. Having reflected on this point, the judge declined to reduce the sentence, stating that he still took the view that this was a significant role because the appellant had arrived quickly on the scene following the phone call to the dealer line, and in his judgment that showed an awareness of the operation and playing an operational function.
Grounds
19
In support of his contention that the total sentence was manifestly excessive in all the circumstances, Mr Thomas has developed the following specific criticisms of the sentencing process.
(1)
In relation to the first indictment, Mr Thomas says that the judge's notional sentence before reduction for plea was too high. Fifty-four months is the starting point for category 3 significant role, and taking that starting point does not properly reflect the fact that, as the judge himself accepted, there were elements of lesser role present. Further, the reduction given for guilty plea was not "at least 20 per cent" that the judge had mentioned. Doing the arithmetic, it was rather less than 19 per cent.
(2)
In relation to the second indictment, Mr Thomas submits that the judge's notional sentence was again too high, as he wrongly categorised the appellant's role as a significant one rather than a lesser one as he should have done.
(3)
In relation to the third indictment, it is said that the judge's notional sentence for perverting the course of justice was too high, and that he failed at this stage to have sufficient regard to the principle of totality.
Discussion & conclusions
20
Having reflected on these submissions, our conclusions are these.
21
The judge was clearly entitled indeed in our view right to impose consecutive sentences for each of the four offences with which he had to deal. The grounds of appeal, therefore, raise two main questions. The first is whether each sentence, viewed in isolation, represented a proper application of the sentencing guidelines to the pertinent facts about the offending and the offender. Secondly, we must review the aggregate sentence and consider whether the principle of totality was adequately taken into account.
22
The appellant's role in the conspiracy was to participate in street dealing, placing the case in harm category 3. His case was that he only became involved at the end of September 2020, and the prosecution evidence is consistent with that. The judge was therefore sentencing for involvement lasting some six days. In that time, however, the appellant was in possession of the dealer phone, effectively running the drugs line of the operation, albeit he was part of a short chain. In our view, there is no room for criticism of the judge's assessment that this appellant's role in the conspiracy was at the top end of the "lesser role" category, with elements of “significant” role. On that footing, a starting point of 54 months cannot be criticised. That is the top end of the range for lesser role.
23
However, the next step in the sentencing process is to consider aggravating and mitigating factors. There were no aggravating factors in relation to this offending, and some weight had to be given to the absence of any recent convictions and the extensive personal mitigation to which the judge had rightly referred. In our judgment, this balance called for a significant downward adjustment before reduction for guilty plea. As we shall explain, we believe the judge himself recognised this and did take account of it when sentencing on the second indictment. At any rate, his remarks in respect of the conspiracy do not reflect any such consideration.
24
For this reason, our view is that the notional sentence after a trial should not have been more than four years (48 months). We would reduce that by 10 months, which is roughly 21 per cent to reflect the judge's assessment of the scale of the reduction to be given for the guilty plea. That results in a sentence of 38 months instead of 44 on that indictment.
25
Turning to the second indictment, we accept that the judge's categorisation was in error. There was nothing to justify it once the mistaken allegation that the appellant had hired the car had been put to one side. The appellant's function on this single occasion was not to hold the phone; he was a subordinate and should have been treated as playing a lesser role. At the next step, however, the judge was, in our view, overly lenient. Having identified his starting point, he made a substantial reduction before considering the effect of the guilty plea. This reduction must have been intended to reflect the mitigating factors. This, however, was the appellant's second Class A drug trafficking offence in the space of nine months. It was committed after the appellant's arrest for the first such offence. When that arrest took place he was in possession of drugs so that, albeit he was not charged until later, it was manifestly the case that proceedings for the first offence were pending or imminent at the time he committed the second. These, in our judgment, were weighty aggravating factors and by this stage the potency of the personal mitigation had been very much spent. In all these circumstances, and making all due allowance for totality, the appropriate sentence after trial could not have been less than one of 40 months. The judge's eventual sentence of 30 months after reduction for plea was not excessive.
26
The offending on the third indictment was subsequent to the drug offending and wholly separate and distinct. The two offences were themselves quite separate from one another. We see no error in the judge's approach to the notional sentence after a trial. This offending was aggravated by the fact that it was committed after the appellant's arrest for the second drug offence and while proceedings were very much pending. In this context the mitigating factors to which we have referred have even less weight. The judge made no reference to totality when dealing with this aspect of the matter but standing back to review the overall sentence we do not consider that any further reduction was called for on that account.
27
For these reasons we quash the sentence on the first indictment and substitute a sentence of 38 months' imprisonment. The other sentences of imprisonment will remain unaltered. The consequence is that the total sentence is now one of 82 months rather than 88 or, to put it in years, six years and 10 months rather than seven years and four months.
28
We must make a consequential adjustment to the length of the driving disqualification. This must be reduced, we calculate, to one of 65 months, comprising 24 months' disqualification with an uplift of four months in respect of the dangerous driving (pursuant to
section 35
A of the
Road Traffic Offenders Act 1988
) and a further uplift of 37 months in respect of the other offences under
section 35
B of
the 1988 Act
.
29
To that extent, the appeal is allowed.
__________
|
{"ConvCourtName":["Crown Court at Leeds"],"ConvictPleaDate":[""],"ConvictOffence":["Conspiracy to supply a class A drug","Supplying a class A drug","Dangerous driving","Perverting the course of justice"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Leeds"],"Sentence":["38 months imprisonment (conspiracy to supply a class A drug)","30 months imprisonment (supplying a class A drug)","8 months imprisonment (dangerous driving)","6 months imprisonment (perverting the course of justice)","65 months driving disqualification"],"SentServe":["Consecutive"],"WhatAncillary":["Driving disqualification"],"OffSex":["All Male"],"OffAgeOffence":[40],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking&drugs"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Expert report/testimony","CCTV","Police testimony","Phone records","Physical evidence (drugs, cash, mobile phones)"],"DefEvidTypeTrial":["Basis of plea","Character references","Letter from appellant"],"PreSentReport":[],"AggFactSent":["Second Class A drug trafficking offence in nine months","Offence committed after arrest for first offence","Offending on third indictment committed after arrest for second drug offence and while proceedings were pending"],"MitFactSent":["No recent convictions","Personal mitigation (loss of job, family issues, drug debt, mental pressure and threats)","Remorse","Good conduct whilst on remand","Efforts to address addiction"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge's notional sentence before reduction for plea was too high","Reduction for guilty plea was less than stated","Role categorisation on second indictment was wrong","Notional sentence for perverting the course of justice was too high","Insufficient regard to totality"],"SentGuideWhich":["Sentencing Council's (definitive) Guideline for drug offences","section 35A of the Road Traffic Offenders Act 1988","section 35B of the Road Traffic Offenders Act 1988"],"AppealOutcome":["Allowed in part","Sentence on first indictment quashed and substituted with 38 months","Total sentence reduced to 82 months (6 years 10 months)","Driving disqualification reduced to 65 months"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Notional sentence on first indictment did not reflect absence of recent convictions and personal mitigation"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["No error in judge's approach to other sentences","Appropriate sentence after trial for second indictment could not have been less than 40 months","No further reduction required for totality"]}
|
No:
04/4937/A0
Neutral Citation Number:
[2004] EWCA Crim 2674
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Monday 25 October 2004
B E F O R E:
THE VICE PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
MR JUSTICE HENRIQUES
MRS JUSTICE DOBBS
- - - - - - -
R E G I N A
-v-
N.H.
- - - - - - -
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 AMELIA FOSUHENE
appeared on behalf of the APPELLANT
MISS ANNABEL PILLING
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
MR JUSTICE HENRIQUES: The appellant is now aged 15. On 18th September 2003, when he was 14 years of age, he committed an act of indecent assault upon an 18-year-old female. On 5th July 2004, on the date upon which his case was listed for trial, he pleaded guilty at the Inner London Crown Court and was sentenced by Judge Grobel to a twelve-month detention and training order.
2.
The appellant played no part and was not involved in earlier criminality. The victim was an 18-year-old female with learning difficulties who was out with friends on Streatham Green. Her group met a group of boys, one of whom snatched her bag containing a mobile telephone. They passed the phone between them, refusing to return it until she performed oral sex upon each member of the group. The girl indicated her unwillingness to do so, saying she would not perform it even on her own boyfriend.
3.
Thereafter, four males required the complainant to put their penises into her mouth. They moved her head backwards and forwards until each ejaculated. The girl's breasts were touched, and one of the males (not the appellant) undid her trousers and touched her vagina. Afterwards the complainant was allowed to leave, but her telephone was not returned.
4.
The complainant reported the theft to the police. Two of the four youths were arrested. Thereafter the complainant told a female officer that she had been forced to perform oral sex.
5.
The appellant came to the police station to make enquiries as to what was happening to one of those already arrested. He was arrested and interviewed. He said that he asked the complainant to perform oral sex and she consented, saying "Okay".
6.
The agreed basis of plea upon which the appellant was sentenced was thus:
1. that he was not involved in the taking of the complainant to the mews;
2. that he was not present when the complainant was initially forced to perform oral sex on the first boy;
3. that he was not present when the complainant's mobile phone and bag was stolen, nor was he aware of this happening;
4. that he was informed by a friend that there was a girl in the mews performing oral sex on boys and that she would perform oral sex upon him;
5. that he approached the complainant and she performed oral sex on him. He did not threaten her, nor was he aware of any threats having been made to the complainant by his friends prior to her performing oral sex on him;
6. that he accepts that he was reckless as to whether the complainant consented or not;
7. that he was one of the last boys to have oral sex performed on him by the complainant; and
8. that he had not met the complainant before 18th September 2003 and did not know she had learning difficulties.
7.
The essence of this appeal as advanced by Miss Fosuhene concentrates on the fact that at the date of the commission of the offence the appellant was aged 14 years.
8.
Section 100(2)
of the
Powers of Criminal Courts (Sentencing) Act 2000
states:
"A court shall not make a detention and training order---
(a) in the case of an offender under the age of 15 at the time of the conviction, unless it is of the opinion that he is a persistent offender."
There is no question in the present case of the appellant being a persistent offender.
9.
At the date of conviction the appellant was 15 years of age. Article 7 of the European Convention on Human Rights states that no heavier penalty shall be imposed than the one that was applicable at the time the criminal offence was committed.
10.
This court has sought to reconcile Article 7 with
section 100(2)
in the case of
Ghafoor
[2002] EWCA Crim 1857
. It was decided that, where the defendant crosses a relevant age threshold between the date of the offence and the date of conviction, the starting point should be the sentence that the defendant would be likely to have received if he had been sentenced at the date of the offence. For this purpose the starting point is not the maximum sentence that could have been imposed but the sentence that the defendant would have been likely to receive.
11.
Whilst other factors may have to be considered, there would have to be good reason for departing from the starting point. There may be a long interval between the date of offence and conviction, by which time the circumstances may have changed significantly. The offender may have been revealed to be a dangerous criminal, or the tariff may have been increased. Such factors may be taken into account and may, in an appropriate case, lead to the imposition of a sentence somewhat higher than that which would have been passed at the date of the offence. It will rarely be necessary for a court even to consider passing a sentence that is more severe than the maximum that it would have had jurisdiction to pass at the date of the commission of the offence.
12.
In the present case, in sentencing, Judge Grobel stated:
"The seriousness of the offence is the good reason why I depart from the starting point as recommended by the court in
Ghafoor
. There is nothing that I can find in your history, your personal circumstances as set out in the pre-sentence report ..., that causes me to take a different course.
... you have a couple of cautions. Taking these matters into account, the sentence for you is one of twelve months' detention and training order."
13.
The question, accordingly, for our determination is whether the seriousness of the offence may itself be a good reason for departing from the starting point as identified in
Ghafoor
.
14.
In accord with
Ghafoor
, we must begin by considering what sentence the appellant would have been likely to receive had he been sentenced at the date of the offence aged 14. We conclude, having regard to his age and to the fact that he had not previously been convicted, and having read the pre-sentence report, that a supervision order with 90 days' specified activities would certainly have been the sentence and is thus the starting point as identified in
Ghafoor
. Whilst there was a ten-month delay between offence and conviction, there is no identifiable change in circumstance; the appellant committed no offence on bail; the tariff has not increased.
15.
There is nothing in Dyson LJ's judgment in
Ghafoor
to indicate that seriousness of the offence provides any basis for departing from the starting point. Indeed, we agree with Mr Blatch, counsel who drafted the grounds of appeal and advice on merits of appeal, when he submitted that the statutory regime and the implication of that regime is against a finding that the seriousness of the offence is itself a good reason for departing from the starting point.
16.
In
R v LM
[2003] 2 Cr App R (S) 26
, it was held by this court to be wrong to impose a detention and training order on a boy aged 15 for an offence committed at the age of 14 for which he could not have qualified for a custodial sentence if convicted at that age as he was not a persistent offender and the offence was not one to which section 91 applied.
17.
That reasoning is consistent with that in
Jones
[2003] Crim LR 639, relating to an older age group, where it was held that a sentence of detention in a young offender institution on an offender who had been 17 at the time of the offence and who would have been sentenced to a detention and training order had he been dealt with before attaining the age of 18 should be restricted to one of the terms specified in
section 101
of
the 2000 Act
.
18.
We note in passing that the decision in
R v AH
167 JP 30 appears to have been decided
per incuriam
, no reference having been made to the case of
Ghafoor
.
19.
Whilst we allow this appeal, having applied the test in
Ghafoor
, and following
Ghafoor
, we do not allow this appeal on the basis of retroactivity. We do not find that Article 7 has been engaged. The law has not changed between offence and conviction. We find no compelling basis to depart from the
Ghafoor
starting point. The seriousness of the offence can never justify such a departure.
20.
We would only add that this situation will not arise on these facts henceforth. This appellant's conduct will be an offence pursuant to
section 1(1)
of the
Sexual Offences Act 2003
and thus the appellant would fall to be detained pursuant to section 91 of the 2000 Powers of Criminal Courts (Sentencing) Act.
21.
Accordingly, we quash the sentence of twelve months' detention and training order and substitute a term of twelve months' supervision.
22.
THE VICE PRESIDENT: (To the appellant.) I must explain this to you. You are going to be released today, but you must not go before a gentleman comes to see you in the cells; all right?
23.
THE APPELLANT: (The appellant nodded.)
24.
THE VICE PRESIDENT: As my Lord has said, the sentence is that there will be a twelve-month supervision order and there will be 90 days of specified activities, that is to say you will be told what to do by the youth offending officer in relation to several different kinds of things to be done; you understand?
25.
THE APPELLANT: Yes.
26.
THE VICE PRESIDENT: You will take part twice a week in attending supervision sessions. You will be told where and when to go.
27.
You will take part in reparation work within the community at weekends. You will be told where and when to do that.
28.
You will attend an education programme, and you will be told where and when to do that.
29.
Further, you will be required to do certain activities, such as football, and you will be told where and when to do that.
30.
And, of particular significance for you to note, you will be monitored electronically for three months so that you comply with a curfew between 7 pm to 7 am. Do you understand?
31.
THE APPELLANT: Yes.
32.
THE VICE PRESIDENT: And the youth offending officer will deal with that.
33.
So you will be free to go later in the day, but wait until the gentleman comes to see you.
|
{"ConvCourtName":["Inner London Crown Court"],"ConvictPleaDate":["2004-07-05"],"ConvictOffence":["Indecent assault"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on day of trial"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Inner London Crown Court"],"Sentence":["12 months' detention and training order"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[14],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[18],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":["Has learning difficulties"],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":[],"AggFactSent":["seriousness of the offence"],"MitFactSent":["offender had not previously been convicted"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["appeal against sentence"],"AppealGround":["seriousness of the offence is not a good reason to depart from the starting point as identified in Ghafoor"],"SentGuideWhich":["section 100(2) of the Powers of Criminal Courts (Sentencing) Act 2000","Article 7 of the European Convention on Human Rights","Ghafoor [2002] EWCA Crim 1857"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["seriousness of the offence is not a good reason to depart from the starting point; appellant was not a persistent offender; at the time of the offence, a supervision order with 90 days' specified activities would have been the likely sentence"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
|
No:
201704892 A2
Neutral Citation Number:
[2017] EWCA Crim 2508
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 13 December 2017
B e f o r e
:
LORD JUSTICE SIMON
MRS JUSTICE YIP DBE
HIS HONOUR JUDGE LUCRAFT QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
R E G I N A
v
JOHN DAVID GIMBERT
- - - - - - - - - - - - - - - - -
Mr J Polnay
appeared on behalf of the
Attorney General
Ms R Pennington
appeared on behalf of the
Offender
- - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Ltd trading as DTI,
165 Fleet Street London EC4A 2DY,
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - -
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.
LORD JUSTICE SIMON:
. The Solicitor General seeks leave to refer to this court a sentence passed on John Gimbert under
section 36 of the Criminal Justice Act 1988
as being unduly lenient. We grant leave.
2. The total sentence was a term of three and a half years, passed in the Crown Court sitting in Birmingham on 6 October 2017 in respect of a number of related offences.
3. The offender is now 65. On 23 February, he was convicted following a trial on four counts of theft, Counts 2, 8, 9 and 10; the jury was unable to agree on a charge of conspiracy to defraud, Count 1. On 15 September, following a retrial, he was found guilty on Count 1.
4. On 6 October, he was sentenced by Mr Recorder Nicholls to concurrent terms of imprisonment as follows: Count 1, conspiracy to defraud, three and a half years imprisonment; Count 2, the theft of the value of a bungalow worth £50,000, two years; Count 8, the theft of a sum of £14,000 from an account at Barclays Bank, 12 months; Count 9, theft of a sum of £13,651 from an account at the Britannia Building Society, 12 months; Count 10, theft of the balance of £101,000 from the account at Barclays Bank, three and a half years.
5. The offences reflected what had been a gross abuse of trust by the offender, as an executor of a will and under a power of attorney that he had procured. By his crimes he stole the £175,000 inheritance of a highly vulnerable person, his first cousin, Jeanette Trim.
6. Jeanette Trim is now aged 65. She suffers from a lifelong learning disability with a significant impairment in intellectual and adaptive functioning. Her full scale IQ places her within the bottom one to two per cent of the population and she has been assessed as being highly vulnerable to financial exploitation. In November 2002, her father died. Social services carried out an assessment and concluded that, as she was unable to live by herself, she should be placed in residential care. The offender assisted her placement by visiting a number of residential homes with her. Ms Trim's father left his entire estate to her, his wife having pre-deceased him. This estate consisted of a bungalow in Stoke-on-Trent valued by the sentencing Recorder at £50,000, a Britannia Building Society with a balance of £13,651 and a Barclays Bank account with a balance of £115,000.
7. The offender, as the executor of her father's will, arranged for her to enter full time residential care following a recommendation by social services. He did not however declare the Britannia Building Society account for probate and in due course, on 12 July 2004, he transferred the entire balance of the account, £13,651, to himself. That was the basis for the charge under Count 9. In about May 2003 he induced Ms Trim to sign in his favour an unlimited and enduring power of attorney, giving him unfettered power over her property. In September 2003 he induced her to sign over the bungalow to his son, David Gimbert. That transaction gave rise to the charges under Counts 1 and 2. It was shown as being for a token consideration of £1 but in fact nothing was paid. Subsequently, David Gimbert transferred the bungalow to another family member. Between May 2003 and October 2004, the offender transferred a sum of around £14,000 from the Barclays account to his own bank account. This money was used to purchase vehicles. That gave rise to the charge under Count 8. Between 28 September 2004 and 5 October 2004, the offender transferred the balance from the Barclays account, £101,000, to another family member, Count 10. That money was used to pay for the deposit on a house.
8. In 2009 he complained to the Local Authority that Ms Trim was being overcharged for her residential care. This led to an investigation of her financial circumstances. Once social services became suspicious, the offender took steps to return the money he had taken. He had set up what has been described as a labyrinthine network of bank accounts to conceal his conduct. The matter was referred to the police and he was first interviewed under caution in December 2012. The total sum stolen or defrauded was £178,651.
9. The offender had no previous convictions or cautions. He had retired in March 2002 having worked as a police officer for the West Mercia Constabulary. On his retirement he received a lump sum payment, followed by annual pension payments of between £14,500 in 2004 to £18,800 in 2012. The offender agreed in cross-examination by counsel for his son at their joint trial that he was a domineering and overbearing influence on his children.
10. The Solicitor General focuses on the two aspects of the offending, the conspiracy and the theft. So far as the conspiracy is concerned, Mr Polnay draws attention to the Sentencing Council definitive guidelines for fraud offences. Since the offending involved the abuse of a position of trust by someone who had a leading role in the conspiracy, the offending fell into category A, high culpability. With reference to what is described as Harm A, financial harm, the sum involved was £50,000 and it therefore fell within category 3. However, by reference to Harm B, victim impact, there was high impact since the victim was particularly vulnerable, being incapable of looking after her own financial affairs and entirely dependent on the offender. This indicated that the offence should be placed in the next category, category 2A, with a starting point of five years and a range of three to five years.
11. So far as the thefts are concerned, the theft guidelines applied. Again, since the offence involved a breach of trust, it was category A, high culpability; and, since the loss was above £100,000, it was category 1 harm. This basis the starting point was three and a half years and a range of two and a half to six years. Again, the particular vulnerability of the victim and the sustained period during which the thefts occurred were matters of aggravation.
12. In relation to both aspects of the offending, the Solicitor General recognises the mitigation of his previous good character, the fact that the money was repaid, albeit after social services had become involved, and a degree of delay in bringing the matter before the court. We would note also those matters of mitigation to which the Recorder referred, the effect on those members of his family who were not involved in the conspiracy and theft, a matter to which we will return.
13. Mr Polnay submits that on conventional sentencing principles reinforced by the definitive guidelines on totality, where a court is sentencing for more than one offence, the court should pass a total sentence which should reflect all the offending, and which is just and proportionate. On this basis, concurrent sentences will ordinarily be longer than a single sentence for a single offence. It is accepted that the Recorder was correct to impose concurrent sentences but it is submitted totality should properly have been dealt with by an increase to what would otherwise have been the appropriate sentence on Count 1. He submits that the sentences passed on the offender were unduly lenient, given the number of high culpability features, the value of the fraud and the Harm B factor, and that in these circumstances the Recorder ought to have imposed a higher sentence within category 2A. He submits also that the Recorder gave insufficient or no weight to the principle of totality in failing to increase the sentence imposed on Count 1 and directing that all the sentences should run concurrently. In effect, the offender received no additional punishment for the theft of over £100,000 in breach of trust from a highly vulnerable victim.
14. For the respondent, Ms Pennington made a number of oral submissions which should have been in a respondent's notice. She submitted that the overall sentence reflected the overall criminality, albeit there was no reference to totality in the sentencing remarks. She pointed out that the Recorder had presided over the trial and was in a good position to assess culpability and harm, as well as the matters of mitigation to which he referred in his sentencing remarks. The Crown accepted for the purposes of sentence that the money had been repaid; and she urged in further mitigation the offender's previous positive good character as a police officer and the particular impact of a sentence of imprisonment on him. She pointed to the delays and the toll that they have taken on members of the family and in particular the health problems of his wife and daughter, matters to which we have regard, although we were not referred to them in open court.
15. We have considered the points made on behalf of the Solicitor General and the respondent and we accept the Solicitor General's broad submission on the approach to sentence. Although each of the sentences was proper when regarded as individual sentences, by making them concurrent without increasing the sentence on the most serious charge, the conspiracy, so as to reflect the overall seriousness of the sentencing, the Recorder passed a sentence that did not fully reflect the seriousness of the offending.
16. However, in view of the matters urged on the court by Ms Pennington, we are not persuaded that the overall sentence was unduly lenient in the particular circumstances. Accordingly, we decline to interfere with these sentences.
|
{"ConvCourtName":["Crown Court sitting in Birmingham"],"ConvictPleaDate":[""],"ConvictOffence":["Conspiracy to defraud","Theft"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court sitting in Birmingham"],"Sentence":["Three and a half years imprisonment (Count 1, conspiracy to defraud)","Two years imprisonment (Count 2, theft of bungalow worth £50,000)","12 months imprisonment (Count 8, theft of £14,000 from Barclays Bank)","12 months imprisonment (Count 9, theft of £13,651 from Britannia Building Society)","Three and a half years imprisonment (Count 10, theft of £101,000 from Barclays Bank)"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[65],"OffJobOffence":["Retired"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[65],"VicJobOffence":["Other"],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":["Learning/developmental"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":["High risk of harm"],"AggFactSent":["Gross abuse of trust","Victim was highly vulnerable","Sustained period of offending","High value of theft","Offence involved breach of trust"],"MitFactSent":["Previous good character","Money was repaid","Delay in bringing matter to court","Effect on uninvolved family members","Retired police officer"],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Recorder gave insufficient or no weight to the principle of totality","Sentences passed were unduly lenient given high culpability features, value of fraud, and victim vulnerability"],"SentGuideWhich":["Sentencing Council definitive guidelines for fraud offences","Sentencing Council definitive guidelines for theft offences","definitive guidelines on totality"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":["Mitigation: previous good character, money repaid, delay, effect on family, health problems of wife and daughter"],"ReasonDismiss":["Not persuaded that the overall sentence was unduly lenient in the particular circumstances"]}
|
No:
200702563/C2-200703418/C2
Neutral Citation Number:
[2008] EWCA Crim 248
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Monday, 28th January 2008
B e f o r e
:
LORD JUSTICE LATHAM
MR JUSTICE ROYCE
SIR PETER CRESSWELL
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
SIMON ADAM BENNETT
CHRISTOPHER ANDREW TURNER
- - - - - - - - - - - - - - - - - - - - -
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 F Lloyd
appeared on behalf of the
Applicant Bennett
Miss S Ritchie
appeared on behalf of the
Applicant Turner
Mr P St J Stevens
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: On 23rd April 2007 in the Crown Court at Maidstone, the two appellants were convicted of two counts of wounding with intent and four counts of attempting to inflict grievous bodily harm. They were sentenced as far as the appellant, Bennett, was concerned to 4 years' imprisonment and as far as Turner was concerned to imprisonment for public protection with a minimum term of 30 months. They were also disqualified from driving.
2.
The charges arose out of a horrific incident of deliberate driving for the purposes of causing injury as the jury's verdict indicated. It occurred in the early hours of 24th July 2005. A group of young people had left a nightclub in Strood, in Kent, and eventually went to the ESSO garage in Cuxton Road where they stopped to buy something to eat. While they were on the garage forecourt a car drove in which was occupied by four young men. They were being loud. There was an altercation to which we will return between one of the group of pedestrians and one of the people in the car. The group then left the forecourt to walk along the road when, the prosecution case was, the car which had been in the garage and had been involved in the altercation, was driven deliberately onto the pavement and into the group. The number of counts reflect the fact that the group consisted of six young people, two were significantly injured, hence two counts of wounding with intent. The others were fortunately not seriously injured but the counts reflect what the prosecution say must have been the intent not only of the driver. But also the passenger. It was the prosecution case that the driver was Turner and the passenger was Bennett.
3.
As far as the evidence was concerned, it consisted of the evidence of the six young people, two of whom were called to give evidence, the others were read. The position was, as far as that evidence was concerned, that at one point one of the group called Reggie Smith, one of those whose evidence was read, said that he went over to the car in the garage because he thought the front passenger was shouting at the girls in the group. He told them he did not want any trouble and they should leave his friends alone. The car then drove away. Two of the witnesses who were called agreed that such an incident had occurred.
4.
None of the group of pedestrians admitted to knowing any of those in the car; and after the incident there was an identification procedure, at which none of them was able to identify either of the two appellants. The evidence against the appellants consisted almost, but not wholly entirely of the contents of an interview that the police had with a young man, Darren Jodka. Darren Jodka was identified on a CCTV video recording by a police officer as being the front seat passenger in the car. That television coverage was of the forecourt of the garage. Jodka was arrested on suspicion of attempted murder and interviewed twice under caution. During the course of those interviews, for the moment taking it shortly, he identified that at the relevant time, that is at the time the car struck the pedestrians, the car was being driven by Turner and that Bennett was the front seat passenger.
5.
On that basis he was called by the prosecution as a witness, the prosecution having determined not to charge him. At an aborted trial said that he could not remember. At the trial with which we are concerned, he was called to give evidence and in-chief once again stated that he could not remember the events of that night. The prosecution applied for him to be treated as hostile and the judge granted that application. The prosecution then sought to put in the contents of the interviews under
section 119
of the
Criminal Justice Act 2003
. The judge, after hearing argument, concluded that the contents of the interviews were admissible under
section 119
. It was then submitted on behalf of the appellant that if the contents of the interviews were admissible, nonetheless they should be excluded under section 78 of the Police and Criminal Evidence Act. The judge rejected that submission and the contents of the interviews were accordingly played to the jury.
6.
At the end of the prosecution case counsel for both appellants then submitted that there was no case to answer, relying upon the well-known cases of
Galbraith
and
Shippey
, but also relying on the provisions of
section 125
of the
Criminal Justice Act 2003
. The judge rejected those submissions, held that there was sufficient evidence upon which a jury properly directed could convict and allowed the matter to go before the jury.
7.
At this stage we should state that in addition to that evidence, that is the evidence of those statements, there were two further pieces of evidence which were of significance. One was the evidence of a Gerald McKenna, which was also read to the jury, in circumstances with which we are not concerned, and that evidence was to the effect that he had bought the car, which was clearly identified as the car in the incident, in mid July 2005, and that on the evening of 23rd July 2005, that is the evening of the night on which the incident occurred, he had lent that car to the appellant, Bennett, whom he had known for a few months. The following day the appellant, Bennett, told him that the car had been stolen.
8.
The second material part of the evidence was the evidence of two witnesses who were also pedestrians in the area at the time, one was Steve Nifton. He was with a friend, Shane Burke and another, when they saw a car, which accorded with the description of the car which had been owned by Gerald McKenna, driving round in Cuxton Road. The people in the car were shouting as if they were looking for trouble. The next time he saw the car, he said minutes later, it had stopped and all four doors were open and the occupants appeared to change seats. It drove back to the roundabout and then he saw it eventually revving its engine, mounting the pavement in front of him and driving into the group which was the group of pedestrians who were hit by the car. The evidence of Shane Burke and his friend was also read. They said that when the car stopped in front of them, they saw one of the back seat passengers get out and swap places with the driver and the other back seat passenger swapped places with the front passenger.
9.
The jury, on the basis of that evidence, the detail of the evidence of Jodka we will return to, convicted the appellants after they themselves had not given evidence, and after a summing-up terms about which no complaint could possibly be nor has been made.
10.
The essential grounds of appeal relate to the fact that the judge permitted the evidence of the interviews of Jodka to be put before the jury. Further it is said that even if he was correct in permitting them to go before the jury, he wrongly refused to conclude that there was no case to answer, either in the
Galbraith
sense, or pursuant to the requirements of
section 125(1)
of
the 2003 Act
, on the grounds that the evidence was so unconvincing that any conviction of the offence would be unsafe.
11.
There is no challenge to the judge's conclusion that the evidence, that is the content of the interviews, was admissible pursuant to
section 119
of
the 2003 Act
and to put in its context it may be appropriate just to set out the terms of that section which clearly changes substantially the admissibility of previous inconsistent statements. It provides as follows:
"(1) If in criminal proceedings a person gives oral evidence and—
(a) he admits making a previous inconsistent statement, or.
(b) a previous inconsistent statement made by him is proved by virtue of
section 3
, 4 or 5 of
the Criminal Procedure Act 1865
(c. 18).
the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.
(2) If in criminal proceedings evidence of an inconsistent statement by any person is given under section 124(2)(c), the statement is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible."
12.
As can be appreciated, that makes a substantial change in the previous evidential position of such statements and it is, as we have indicated, accepted that the consequence was that, in the light of the fact that that the witness, Jodka, asserted that he could not remember the events of that evening, it meant that the material contained in the interviews, which set out, as we shall see, an apparently clear and coherent account of what happened that evening was properly described a "previous inconsistent statement".
13.
The detail of the statement may best be set out at this stage in order to enable the arguments under section 78 and the arguments relating to the question of whether or not the matter should have been left to the jury to be properly understood. The transcript of the relevant part of the interview reads as follows. The reference to "Chris" will be to Turner and the reference to "Simon" will be to Bennett:
"Chris said: 'Let's go to the petrol garage and get some more credit'. So we went to the petrol garage and then we pulled up just near like the cash point and Chris said: 'Oh no, don't go in there, there's a boy there there I can't... I have rows like him like... he wants to fight me.' So Danny started shouting out the window saying 'what him there wants to fight ya?' So the boys turned round, noticed it was Chris and come over to the car, opened my door. I was in the front passenger and said: 'What do yous want?' and Chris was trying to hide in the back and said: 'You're Chris Turner ain't ya, get outta the car, I'll fight ya'. So I said: 'Come on, let's just go'. Boy said: 'If you don't want no petrol get out the petrol garage and go'. So we drive off up the top of the road, got to the roundabout near Amadeus, Cuxton Road, and Chris said: 'Let me drive'. So Chris got in the driver's seat, Simon went to get in the back. I said: 'Oh Simon let me get in the back'. So I got in the back, me and Danny was in the back, Simon was in the front passenger and Chris was driving. Chris said: 'I'm gonna run him over', so we went round and Simon's going: 'Don't be silly don't be silly'. Chris parked up on the main road on the edge and Simon said: 'Don't be silly, you can't do that' and Chris said 'No... I can't do it' so we swapped back over and we're sitting there and I said: 'Take me home Simon' and Simon said: 'We're going ....' Chris said: 'Oh fuck this let me do it'. So they swapped back over I said 'Come on, Dan, let's get out'. Chris said to me: 'Before I do this Del I want you to get out, coz I don't want your uncle on my back'. So I said: 'Come on Dan, let's you and me get out' and Danny said to me: 'No don't be silly, he ain't going to do it'. So I shut the door and sat down, before I knew it, Chris started the engine up and said: 'Come on let's get home' just driv off all normal and people was walking in front of us and Chris put his foot down and just headed for the lot, and we just driv off, got back to Gravesend, Valley Drive and me and Danny said: 'Let us get out'. Chris was saying 'No, let's just get home'. So Danny ripped the handbrake up, we jumped out and Simon and Chris driv off. I got to my front door, Chris phoned me up and he said: 'If you grass me up, I'm gonna do what I just did to them... I'm gonna to do what I just done to you what I just done to them. I said 'I won't say nothing, I won't say nothing'. He said 'You best not' and then cut the phone off and I went to bed and that was it."
14.
On behalf of the appellant, Bennett, Mr Lloyd submitted to the Recorder, as did Miss Ritchie on behalf of the appellant, Turner, that the circumstances were such that it could properly be said in terms of section 78 that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the omission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not admit it.
15.
They also referred the judge to
section 114
of the
Criminal Justice Act 2003
, which sets out in sub
section (2
), the matters to which the court must have regard, when dealing with admission of hearsay evidence. It was submitted that in the present case the evidence was inherently unreliable given by an unreliable witness in circumstances such that the court could not properly place any reliance on it at all. That made it a statement which should not be put before the jury as it would be prejudicial to the fairness of the trial. The basis upon which those submissions were made included the following. Firstly, the Crown's case against each of the defendants was based wholly on the evidence of the witness who had a motive to lie; having been arrested on suspicion of attempted murder, his account was bound to be an exculpatory account in all the circumstances. He was therefore giving an account which should not properly found the only substantial evidence against these appellants. Secondly, Jodka was a confessed drug user. Thirdly he was a man of bad character, indeed he was serving a prison sentence at the time. Fourthly he was, on the prosecution's own case, a liar, in that this material was being put before the jury on the basis that he was lying when he said he could not remember. Fifthly the evidence of what happened, according to him, at the garage, was inconsistent with the evidence of the pedestrians because his evidence suggested that at least one of the pedestrians knew the appellant, Turner, whereas none of the pedestrians admitted knowing Turner or recognising him at a later stage. In all those circumstances, it was submitted it was wholly inappropriate to put the matter before the jury.
16.
The Recorder considered those submissions and dealt with them in detail. It is acknowledged on behalf of both appellants that he directed himself clearly and correctly as to the provisions of section 78 and the circumstances in which that discretion should be exercised. It is also accepted that he carefully considered the matters set out in
section 114(2)
of
the 2003 Act
which were relevant to the consideration of the exercise of his discretion. But nonetheless the appellants submit he came clearly to the wrong conclusion.
17.
We cannot see how that argument can succeed. As far as section 78 was concerned, the position was that the appellants were perfectly entitled to and able to cross-examine Jodka. Clearly, the fact that he was purporting not to remember what happened meant that they were unable to ask him to replicate the account but that did not prevent them from putting to him their case, cross-examining in relation to the account, in relation to its internal consistencies such as they were or external inconsistencies such as they were; and of course it did not preclude them in any event from them being able to give their account, if they so wished, to the jury at a subsequent stage. There was, it seems to us, ample material to justify the Recorder concluding that in the light of the evidence from the witness, McKenna, that the appellant, Bennett, had at the very least access to the car at the relevant time, and the evidence of the CCTV camera and the evidence of the police officer placing Jodka in the passenger seat, as he himself said in interview, and finally the evidence of the witnesses who saw what happened in the road, that is the changing places of those in the car, a matter which otherwise would only be known to those who were in the car, that the material was not so undermined by any other evidence as to suggest that it could not properly be relied on by the jury. Further, it is important in this context, and also when we consider the later submissions in relation to leaving the matter to the jury, to recall that the jury had the benefit not merely of a transcript of the interviews, but hearing the recording of the interviews themselves from which the jury could derive at least some assistance. The judge clearly considered that he derived assistance from it and expressly so stated. We can see accordingly nothing in the present material before us which could justify the conclusion that the judge exercised his discretion in a way with which this Court could disagree the extent of concluding that the consequence of the admission of this evidence rendered the verdicts unsafe.
18.
We turn then to the submissions made at the end of the prosecution case that the case should be withdrawn from the jury. There is a substantial overlap between the way in which the matter was put on the basis of
Galbraith
, on the one hand, and
section 125
on the other.
Section 125(1)
provides:
"(1) If on a defendant’s trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that—
(a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and.
(b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe.
the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury."
19.
This Court has considered the interrelation between those provisions and the classic submissions of no case to answer based upon
Galbraith
in the case of
Joyce and Joyce
[2005] EWCA Crim 1785
, where at paragraph 19, Rose LJ, giving the judgment of this Court said:
"It is submitted, and we accept, that
section 125
should not be regarded as requiring a higher standard than Galbraith. But it provides, in accordance with the Law Commission's recommendation in paragraphs 11.31 and 11.32 of their report, an additional safety valve obliging a judge to direct an acquittal where the previous statements are particularly unpersuasive."
20.
The point is made on behalf the appellants that we should approach this case on the basis that it is a very different case from the case of
Joyce and Joyce
.
Joyce and Joyce
was a case involving identification. Later on in the judgment, Rose LJ sets out the circumstances in which the identifications were made, in terms which make it clear that the identification evidence was strong. It was a case where the statements relied upon were statements pursuant to section 9, in other words statements in which the witnesses had each indicated they were stating the truth as to the matters set out in those statements. This case is very different. This case is concerned with the contents of interviews where there is no statement of truth. Finally and most important, it is submitted that this case is concerned not with three statements but one statement and one statement from a witness whose evidence has the deficiencies which were identified in the submissions relating to section 78.
21.
Accordingly it is submitted on behalf of the appellants, this was clearly a case where the court should have been driven to conclude, using either the
Galbraith
test, or
section 125
, that the evidence was unconvincing. The difference clearly between
section 125
and
Galbraith
is that there is statutory obligation in
section 125
to stop the case and that, it is submitted should have been done in this case. It is submitted that this is the first time when such evidence has been put before the court and before a jury in a trial and that it represents a radical departure from previous practice. We agree. But the plain fact is that the provisions with which we are concerned in this case (essentially
section 119
) have undoubtedly changed the landscape of a criminal trial. It is now possible to put before juries evidence which was previously inadmissible. That seems to us simply to be the inevitable consequence of the statutory provisions. The protection for defendants is contained in the provisions which the appellants have prayed in aid, namely
section 78
and
section 125
of
the 2003 Act
and indeed by the fact that when considering how to approach submissions in relation to
section 78
in this type of situation the court is greatly helped by the provisions of
section 114(2)
of
the 2003 Act
. This Recorder accorded to the appellants in this case full consideration of those safeguards. He did not, in our judgment, err his application of them. It has to be remembered that this is not a case where the evidence of the interviews was put before the jury in a vacuum. There was the other material to which we have referred, which was at least consistent with the basic thrust of the content of the interviews. In those circumstances, provided that the jury was given proper warning as to how to approach this material, it seems to us that the judge was perfectly entitled to ask the jury to consider it. It has to be remembered that in this case, apart from a written statement handed in to the police by the appellant, Bennett, which dealt, but only shortly, with the fact that he accepted that the car had been bought by his friend, Gerald McKenna, but denied that he had anything to do with the incident on the 24th and did not know what had happened to the car, these two appellants gave no account of the events that night either to the police, or to the jury. In those circumstances, the jury were perfectly entitled to conclude that the evidence of Jodka was sufficient to satisfy them so they which were sure that the appellants were present in the car as he described.
22.
That leaves the submission on behalf of appellant, Bennett, that, even if the jury were entitled to consider the interviews, nonetheless the content of the interviews did not justify the conclusion that he was a participant in the crimes carried out by Turner. The judge concluded for the purposes of sentencing that he was part of a joint enterprise. He accordingly must have taken the view that the jury's verdict what was to the effect that when in the narrative given by he Jodka the appellant Bennett got out of the driver's seat on the second occasion and went to the passenger seat, leaving Turner to get into the driver's seat, he knew that Turner was intending to drive at the pedestrians or appreciated that there was a real risk that is what would happen. It seems to us that was a perfectly permissible interpretation of the content of the interviews and the judge directed the jury impeccably as to that aspect of the case.
23.
It follows that, in our judgment, the jury were entitled to come to the conclusion that they did in relation to the guilt of the appellant, Bennett. We accordingly dismiss these appeals.
|
{"ConvCourtName":["Crown Court at Maidstone"],"ConvictPleaDate":["2007-04-23"],"ConvictOffence":["Wounding with intent","Attempting to inflict grievous bodily harm"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Maidstone"],"Sentence":["4 years' imprisonment (Bennett)","Imprisonment for public protection with a minimum term of 30 months (Turner)","Disqualified from driving"],"SentServe":[],"WhatAncillary":["Disqualified from driving"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["six"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Read statements","CCTV","Police interview (Jodka)","Witness testimony (McKenna, Nifton, Burke)"],"DefEvidTypeTrial":["No case to answer submission","Cross-examination of Jodka"],"PreSentReport":[],"AggFactSent":["Deliberate driving to cause injury"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction"],"AppealGround":["Admission of Jodka's interview evidence under section 119 Criminal Justice Act 2003 was wrong","Refusal to exclude evidence under section 78 Police and Criminal Evidence Act 1984","Refusal to direct no case to answer under Galbraith or section 125 Criminal Justice Act 2003"],"SentGuideWhich":["section 119 of the Criminal Justice Act 2003","section 78 of the Police and Criminal Evidence Act 1984","section 125 of the Criminal Justice Act 2003","section 114(2) of the Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge correctly admitted Jodka's interview evidence under section 119","Judge properly considered and rejected exclusion under section 78","There was sufficient evidence for the case to go to the jury","Jury entitled to convict on the evidence presented"]}
|
Neutral Citation Number:
[2018] EWCA Crim 328
No.
2018/00301/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
ATTORNEY GENERAL'S REFERENCE UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 16
th
February 2018
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE NICOL
and
THE COMMON SERJEANT
(
His Honour Judge Marks QC
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
- v -
ANTHONY HOWELL
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd trading as DTI
165 Fleet Street, London EC4A 2DY
Telephone 020-7404 1400
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J Polnay
appeared on behalf of the Attorney General
Mr M Tomassi
appeared on behalf of the Offender
____________________
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
(
As Approved by the Court
)
LORD JUSTICE DAVIS:
1. This is an application brought on behalf of the Solicitor General under
section 36
of the
Criminal Justice Act 1988
for leave to refer to the court a sentence on the ground that it is unduly lenient. We grant leave.
2. The offender is Anthony Howell. He is now aged 32, having been born on 31
st
October 1985. On 28
th
November 2017, following a trial in the Crown Court at Kingston before His Honour Judge Lodder QC (the Recorder of Richmond Upon Thames) and a jury, he was convicted of causing death by careless driving, contrary to
section 2
B of the
Road Traffic Act 1988
(count 1) and also of doing an act tending and intended to pervert the course of public justice (count 2).
3. On 21
st
December 2017 he was sentenced by the trial judge on count 1 to six months' imprisonment suspended for two years, with a 200 hour unpaid work requirement, a 60 day rehabilitation activity requirement and a six month curfew from 7pm to 7am; and on count 2 he was sentenced to a consecutive term of four months' imprisonment suspended for two years on like terms. In addition, he was disqualified from driving for five years and until an extended retest was passed. His licence was endorsed with nine penalty points, albeit that was subsequently corrected administratively. (Although the transcript refers to the judge imposing a 60 hour rehabilitation activity requirement, that is clearly a slip or a transcription error. The record should be read as a 60 day rehabilitation activity requirement.)
4. The background facts leading to the offender's convictions are these. Mr Adinajib Awale was 31 years old when he died on 2
nd
May 2015. On that date the offender was driving his silver Vauxhall Insignia car. It was a four door saloon which was taxed, insured and entirely roadworthy. The offender held a full driving licence. There was no suggestion that he was driving under the influence of drink or drugs.
5. In the early hours of the morning, at 2.46am, on 2
nd
May 2015, Mr Awale got off a bus and Balham High Road and walked towards Streatham. His route took him east against the north side of Tooting Bec Road towards a junction with Dr Johnson Avenue. He was wearing a black jacket, medium grey trousers and dark shoes. He had consumed some alcohol that evening. It appears from subsequent toxicology tests that his blood alcohol concentration at the time of death was 134mg per 100ml. The drink-driving limit is 80mg per 100ml. That would be suggestive of what was said to be average social drinking and a degree of mild or moderate intoxication.
6. Tooting Bec Road is in an urban environment. It is well-lit with street lighting. It was subject to a 30mph speed limit. Dr Johnson Avenue is also well-lit and was subject to a 20mph speed limit.
7. As Mr Awale sought to cross Dr Johnson Avenue, the offender was driving his car along Dr Johnson Avenue intending to turn right at the junction. Mr Awale would have been visible to traffic travelling south along Dr Johnson Avenue, although plainly the time of visibility would be measured in but seconds. Likewise, the offender's car would have been visible to Mr Awale. The vehicle's headlights were on. It was accepted that it was driving at an appropriate speed.
8. In the event, the offender cut across the centre of the road when turning into Tooting Bec Road and in doing so hit Mr Awale, who was knocked to the ground. Mr Awale suffered severe injuries. In due course, it was discovered that a mark matching the offender's front offside tyre was imprinted on Mr Awale's trousers.
9. The offender's car was damaged. The damage included a spider-shaped crack to the windscreen close to the base of the offside A-pillar and "deformation" to the rear of the front offside wheel arch. It was not possible to ascertain the precise point of impact from the physical damage to the windscreen and the mark created by the front offside tyre. It appeared that the first point of impact was on the right-hand side of the vehicle, around the front tyres and near the windscreen area. That would be entirely consistent with the car cutting across with a view to turning right into Tooting Bec High Road.
10. The offender did not stop. Mr Awale was found in the road a short time later by other car drivers and the emergency services were summoned. Sadly, despite medical attention, he was pronounced dead at 3.37am.
11. On the evening of 2
nd
May the offender telephoned the police seeking a crime reference number to assist him in making an insurance claim in relation to damage to the front of his car's windscreen. He stated in the telephone call that the damage had been caused by someone throwing something towards his car which had hit his windscreen. He said that the object had been thrown when he was turning into Tooting Bec Road at around 3am. He said that there were no other cars around at the time of the damage. He also said that it might have been a branch that had caused the damage, but as there had been people nearby when he felt a bang on his windscreen, he assumed that someone might have thrown something at his car.
12. He was called back by the police on 3
rd
May. He then repeated the same account. It was these telephone conversations which were to be the subject matter of count 2 on the indictment.
13. The police attended the offender's house on 4
th
May 2015 and examined the offender's vehicle. He was then arrested on suspicion of causing death by careless driving.
14. When interviewed under caution he said that he had gone out in the early hours of 2
nd
May in order to buy some chicken. He said that his journey had taken him through Tooting Bec and he had turned right into Tooting Bec Road. At some point along this road he had heard a loud bang to his windscreen which had caused it to break. He said that, given the time, he did not stop to see what had caused the damage, but had carried on driving to his girlfriend's. He denied being responsible for the fatal collision involving Mr Awale. That was the account he maintained at trial. The jury did not believe him.
15. At the time of the collision, the offender had three penalty points on his driving licence. They had been imposed on 21
st
May 2012 as a result of having driven his car whilst using a mobile telephone. In addition, he had a conviction dating back a considerable period of time to 2002, when he was a teenager, for an offence of possessing an imitation firearm with intent to cause fear of violence and a further offence of assault occasioning actual bodily harm. It appears that that related to some kind of neighbour dispute. More recently, in July 2016, he had a conviction for common assault which apparently involved some kind of domestic violence. He was subject to a community order with a rehabilitation activity requirement.
16. A pre-sentence report was before the sentencing judge. In the course of the pre-sentence report it is recorded that the offender expressed sorrow for the victim's death and sorrow for his family. It was recorded that he accepted the guilty finding "as God's will". The assessment was that, as he had now been found guilty, he showed some understanding for the loss of life involved.
17. It appears that on occasion the offender has struggled with depression. He also has responsibilities for caring for his 83 year old grandfather. The assessment of the author of the report was that the likelihood of re-offending was low.
18. After referring to the Sentencing Council guidelines and other matters relating to the offender, the author concluded in this way:
"In the event that the court is able to draw back from an immediate custodial sentence, my proposal is for a suspended sentence order with a curfew and specified activity requirement…"
19. Also before the sentencing judge was a moving Victim Personal Statement from the deceased's brother. It sets out the effect of the death on the deceased's family. Amongst other things, it appears that Mr Awale had been but recently married and was the sole provider for his wife. The brother said:
"Once we had received the news, it felt like our souls had left our bodies and would never return."
20. The judge was, of course, referred to the relevant guideline relating to causing death by driving. It was accepted that this was a category 2 case. It was a category 2 case essentially because of the presence of the aggravating factor consisting of the failure to stop by the offender. The maximum available sentence under statute is one of five years' imprisonment. For category 2 offending, the guideline proposes a starting point after trial of 36 weeks' custody, with a sentencing range of a high community order up to two years' custody.
21. The judge had the benefit, as Mr Tomassi then as now appearing for the offender has stressed, of having had the conduct of the trial. He was aware of the entirety of the evidence and all the circumstances of the case. In the course of his sentencing remarks the judge said this:
"You gave a story that you were worried that you were under attack. In my judgment, you knew exactly what you had done, albeit you may not have realised that [Mr Awale] was killed. You did not stop. You decided to keep driving.
It is clear to me that over the following hours you were worried that your involvement would be detected and so you set about minimising your responsibility. …"
The judge then dealt with the telephone calls to the police and then said this:
"During [the] trial, and particularly whilst you gave evidence, you appeared to me to be rather more concerned for your own welfare than you were for the victim of your crime. …"
The judge referred to matters relating to the offender and his antecedent history. He concluded, correctly, that the custodial threshold had been passed. The judge indicated that he would take a figure of six months' imprisonment for count 1, which he rightly characterised as category 2 offending; and he further indicated that on count 2 the appropriate sentence was four months' imprisonment, to run consecutively, thereby yielding a total of ten months' imprisonment. The judge then said this:
"I have reflected carefully upon whether that should be immediate or should be suspended. Perhaps over-generously I have decided to suspend it, but I do so conscious of the other orders that are available, which I will impose."
The judge then imposed the sentence, with the requirements, as we have already indicated.
22. Cases of causing death by careless driving create particular difficulties. On the one hand a life – an irreplaceable life – has been taken away by reason of driving which has fallen below an acceptable standard. On the other hand, the driver has had no intention whatsoever and no desire whatsoever to cause any harm to the unfortunate victim.
23. In the present case it is, in effect, said that here the default was relatively momentary – no more than a second or so. Nevertheless, it is the fact that by reason of the offender's careless driving the victim has died.
24. At all events, whilst the judge chose to take a figure below the starting point suggested in the guideline, Mr Polnay, appearing on behalf of the Solicitor General, has fairly accepted that, simply taking count 1 on its own, he would not seek to challenge a sentence of six months' imprisonment as unduly lenient. Nor would he seek to challenge the decision then to suspend it as unduly lenient. However, he would say that, overall, such a sentence was very generous on count 1, taken on its own.
25. However, a particular feature of this whole case is not only that the offender did not stop after the collision, which was reprehensible enough in itself and an aggravating factor for the purposes of the guideline, but he then, and in order to try to cover himself, dishonestly concocted a story about being attacked or struck by people or by a branch. He maintained that story twice in telephone conversations with police. (It was a story he thereafter maintained up to and including trial.) In the result, that achieved nothing. Indeed, all it achieved was to draw attention to himself. Nevertheless, his actual intent was, on the jury's findings, clear enough.
26. We have had our attention properly referred to a number of authorities relating to offences of perverting the course of justice. It has been stated on frequent occasions by the court that, as a matter of principle, offending involving perverting the course of justice will ordinarily, and in the absence of exceptional reasons, require an immediate custodial sentence: see, for example, the decision of a constitution of this court in
Attorney General's Reference No 35 of 2009
[2010] 1 Cr App R(S) 61. It was stated that perverting the course of justice is so serious that it is "almost always" necessary to impose an immediate custodial sentence, unless there are exceptional circumstances. That position has recently been reiterated in the decision of a constitution of this court in
R v Cronin
[2017] EWCA Crim 1357
. Moreover, as to the factors identified in
R v Tunney
[2007] 1 Cr App R(S) 91, Mr Polnay has made the following submissions. First, by reference to the seriousness of the substantive offence, here the substantive offence was serious in that it involved loss of life and, further, the offender knew that he had collided with a person, albeit he may not have realised that he had killed him. Mr Tomassi stresses that here there had been momentary and inadvertent carelessness. Maybe so: but the fact remains that this was a serious offence which in fact involved the death of an innocent pedestrian. Second, so far as the degree of persistence is concerned, the false account was maintained in two telephone calls to the police (and, of course, thereafter was maintained at trial). Third, as to the effect of the attempt, the attempt was wholly unsuccessful in diverting attention away from the offender. Nor had he attempted to implicate any named, innocent individual. On the contrary, as we have said, the attempt was only successful in the sense that he, in fact, inadvertently drew attention to himself.
27. It being the general principle that sentences of immediate custody are usually required in cases of perverting the course of justice – and indeed some of the authorities show sentences of considerable length in this context, on appropriate facts – one then looks here to see what were the exceptional circumstances present which caused the judge to suspend the overall sentence as he did. Unfortunately, the judge identified no such exceptional factors. He acknowledged that he was acting at least "perhaps over-generously"; but he articulated no reasons for acting in a way which was "perhaps over-generous". Certainly there was no mitigation in terms of any plea or (until the conclusion of the trial) remorse. Indeed, one wonders just what sentence the judge would have, overall, imposed had there been an early guilty plea and remorse on both counts.
28. Mr Tomassi, on behalf of the applicant, submits that this was a carefully considered sentence by a highly experienced judge who had had the benefit of hearing the trial. Mr Tomassi submits that his sentence was purposive and constructive. Yes, he agrees, this was a lenient sentence; but leniency and justice can readily go hand-in-hand, and the judge was entitled to take a merciful view. Mr Tomassi described this sentence as being "sensible and proportionate". He further noted the stringent requirements attached to the suspended sentence order, including, amongst other things, a curfew requirement, as well as an unpaid work requirement and rehabilitation activity requirement, all of which impact upon the liberty of the offender. He also submits that it is artificial to draw a distinction between counts 1 and 2. He says that there is a "crossover" between the two in that the failure to stop was then followed by the phone calls to the police, seeking to put the police off the scent. Mr Tomassi in fact submits that, overall, this sentence was "in the public interest".
29. Where a sentencing judge decides to suspend a sentence, that of course is, generally speaking, a matter of the exercise by discretion by the judge, with which the Appellate Court will ordinarily be very slow to interfere. But, so far as the public interest is concerned, the courts have, in effect, decided where the public interest lies in cases of perverting the course of justice. The public interest lies – and for very obvious reasons – in ordinarily imposing immediate custodial sentences. We invited Mr Tomassi to identify factors, albeit not specifically mentioned by the judge, which might here constitute exceptional circumstances justifying the judge in refraining from imposing an immediate custodial sentence. With all respect to his efforts, Mr Tomassi struggled to produce any exceptional circumstances of any relevant kind. Certainly insofar as he sought to place reliance on the pre-sentence report, that provides nothing in the way of exceptional circumstance which one might accept as justifying deflection away from an immediate custodial term. Indeed, the author of the pre-sentence report can hardly be said to urge a non-custodial sentence. The report is framed much more cautiously than that. Further, whilst it is right that, since the trial, the offender has shown remorse, as indeed he ought to, it is the case, as confirmed by the judge himself, that up to and including the trial he was far more concerned for himself than he was for the victim's family or for the truth to come out. It is also right to say that the offender is a carer for his grandfather. It is not urged, however, that that factor of itself could constitute an exceptional circumstance which would cause what otherwise ought to be an immediate custodial sentence to be suspended.
30. Whilst, of course, we must respect the considered decision of the trial judge, it is a feature of this case that he has offered no reasons for his decision to suspend the sentence in the circumstances of this case. In our view, there are no sufficient reasons to justify the imposition of a suspended sentence. It is important that the courts, absent special factors, adhere to the principle that perverting the course of justice will normally attract an immediate custodial sentence. Nor was this by any means something that can be described as a relatively trivial offence of its kind, if that were even possible in principle. The lie was quite deliberate. The offender repeated it twice to the police; and it was all in the aftermath of his having collided with (and in the event killing) a pedestrian walking quietly home at night. In our view this was a bad case of its kind.
31. Of course, it is for this court to decide whether this sentence was unduly lenient. Looking at matters in the round, our conclusion is that it was unduly lenient. Looking at matters in the round, our conclusion is that it was unduly lenient. Neither the overall custodial term nor the decision to suspend can be maintained. We say that bearing in mind all the points that Mr Tomassi has urged upon us.
32. We have to consider what, as a matter of totality, is the appropriate immediate sentence in this case. We would have expected in the circumstances on count 1 a sentence close to or at the starting point indicated in the guideline. On count 2, we would have expected a sentence that might have been as much as, or approaching, twelve months' custody.
33. However, we do, of course, have to bear in mind such mitigation as is available. We also have to bear in mind that stringent restrictions were attached to the suspended sentence order with which the offender has thus far complied, both in terms of the curfew and in terms of unpaid work and the rehabilitation activity requirement. We also bear in mind that, when he left court, the offender was not the subject of an immediate custodial sentence, which is the sentence he now faces.
34. In all the circumstances, the conclusion of this court is that the appropriate sentence overall is one of sixteen months' immediate imprisonment. We propose to structure that sentence in the following way. There will be eight months' imprisonment on count 1 and there will be a consecutive term of eight months' imprisonment on count 2. To that extent the appeal of the Solicitor General is allowed.
35. In relation to the offence of causing death by careless driving, the offender will be disqualified from driving for four years and four months, with a four month extension under
section 35
A and a four month extension under
section 35
B of the
Road Traffic Offenders Act 1988
; which in practice makes the total of five years' disqualification the judge had in mind.
36. The offender must surrender to Wandsworth Police Station by 10.30am tomorrow morning.
37. Finally, we make an alteration to the victim surcharge order which was imposed in the sum of £100. It should, we gather, be £140.
______________________________
|
{"ConvCourtName":["Crown Court at Kingston"],"ConvictPleaDate":["2017-11-28"],"ConvictOffence":["Causing death by careless driving","Doing an act tending and intended to pervert the course of public justice"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Kingston"],"Sentence":["Six months' imprisonment suspended for two years (count 1) with 200 hour unpaid work requirement, 60 day rehabilitation activity requirement, six month curfew 7pm-7am; four months' imprisonment suspended for two years (count 2) on like terms, consecutive; disqualified from driving for five years and until extended retest passed; licence endorsed with nine penalty points"],"SentServe":["Consecutive"],"WhatAncillary":["Disqualified from driving for five years and until extended retest passed","Licence endorsed with nine penalty points","Curfew requirement","Unpaid work requirement","Rehabilitation activity requirement","Victim surcharge"],"OffSex":["All Male"],"OffAgeOffence":[29],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[31],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Toxicology tests","Vehicle damage evidence","Tyre mark evidence","Police interviews","Victim Personal Statement"],"DefEvidTypeTrial":["Offender denies offence","Alternative explanation for vehicle damage"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Failure to stop after collision","Dishonestly concocted story to police"],"MitFactSent":["Offender has responsibilities for caring for grandfather","Offender has struggled with depression","Compliance with suspended sentence requirements"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General"],"CoDefAccNum":[0],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Suspension of sentence for perverting the course of justice not justified; no exceptional circumstances identified"],"SentGuideWhich":["Sentencing Council guidelines for causing death by driving","section 2B of the Road Traffic Act 1988","section 35A and section 35B of the Road Traffic Offenders Act 1988"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["No exceptional circumstances to justify suspension of sentence for perverting the course of justice; public interest requires immediate custodial sentence"],"ReasonDismiss":[]}
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Neutral Citation Number:
[2015] EWCA Crim 628
Case No:
201405546 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 17 March 2015
B e f o r e
:
LORD JUSTICE PITCHFORD
MR JUSTICE HADDON-CAVE
THE RECORDER OF MIDDLESBROUGH - HIS HONOUR JUDGE BOURNE-ARTON QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
DALE SEAN MAYO
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr A Palmer (Solicitor Advocate)
appeared on behalf of the
Appellant
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J U D G M E N T
1.
THE RECORDER OF MIDDLESBROUGH: On 8 May 2014 at the Crown Court at Chester at a preliminary hearing, this appellant pleaded guilty to two offences. Subsequently on 23 October he was sentenced as follows: in respect of count 1, burglary of a dwelling house, 28 months; in respect of theft of a motor car taken at the same time as the burglary, 2 years consecutive to the 28 months, bringing about a total sentence of 4 years and 4 months. He appeals against that sentence with the leave of the single judge.
2.
The facts of the case can be briefly summarised as follows. The appellant lived in Manchester. He travelled to the countryside of Cheshire, and in particular the village of Bollington, he was to say for social purposes, going for a night out in nightclubs. The learned judge found as a fact that it was in order to carry out these offences.
3.
He entered the complainant's home. He entered through an apparently insecure patio door. This was in the early hours, certainly between the hours of 3 am when the householder was awake with his then sick child and 7.30 am when the appellant escaped and was observed by a neighbour. Once in the house he stole a handbag, taking from it money. He also stole a key to the car which he then subsequently drove away. That was a Volkswagen Golf, valued at £17,000. The rest of the contents of the handbag were scattered on the patio floor. He stole a smartphone and a tablet.
4.
The car was subsequently found in Manchester shortly afterwards with new plates. It may be said that it was stolen to order. The neighbour saw the car being driven away in company with another car, it was said being driven by the appellant's then girlfriend. Accordingly, this was an offence which was committed by two people and the learned judge was entitled to say planned. That car, his car, was to be seen on closed-circuit television. It was traced to his home address. That was searched and some of the stolen property was found.
5.
As to the defendant's antecedents, he was 22 at the time. He has 21 offences bringing about 10 convictions. When he was but 15, on 20 June 2007 he was convicted at the Minshull Street Crown Court for conspiracy to burgle. That, we are told by his counsel today, involved a "home invasion", and it resulted in his being sentenced to a detention and training order of 18 months. On 10 December 2012 he committed a dwelling house burglary which resulted in a sentence of 22 months. He was released from that sentence in December 2013. This offence for which he was sentenced was not, however, the subject of a mandatory minimum term because conspiracy to burgle does not qualify.
6.
But that was not the end of his offending. He has a number of offences of taking without consent, including aggravated taking without consent, and in 2011 he served a sentence of 3 years for robbery. In other words, for someone so young, he has a very bad record indeed.
7.
In his sentencing observations, the learned judge said this:
i.
"It is quite plain from the evidence that you came up from Manchester with another vehicle and another or other persons intent on crime and in the early hours of the morning you came upon the unfortunate occupants of 19 Princes Drive in Bollington."
8.
He found that the sentences should be ordered to run consecutively.
9.
In his grounds of appeal, the appellant makes a number of points. He said that the learned judge failed to take account of the defendant's contention, not disputed by the Crown, that this was not a targeted offence of burglary, the defendant travelling away from his home area to commit the offence; rather, it was an opportunistic offence It was said that the defendant, whilst a passenger in his co-defendant's vehicle, was driving around , after spending time socialising in nightclubs and, stopping to urinate, saw the opportunity of a door being open and took from the porch the keys, hence the theft of the motor vehicle. That was an account and a contention which the learned judge did not accept, and we can well understand why he was not prepared to accept it.
10.
It is further said in the grounds of appeal that the total sentence was excessive and the two sentences should not have been ordered to run consecutively.
11.
Thirdly, a point is made as follows: that the judge should have taken into account the fact that the appellant's time spent in custody from arrest to sentence as a result of his being recalled on licence would not be deducted from his sentence. It is said that as a result of the commission of this offence, whilst subject to a licence the defendant was recalled to custody to serve the remaining balance of that sentence. Mr Palmer accepts that, whilst this submission, at first blush is far from attractive, indeed is an aggravating feature of the offence, the consequent result is that the sentence imposed by the learned judge on 23 October 2014 will not begin to run until after the expiry of the licence period. In the result, the applicant's estimated date of release has been provided as 22 December 2016.
12.
We remind ourselves of the decision of this court presided over by the Vice President in
R v Kerrigan & Anor
[2014] EWCA Crim 2348
, where at paragraph 57:
i.
"Applying those principles to the facts here, the appellants do not qualify for any automatic reduction in their sentences. They breached their licence, they were recalled to serve the balance, or part of the balance, of an existing sentence and they were, therefore, detained pursuant to a custodial sentence for most, if not all, the time they were on remand in relation to the subsequent offence. In those circumstances Parliament's intention is clear: a day counts as time served in relation to only one sentence. Section 240ZA prohibits double counting. Unless, therefore, the appellants can bring themselves within the judge's general discretion to do justice, the periods they spent on remand which coincided with time spent in custody on recall should not be counted twice."
13.
There is no grounds for the learned judge and now us exercising our discretion, and therefore we find no merit in that ground of appeal.
14.
Although the appellant did not qualify for the mandatory sentence of 3 years, the learned judge was perfectly entitled to take into account the fact that this was the third offence involving burglary of a dwelling houses. Further, from the facts of the earlier offence, the appellant was clearly a man who was prepared to commit burglary, and in doing so was prepared for a confrontation with the homeowners if needs be, hence the offence of conspiracy which amounted, as we have said, to a "home invasion". He committed these offences whilst on licence, which was a clear and obvious aggravating feature to the offence. The learned judge was perfectly entitled to sentence on the basis that the appellant drove from Manchester to commit burglary in the area of Cheshire.
15.
There can be no argument that this was a category 1 offence: it was committed by a professional criminal; the occupants were at home and the value of the property taken, which includes the value of the car, was clearly significant. Further, it is an offence of high culpability. There was, in our judgment, a clear finding that the learned judge was entitled to find a significant degree of planning and/or organisation. He came from Manchester with others to commit this offence and to steal high-value motor cars. The fact that he was not alone was a further factor which places this in the category of higher culpability. There were further aggravating factors: his previous convictions; these offences were committed on licence; a child was at home; and the offence was committed at night.
16.
Category 1 has a starting point of 3 years with a range of 2 to 6 years. As my Lord, Pitchford LJ, has indicated, there are certainly (and this court has indicated that there are) occasions when the number and extent of the aggravating factors can extend the range upwards. This is such a case. The number and extent of the aggravating features are such as to place this above the category with an upper range of 6 years. We would not have ordered the sentences to run consecutively. However, in all the circumstances, we take the view that the appropriate starting point of 6 1/2 years taken by the judge was not manifestly excessive. Accordingly, this appeal is dismissed.
|
{"ConvCourtName":["Crown Court at Chester"],"ConvictPleaDate":["2014-05-08"],"ConvictOffence":["Burglary of a dwelling house","Theft of a motor car"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Chester"],"Sentence":["28 months imprisonment (burglary of a dwelling house)","2 years imprisonment consecutive (theft of a motor car)"],"SentServe":["Consecutive"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[22],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Stolen property found at home","Neighbour testimony"],"DefEvidTypeTrial":["Defendant's account of opportunistic offence"],"PreSentReport":[],"AggFactSent":["Offence committed while on licence","Previous convictions for similar offences","Offence committed at night","Occupants (including a child) at home","Significant degree of planning/organisation","High value of property taken"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge failed to accept opportunistic nature of offence","Sentences should not have been consecutive","Time in custody on recall not deducted from sentence"],"SentGuideWhich":["Category 1 offence (burglary of a dwelling)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Appropriate starting point of 6 1/2 years not manifestly excessive","Number and extent of aggravating features justified sentence","No merit in ground regarding time in custody on recall","Judge entitled to find significant planning and high culpability"]}
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Neutral Citation Number:
[2017] EWCA Crim 1277
Case No:
201701986/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 15 August 2017
B e f o r e
:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE SWEENEY
MR JUSTICE HOLROYDE
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R E G I N A
v
DAPHNE ABUAH
- - - - - - - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - - - - - - -
NON-COUNSEL APPLICATION
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
1.
MR JUSTICE HOLROYDE: On 29th May 2017 in the Crown Court at Croydon, this applicant was sentenced by Her Honour Judge Smaller to a total of 29 months' imprisonment for offences involving the fraudulent obtaining of benefits and the possession of false identity documents. Her application for leave to appeal against her sentence, based both on the grounds drafted by counsel and on various supplementary grounds of her own composition was refused by the single judge. The application is now renewed to the Full Court. Yet further grounds have been put forward since the matter was considered by the single judge.
2.
Each member of the court has read and carefully considered all the many documents put before the court but in accordance with the usual practice on a renewed application for leave to appeal, we will express our conclusions and our reasons briefly.
3.
The applicant came to the United Kingdom in 2005. She entered the country lawfully. For a time she had the benefit of discretionary leave to remain and during that period she was entitled to, and did, claim State benefits. However her leave to remain expired on 23rd September 2013. From that date she had no lawful right to be in this country and no lawful right to claim benefits. That was an obviously highly material change in her circumstances. She failed to notify it to the appropriate authority and continued to claim and receive benefits. In the result she received over £41,500 of public funds, to which she was not entitled, before her claim was stopped in November 2015. It was stopped at that time because when asked by Her Majesty's Revenue & Customs to provide evidence of her status in the United Kingdom, the applicant had provided a counterfeit document which purported to show that in November 2013 she had been granted indefinite leave to remain.
4.
When she was arrested, and as a result of the investigation into that matter, it was found that she was in possession of two further false identification documents, a Netherlands identification card and a driving licence in the assumed named "Susan Johnson". It emerged that the applicant had used those false documents to obtain modestly paid employment as a care assistant.
5.
It should be noted that about a year before her arrest for these offences, in December 2014, the applicant had been sentenced to a community order for offences of using a false instrument and fraudulently failing to disclose information. Those offences related in essence to her claiming benefits whilst working.
6.
In the present proceedings the applicant pleaded guilty, although by no means at the first opportunity, to five offences. On count 1 she admitted possession of an identity document with improper intention, contrary to
section 4
of the
Identity Documents Act 2010
. That charge related to the fraudulent documents which she provided to Her Majesty's Revenue & Customs. Counts 2 and 3, further offences of possession of an identity document with improper intention, related to the two further false documents which she had used to obtain employment. Count 4, fraud, contrary to
section 1
of the
Fraud Act 2006
, related to her fraud in obtaining employment, at a time when she had no right to be in this country still less to work. Count 5, a further charge of fraud, related to her fraudulent benefit claim.
7.
In relation to count 5, which the learned judge rightly treated as the most serious of the offences, the applicant's guilty plea was entered on a specific factual basis. That basis was not accepted and after a
Newton
hearing the learned judge found it to be quite false.
8.
In those circumstances the learned judge gave credit for the guilty pleas on counts 1 to 4. She did not specify precisely how much credit but we infer that it must have been of the order of 25%. The judge gave no credit at all for the very late plea on count 5, as that had been entered on the basis which had been found to be false.
9.
The learned judge imposed concurrent sentences of 9 months' imprisonment on each of counts 1 to 4 and she imposed a consecutive term of 20 months' imprisonment for count 5. Thus the total sentence was one of 29 months' imprisonment, which the judge indicated took account of the principle of totality and had indeed involved some reduction from the sentences which would have been passed for individual offences had they stood alone.
10.
The grounds of appeal initially prepared by counsel were, in brief, that all of the sentences should have been concurrent, because the judge should have treated the offences as a single course of conduct. Alternatively counsel submitted that, if there was to be any consecutive sentencing, then the term of 9 months for counts 1 to 4 was manifestly excessive in length.
11.
In her series of communications to the court the applicant has added a variety of further grounds which did not have the support of counsel. She criticised the learned judge for failing to give any credit for the guilty plea on count 5 and for failing to specify what credit had been given for the guilty pleas on counts 1 to 4. She contended that the judge incorrectly applied the relevant Sentencing Guidelines. She contended that the amount of benefit which had been fraudulently obtained had been overstated. She complained that the judge in considering the sentence on count 4 had failed to take into account that she received only a low income from the employment which she had fraudulently obtained. In addition, she raised various matters relating to her state of health and to her unhappy personal history of an abusive marriage. She expressed remorse. She regarded her time in custody as "a wake-up call" and expressed her good intentions for the future. Lastly, she put forward a plea for leniency.
12.
Many of these submissions have been considered by the single judge, who rejected them for reasons which he very clearly explained in writing and which we need not repeat because the applicant already has them. But we have considered those points afresh, and we have considered the matters raised subsequently to the single judge's decision.
13.
We can express our conclusion very briefly. We see no merit in any of these suggested grounds of appeal. There were here two distinct strands of offending. The use of false identification documents to obtain employment which the applicant could not lawfully obtain, and the use of a separate false document to make and continue a prolonged fraudulent claim for State benefit. In those circumstances, consecutive sentences were correct in principle.
14.
The applicant's submission wrongly focused on the earnings obtained from the employment which she gained by the fraud in count 4. She overlooks the important fact that that fraud involved the use of false identification documents by a person who had no leave to remain in this country.
15.
Counts 1 and 5 involved the use of a different false document at a late stage, and a protracted fraudulent claim for benefit. That continued over a period of 2 years. It involved a loss to the public purse in excess of £41,500. That offence in particular was aggravated by the applicant's previous conviction for similar offending, which clearly did not deter her from continuing this fraudulent claim after she had received a lenient sentence for the earlier offences.
16.
In all those circumstances, there is, in our judgment, no possible basis on which it could be said that the total sentence of 29 months' imprisonment was manifestly excessive. There is no arguable ground of appeal. The renewed application is accordingly refused.
|
{"ConvCourtName":["Crown Court at Croydon"],"ConvictPleaDate":[""],"ConvictOffence":["Possession of an identity document with improper intention (s.4 Identity Documents Act 2010)","Fraud (s.1 Fraud Act 2006)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["Not at the first opportunity"],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Croydon"],"Sentence":["9 months' imprisonment (counts 1-4, concurrent)","20 months' imprisonment (count 5, consecutive)","Total: 29 months' imprisonment"],"SentServe":["Combination"],"WhatAncillary":[],"OffSex":["All Female"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Previous conviction for similar offending","Protracted fraudulent claim (over 2 years)","Loss to public purse in excess of £41,500"],"MitFactSent":["Expressed remorse","Unhappy personal history of an abusive marriage","Low income from employment obtained by fraud"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["Sentences should have been concurrent as a single course of conduct","Consecutive sentences were wrong in principle","9 months for counts 1-4 was manifestly excessive","No credit for guilty plea on count 5","No specification of credit for guilty pleas on counts 1-4","Incorrect application of Sentencing Guidelines","Amount of benefit fraudulently obtained overstated","Failure to consider low income from employment"],"SentGuideWhich":["Sentencing Guidelines"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Two distinct strands of offending justified consecutive sentences","Offence aggravated by previous conviction","No basis for saying sentence was manifestly excessive","No arguable ground of appeal"]}
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Case No:
201100897C4
Neutral Citation Number:
[2012] EWCA Crim 1476
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
HHJ NEWELL
T20107189
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
05/07/2012
Before :
LOR D JUSTICE HOOPER
MR JUSTICE SILBER
and
MR JUSTICE HAMBLEN
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Between :
ANTHONY MICHAEL DAWSON
Appellant
- and -
THE CROWN
Respondent
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- - - - - - - - - - - - - - - - - - - - -
MR. G.A.M. PURCELL
(instructed by
Bhatia Best) for the
Appellant.
MR. D. PICKUP (instructed by CPS York)
for the
Respondent.
Hearing dates: 21
st
June 2012
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Judgment
Lord Justice Hooper :
1.
On 15 October 2010 in the Crown Court at Preston the appellant, aged 48 at the time of sentence, pleaded guilty to conspiracy to supply a class B controlled drug, namely amphetamine. On 17 December 2010 he was sentenced to 18 months’ imprisonment.
He pleaded guilty following a rejection by HHJ Newell of his application that the prosecution against him should be stayed as an abuse of the process of the court given what had occurred in July 2009.
2.
This sentence of 18 month’ imprisonment was ordered to run consecutively to the sentence of six years’ imprisonment which he was already serving for a substantive offence of possession of amphetamine with intent to supply, an offence which had been committed on 6 April 2009.
3.
On that day West Yorkshire police officers stopped the appellant in his car which was being driven eastbound on the M62 in Yorkshire. The car was searched and two large boxes, which were found to contain a total of 49 kilos of amphetamine at 22% purity, with a street value of between £363,000 and £496,000 were recovered. Unknown to the appellant at the time, his car had been stopped as part of an ongoing criminal investigation by Lancashire Constabulary’s Serious and Organised Crime Unit into the criminal activities of a known drug dealer, Martin Day, and his associates who were based in the East Lancashire area. The investigation was to reveal a highly organised crime group involved in the wholesale acquisition and distribution of industrial quantities of controlled drugs, including cocaine, amphetamine and cannabis. Another man, Ian Brennan, was a major distributor of amphetamine in the area of Doncaster and Nottingham. He employed the appellant Dawson and another person to deliver cash in payment for, and collect consignments of, amphetamine from East Lancashire.
4.
On 6 July 2009 the appellant entered a plea of guilty to possession of the 49 kilos with intent to supply with a basis of plea which read:
“I was heavily in debt;
To repay my debt I agreed to transport a quantity of class B drugs;
I was told that the drugs were class B and no more than 5 kilograms.”
5.
He pleaded not guilty to a second count which charged him with simple possession of a small amount of cannabis.
6.
The prosecution was told about the basis of plea on 6 July 2009.
7.
On 31 July the prosecution told the court, according to the court log:
“Pleas acceptable to Crown. Offer no evidence on count 2.”
8.
On the same day the appellant was sentenced to eight years’ imprisonment reduced to six years’ on appeal.
9.
Both the appellant and the Lancashire Police (although not necessarily the West Yorkshire Police) knew that the basis of plea understated the appellant’s involvement. It is sufficient to say that there was evidence at that time of a greater involvement than one delivery and further work by the Lancashire Police after the appellant had been sentenced showed further involvement by him. That led to the appellant being arrested in early 2010 at a time when a large number of other persons were arrested and the investigation largely brought to an end.
10.
The appellant was then charged with the conspiracy to supply amphetamine.
11.
The prosecution’s case at the time of the application to HHJ Newell for a stay was that there were previous drug deliveries on 16 March 2009, 21 March 2009, 27 March 2009, 1 April 2009 as well as the delivery on 6 April 2009 in relation to which the appellant had pleaded guilty in July 2009. If there had been a trial, Mr Pickup, for the prosecution, was proposing to make an application to introduce into evidence the 6 April delivery as an overt act of the conspiracy. We were told that the prosecution later modified its case to allege 9 deliveries in all.
12.
The thrust of the argument made by Mr Purcell (as it developed during the course of oral argument) was that the prosecution had accepted in court on 31 July 2009 that the delivery made on 6 April was the only delivery made at that time by the appellant and that it would be an abuse of process to now allege further deliveries. Assuming for the purposes only of argument that it could be an abuse of process to charge a person with a count or counts reflecting multiple deliveries after earlier accepting that he had made only one delivery, that is not what happened here. The prosecution did not say anything to the effect that there was only one delivery. The basis of plea does not state clearly that the appellant was accepting only one delivery, even though he may well have been hoping that he would be sentenced on the (false) basis that this was a one off delivery and that he was not otherwise involved with drugs.
Whilst
the prosecution did not contest the basis of plea, they did not tell the judge that the appellant should be sentenced on the basis that his only involvement was one delivery.
13.
In the light of this conclusion it is not necessary to examine how much was known to the prosecution at the time of sentence on July 31 2009 and to what extent, if any, the desire of the officers conducting the investigation into major drug trafficking not to reveal their hands too early, would be a relevant factor.
14.
The appellant (who had previous convictions for drug trafficking) also seeks to renew his application for leave to appeal the consecutive sentence of 18 month’s imprisonment for the conspiracy following refusal by the single judge. HHJ Newell sentenced the appellant on the basis (contested by the prosecution) that he had been involved as a courier in only four deliveries as well as the delivery on 6 April 2009. The judge took the view that, had the appellant been sentenced for the conspiracy in July 2009 the proper sentence would have been one of seven and a half years’ imprisonment (bearing in mind the earlier successful appeal). We agree and the renewed application for leave to appeal sentence is refused.
|
{"ConvCourtName":["Crown Court at Preston"],"ConvictPleaDate":["2010-10-15"],"ConvictOffence":["Conspiracy to supply a class B controlled drug (amphetamine)"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Preston"],"Sentence":["18 months’ imprisonment"],"SentServe":["Consecutive"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[48],"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 reoffending"],"AggFactSent":["Previous convictions for drug trafficking"],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["Consecutive sentence of 18 months’ imprisonment for the conspiracy"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["HHJ Newell sentenced the appellant on the basis (contested by the prosecution) that he had been involved as a courier in only four deliveries as well as the delivery on 6 April 2009. The judge took the view that, had the appellant been sentenced for the conspiracy in July 2009 the proper sentence would have been one of seven and a half years’ imprisonment (bearing in mind the earlier successful appeal). The renewed application for leave to appeal sentence is refused."]}
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Neutral Citation Number:
[2008] EWCA Crim 1027
No:
2007/5514/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 30 April 2008
B e f o r e
:
LORD JUSTICE HUGHES
MR JUSTICE TREACY
MR JUSTICE MADDISON
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
MICHAEL FADIPE
- - - - - - - - - - - - - - - - - - - - -
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 Knight
appeared on behalf of the
Appellant
Miss C Pattison
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE TREACY: This appellant is Michael Fadipe. He is now 19 years of age. At the time he committed the offences the subject of this appeal he was 17 years and 10 months and he was 18 years of age at the time of sentence. On 16th August 2007 at the Inner London Crown Court, the appellant was convicted after a trial of two offences. He was firstly convicted of possession of a firearm with intent to endanger life, and secondly convicted of possession of ammunition without a certificate. In relation to the latter offence no separate penalty was imposed. In relation to the possession of the firearm with intent he was sentenced to detention for public protection. The minimum term of four years six months, less 238 days spent on remand, was specified. The single judge has granted leave.
2.
The circumstances of the offending were as follows. On 3rd October 2006 police officers were engaged in an operation in West London. They came across a group of males, one of whom they recognised. The group was monitored and was seen to enter a shop. It then left the shop and three of the group walked ahead of the fourth member, who was this appellant. Police officers, some of whom were armed, conducted a stop of the group of four. Three of them stopped as instructed but this appellant walked and then ran off. He was chased down an alleyway. As he ran he discarded his jacket and he was seen to pull something from his trousers and throw it into a nearby garden. Eventually the appellant was cornered and arrested. The item which he had been seen to discard was recovered. It turned out to be a sock inside which was a Weihrauch HW94S self-loading pistol. The gun was found to contain three rounds of live ammunition.
3.
When the appellant was interviewed he gave a brief prepared statement in which he denied possession of the gun. He contested his guilt at trial. There were in fact two trials. He was tried alongside a youth called Bridgeman, who was discharged on a submission of no case to answer part way through the first trial. That jury was discharged and a retrial took place. This appellant continued to contest his guilt but was convicted by the jury.
4.
The appellant, as we have stated, was 17 years and 10 months at the time of committing these offences. He had previously been convicted. In July 2002 he was sentenced to a supervision order for an offence of assault with intent to rob. In October 2003 he was sentenced for section 18 wounding with intent to an 18 month detention and training order. He had been aged 13 and 14 years of age when involved in those matters. In addition, the appellant had been convicted also for possessing a prohibited weapon. He was sentenced in relation to that matter on 5th December 2006 to an 18 month conditional discharge. The prohibited weapon was some form of gas canister. The offence had been committed in June 2006 and therefore this appellant was on bail at the time the matters before this court were committed.
5.
There was available to the sentencing judge a pre-sentence report prepared by a trainee probation officer. Amongst the observations of the reporting officer were the fact that the appellant saw the breaking of the law as something that everyone does at some point in their lives. The officer's opinion was that there was a high risk that the appellant would return to the same peers and pattern of behaviour which had led him to commit the present offences. The officer thought that it was evident that the appellant had ready access to firearms and said that upon release he may again end up in circumstances where he is carrying one or even in a situation where he feels the need to use a gun. The officer then made an assessment of the risk of harm which should be cited:
"It is my assessment that Mr Fadipe does not pose a 'significant risk' of harm to the public which is defined as an occasion that is life threatening and/or traumatic where recovery could be expected to be difficult or impossible. However, I am aware that the potential for the risk to raise to such a level is present and will increase to this level if Mr Fadipe is carrying a gun and finds himself in a confrontational situation. He may decide to use the weapon and if he does so then the effects could prove fatal.
The risk will reduce if Mr Fadipe applies himself whilst incarcerated and address the cognitive deficits that he displays. The risk will also be reduced if Mr Fadipe has a focus and a goal, such as gaining employment or continuing his education, when he is released into the community."
A little later in the report the officer commented in these terms:
"Mr Fadipe is still young and has already demonstrated some changes in his behaviour. He has endeavoured to move away from the area in which he has offended and is concentrating on his education. Mr Fadipe has the potential to be a positive member of society and at the age that he is, it is my assessment that he still has the capacity to amend his behaviour considerably. It is my assessment that Mr Fadipe's risk level can be managed in the community."
Accordingly the probation officer proposed to the court that a determinate sentence be passed by the court.
6.
Reliance has been placed upon that report by Mr Knight who submits to us that the judge was wrong to find that the appellant satisfied the criteria for an assessment of dangerousness. He relies on the observations in the concluding parts of the probation officer's report to which we have just referred.
7.
In our judgment when the sentencing judge was considering the report in the passing of sentence he rightly observed that there were contradictory elements in that report. It seems plain to us, howenever, that the probation officer was reporting that this young man remained at considerable risk of coming into contact with firearms and indeed of using them if he found himself in situations of confrontation.
8.
The further submission which is made to us by counsel is that the length of the notional determinate term taken by the sentencing judge was simply too long having regard to the age of this offender and his circumstances. Our attention has been drawn to materials which have accumulated since sentencing. There is a prison report, together with supporting documentation, which shows a good attitude on the part of this appellant and good progress whilst made in custody. There are also a number of other documents and references which we have considered and a letter from the appellant himself.
9.
Our attention has been drawn to two authorities:
Attorney General's Reference Nos 58 to 66 of 2002
[2003] EWCA Crim. 636
and
Attorney General's Reference No 2 of 2000
(Hines) [2001] 1 Cr.App.R (S) 9.
10.
Turning first to the criticism of the judge for making a finding of dangerousness, we observe that this was not a case where there was to be an automatic assumption made, notwithstanding the previous convictions recorded against this appellant. The judge's sentencing remarks showed that he was fully aware of the appellant's very young age when those earlier offences were committed. In our judgment the judge is not bound by the contents of the probation officer's report and the probation officer's assessment. That simply forms part of the information which is available to the sentencing judge and he must consider it alongside the other information available to him. The judge had available to him the information that this young man had become a relatively persistent offender in his teens, he had been convicted on eight occasions between 2002 and 2006 and two of those convictions related to specified offences. Moreover, he had committed these offences whilst on bail for the possession of a prohibited weapon. The judge having made an assessment on the information available to him is in a situation whereby this court will not normally interfere with his assessment if he has considered relevant principles and applied them to the facts of the case. That is apparent from the decision of this court in
Johnson and others
[2007] 1 Cr.App.R (S) 112
. The judge in this case had the advantage over the probation officer of having seen this appellant throughout the trial process and in particular having seen him give evidence. The objective facts are that this young man had become a persistent offender so that these serious offences are not to be viewed in isolation. He was carrying a lethal working firearm, loaded with three bullets, in a residential area of London. The pre-sentence report described him as having no appreciation of the gravity of his crime even after conviction and, as already pointed out, described him as having ready access to firearms. The report in our judgment pointed to the risk of potentially fatal harm being caused in the future if the appellant did not mend his ways. That he had in the view of the probation officer, and indeed confirmed by the subsequent reports which we have seen, the potential to mend his ways is plainly something to the appellant's advantage but it cannot necessarily be decisive of the assessment which the judge had to make at the time of sentencing him. We note that at the time of sentencing the judge felt that the appellant was wholly lacking in remorse. There may be signs of hope for the future now, as exemplified in the material which we have seen today, and no doubt that will stand this appellant in good stead when a decision has to be made in the future as to whether it is safe for him to be released. However, we see no error in the way in which the judge went about his task, nor do we think he was wrong in making the assessment of dangerous which he did having regard to all the circumstances of this case. Accordingly, we reject the first submission made to us.
11.
A further submission is made criticising the notional determinate term of nine years. That is said to be excessive and the two authorities to which we have already referred are relied on by counsel. Dealing first with
Attorney General's Reference No 2 of 2000
, Rose LJ commented that following a trial a sentence of at least seven years would have been expected in a case where the offender was convicted of possessing a firearm with intent to endanger life and possessing ammunition without a firearms certificate. The circumstances of that case were that police officers searching the address of a man who had been arrested found the offender who had thrown into a cupboard a sock containing a self-loading pistol. The pistol was loaded and ready to fire. A sentence of four years' imprisonment imposed by the trial judge was reviewed as unduly lenient and the sentence was increased to one of six years, taking account of the element of double jeopardy. It was in the course of the court's judgment in that case that the observations was made that following trial a sentence of at least seven years' imprisonment would have been expected. It is to be observed that that case differs from the present one in two respects. The offender in that case was 33 years of age and had no previous convictions. On the other hand, the firearm and ammunition found by the police were found inside a dwelling house and had not been taken out into the street, which we would regard as a significant distinguishing feature when compared with this case.
12.
As to the other authority cited to us,
R v Attorney General's Reference Nos 58 to 66 of 2002
, that was a case involving possession of firearms by a drug gang in Manchester and of an altogether different order from the case which is before us today. In the course of the court's judgment, Kennedy LJ referred to
Attorney General's Reference No 2 of 2000
and commented that that case, and another, demonstrated that in a contested case simple possession of a firearm together with ammunition with intent to endanger life merits a sentence of between seven and eight years.
13.
The observations in those two cases are relied on by Mr Knight today as submitting that the appropriate level of sentence is in the range of seven to eight years and that account must be taken, in addition in this appellant's case, of the fact that he was under 18 years of age at the time he committed these offences.
14.
The cases which are cited to us are not guideline cases in the ordinary sense, but they serve to demonstrate that the sentence which was passed in this case was a severe one upon a young person. Regrettably relative youth is no bar to this type of very serious offending and the experienced judge correctly referred to the public anxiety this type of offending gives rise to and the potential dreadful consequences of such offending. We observe that in
Attorney General's Reference Nos 58 to 66 of 2002
, the Attorney General addressing the court in February 2003, drew attention to the increase in gun crime especially in large cities and to the development of gangs who sometimes protect their business and their territory with guns. If anything public concern arising from the possession of firearms carried by young men in urban areas has risen since those submissions were made by the Attorney-General in February 2003.
15.
In those circumstances, we do not consider that the two cases cited to us represent any sort of ceiling for this category of offending. In present days account will have to be taken of public anxiety and it should not therefore be thought necessarily that a ceiling of seven to eight years for simple possession of a firearm together with ammunition with intent to endanger life is still in place. But that is not a decision for this court to make today. We have to look at the facts of this particular case and we have given anxious consideration to this appellant's youth and the fact that there was information available to the sentencing judge, and confirmed by the information before us today, which shows that this particular appellant is a person with potential for the future, notwithstanding the serious crimes that he has committed.
16.
After careful consideration and with some hesitation we have come to the conclusion that in all the circumstances the sentence which was passed in the court below was too long. We have come to the conclusion that the appropriate starting point in this case should have been one of seven years and six months. The result of that is that the minimum specified term would be a period of three years and nine months, less the 238 days which were spent on remand. We allow the appeal to the extent of reducing the sentence to that minimum term and to that extent this appeal is allowed.
|
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|
Neutral Citation Number
[2019] EWCA Crim 598
No: 201804856/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 2 April 2019
B e f o r e
:
LORD JUSTICE HOLROYDE
MRS JUSTICE ANDREWS DBE
HER HONOUR JUDGE TAYTON QC
(Sitting as a Judge of the CACD)
R E G I N A
v
DAVID PAWLUK
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 R Vardon
appeared on behalf of the
Appellant
Mr A O'Byrne QC
appeared on behalf of the
Crown
J U D G M E N T
(Approved)
1.
LORD JUSTICE HOLROYDE: On 29 October 2018, in the Crown Court at Manchester (Minshull Street), David Pawluk pleaded guilty to murder. He was sentenced by His Honour Judge Potter to life imprisonment with a minimum term of 16 years 8 months less 163 days which the appellant had spent remanded in custody. This is an appeal, brought by leave of the single judge, against the length of that minimum term.
2.
The appellant is now aged 59. The victim of the offence was his wife, Margaret Pawluk, aged 63 at the time of her death. Both had previously been married. They met because the appellant was a regular customer at a bookmakers which Margaret Pawluk managed. They became engaged at Christmas 2016 and married in the summer of 2017. They lived in a house which Margaret Pawluk owned. Less than a year after the marriage, on 10 April 2018, the appellant murdered her in that home.
3.
The appellant, who was working as a taxi-driver at the time of the offence, has for many years been a heavy gambler. There was evidence from his former wife that their former matrimonial home had been remortgaged several times as a result of financial problems stemming from his gambling. He was also prone to drinking heavily and was described by his former wife as having a very bad temper, though he was never violent. Following his marriage to Margaret Pawluk he continued to gamble modest sums at the bookmakers where she worked, but he also used other bookmakers so that she would not be aware of the full extent of his gambling.
4.
At the start of their relationship Margaret Pawluk had savings of some £24,000, but by the time of her death that sum had been reduced to about £4,000. She had told a close friend, Colette Dale, that she intended to leave the appellant but he had managed to persuade her not to do so. Neighbours often heard them arguing. By April 2018 both were either taking or considering taking legal advice about a divorce.
5.
Margaret Pawluk had two adult children, who had been the beneficiaries under her will. Before she married the appellant, Margaret Pawluk changed the terms of her will, making the appellant the sole beneficiary of her estate. The appellant's financial position at the time of the offence reflected his major gambling problem. He had cashed and spent a pension of some £40,000 and the proceeds of his divorce settlement, which were somewhere between £10,000 and £15,000. He was overdrawn at the bank by about £2,000 and had credit card debts of around £20,000.
6.
At the same time Margaret Pawluk had decided to sell her home. A sale price of £108,000 had been agreed. The couple's offer of £65,000 for a bungalow had been accepted. That, of course, would have left a significant amount of available equity. However, when Margaret Pawluk found out that the appellant had lost £300 in one day gambling, she changed her mind about buying the bungalow in joint names with him. The appellant reluctantly agreed that the purchase of the bungalow would go ahead but in her name alone. The appellant, who seems to have had little insight into his gambling problem, later told the police that this made him feel worthless, as though he was but a lodger in his own home.
7.
On 10 April 2018 Margaret Pawluk spent several hours socialising with her friend, Colette. She drank some alcohol but was not intoxicated. The appellant got home before her. He had consumed approximately 8 pints of beer and was drunk. As he later admitted to the police, he had decided to tell his wife that he was not prepared to accept not having his name on the deeds of the new house.
8.
As soon as Margaret Pawluk returned he confronted her. She did not even have time to take her coat off. A neighbour in the adjoining house heard the appellant calling his wife a liar and heard Margaret Pawluk reply that she loved him. Although the appellant says that he can only remember part of what then happened, he admitted to the police that he had grabbed Margaret Pawluk by the back of the neck and had dragged her towards the kitchen door. He then pushed or dragged her to the floor, face down, with his knee in her back. The appellant then stabbed her repeatedly using a knife from the kitchen drawer. At one point he said he used two knives.
9.
The evidence of the pathologist showed that there were multiple stab and incised wounds, concentrated around the face and neck but also, and in our view significantly, including some puncture wounds to the buttock and back of one leg. Many of the wounds were superficial but they represented repeated strikes with the knife or knives. Other wounds were deeper and more serious. In particular, there was a stab wound through the neck which penetrated 9 centimetres to the spine. The pathologist's evidence was that nothing less than severe force must have been used to inflict that injury. There were other serious wounds to the face, one of which penetrated the mouth and caused Margaret Pawluk to choke on her own blood.
10.
Summarising the pathological evidence the learned judge (at page 4F of his sentencing remarks) said this:
"Throughout, she was unable to move much, if at all, save for her hands to try to defend herself, as it appears that you were positioned or stood over her on the floor, you having forced her to the floor, before inflicting such a vicious, fatal attack. Margaret did not die immediately but quickly after the attack had ended, the cause of death being the stab wounds to her neck. As she lay dying, you did nothing to try to save her. You summoned no help for her, and instead you took items of jewellery from her body and then stayed in the house looking for ways to self-harm, possibly trying to comprehend the enormity of what you had just done."
11.
It is apparent, as the judge there indicated, that the appellant did, in the immediate aftermath of the murder, make serious attempts to end his own life in a variety of ways. He did so both in the home and elsewhere. In particular, at some point, he drove from the house in his car and attempted to gas himself using the exhaust fumes of the car. These various attempts resulted in injury to the appellant, such that, upon his arrest, he was assessed as unfit for interview - a situation which continued for the best part of 3 weeks. It is however relevant to note that, at some stage whilst in the house after the murder, the appellant had changed his clothing and sent a text message to a regular customer to say that he would not be able to pick her up at the usual time the following morning.
12.
It seems that, at some point, the appellant returned to the house the items of jewellery which he had taken from the deceased. He did not however do anything to move the body of Margaret Pawluk or to report the murder until the morning of the 12 April, when he went to a local police station and said that he had killed his wife.
13.
In interview, he admitted what he had done, within the limits of what he said he could remember, but he also sought to cast some of the blame for their arguing on Margaret Pawluk. He was asked about a series of six calls which he had made to his wife's phone in the space of about half-an-hour, shortly before she returned to the house on the night of her death. He denied that these were calls made because he was angry with her; he said that he was simply wondering why she was late back. He claimed, contrary to the evidence of others who knew Margaret Pawluk, that she was a heavy drinker and would suffer mood swings which he could not deal with.
14.
At the sentencing hearing the judge had the assistance of two psychiatric reports. He accepted, from the more favourable of those reports, that the refusal of Margaret Pawluk, to continue her agreement to the new home being conveyed into joint names, had led to the appellant feeling low and less appreciated than he might otherwise have been. At page 3A of his sentencing remarks the judge said:
15.
"This, coupled with your gambling difficulties and occasional heavy drinking of alcohol to excess, it seems, resulted in you enduring a mild reoccurrence, in March or April of this year, of a depressive illness that you have apparently been prone to at various points of your life, especially when having suffered loss, particularly emotional loss."
The judge noted however, that both of the psychiatric reports discounted any mental health reason for the acts which the appellant had carried out.
16.
Given the detailed contents of the psychiatric reports, no pre-sentence report was thought to be necessary and none is necessary now. The judge referred to the victim personal statement which had been written by Margaret Pawluk's daughter. Each member of this court has read with sympathy that very clear account of the impact of the murder on the family and friends of Margaret Pawluk, who was clearly much loved and is greatly missed.
17.
The judge aptly summarised the murder as a savage attack on a defenceless woman in her own home. He was satisfied that the appellant had intended to kill rather than to cause serious bodily harm. He explained, in his careful sentencing remarks, that the sentence for murder was fixed by law and must be a sentence of life imprisonment. He took care to explain the practical effect of such a sentence. He referred to the provisions of
schedule 21 to the Criminal Justice Act 2003
and agreed with the submissions of both counsel that the appropriate starting point, in accordance with that schedule, was one of 15 years. In doing so, he accepted that this was neither a case in which the murder weapon was taken to the scene, nor a case of murder committed for financial gain. He emphasised however, that in assessing the appropriate minimum
term, he viewed the use of one or more knives as a very grave aggravating feature of the crime. He continued, at page 6A:
18.
"I also view the following as aggravating features. Firstly, you did nothing to summon help or assistance at any time for your victim, you simply left her lying in situ for the police to find many hours later, admittedly after you had handed yourself in to the police and provided them with a key to gain access to your home. Secondly, this is an offence of domestic violence which, in itself, is an aggravating feature. Thirdly, the offence was committed by you whilst in drink, towards a defenceless woman in her own home.
I do not view your previous convictions as an aggravating feature in this case. You have previous convictions but, in fairness to you, they are of some antiquity and are mainly for dishonesty and can thus have, in my judgment, little impact upon the sentence I am to impose upon you.
By way of mitigation, I apply the following: I accept that you have expressed remorse; there is, I accept, a lack of premeditation here; there is some limited mitigation arising from the fact that at the time you are suffering from what Dr Crawford calls 'a mild depressive state.'"
19.
The judge went on to say that he would allow the maximum permissible credit for the guilty plea, which in the circumstances was one-sixth. He accepted that the appellant had surrendered to the police voluntarily, had accepted responsibility for the killing from the outset and had made admissions in interview. The judge also accepted that there was mitigation available in the bundle of references and testimonials from persons who know the appellant well, who spoke highly of his helpfulness and of the absence of any violence on his part in the past.
20.
It is apparent also from that bundle of documents, which each member of this court has read, that the appellant has made conspicuously good use of his time in prison and has helped other prisoners in various ways, including by helping to calm down prisoners who, for one reason or another, have become agitated.
21.
The judge concluded, balancing the aggravating and mitigating features of the case, that the appropriate minimum term, after a contested trial, would be one of 20 years. Making the appropriate reduction for the guilty plea, he imposed the minimum term to which we have referred.
22.
On behalf of the appellant Mr Vardon, in well-focused oral submissions, submits that the minimum term is manifestly excessive. He relies on the matters of mitigation which were specifically mentioned by the judge. He points to and emphasises other features of mitigation. There is here, he submits, genuine remorse, as particularly evidenced by what the appellant said to the police in interview and by his determined, though unsuccessful, attempts to end his own life shortly after killing his wife. Mr Vardon also points to the frank confession made to the police, to the judge's finding that there had been a lack of premeditation, and to what Mr Vardon understandably describes as being a loss of control in reality, though not a loss of control in the technical sense appropriate when considering the partial defence to murder. The appellant, now 59 years old, has a history of good employment over many years. He was for many years happily married to his first wife and has shown no history of domestic violence at any point. Mr Vardon also draws to our attention, in his written submissions, indications that the appellant may pose a suicide risk in prison and he points to the fact that the appellant, whose modest record of previous convictions has been sufficiently mentioned, has never before received a custodial sentence. His core submission, in writing, was that the judge was wrong to increase the starting point of 15 years by as much as he did because there was no basis for doing so. In this regard, Mr Vardon asked rhetorically in his written submissions, what the minimum term would have been in the absence of any mitigation. In his oral submissions, he argues that the minimum term was manifestly excessive and that when appropriate weight is given to the particular factual features of this case, a shorter term was appropriate.
23.
The respondent has provided a respondent's notice. This included reference to a number of previous decisions of this court, but each of those decisions was fact-specific and provides little assistance for the present case. In brief oral submissions Mr O'Byrne QC has underlined features of the case which, he submits, entirely justified the judge's conclusion.
24.
We have reflected on these submissions, mindful of the importance of this case to all concerned.
25.
The judge was plainly correct to take the starting point of 15 years for the minimum term in accordance with the relevant provisions of
schedule 21
to
the 2003 Act
. But he was equally plainly correct to increase that starting point substantially to reflect the many aggravating features which he correctly identified and which, in our view, very substantially outweighed the mitigating factors to which Mr Vardon has rightly drawn our attention. The timing and manner of the appellant's confrontation of the deceased as soon as she entered her home shows that he was determined to argue with her about her entirely understandable decision not to put their proposed new bungalow into joint names. He either already was, or very quickly became, so angry that, as the judge found, he intended to kill her. The use of one or more knives was indeed a grave aggravating feature, in itself calling for a substantial increase above the starting point. The appellant attacked the deceased when she was on the floor and helpless. The number and location of the wounds and the defensive injuries to her hands show that the attack was prolonged over a period of time. It may not have been a long period in terms of minutes but Margaret Pawluk must have been terrified and in severe pain as she died. Far from trying to help her or to call an ambulance as she was dying, the appellant took her rings from her fingers and thereafter left the body in the house for two days before informing the police of what he had done. It is to his credit that he did eventually go to the police and admit the killing, but we do not think it can be said that he had shown immediate remorse for everything that he had done. His account of the events in police interview in which, as we have said, he claimed to have been wondering why his wife was late home, rather than angry with her, and tried to put forward at least a partial excuse for his attack upon her, fell well short of a frank confession to which significant weight could be given.
26.
The personal mitigation to which the judge referred, though undoubted, could carry only comparatively limited weight in the circumstances of this murder. Neither the fact that the appellant is now aged 59, nor the suggestion that a long minimum term might lead him to attempt suicide, could provide any compelling reason for reducing the minimum term which was otherwise appropriate. The judge clearly took into account the mitigation available to the appellant. We agree with Mr Vardon's analysis that the judge must therefore have reached, upon consideration of all the aggravating features, a minimum term in excess of 20 years before reducing that to 20 years to reflect the mitigation. We have no doubt however that the judge was justified in concluding that there must be such a substantial increase above the starting point.
27.
Having balanced all aggravating and mitigating features and properly taking into account the limited mitigation which was available to the appellant, the judge's decision that the appropriate minimum term, after trial, would be one of 20 years was, in our view, within the range properly open to him. He allowed maximum credit for the guilty plea.
28.
In all those circumstances, the minimum term, in our judgment, was not manifestly excessive in length. Grateful though we are for the way in which Mr Vardon has presented his submissions, this appeal accordingly fails and is dismissed.
29.
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
30.
Tel No: 020 7404 1400
Email: [email protected]
|
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|
Case No:
200700085 B1
Neutral Citation Number:
[2007] EWCA Crim 2140
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 31 July 2007
B e f o r e
:
LORD JUSTICE HUGHES
MR JUSTICE UNDERHILL
RECORDER OF HULL
(Sitting as a Judge of the Court of Appeal)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
JAMES PAUL SINGH
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
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 L MARKLEW
appeared on behalf of the
Appellant
MR S CRAWFORD
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE HUGHES: This appeal is directed to the direction which was given to the jury in a case in which the defendant's bad character was admitted by the trial judge, pursuant to
section 101(1)(g)
of the
Criminal Justice Act 2003
, on the grounds that he had made an attack on another person's character.
2.
The appellant was charged with robbery. There was a second charge of assault on the same victim about a month afterwards. The defendant and the victim lived in the same large block of flats. According to the victim the appellant, whom he did not know, had waylaid him in the lift, pressed a knife to his neck and, assisted by another youth who was neither identified nor caught, had taken his money and his phone from his pocket, together with a gold chain from round his neck. The victim could not tell the police who it was who had done it. However, according to him he subsequently saw the appellant in the area of the flats. Eventually, about a month later, there was the further incident in which, according to the victim's account, he was pushed at, threatened and spat upon. Immediately after that he was able to get the police to go to a flat which he believed he had seen his assailant enter and there on the stairwell outside it the police found and arrested the appellant.
3.
When he was interviewed the following morning the appellant said that he did not know the complainant and he had never had anything to do with him. He suggested it was probably a case of mistaken identity. He said that he would have been either at his parents' home or at the bookmakers at the relevant time. There followed that afternoon a video identification procedure for the complainant. The complainant identified the appellant as the person responsible for both attacks upon him.
4.
At the trial the appellant's case was different to the one that he had advanced in interview. He said now that he did know the complainant, at least to this extent. On the occasion of the alleged robbery he, the appellant, had been with some friends. They had been approached by the complainant and his girlfriend. The complainant had asked the appellant and his friends if they had any crack cocaine to sell. That having drawn a blank, the complaint had successfully gone off and found a supplier of such drugs nearby. Having done that, said the appellant, the complainant had invited the appellant back to his flat to "chill out". As a result he and his two friends had spent three or four hours that afternoon drinking and smoking in the complainant's flat. The complainant had been smoking the crack which he had bought. There had been no robbery. What had happened, according to the appellant, was that as they were leaving one of his friends had quite independently of him helped himself to the mobile phone and the chain which had been left lying about on an occasional table. The appellant contended that he had nothing whatever to do with that. The appellant accepted that he had lied in interview in saying that he did not know the complainant and he gave as a reason for that that he had been protecting the friend who had stolen the chain and, moreover, he had not wanted his girlfriend to know that he had spent the evening, among other things, smoking cannabis.
5.
As to the second assault the appellant's case was that it was pure invention and he had not seen the complaint at all on that day.
6.
That case was properly put to the complainant when the complainant gave evidence. The appellant was a man of bad character in that he had convictions for disorder, assaults on policemen, harassment, criminal damage and driving with excess alcohol. Those were offences committed over a period of about two-and-a-half years prior to the present allegations and within about three years or so of the trial.
7.
The Crown applied to adduce this evidence of bad character under
section 101(1)(g)
on the ground that the appellant had made an attack on the character of the complainant. On the appellant's behalf it was conceded that such an attack had been made and that accordingly the gateway was passed. The Recorder was, however, asked to exercise his discretion under section 101(3) not to admit the evidence. He rejected that submission. He concluded that the evidence would not have such an adverse effect upon the fairness of the proceedings that it should be excluded. He rightly observed that the case depended very largely on which of the complainant on the one hand and the appellant on the other was telling the truth. He went on, in giving his decision, to say this:
"This is a case where the credibility of the prosecution's principal witness is plainly to the fore. It is going to come down to whether the jury are sure that he has told the truth when he says that the defendant robbed him ... and assaulted him. ... or whether they think it is or may be true, as the defendant now says, that the phone was simply taken by somebody else and all this has been made up to cover up what has occurred.
Plainly, the questions which were put to the victim about his interest in obtaining crack cocaine and having earlier that day crack cocaine were put to undermine the credibility of the victim, and to cast doubt in the minds of the jury as to whether they should believe him, if he was the kind of person, as they suggest, who was interested in obtaining Class A drugs and had earlier that day bought them. For what other reason can those questions have been put?
It seems to me that to admit these convictions, as the prosecution ask me to permit, would not have such an adverse effect on the fairness of the proceedings that I ought not to admit it, so that the jury may know the character of the person on whose behalf allegations -- which were stoutly denied -- but allegations which were made against the victim, plainly with the intention of damaging him in the eyes of the jury; and accordingly I admit his bad character."
8.
Mr Marklew's principal argument in his original grounds on behalf of the appellant was to say that the discretion was wrongly exercised. Leave to argue that was refused by the single judge but in order to understand the submission in relation to the direction it is necessary to address the original submission, which was that the discretion was wrongly exercised for two reasons. First, it was said that it was wrongly exercised because the matters which were put in cross-examination were not gratuitous attacks on the complainant; rather, they were an integral part of the story which the defendant was advancing. Secondly, it was contended that the discretion was wrongly exercised because the convictions were not of a kind as to demonstrate either a propensity to offend as charged or a propensity to be untruthful. As we have said, the single judge refused leave on those points and Mr Marklew has not emphasised them in oral argument. We should, however, deal with them. As to the first of those arguments it may be relevant to the exercise of discretion if an attack on the complainant is an entirely gratuitous one. Gateway G is, however, not limited to such cases and the question is not relevant to whether the gateway is passed. The purpose of gateway G is to enable the jury to know from what sort of source allegations against a witness (especially a complainant but not only a complainant) have come. This court has said on more than one occasion that the new rules for the admission of bad character evidence do not mirror the former law and argument from the former law is usually unhelpful. We have, however, no doubt whatever that gateway G was formulated with the former law under the
Criminal Evidence Act 1898
in mind. It was well established then that the fact that an attack on a witness was necessarily involved in the case which the accused chose to make was no reason not to enable the jury to assess the reliability and the truthfulness of that case by seeing the full nature of the source from which the allegation comes. We are sure that the same approach is implicit in gateway G. That Mr Marklew was duty-bound to put the questions that he did to the complainant and that he did his duty once his instructions from the defendant were as they were is nothing to the point.
9.
As to the second argument, gateway G does not depend upon propensity to offend as charged or upon propensity to be untruthful in the sense of having a track record for untruthfulness. The purpose that it has is the one which we have identified. Of course it is well established that if a defendant's bad character admitted because gateway G has been passed does also go to show propensity to offend as charged or to be untruthful it is open to the jury to use it for the relevant purpose. For that see
R v Highton and Others
[2005] EWCA Crim 1985
;
[2006] 1 Crim App R 7
. That, however, is not this case and such has not been suggested. It does not, however, follow, that it is admissible only if it also shows one or other of those propensities. To say that would be tantamount to saying that evidence which is admissible through gateway G ought to be excluded as a matter of discretion unless it also passes gateway D. There is clearly no warrant in the statute for construing it in that way - just the reverse. The Act plainly demonstrates that the gateways are independent, although of course in some cases more than one of them may be passed. The argument which we are addressing would, if accepted, deprive gateway G of much of its application.
10.
The second argument was effectively encapsulated in the proposition that the appellant's convictions were irrelevant to his credibility. We do not think that they were. They may not have been such as to demonstrate a track record for untruthfulness. They would not have been independently admissible under gateway D if there had not been the attack on the credibility of the complainant that there was. But the attack on the complaint had been made. The relevance of the attack was that if it was true it provided a reason why the complainant should be disbelieved. When the jury was assessing the evidence of the two main parties to this trial it was judging the complainant's credibility against that of the accused. The attack having been made, it was entitled to have regard to the source from which came the accusations which might affect the jury's judgment of the complainant. It would be wholly artificial to say that this information about the appellant went to whether he was to be believed in what he said about the complainant being a user of crack cocaine and not to whether he was believed in what he said about how the complainant came to be parted from his chain and his mobile phone. We think that it is perfectly plain that, once admitted under gateway G, bad character evidence does go to the credibility of the witness in question. That accords with common experience. It is, among other things, the obverse of the reason why a defendant is entitled to plead his own good character in support of his claim that he should be believed. The reason why he is entitled to do that is because ordinary human experience is that people of proven respectability and good character are, other things being equal, more worthy of belief than those who are not. Conversely, persons of bad character may of course tell the truth and often do, but it is ordinary human experience that their word may be worth less than that of those who have led exemplary lives. Once gateway G is passed the consequence of the defendant's bad character falls to weighed with all the other evidence when the jury decides whether or not he has been proved to be guilty, and in doing so it may think him less worthy of belief because of his history. We ought to add that what is in issue here in relation to the exercise of discretion is of course whether this court should interfere with the judge's conclusion. This court will not interfere with the exercise of the judge's discretion under section 101(3) any more than it would under section 78 of the Police and Criminal Evidence Act or similar provisions unless the judge has either misdirected himself or had arrived at a conclusion which is outside the legitimate band of decisions available to him. There is not any question of either of those factors applying here. We ought to say that, like the single judge, we regard the Recorder's reasoning and decision as plainly right.
11.
With that background, the ground upon which leave was given relates to the direction given by the Recorder to the jury. What he told them was this:
"You've heard in this case ... that the defendant has a bad character, in the sense that he has a number of prior criminal convictions. It's important that you understand why you've heard that evidence and how you may use it. You must not convict him only because he has a bad character. You have heard of his bad character because the defendant, through his counsel ... in cross-examination, made an attack on the character of [the complaint], by putting to him (although of course he strongly denied all of it) that he had asked the defendant whether he could buy a Class A drug, crack cocaine, from him, and, further, that he had actually brought crack cocaine earlier that day.
[The complaint] said that he'd never bought or taken any drugs on 10th June. [He] said that he had never bought or taken any drugs on 10th June or any other day in his whole life. You now know that the defendant, on whose behalf those allegations were put to [the complaint] has a number of criminal convictions. ... If you think it right, you may take his bad character into account in deciding whether or not the defendant's evidence to you from the witness box was truthful. A person with a bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so. You may weigh his convictions in the balance in deciding whether you believe his evidence to you yesterday and first thing today. But it is for you to decide to what extent, if at all, his character helps you when judging his evidence.
Bear in mind, as I have said, that his bad character cannot by itself prove that he is guilty. It would therefore be wrong to jump to the conclusion that he is guilty just because he has a bad character. The defence point out that on all occasions in the past he has pleaded guilty, and incidentally, none of the offences of which he has previously been convicted are offences of dishonesty; but you may take them into account in the way that I've just described if you think it right; but it's a matter for you to judge."
12.
The single judge in giving leave to argue the ground of appeal relating to that direction expressed the view that the judge's decision to admit the evidence was plainly right, though on the face of it his direction does not make sense. Addressing that observation, Mr Marklew's principal submission is that the direction does not make sense because it is impossible to reconcile the Recorder's reasoning in admitting the evidence with any argument about its relevance. That, however, is a complaint about the admission of the evidence rather than about the direction to the jury. That amounts to saying that because the evidence ought not to have been before the jury at all, on the grounds that it was irrelevant to any issue, no sensible direction about its use could have been given.
13.
The single judge was, we think, concerned that this court should look at the fact that the jury was reminded that the appellant had always pleaded guilty and that his offences were not for dishonesty but were nevertheless told that his character could be taken into account when deciding whether his evidence was to be believed. For the reasons which we have already endeavoured to explain we do not think that it follows from the fact that the convictions were not for dishonesty and did not involve the giving of false evidence that they were therefore irrelevant to the credibility of the appellant. The Recorder, it seems to us, sufficiently and explicitly identified the purpose for which the evidence had been admitted. He told the jury precisely why they had heard about it, namely because of the attack upon the credibility of the complaint. We think that the Recorder was right to remind the jury that in mitigation of his bad character the defendant had shown that it had not included lying on his oath or the commission of offences involving the making of false statements. The defendant was, we think, entitled to have that made clear. However, for the reasons which we have endeavoured to explain, that did not mean that his credibility was not affected by his personal history which had been put in evidence.
14.
Mr Marklew realistically substantially accepts that proposition in accepting, as he does, that the bad character evidence went to the reliability, as he puts it, of the complainant. That is another way of saying that it went, at least on the facts of this case, to whether he was telling the truth or not.
15.
Today in oral argument, for the succinctness of which we are grateful, Mr Marklew has taken two additional points. He contends that whilst that is so, the Recorder in this instance did not sufficiently warn the jury against using the bad character evidence in a manner in which they ought not to use it. Says Mr Marklew, they should have been told in explicit terms that the evidence did not go to establish a propensity to untruthfulness and they should have been told in terms that the evidence did not go to establish a propensity to offend as charged. None of that had been raised either at the time of the summing-up or in the notice of appeal or until today, but if is right it is none the worse for that.
16.
However, on inspection we are satisfied that those are criticisms without foundation. The learned Recorder was at pains to explain to the jury why they had heard this evidence and accordingly the use that could be made of it. He undoubtedly did tell them -- and explicitly -- that the history did not include a track record for false statement. As to propensity to offend as charged, that had never been raised; but the judge nevertheless carefully warned the jury that his bad character could not by itself prove the appellant was guilty. It seems to us that the Recorder in this instance sufficiently in common sense terms demonstrated to the jury the reason why the character of the defendant was in issue and the purpose for which it could be used. In those circumstances this appeal must be dismissed.
|
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No:
2022/02272/B1
[2023] EWCA Crim 200
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 9
th
February 2023
B e f o r e:
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
(
Lord Justice Holroyde
)
MR JUSTICE COTTER
SIR NIGEL DAVIS
____________________
R E X
- v -
PHILIP BURDETT
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Mr G Ahmed
appeared on behalf of the Appellant
Mr T Cray KC
appeared on behalf of the Crown
____________________
J U D G M E N T
(
Approved
)
____________________
Thursday 9
th
February 2023
LORD JUSTICE HOLROYDE:
1.
On 29
th
April 2022, following a trial in the Crown Court at Leicester before Pepperall J and a jury, the appellant was convicted of the manslaughter by gross negligence of his sister Julie Burdett. On 30
th
June 2022, he was sentenced to three years' imprisonment.
2.
He appeals against that sentence by leave of the single judge.
3.
Julie Burdett was aged 61 at the time of her death in January 2019. The appellant was then aged 56. They lived with their father, then aged in his late 80s. It appears that they were a family of hoarders, and material conditions in the house were poor.
4.
Julie Burdett had the misfortune to suffer from a number of serious medical problems, including in particular a form of multiple sclerosis. She had become increasingly immobile, and for a number of years had rarely left the home. She was cared for by her father and brother. The appellant received carer’s allowance. All three had been badly affected by the circumstances in which the appellant's mother had died in hospital some years earlier, and Julie Burdett had made clear that she did not wish to be admitted to hospital.
5.
By the beginning of 2019, Julie Burdett was vulnerable and unable to care for herself. On 15
th
January 2019, an ambulance was called to the house. Julie Burdett's body was found on the floor of her bedroom. The bed itself was covered in clutter. She was lying in her own vomit, urine and faeces, and there was an overpowering smell in the house. Julie Burdett was severely emaciated; she weighed less than five stone. There were a number of ulcers on her body which had developed to such an extent that her flesh had been stripped away, exposing the spine and hip bone. An expert witness gave evidence that she had never seen such extensive pressure sores in over 40 years of experience. The wounds had become infected with MRSA, and osteomyelitis and sepsis had developed. Twelve Fentanyl patches, each containing a potentially fatal opioid dose, were found on her body.
6.
In interview, the appellant said that his sister had fallen about two weeks earlier. He had not been able to put her back on the bed, and had made her comfortable on the floor. He said that he had thought that she was getting better, and that he could not call for help because of her wish not to go to hospital.
7.
The indictment particularised the gross negligence as allowing Julie Burdett to become malnourished, failing to move her from the floor, failing to provide adequate cleaning of her bodily excretions, giving her excessive doses of painkillers, and failing to call for medical or other help.
8.
At the sentencing hearing the judge was assisted by a pre-sentence report and a psychiatric report. The experienced author of the pre-sentence report assessed the appellant as a man who struggled with the basic range of living skills. There were considerable deficits in his ability to look after himself, left alone to assume responsibility for others.
9.
The appellant had no previous convictions.
10.
The judge found that Julie Burdett had been on the bedroom floor for at least two weeks by the time of her death. He said that her pressure sores would have been excruciatingly painful, but that the Fentanyl overdose would have provided sedation and pain relief. He referred to the foul smells which must have been noticed, and the obvious deterioration in Julie Burdett as she lost all function.
11.
The judge found that as early as the first week when Julie Burdett was lying on the floor, there was an obvious, serious and foreseeable risk of death if she was not provided with proper care. There had been a window of days when her life might have been saved. The offending was accordingly committed over a number of days, rather than weeks. But there had been a failure to seek any help at all, or to provide even basic care. The judge said that it was therefore not a case of a short-term lapse in an otherwise satisfactory standard of care. The judge accepted, however, that it was not a case of callous disregard. The appellant had loved his sister, had promised her that he would not cause her to be admitted to hospital, had buried his head in the sand, and had clung to an unrealistic hope that she would somehow pull through. Further, the judge noted that the appellant had himself been unwell over the New Year period and had been "utterly out of his depth" when his sister was lying on the bedroom floor.
12.
The judge considered the Sentencing Council's definitive guideline for offences of gross negligence manslaughter and concluded that the case fell into the category of medium culpability, with a starting point of four years' custody, and a range from three to seven years. He took the starting point of four years. He accepted the submission of defence counsel that the offence was complete once death became inevitable, but held that it was nonetheless an aggravating feature that the appellant had taken no proper steps to provide care or to seek medical assistance as his sister had deteriorated and drifted in and out of consciousness.
13.
The judge identified a number of mitigating factors: the appellant had no previous convictions; he suffered from a recurrent depressive disorder and from agoraphobia; he was ill-equipped to deal with his sister's complex care needs; some three and a half years had passed since the death; and prison would be harder for the appellant than for many others.
14.
Balancing the aggravating and mitigating factors, the judge concluded that the appropriate sentence was three years' imprisonment.
15.
On behalf of the appellant, Mr Ahmed advances two grounds of appeal, with emphasis on the first. His first ground of appeal is that the judge fell into error in categorising the offence under the guideline. The second ground is that the judge was wrong to treat as an aggravating factor the failure to provide any proper care during the period after death had become inevitable.
16.
As to the first of those grounds, the judge accepted that the case did not fall into higher culpability. Mr Ahmed submits, looking at the guideline, that two of the three factors indicating lower culpability were present, namely: a lapse in an otherwise satisfactory standard of care; and a substantial reduction in responsibility, due to mental disorder. From that basis, he argues that the judge was wrong to treat this as a case where the appellant's culpability fell between the factors described as high and lower culpability. He should, argues Mr Ahmed, have found the case to be one of lower culpability, with a starting point of two years' custody and a range from one to four years.
17.
As to the second ground, Mr Ahmed submits that the judge had accepted that the offence was complete when death became inevitable, which was in the early stages of the period when Julie Burdett was lying on the bedroom floor. He argues that care or lack of care thereafter could not be relevant to aggravate the offence.
18.
Pulling the threads together, Mr Ahmed refers to the mitigating factors found by the judge, and places emphasis also on the consequences of the appellant's imprisonment for his father, now aged in his 90s and previously reliant to a considerable extent on his son's care. Overall, Mr Ahmed submits that the length of sentence should have been such as to make suspension of the custodial term possible, and that the judge should have found there were valid factors in favour of suspension.
19.
Mr Cray KC, who has kindly attended today to assist the court, points out that the judge had had the advantage of hearing all the evidence during the trial and, having considered all the arguments such as have been put before this court by Mr Ahmed, the judge concluded that the failure of care was more than a lapse.
20.
We are grateful to both counsel.
21.
The judge was faced with a difficult sentencing process. He had the advantage that he had presided over a trial which had lasted several weeks, and was therefore in the best position to assess the appellant's culpability. We cannot accept the submission that the judge was wrong to place the offence into the guideline category of medium culpability. Julie Burdett was lying on the bedroom floor for a number of days before death became inevitable. She was left there in the most appalling circumstances, with the excruciating pain which her ulcers would have caused, alleviated only by the overdose of Fentanyl patches. In those circumstances there can be no criticism of the judge's conclusion that this was not a lapse in an otherwise satisfactory standard of care. As each day went by, and Julie Burdett deteriorated yet further, the appellant had not taken even basic steps to discharge his duty of care towards her. It seems to us that this was not a lapse in what had previously been loving care; it was an abandonment of it. The judge was accordingly entitled to reject a submission that the negligent conduct was a lapse of the kind indicative of lower culpability.
22.
Given that the appellant had cared satisfactorily for his sister over a number of years previously, despite his own health problems and inadequacies, the judge was entitled to conclude that there was no substantial reduction in the appellant's responsibility by reason of mental disorder. It is accepted by Mr Ahmed that the third factor listed in the guideline as indicating lower culpability was not present.
23.
It follows that, in our view, none of three factors in that lower category was present. The judge was accordingly correct to assess the appellant's culpability as falling between the factors described in high and lower culpability.
24.
We are also unable to accept the second ground of appeal. Although the conduct causing death was complete in law in the early stages of the relevant period, it does not follow that nothing which happened in the remaining days of Julie Burdett's life, and before the offence was completed by her death, could constitute an aggravating factor. Basic steps could have been taken to make her more comfortable, to cleanse her, and to lessen the indignity of her position as she lay dying on the bedroom floor. The flaw in Mr Ahmed's submission, with respect, is the assumption that the days which elapsed between death becoming inevitable, and death occurring, are irrelevant either to aggravation or to mitigation of the offence.
25.
We are therefore satisfied that the judge did not fall into error. Having taken the appropriate guideline starting point, he balanced the relevant factors, rightly concluded that the mitigation outweighed the aggravating factors, and accordingly made a significant reduction from the starting point to three years' imprisonment.
26.
We recognise, of course, that the sentence is a very difficult one for the appellant, and will be difficult also for his father. We are not, however, persuaded that the sentence was either wrong in principle or manifestly excessive.
27.
Accordingly, grateful though we are to Mr Ahmed for his submissions, the appeal fails and is dismissed.
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|
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|
No:
200702296 B2
Neutral Citation Number:
[2007] EWCA Crim 3027
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 20 November 2007
B e f o r e
:
LORD JUSTICE KEENE
MR JUSTICE OPENSHAW
MR JUSTICE IRWIN
- - - - - - - - - - - - - -
R E G I N A
v
PETER JAMES KNIGHT
- - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
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MR K SIVA
appeared on behalf of the
Appellant
MISS K BRUNNER
appeared on behalf of the
Crown
- - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE KEENE: I will ask Irwin J to give the judgment of the court.
2.
MR JUSTICE IRWIN: On 6 March 2007, at the Crown Court at Gloucester at a trial in front of HHJ Picton, this appellant was convicted of three counts of gross indecency of a child and three counts of rape of a female under 16, contrary to the 1956 Act. He had earlier pleaded guilty to making an indecent photograph of a child, a count not relevant to this appeal.
3.
On 26 March 2007, he was sentenced to 10 years' imprisonment on counts 2, 4 and 8, that is to say, the rape of a female under 16, and three years' imprisonment on counts 1, 3 and 7, that is to say, the gross indecency with a child count, and 18 months' imprisonment on Count 9, the photograph count, all to run concurrently. It is right to say he was acquitted of five further counts of a rape of a female under the age of 16. He appeals against his convictions on all counts, but for the photograph count, by leave of the Single Judge.
4.
The facts can be summarised as follows: the appellant met the complainant through his estranged wife in the latter part of 2002 when she was 14 and they formed a kind of relationship. The complainant alleged that this relationship was of a sexual nature which began with kissing, before proceeding to consensual sexual intercourse in February 2003 when she was not yet 15 years of age. She alleged between then and November 2004 there were a series of incidents of sadomasochistic sexual activity between her and the complainant, including penetration of the mouth and vagina without her consent. The complainant turned 16 in March 2004.
5.
In early 2004 the complainant was sent by her mother to live with her aunt and uncle in Scotland, where she was to stay until at least her 16th birthday. While she was there her aunt, Isabel Johncock, read extracts from the complainant's personal diary which contained references to her relationship with the appellant.
6.
The account given by the complainant was denied by the appellant. It was accept that the complainant did visit him at his flat and that they had consensual sexual intercourse together in August 2006 after her 16th birthday. They saw each other again in 2005, but without sexual activity. The complainant first contacted the police with these allegations in October 2005 and the appellant was subsequently arrested.
7.
The prosecution case on counts 1, 3 and 7 was that the appellant made the complainant engage in oral sex with him whilst she was below 16 years of age and counts 2, 4 and 8 was that he forcibly penetrated the complainant's vagina without consent.
8.
The defence case was straightforward. It was that there was no sexual activity with the complainant before her 16th birthday.
9.
The complainant gave evidence in the trial. The detail of her evidence is not necessary to recite. She gave evidence which supported the allegations in counts 1, 2, 3, 4,7 and 8, which were appealed, and specifically gave evidence of sexual activity before her 16th birthday. We accept all these counts relate to that period. It will be clear therefore that the evidence of the complainant incorporated acts of both consensual sexual intercourse, although she was too young to give proper consent, and matters which took place against her will.
10.
When cross-examined she had put to her properly a number of alleged and factual inconsistencies between her statements to the police and her evidence in court. She confirmed that her evidence in court was correct, although of course that was in issue, as was her credibility. She had had a troubled background, which is why she had been sent to her aunt in Scotland and why the episode of the diary came about, which forms the basis of this appeal. It is necessary to consider this in a little more detail.
11.
When he gave his ruling on the matter, the learned judge summarised the facts as follows:
"Mrs Johncock says this. Having found the diary when [F] was out, she says 'I cannot remember exactly what I read and I didn't read every page. She had written about Pete, that she would do anything to please him, even though some stuff had hurt. He had made her feel good. She didn't like clothes pegs being used but would do anything to keep him. He had been with someone else who was young, but although he had left this girl when pregnant that wouldn't happen to [F] if she pleased him enough. There was also mention of her feelings towards her family and us [that is to say the aunt and uncle] for keeping her from her friends; none of it complimentary. She felt that when she was 16 we wouldn't be able to keep her and she would return to her old life. Some entries describe what he had said when phoning her while she was with us. I can't remember exactly what, but it seems she was confused about his feelings for her."
She then went on to say:
"I did confront her about what was in her diary. We discussed if someone does things that hurt you physically, it can't be love. She was angry that I had read her diary, and after that she burned it and other letters."
That is the end of the quotation from the Judge's ruling.
12.
The appellant advances the complaint about the admission of this evidence on three grounds. Firstly, that the judge should not have admitted the evidence of the content of the complainant's diary as recalled by Isabel Johncock at all. Secondly, that even if admissible in principle, that evidence should have been excluded as being unfair, pursuant to section 78 of the Police and Criminal Evidence Act 1978. Thirdly, that once admitted, and if admitted, the summing-up did not deal with how the jury should approach it fairly or adequately.
13.
We address those points in turn. The Crown submitted to the judge, and in writing to us, that this evidence is not hearsay evidence, but direct evidence. They rely on the provisions of
section 115 of the Criminal Justice Act 2003
and on the analysis of this court in the case of
N
[2006] EWCA Crim 3309
.
Section 115
sets out, in effect, a definition of evidence capable of being hearsay evidence, to which the provisions of Part 2, Chapter 2 of
the 2003 Act
applies. The section reads:
"(1) In this Chapter references to a statement or to a matter stated are to be read as follows.
(2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.
(3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been-
(a) to cause another person to believe the matter, or
(b) to cause another person to act or a machine to operate on the basis that the matter is as stated."
This section was interpreted in
N
, a case which also concerned a diary made out by a young complainant in a case of underage sexual activity. In that case the complainant's diary was still extant and extracts were introduced into evidence as the basis for suggesting that they were inconsistent with the complainant's evidence. The Crown then in that case sought to rely on the diary extracts as evidence of the truth of their content, pursuant to section 120 of the Act, and the judge ruled in favour of the Crown.
14.
When the matter was heard on appeal, McCombe J, giving the judgment of the court dealt with the arguments on appeal as follows, beginning at paragraph 15:
"The argument adduced by the Appellant is straightforward. It is this. The diary was compiled on the basis that no one but L would see it. [L being the complainant] Therefore, the purpose of the statements were not 'to cause another person to believe the matter' contained in it within the meaning of s 115(3(a) of the Act. On the contrary, its purpose was L's use alone."
The judge went on to say:
"[16] To our mind it would be a very strange state of the law if a Defendant could introduce a diary such as this on the basis that it is an inconsistent statement, but yet it remained outside the provisions made by Ch 2 of the Act for the regulation of the admission of statements other than those made in court. Nevertheless, if that is the conclusion which the statute compels, we must give effect to it. In our judgment the fallacy in this argument is the underlying assumption that if the diary is not admissible hearsay, it cannot be admissible at all. The rule against hearsay is, was and always has been an exclusionary rule. That is to say, it operates to render inadmissible what would otherwise be relevant and thus admissible. The rationale has always been that assertions out of court may be false either because they are untruthful or because innocently inaccurate, and, unlike sworn testimony, those possibilities cannot be rectified by being tested in examination and cross-examination."
McCombe J then continues at paragraph 21 as follows:
"If, as the Appellant contends, the diary was never intended to be read by anyone, it was not hearsay because it did not fall within s 115. But that does not mean it is not admissible. On the contrary, if relevant it is admissible. It is real or direct evidence outside the hearsay rule. The statutory restrictions upon the admissibility of hearsay have no occasion to apply to an action by the Complainant which never had as its purpose, principal or supplementary, that any other person should believe or act upon it."
15.
Against that legal background we return to the facts of this appeal. The unchallenged facts here are that the complainant's diary was seen by her aunt, that her aunt raised the contents with her, that she was angry with her aunt and then destroyed the diary. Those facts seem to us to point directly to the conclusion that the diary was meant to be secret and was not written for others. The judge made this point in the course of his summing-up to the jury. He said this:
"This is evidence of some potential importance if you accept that [F] wrote the diary in the terms that she and her aunt describe that she did. It would seem that she did so never intending that anyone should read it and a very long time before she made any complaint to the police about that which she says the defendant did to her."
16.
She described the contents of the diary in this case, at page 21 of the summing-up as follows:
"[F] said that in the diary she had recorded some of what had gone on between herself and the defendant and the feelings towards him. Mrs Johncock gave evidence to you about what she read in the diary and the nature of the advice she gave to [F] as a result."
At letter E:
"And Mrs Johncock said this, 'There was an obvious relationship that had been going on between herself and Pete. Some of it I found quite disturbing. I cannot remember the exact words. There were things about things that had happened, that had happened to her that had hurt her physically. There was something about clothes pegs being used and things that hurt, that she had not done it much so if she kept on it would get easier. She indicated that she would do anything to keep him."
17.
Thus at trial the complainant did say, at least in general terms, that the diary entries had been true and it was suggested to her that they were untrue. What was not explored with her, and this is, in our judgment, of significance, was the question of whether the diary was written, even potentially, for reading by anyone else. Counsel has been frank in telling us that he did not begin that exploration or make that suggestion.
18.
It is suggested now by the appellant that this diary might have been intended to be read by a fellow teenager, to attract sympathy or admiration, or to excite interest. It appears to us that runs contrary to the evidence before the court and was not explored as a proposition. Thus it appears to us that this diary clearly fulfils the test on the evidence as presupposed by the terms of
section 115
, or as applied in
N
. This diary was not a hearsay statement. It was not written for others. There is no evidence to run counter to that. Therefore, it forms direct evidence of the contents of the test.
19.
It follows from that conclusion that an account of those contents coming from Mrs Johncock cannot be double hearsay as suggested by the appellant. Indeed, it is not hearsay at all. If Mrs Johncock had described what the complainant said to her, that would be single hearsay because the complainant would be making a representation of fact to her within the meaning of
section 115
. But the very point of the decision in
N
and the terms of
section 115
, namely that the diary entries are not representations but direct evidence, is that Mrs Johncock's account of that direct evidence is to be thought of as parallel to observing someone fleeing, or lashing out in reaction, or being in an embrace with someone, or blushing at a significant moment: an account of direct evidence by an observer explaining the reactions of the observed person. Properly analysed this evidence is neither single nor double hearsay and it is admissible.
20.
The next point taken is that it should have been excluded under section 78. As counsel has frankly acknowledged in the course of the hearing, it is rare that the court will wish to interfere with the exercise of discretion under section 78 by the trial judge. In essence, three points are advanced. Firstly, that the account of the text was imprecise and therefore unreliable, and that it was difficult to test in cross-examination because inconsistencies within the text itself could not be explored, and that it was evidence of potential importance.
21.
In our judgment there is nothing in any of these arguments. The evidence was imprecise, but its impact was general. It was that there had been inappropriate sexual activity before the complainant's 16th birthday. It could not be relied on by the Crown to co-operate detail of allegations precisely because the diary was absent and the detailed text was not available, but that cut two ways. It was perfectly possible, in our judgment, to test the evidence both of Mrs Johncock and of the complainant as to what they were saying about the diary. The evidence was general. Their evidence could be tested as to that general import of the content of the diary.
22.
Of course it was of potential importance, but so is much other evidence which has to deal with remembering events from a considerable period before, particularly in cases of this nature. The jury could perfectly well assess both the complainant and Mrs Johncock as to their accuracy and veracity. In our judgment there was nothing to mean that the learned judge should have excluded this evidence under section 78.
23.
The third ground of complaint is that the summing-up did not deal with this matter properly to the jury. In short, this has not been pressed by counsel in the course of the hearing and in our judgment there is nothing in the complaint. At page 23, letters G to D the learned judge dealt with it perfectly properly, warning the jury that Mrs Johncock had to try and recall things she had read before she came to make her statement and that this all dealt with events some considerable period before the trial. In our judgment that was a perfectly adequate approach to dealing with this evidence before the jury.
24.
For all these reasons, this appeal is dismissed. Thank you very much.
|
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|
Neutral Citation Number:
[2020] EWCA Crim 673
No: 201901991/A4, 201901915/A3 & 201901227/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday 21 May 2020
B e f o r e:
LORD JUSTICE HOLROYDE
MRS JUSTICE ANDREWS DBE
MR JUSTICE MARTIN SPENCER
R E G I N A
v
PETER ASHFORD
R E G I N A
v
STEPHEN KING
R E G I N A
v
TOBY ROGERS
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22
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Miss K Walton
appeared on behalf of the
Applicants King and Rogers (via videolink)
Mr S Dyble
appeared on behalf of the
Applicant Ashford
(
via video link
)
Mr P Grieves-Smith
appeared on behalf of the
Crown
(
via videolink
)
J U D G M E N T
(Approved)
1.
LORD JUSTICE HOLROYDE: Breach of a sexual harm prevention order ("SHPO") or a sexual offences prevention order ("SOPO") is an offence punishable with imprisonment. It is not however an offence listed in either schedule 3 (sexual offences) or schedule 5 (other offences) to the Sexual Offences Act 2003. A court dealing with an offender for breach of an SHPO or SOPO therefore does not have the power to make a new SHPO. The consequences of that limitation upon the court's powers, and the scope of the court's power to vary an existing SHPO, arise for consideration in each of these three cases. It is for that reason that, although otherwise unconnected, they have been listed for hearing together.
2.
We express at the outset our gratitude to all counsel for their written and oral submissions.
3.
Peter Ashford, now aged 67, was sentenced on 14 May 2019, in the Crown Court at Ipswich to a total of six years' imprisonment for two offences of breach of a SOPO and three offences of breach of a SHPO. He was also made subject to a SHPO. His grounds of appeal challenge the length of his prison sentence and the lawfulness of the SHPO. His application for leave to appeal against sentence has been referred to the full court by the Registrar.
4.
Stephen King, now aged 70, was sentenced on 24 April 2019 in the Crown Court at Croydon to 14 months' imprisonment for one offence of breach of an SHPO. He was also made subject to an SHPO. His grounds of appeal challenge the lawfulness of that order. His application for leave to appeal against sentence has been referred to the full court by the Registrar.
5.
Toby Rogers, now aged 26, was sentenced on 4 March 2019 in the Crown Court at Warwick, to a total of three years' imprisonment for one offence of breach of a SHPO and one offence of failing to comply with notification requirements. The judge also ordered that an existing SHPO of five years' duration be extended by 10 years from the date of sentence. His original grounds of appeal challenged the extent of the credit he received for guilty pleas. Leave to appeal was refused by the Single Judge. He now seeks leave to renew his application for leave to appeal on the basis of fresh grounds of appeal which challenge the lawfulness of the extension of the SHPO.
6.
Before going into more detail about the individual applications, it is convenient first to set the statutory framework and then to make some general observations.
7.
Provision is made in respect of SHPOs by sections 103A – 103K of the Sexual Offences Act 2003, which replaced (with effect from 8 March 2015) earlier provisions relating to SOPOs.
8.
Section 103A(1) and (2), so far as material for present purposes, give a court the power to make an SHPO where it "deals with" a defendant for an offence listed in schedule 3 or schedule 5 and is satisfied that it is necessary to make an SHPO for the purpose of protecting the public or any particular members of the public from sexual harm from the defendant. As we have indicated, the offence of breach of an SHPO is not included in either schedule. That fact was overlooked in each of these three cases and, we understand, has been overlooked in other cases as well. Perhaps that is because many would assume that the offence of breach ought to be, and therefore is, included when in fact it is not. That, however, is a matter for Parliament.
9.
There is a separate power under subsections (3)-(7) for a magistrates' court, on application by a chief officer of police or by the Director General of the National Crime Agency, to make an SHPO against a "qualifying offender" who has "acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made". Where an application under subsection (4) has been made but has not yet been determined, section 103F gives the court a power to make an interim SHPO for a fixed period specified in the order.
10.
By section 103C, an SHPO prohibits the defendant from doing anything described in the order. It has effect for a fixed period specified in the order of at least five years, or until further order. Subsection (6) provides:
i.
"(6) Where a court makes a sexual harm prevention order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect."
11.
It is necessary to quote in full the provisions of section 103E:
i.
"
103E SHPOs: variations, renewals and discharges
(2)
A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual harm prevention order.
(3)
The persons are—
(a)
the defendant;
(b)
the chief officer of police for the area in which the defendant resides;
(c)
a chief officer of police who believes that the defendant is in, or is intending to come to, that officer's police area;
(d)
where the order was made on an application by a chief officer of police under section 103A(4), that officer.
(4)
An application under subsection (1) may be made—
(a)
where the appropriate court is the Crown Court, in accordance with rules of court;
(b)
in any other case, by complaint.
(5)
Subject to subsections (5) and (7), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the sexual harm prevention order, that the court considers appropriate.
(6)
An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of —
(a)
protecting the public or any particular members of the public from sexual harm from the defendant, or
(b)
protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.
ii.
Any renewed or varied order may contain only such prohibitions as are necessary for this purpose.
(7)
In subsection (5), 'the public', 'sexual harm, 'child' and 'vulnerable adult' each has the meaning given in section 103B(1).
(8)
The court must not discharge an order before the end of 5 years beginning with the day on which the order was made, without the consent of the defendant and—
(a)
where the application is made by a chief officer of police, that chief officer, or
(b)
in any other case, the chief officer of police for the area in which the defendant resides.
(9)
Subsection (7) does not apply to an order containing a prohibition on
foreign travel and no other prohibitions.
(10)
In this section, 'the appropriate court' means –
(a)
where the Crown Court or the Court of Appeal made the sexual harm prevention order, the Crown Court;
(b)
where an adult magistrates' court made the order, that court, an adult magistrates' court for the area in which the defendant resides or, where the application is made by a chief officer of police, any adult magistrates' court acting for a local justice area that includes any part of the chief officer's police area;
(c)
where a youth court made the order and the defendant is under the age of 18, that court, a youth court for the area in which the defendant resides or, where the application is made by a chief officer of police, any youth court acting for a local justice area that includes any part of the chief officer's police area;
(d)
where a youth court made the order and the defendant is aged 18 or over, an adult magistrates' court for the area in which the defendant resides or, where the application is made by a chief officer of police, any adult magistrates court acting for a local justice area that includes any part of the chief officer's police area.
ii.
In this subsection ‘adult magistrates' court' means a magistrates' court that is not a youth court."
12.
Section 103I, so far as material for present purposes, makes it an offence for a person, without reasonable excuse, to do anything which he is prohibited from doing by an SHPO, an interim SHPO or an SOPO. A defendant guilty of such an offence is liable on summary conviction to imprisonment for a term not exceeding six months and/or a fine and, on conviction on indictment, to imprisonment for a term not exceeding five years.
13.
As we have noted, this offence of breach of an SHPO, etc, is not one of the offences listed in schedules 3 and 5 to the Act. There is therefore no power to make a fresh SHPO where a court is dealing with a defendant solely in respect of an offence of breach of an SHPO, etc, or in respect of an offence of breach and another offence or offences, none of which are listed in schedules 3 and 5. In
R v Hamer
[2017] EWCA Crim 192
,
[2017] 2 Cr App R 13
this court confirmed that that was so, and went on to consider whether the same prohibitions could have been imposed by amending the existing SOPO. The then provisions of section 108 of the 2003 Act made provision for variation of SOPOs in terms which are materially identical to the present section 103E. It was held that there
had been no valid application complying with the requirement that the application be made by a chief officer of police. There was, therefore, no power to vary the existing order.
14.
It may be noted that in
R v Hamer
there had been other procedural deficiencies, including a failure to give the defendant notice of an application to amend the existing SOPO: rule 31.5 of the Criminal Procedure Rules, applicable both to magistrates' courts and to the Crown Court, requires service of a written application, and the application cannot be granted unless the persons required to be served have had at least 14 days in which to make representations. In view of its decision that the application had not been made by a person entitled to apply, the court did not need to reach any conclusion about those other deficiencies. It is not clear from the judgment whether any point was taken as to whether, in any event, the Crown Court would have jurisdiction to vary an SOPO made by a
magistrates' court.
15.
Section 103E, which we have quoted in full, is prescriptive as to the only persons who may make an application for a variation of an SHPO, and as to the court to which any application must be made.
16.
In
R v Ashton
[2006] EWCA Crim 794
,
[2007] 1 WLR 181
this court considered the legal consequences of an irregularity in the way an accused came to be sentenced in the Crown Court. It referred to the earlier decisions in
R v Sekhon
[2003] 1 WLR 1655
and
R
v Soneji
[2006] 1 AC 340
and concluded [at 4, 5] that:
i.
"... it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ('a procedural failure'), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.
ii.
5. On the other hand, if a court acts without jurisdiction - if, for instance, a magistrates' court purports to try a defendant on a charge of homicide - then the proceedings will usually be invalid."
17.
The court accepted a submission that the approach to such issues is to avoid determining cases on technicalities when they do not result in real prejudice and injustice and to ensure that they are decided fairly on their merits.
18.
It does not appear that
R v Ashton
was cited to the court in
R v Hamer
. It is however clear that the court in
R v Hamer
regarded a contravention of the statutory provision as to who might make the application as going to the jurisdiction of the court. We respectfully agree. In our view, it is to be inferred from the terms of section 103E that Parliament intended that a court should only have jurisdiction to vary an existing order if the application was made by one of the persons whom the section permits to make it, and made to the court prescribed by the section. If Parliament had intended otherwise, it could easily have legislated in more permissive terms, to the effect (for example) that a court may vary an SHPO on application by the prosecutor. We think it significant in this respect that when SHPOs replaced SOPOs in 2015, Parliament chose to enact section 103E in materially the same terms as the predecessor legislation.
19.
We take a different view, however, of Parliament's intention in respect of the requirements of section 103E(3) as to the form of the application and as to strict compliance with all applicable rules of procedure. A failure to comply with one of those requirements can in our view be regarded as a procedural defect, not intended to invalidate the proceedings, and to be addressed in accordance with the principles stated in
R v Ashton
at [4].
20.
It follows from what we have said that the Crown Court does not have power under section 103E to vary, renew or discharge an SHPO which was made by an adult magistrates' court or a youth court. It does not, however, follow that in such circumstances there must always be a separate hearing in the magistrates' court or youth court. By section 66 of the Courts Act 2003 a Circuit Judge or Recorder has the powers of a District Judge (Magistrates' Courts) in relation to criminal causes and matters. Provided that an application under section 103E has been made to the prescribed court by one of the persons who is permitted to make it, a judge or recorder dealing with the defendant in the Crown Court may be invited to exercise the power of a District Judge (Magistrates' Courts) sitting in that prescribed court to grant a variation pursuant to section 103E.
21.
The final situation which we must consider is that of an offender who has previously been sentenced for an offence listed in schedule 3 or schedule 5 and was made subject to a suspended sentence of imprisonment and an SHPO. If he is subsequently convicted of a breach of that SHPO and consequently falls to be dealt with for breach of the suspended sentence order, but is not also before the court for any offence listed in schedules 3 and 5, can the Crown Court make a fresh SHPO? In our view, it cannot. Where an offender is convicted of an offence committed during the operational period of a suspended sentence, the court is required to deal with him in one of the four ways specified in paragraph 8 of schedule 12 to the Criminal Justice Act 2003. In doing so, the court is not "dealing with the defendant in respect of an offence listed in schedule 3 or 5" for the purposes of section 103A: it is imposing upon the defendant the consequences of his reoffending
during the operational period of the suspended sentence. An SHPO made when the suspended sentence was imposed remains in force unless and until action is taken to revoke or vary it.
22.
We now turn to consider the individual cases.
23.
Mr Ashford had been made subject to an SOPO by a magistrates' court on 2 August 2010. He had been released in March 2010 from a lengthy prison sentence and his behaviour had caused the police to apply for an SOPO. He was quickly in breach of the order and on 13 January 2011 was sentenced to three years' imprisonment for four offences of breach.
24.
On 9 January 2019 he was sentenced by a magistrates' court to a suspended sentence of 16 weeks' imprisonment for offences of failure to comply with notification requirements and sending an obscene communication. The latter offence is listed in schedule 5 to the Act, and the magistrates' court exercised its power to make a new SHPO to continue until further order. He was prohibited from, amongst other things, "contacting or communicating with any female child under the age of 16 years by any means". Paragraph 7 of the SHPO prohibited him from "loitering within 20 metres of playgrounds, parks or designated play areas where children under the age of 16 may be present". We are surprised that it was thought appropriate to use such an imprecise term as "loitering" to define the prohibited conduct.
25.
Almost immediately, Mr Ashford breached that new order. It appears that he regularly walked his dog in a particular area at a particular time of day, and he had since September 2018 had a number of meetings with a woman and her six-year-old daughter who were walking their dog. He had given the girl gifts of painted stones and sweets. He continued to talk to the girl (always in the presence of her mother) on at least six further occasions between the new SHPO being imposed on 9 January, and 24 January when he was seen by a police officer. These events were charged on indictment as two offences of breaching the SOPO of August 2010 and two offences of breaching the SHPO of January 2019.
26.
On 30 January 2019, Mr Ashford was seen near the playing field of a primary school. He was there for about half an hour in company with another man who had a camera with a zoom lens, which was said to be used to photograph wild flowers. On 16 April 2019 he was convicted by a magistrates' court of an offence of breaching paragraph 7 of the SHPO and was committed to the Crown Court for sentence for that offence. The breach of the suspended sentence order was to be dealt with by the magistrates' court.
27.
On 14 May 2019 in the Crown Court, Mr Ashford pleaded guilty to the offences charged
on indictment.
28.
The judge was faced with a more difficult sentencing process than he should have been. It appears that much of the relevant material had not been uploaded onto the Digital Case System or had only been uploaded at a very late stage. Perhaps for that reason, the prosecution opening of the facts lacked clarity. In the course of it the judge, on learning of the terms of the SHPO of 9 January 2019, suggested that the terms of paragraph 7 were ambiguous and invited the prosecution advocate to redraft it so that defence counsel could decide whether to "consent to that amendment". An amended draft was later agreed between counsel.
29.
Mr Ashford has previous convictions as a young man for offences of dishonesty, but more importantly he also has convictions over many years for offences reflecting his sexual interest in children. Those convictions include offences of unlawful sexual intercourse with girls aged under 16, offences of indecent assault on a female and offences of buggery and attempted buggery. A pre-sentence report assessed a very high risk of sexual recidivism and a high risk of harm to children. It noted that when supervised in the past, Mr Ashford had sought to minimise the seriousness of his offending and had denied any sexual intent.
30.
The judge commented in his sentencing remarks that Mr Ashford had continued to reoffend despite the sentences and orders imposed by the courts and assessed him as being unable to avoid communicating with very young children, despite the courts' attempts to prevent him from doing so. The judge placed each of the offences in the highest category of the relevant definitive guideline, with a starting point of three years' custody and a range up to four-and-a-half years. He concluded that there was no prospect of reform or rehabilitation, that Mr Ashford was a danger to young children and that his primary duty was to protect the public from further harm. As to the suspended sentence imposed on 9 January 2019, which he mistakenly said was a term of four weeks, the judge said:
i.
"If I'm required to sit as a district judge under section 66 of the [Courts] Act, then I do so. And I will send that suspended sentence breach to myself and deal with it at the same time. But I emphasise that Mr Dyble had no objection to me doing that in any event, to provide a speedy resolution to your criminal course of conduct. And therefore, I sentence you for those matters on the indictment for which you pleaded guilty, the committal for sentence in respect of loitering within 20 metres of the play area. And for the breach of the suspended sentence order."
31.
The judge had regard to totality. He sentenced Mr Ashford to concurrent terms of three years' imprisonment for each of the two breaches of the SOPO. He also imposed sentences of three years' imprisonment for each of the two breaches of the SHPO charged
on indictment and for the third breach which was the subject of the committal for sentence. Those sentences were concurrent with each other but consecutive to the other sentences. As to the breach of the suspended sentence, the judge said this:
i.
"... there's absolutely no reason why that shouldn't be activated in full, making a four-week sentence to be imposed but that too will run concurrently with all other sentences."
32.
Thus, the total prison sentence was six years.
33.
The judge was satisfied with the amended terms which counsel had agreed in relation to paragraph 7 of the SHPO and said:
i.
"The sexual harm prevention order, which continues to run indefinitely, will be amended in paragraph 7 so that it reads that you are prohibited from being within 20 metres of playgrounds, parks or designated play areas."
34.
The grounds of appeal are that the total sentence was manifestly excessive in length, in particular because the judge placed the offences in too high a category when applying the guideline and wrongly imposed a consecutive sentence, and that the variation of the SHPO was unlawful. The respondent submits that the total sentence was just and proportionate to the seriousness of the offending.
35.
We consider first the challenge to the length of the sentence. In terms of the Sentencing Council’s definitive guideline, we agree with the judge that each of the breaches of the SOPO and the SHPO fell into Category A culpability. We see some force in Mr Dyble's submission that the harm fell short of Category 1 and should have been in Category 2, so that the starting point for a single offence would be two years with a range up to three years. We are however unable to accept that the total term of six years was manifestly excessive. There were repeated offences which continued even after the fresh SHPO had been made, and each offence was seriously aggravated by the many previous convictions for sexual offences against young children. Even if the judge had taken the Category A2 starting point for any one offence, he would have been entitled to adjust that starting point upwards to reflect the aggravating features; and there was no error of principle in making one group of sentences consecutive to the other. The Totality guideline requires the court to impose a total sentence which, whatever its precise structure, reflects all the offending behaviour and is just and proportionate. The total sentence was stiff, but there is, in our view, no ground on which it can be argued that it was disproportionate.
36.
As to the suspended sentence, there was no power to commit that separately to the Crown Court for sentence and therefore the course suggested by the judge, in the remark which we have quoted, could not have been taken. The judge was, however, empowered by section 66 of the Courts Act 2003 to exercise the powers of a District Judge and so to deal with the breach of that suspended sentence as a magistrates' court. The judge
clearly fell into error as to the total length of the suspended sentence which had been imposed on 9 January 2019. Nonetheless, the order which he pronounced was that the suspended sentence should be activated in full. The effect, in law, was that he activated the total term of 16 weeks but ordered it to run concurrently with other sentences.
37.
As to the SHPO, it follows from our general observations that the judge had no power to make a fresh SHPO. He had no power as a Crown Court judge to vary the SHPO made by a magistrates' court. No application under section 103E to vary the SHPO had been made to the appropriate magistrates' court and the judge therefore could not exercise the power of a District Judge in that regard. In any event, given that the offence of breach of the SHPO had been the subject of a committal for sentence, there was, as we have said, no power for a magistrates' court or a District Judge to commit the breach of the suspended sentence order alone to the Crown Court for sentence. In those circumstances the judge could not make the purported variation of the SHPO, which was accordingly of no effect.
38.
It follows that the SHPO continued in the terms ordered by a magistrates' court on 9 January 2019. We agree with the judge that the terms of paragraph 7 are ambiguous and inappropriate. Any variation of them must however be the subject of a separate application properly made to the appropriate magistrates' court.
39.
In the result, our order in Mr Ashford's case is as follows. We grant leave to appeal. We allow the appeal to the limited extent that we quash the order purporting to vary the terms of the SHPO of 9 January 2019. The sentences of imprisonment remain as before. We direct that the Crown Court record be amended to show that the total suspended sentence of 16 weeks, not 4 weeks, was activated in full but ordered to run concurrently with other sentences.
40.
We turn to the case of Mr King. Originally, his grounds of appeal were limited to a challenge to the width of one of the prohibitions contained in the SHPO. Additional grounds have however been prepared as a result of the Registrar’s alerting the parties to other issues. Leave is now sought to rely additionally on those amended grounds, which argue that there was no power to impose a new SHPO and no power to vary the existing order.
41.
Mr King has convictions over five decades for many offences, the majority being for sexual offences. His previous convictions include offences of sexual intercourse with a girl aged under 13, gross indecency with a child, indecent assault on a female aged under 14 years and offences relating to indecent images of children.
42.
On 3 December 2016 an interim SHPO was made by a magistrates' court. A final order, to continue until further order, was made on 15 December 2016. It prohibited Mr King from, amongst other things, having contact with "any other registered sex offender" without prior approval from the local Public Protection Unit. In June 2017, and again in September 2017, he was sentenced to terms of imprisonment for offences of breaching the order. One of his breaches involved his having contact with his friend Mr Cater, a registered sex offender.
43.
Whilst serving the sentence imposed in September 2017, he continued to have contact with Mr Cater, by phone calls from the prison. On 20 March 2019 he pleaded guilty before a magistrates' court to that offence of breach of the SHPO and was committed for sentence to the Crown Court. On 24 April 2019, in the Crown Court, he was sentenced to 14 months' imprisonment for the offence of breach. As we have indicated, there is no challenge to the length of that sentence, and it is therefore unnecessary for us to say anything more about that. We focus on the SHPO which the judge purported to make.
44.
It appears that a Detective Constable had made a statement or written submission seeking a variation of the terms of the existing SHPO. That was not an application by a chief officer of police, and it was made to the Crown Court rather than to the magistrates' court which had made the existing SHPO: it therefore failed to comply with the requirements of section 103E. Prosecution counsel nonetheless put forward this application to the judge and it appears to have been the subject of some discussion during the hearing. In his sentencing remarks, the judge said:
i.
"You will be subject to the Sexual Harm Prevention Order, a new one. That is the one we have just discussed, with those amendments suggested by your counsel, and that will last for an indefinite period of time."
45.
The SHPO which the judge purported to impose included, at paragraph 13, a prohibition on contact with "a registered sex offender or convicted sex offender". The original ground of appeal challenges that part of the order on the basis that it would unfairly prevent Mr King from having contact with his friend even if Mr Cater's name is removed from the sex offender register and would thereby improperly subvert the notification regime.
46.
In the additional grounds of appeal, it is submitted that the judge clearly stated that he was imposing a new SHPO, but he had no power to do so. Nor was there any power to vary the existing SHPO because no proper application had been made to the appropriate court by a person entitled to make it.
47.
The respondent accepts these submissions. It follows from the observations which we made much earlier in this judgment that we too accept the submissions as correct. The judge had no power either to make a fresh SHPO or to vary the existing one.
48.
The respondent – understandably anxious that the consequence of quashing the SHPO made by the judge might be to leave Mr King free from any SHPO - draws attention to the magistrates' court's record for 20 January 2019. This shows that the District Judge who committed Mr King to the Crown Court for sentence purported to grant an application to discharge the SHPO made on 15 December 2016 and revoked that order; and purported to make an interim SHPO "for 6 weeks or until the main application is determined". This interim order prohibited Mr King (subject to the usual savings) from having contact of any kind with "any other registered sex offender or convicted sex offender".
49.
In our judgment, the District Judge had no power to make either of those orders. As we have noted, section 103E(7) limits the circumstances in which an order may be discharged before it has been in force for five years: those circumstances could not apply in Mr King's case because there was no application by a chief officer of police. The power to make an interim SHPO only arises where a valid application to vary has been made but not yet determined; and, as is now common ground, there was here no valid application to vary.
50.
In those circumstances, the respondent invites this court either to make no order on the application for leave to appeal, or to reconstitute as a Divisional Court and quash the orders purportedly made by the District Judge on 30 January 2019, thus restoring the SHPO made on 15 December 2016. It is implicit in this second invitation, and counsel Mr Grieves-Smith confirmed in his oral submissions, that if there was an application for judicial review of the District Judge's orders, it could not and would not be resisted by the defendant magistrates' court.
51.
We do not think it appropriate to take the first of the two proposed courses. We do not accept the submission that the making of no order could be justified by reference to the decision of this court in
R v Reynolds
[2007] EWCA Crim 538
,
[2008] 1 WLR 1075
. The court there was dealing with a very different situation where a judge had passed a sentence which was valid and effective but was less severe than the sentence which should have been imposed in accordance with mandatory sentencing provisions. The court was unable to substitute the sentence required by those provisions, because to do so would breach the restriction in section 11 of the Criminal Appeal Act 1968, but was able to respect the judge's finding of dangerousness by leaving in place the sentence which had been imposed. Here, in contrast, the procedural history which we have briefly summarised has involved a succession of errors, culminating in an order which we have found to have been made without jurisdiction. In all the circumstances of this case, it would not be right to take a course which would leave that order in place.
52.
We are however persuaded that the second course is appropriate.
53.
For those reasons, my Lady Andrews J and I reconstitute ourselves as a Divisional Court of the Queen's Bench Division, Administrative Court. We treat the Form NG1 and amended grounds of appeal as an application by Mr King for judicial review of the District Judge's orders of 30 January 2019. We dispense with service, dispense with the need for an acknowledgment of service and waive all time limits. We are satisfied that the District Judge's orders on 30 January 2019 purporting to revoke the SHPO of 15 December 2016 and to make an interim SHPO were unlawful. We quash those orders.
54.
Returning to a constitution of three judges of the Court of Appeal, Criminal Division, we grant leave to appeal. We allow the appeal to the extent that we quash the SHPO purportedly made by the judge. The sentence of imprisonment remains as before.
55.
The consequence of our orders is that Mr King remains subject to the SHPO of 15 December 2016. Any application to vary the terms of that order must be made to the appropriate magistrates' court by a person who is permitted to make it.
56.
We turn finally to the case of Mr Rogers. On 20 March 2015, having been convicted of a number of sexual offences, he was made subject by the Crown Court to an SHPO for five years. The terms of the SHPO prohibited him from seeking, or being in, the company of any child under the age of 16 "other than that which is inadvertent and unavoidable in the course of the defendant's lawful daily activities or with the prior written permission of the relevant child's parent or guardian (who has been informed of the defendant's convictions) and the prior written permission of the social services or the chief constable for the area concerned." Within months, he began a relationship with a woman who had children aged six and four. He pleaded guilty in January 2017 to four offences of breach of the SHPO and one of breach of the notification requirements. He was committed for sentence to the Crown Court where, on 24 March 2017, he received a total of 20 months' imprisonment. The SHPO remained in force.
57.
He was released on licence from that sentence in September 2017, but recalled to prison a year later. He had formed a relationship with a woman who had children aged 10 and eight and had on a number of occasions stayed overnight in her home. He resumed that relationship upon his release in October 2018.
58.
On 12 October 2018 he pleaded guilty before a magistrates' court to an offence of breaching the SHPO by staying overnight with his partner on five occasions and an offence of failing to comply with notification requirements. He was committed for sentence to the Crown Court, where on 4 March 2019 he was sentenced to three years' imprisonment for the breach offence and 12 months' imprisonment concurrent for the notification offence. In addition, the judge purported to extend the duration of the
existing SHPO.
59.
The judge held that the breach offence fell into Category A1 of the guideline. Having regard to the aggravating features of the offence, the appropriate total sentence after trial would have been 45 months' imprisonment. The judge gave credit of one-quarter for the guilty pleas.
60.
The original grounds of appeal did not challenge the length of the notional sentence after trial but argued that the level of credit was insufficient. Leave to appeal on that basis was refused by the single judge, and that application has not been renewed to the full court. Instead, leave is sought to add a fresh ground of appeal to the effect that the judge had no power to make the SHPO.
61.
Prosecuting counsel in his opening address had said that the current SHPO "needs addressing". He apologised for the fact that he had not had time to draft "a fresh order", but indicated that there was nothing in the existing order which needed to be amended except the end date.
62.
The judge in his sentencing remarks said:
i.
"I am going to extend the sexual harm prevention order; it is going to last from ten years from today, ten years from today. The sexual harm prevention order in the same terms that it was made on the earlier occasions as are uploaded will be in existence."
63.
It is common ground between the parties, and we agree, that the judge had no power to make a fresh SHPO. However, we accept the submission that the judge in his sentencing remarks did not purport to do so, but rather to vary the existing SHPO by extending its duration. The order which was drawn up in the Crown Court was in ambiguous terms, apparently referring both to a new order and to an extension of the existing order; but the order of the court is that which was pronounced by the judge.
64.
As to whether the judge had power to vary the existing order, the respondent submits that there was substantial compliance with the requirements of section 103E, such that it would be appropriate for this court to make no order on the application for leave to appeal, thus permitting the SHPO, as extended in duration by the judge, to remain in force. The respondent relies on the fact that at an early stage of proceedings a Detective Sergeant who compiled a form MG5 case summary noted the following in a section of the form headed "Application for order(s) on conviction":
i.
"Order applied for: SOPO
ii.
Application for extension of sexual harm prevention order (SHPO)
iii.
Conditions: continuation of current conditions".
65.
It is submitted that the intention of the prosecution to seek an extension of the SHPO was thus made clear to Mr Rogers at an early stage and there was ample time for him to make representations.
66.
We see the force of that argument by the respondent and we acknowledge the practical convenience of approaching the matter in that way. We are conscious that the SHPO of 23 March 2015 has by now expired and that accordingly, if the judge's order is quashed, there will be no SHPO in force unless and until a fresh application is made. We are not however able to accept the submission. Just as there was ample time for the defence to consider the prospect that an extension might be sought, so there was ample time for the prosecution to ensure that any application was correctly made by the appropriate person. If the only deficiencies were those relating to compliance with the Criminal Procedure Rules, the position might be different, though even then it would be necessary to give careful consideration to the facts that no written application for an extension was ever made to the Crown Court (or any court) and that the first formal indication of any such application was given orally by counsel towards the end of his opening, in the muddled terms to which we have referred. But, consistently with the decision in
R v Hamer
and with our observations earlier in this judgment, there is in our view no escape from the fact that the application was not made by a chief officer of police. We accept that in principle a chief officer of police may authorise one or more junior officers to make written applications for variations on his behalf and in his name; and we accept that when the application has properly been made, it can be presented in court by the prosecution advocate. But there is no suggestion in this case (or indeed in Mr King's case) that there was in fact authorisation of r junior officer to make an application on behalf of and in the name of the chief officer. All that happened here was that the prospect that an extension of the SHPO would be sought was mentioned by the Detective Sergeant in the case summary. The only application was that made orally by the prosecuting advocate.
67.
For those reasons, the order which we make in Mr Rogers' case is as follows. We grant leave to vary the grounds of appeal and leave to appeal. We allow the appeal to this extent: we quash the order purporting to extend the SHPO. The prison sentence remains as before.
68.
As these three cases illustrate, sentencing in cases of breach of an SHPO can give rise to a number of difficulties. We are very conscious of the pressures on busy judges and advocates, and that these are matters which may fall to be dealt with at the last stage of proceedings, often following shortly after the verdict of a jury. We hope that this judgment will alert them to some of the potential pitfalls.
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|
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Neutral Citation Number:
[2010] EWCA Crim 2405
No:
201003726 D5
IN THE COURT OF APPEAL
IN THE COURTS MARTIAL APPEAL COURT
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 22 September 2010
B e f o r e
:
LORD JUSTICE HOOPER
MR JUSTICE OWEN
MR JUSTICE RODERICK EVANS
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
ASHLEY THOMAS GEORGE STABLES
- - - - - - - - - - - - - - - - - - - - -
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 Norris
appeared on behalf of the
appellant
Mr S Elliott
and
Mr N Bashir
appeared on behalf
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE HOOPER: [To the appellant] We are allowing your appeal and we are quashing your conviction.
2.
On 11 June 2010, at a Court Martial held at the Portsmouth Military Court Centre, the appellant was found guilty by a majority of four to one of the offence of assault by penetration. The Judge Advocate was Judge Large, Assistant Judge Advocate General. The appellant appeals against conviction by leave of Henriques J. The appellant was sentenced a few days later to 12 months' military detention with consequential orders.
3.
He was in training to become a Medical Assistant in the Royal Navy, as was also the complainant, whom we shall simply call "T". He was 20, she was 19, and they completed their training in Aldershot before being sent to HMS Nelson in Portsmouth. They knew each other well from their training in Aldershot and travelled to Portsmouth on Sunday, 10 May 2009.
4.
It was the prosecution's case that although the appellant and the complainant were either in or on the bed in her cabin with her consent, she had told him to stop and that if he did not stop he could leave her cabin. It was her evidence that she fell asleep and awoke to feel the appellant's fingers in her vagina. She pushed him off and told him to leave, which he did.
5.
We take the facts from the sentencing remarks:
"We have to sentence you for one offence of assault by penetration. ... You pleaded not guilty to that offence but were convicted by the Board. Because of the unique circumstances pertaining in the Court Martial and a trial in the Court Martial I sentence together with the Board Members who convicted you. I am therefore able to know, and it is important I do know, what view they took of the case against you and what facts they found proved. I am going to set out the factual basis upon which we sentence you. A lot of this is not in dispute.
You and MA [T] were good friends. When you arrived at HMS NELSON on the Sunday before the offence she and you kissed for a couple of minutes. This was initiated by her. On the Wednesday of that week, the day before the offence, she came into your cabin during the late afternoon. The two of you talked and the talk turned to sexual matters. Again, the Board found at her instigation, you both kissed and engaged in mutually consensual sexual touching, you touching her vagina, she touching your penis. This ended after a few minutes, again by consent. Nothing more was said between you about these encounters. The Board found, and I share their view, that you were wondering at that stage where the relationship was going with MA [T] and whether or not you may have more consensual sexual activity with her, possibly progressing to intercourse.
The next day, the Thursday, you and she went out with others. You had about nine pints of beer; she had about nine measures of Malibu and coke throughout the evening. Neither of you were rolling drunk but you were certainly both affected by alcohol. You arrived back in NELSON, you went to her cabin and the Board found this happened really without much discussion but by unspoken agreement. So far those facts were hardly in dispute. You lay on her bed in her cabin and whilst you were there she went into the en suite bathroom to take off her makeup and she changed into her pyjamas. She came out and got into the bed. There was a dispute on the evidence as to whether she went under the duvet rather than on top. Wherever she went she got into bed with you. She asked you to turn out the light and she allowed you to remain when you asked if you could stay the night despite the fact your cabin was but a few doors away.
So just pausing there the Board accepted that at that stage you believed there might be further consensual sexual activity and they found that you had some justification in such a belief. Thereafter the Board found that MA [T] fell asleep for a period of time. They found that you believed that you might persuade her into further consensual activity by arousing her. The Board was not satisfied that MA [T] had said no as she had alleged she had when you were on the bed together. This is an important factor when it comes to assessing the appropriate sentence in this case. You touched her, the Board noted that you did not at that stage indulge in any foreplay but went straight to touch her vagina with your fingers and you penetrated her vagina. The next part of this is important as well. The Board was not sure that you did not believe that she was consenting but it was sure that any belief you may have held that she was consenting was unreasonable. I say that again because it is a difficult sentence. The Board was not sure that you did not believe that she was consenting, but it was sure that any belief you may have held that she was consenting was unreasonable, and that is the reason why you were convicted. You penetrated her vagina with your fingers briefly before she woke and she pushed you off. You stopped at once, you left the cabin. You apologised for what you had done during a series of texts."
6.
The appellant was a man of good character, who was, in the view of the Board, sexually somewhat inexperienced and naive.
7.
It is the appellant's case that within those sentencing remarks is revealed an error which makes the conviction unsafe. It is submitted, on behalf of the appellant, that no reasonable Board, having reached the conclusion that the appellant believed, or may have believed, that the complainant was consenting, could have gone on to conclude that such a belief was unreasonable.
8.
Before looking at that argument we should address an argument made to us by Major Bashir, on behalf of the respondent, to the effect that we ought not to be looking at the sentencing remarks at all. He submits that it is well-established that a jury should not be asked to explain their verdict, because, so he submits, "it may only serve to lead to confusion". In the same way he submits that if this had been a jury trial one would not have had the reasons which are now set out in the sentencing remarks. He did accept that if the sentencing remarks showed that a gross error had been committed by the convicting board, then this court would be entitled to intervene.
9.
We take the view that the sentencing remarks are quite clearly giving the reasons why the Board found the appellant guilty. If those reasons reveal an error, then it must be right for this court to intervene. We reject Major Bashir's argument.
10.
Mr Norris, for the appellant, points to a number of findings of fact. After their arrival at HMS Nelson, on the Sunday before the offence, the complainant and the appellant had kissed for a couple of minutes and that kissing was initiated by the complainant. No more than about 24 hours before the alleged offence, the complainant came into the appellant's cabin during the late afternoon. The two of them talked and the talk turned to sexual matters. At the instigation of the complainant, they had both kissed and engaged in what the Board described as "mutually consensual sexual touching": the appellant touching the complainant's vagina and the complainant touching his penis. That came to an end after a few minutes, again by consent. At that stage the appellant was wondering where the relationship might go, and whether there might be further consensual sexual activity.
11.
The Board then describes the events of the Thursday evening, including the amount of drink consumed. As to what happened after they arrived back at HMS Nelson, the Board said:
"You arrived back in NELSON, you went to her cabin and the Board found this happened really without much discussion but by unspoken agreement."
The Board said, in relation to what happened immediately thereafter, the facts were hardly in dispute. The appellant lay on the complainant's bed in her cabin and whilst he was there she went into the bathroom to take off her makeup and change into her pyjamas. She came out and got in or on the bed.
12.
The Board points out that there was dispute as to whether she went under the duvet or on top: a dispute which the Board does not resolve. It was the complainant who asked the appellant to turn out the light and in the words of the Board:
"...she allowed you to remain when you asked if you could stay the night despite the fact your cabin was but a few doors away."
13.
The Board accepted that at that stage with the lights out the appellant "believed there might be further consensual sexual activity". The Board went on to say that in their view the appellant had some justification for such a belief.
14.
The directions given by the Judge Advocate to the Board before conviction show that it was the prosecution's case that the complainant had made it clear that she was not interested in any sexual activity and that she had fallen asleep only to wake up to find him touching her vagina. As the Board were told by the Judge Advocate in his directions, if the Board was sure that the appellant knew that the complainant was asleep, then the prosecution would have proved the element of the offence since he would not have believed that she was consenting.
15.
The Board found that she had fallen asleep. They also found that the appellant believed that he might persuade her into further consensual activity by arousing her. Most important is the next sentence:
"The Board was not satisfied that [T] had said no as she had alleged she had when you were on the bed together."
16.
It follows that an important plank of the prosecution's case (that she had made her views known) was found not to have been proved to the relevant standard. The Board then refers to the absence of any foreplay, a remark criticised by Mr Norris who says what did happen could properly be regarded as foreplay.
17.
The sentencing remarks then read on as follows:
"The Board was not sure that you did not believe that she was consenting."
18.
It followed, contrary to the prosecution's case and in the light of the direction that had been given, that the Board must have reached a conclusion that the appellant believed or may have believed the complainant to be awake. Notwithstanding that, they went on to find, as one can see in the sentencing remarks, that his belief that she was consenting was unreasonable.
19.
We asked Major Bashir to explain how the Board could reach the conclusion that the appellant believed or may have believed that she was consenting, and also the conclusion that that belief was unreasonable. If the appellant believed or may have believed that she was not asleep then, in the light of all that had happened, how could the belief that she was consenting be unreasonable?
20.
Major Bashir could not explain how the Board could properly have reached the conclusion that the belief was unreasonable. Nor can we. In those circumstances we have no doubt that the decision which the Board reached was one which they could not have properly reached. For these reasons we allow the appeal, and we quash the conviction.
|
{"ConvCourtName":["Portsmouth Military Court Centre"],"ConvictPleaDate":["2010-06-11"],"ConvictOffence":["assault by penetration"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[0],"SentCourtName":["Portsmouth Military Court Centre"],"Sentence":["12 months' military detention"],"SentServe":["Single"],"WhatAncillary":["consequential orders"],"OffSex":["All Male"],"OffAgeOffence":[20],"OffJobOffence":["Other"],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":["Other"],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[19],"VicJobOffence":["Other"],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":["Other"],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["complainant testimony"],"DefEvidTypeTrial":["offender denied offence"],"PreSentReport":["Low risk of harm"],"AggFactSent":[""],"MitFactSent":["offender showed genuine remorse","Offender has no relevant previous convictions","sexually inexperienced and naive"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Board's reasoning was inconsistent; belief in consent could not be unreasonable on the facts found"],"SentGuideWhich":[""],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Board's findings were inconsistent and could not properly support conviction"],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
|
Case No:
201400668C4
Neutral Citation Number:
[2015] EWCA Crim 383
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Peterborough Crown Court
His Honour Judge Nicholas Madge
T20137051
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
17/03/2015
Before :
LORD JUSTICE PITCHFORD
MR JUSTICE COOKE
and
MRS JUSTICE LANG
- - - - - - - - - - - - - - - - - - - - -
Between :
Mohammed Hussain
Appellant
- and -
Regina
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Neil Corre
for the
Appellant
Mr Charles Falk
for the
Respondent
Hearing dates : 5th March 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pitchford :
The appeal
1.
In the appellant’s first trial the jury was unable to agree upon a verdict. On 22 January 2014, following his retrial before His Honour Judge Madge at Peterborough Crown Court, the appellant was convicted of an offence of rape contrary to section 1 (1) of the Sexual Offences Act 2003. He was sentenced to six years imprisonment and the judge made a restraining order.
2.
On 2 December 2014 the full court (Treacy LJ, Popplewell and Stewart JJ) granted an extension of time and leave to pursue a single ground of appeal, namely that the trial judge wrongly declined to admit before the jury evidence of the complainant’s bad character.
3.
The provisions of the Sexual Offences (Amendment) Act 1992 apply to these proceedings and in order to protect the complainant’s anonymity we shall refer to her in this judgment either as “the complainant” or as “N”.
The evidence
4.
On Wednesday 7 November 2012, the complainant, who was then age 18 years, attended a house party in Peterborough at the home of a man called Majeed. Also present was the appellant who had been known to the complainant for some weeks. At about 7am on Thursday, November 2012, N went upstairs to go to sleep. She was drunk and needed assistance from a male friend called Ali. They both fell asleep on the same bed. N gave evidence that when she woke she found the appellant on top of her penetrating her vagina with his penis. He had completely removed two pairs of leggings from one of her legs and her underwear that she found on the floor. She protested and resisted forcefully but the appellant continued regardless. Eventually, N managed to struggle free, dressed and went downstairs. She immediately reported to her friend, Holly, that she had been raped by the appellant. Shortly afterwards she went outside, flagged down a passing police car and repeated her complaint. Holly gave evidence that she had seen N and Ali go upstairs together. She knew Ali had to get up early for work. Ali confirmed, in his evidence, that he asked the appellant to wake him up. The appellant woke him at about 8 am. He went off to work. Before he left, the appellant asked N if he could sleep next to her and N agreed. Holly said that later N and the appellant came downstairs. She could not remember in which order. N made a complaint to her that the appellant had raped her. Her eyes were welling with tears. Police officers confirmed that at 9.35 am they were stopped by the complainant who made a complaint of rape. She was upset and had been crying. She gave an account that was consistent with her later video recorded evidence and while doing so she was shaking and crying. The appellant was arrested at 9.45 am. He said that he had done nothing wrong. When interviewed on two occasions, before and after the receipt of the forensic science evidence, he made no comment.
5.
The appellant gave evidence. He said that the party met up at a guest house. He and the complainant had argued the week before and they made up. During the evening N asked him to lend her money to buy drugs but he declined. Later they went to Majeed’s house to continue the party. The appellant agreed that Ali asked him to wake him in the morning. At about 8 am the appellant went to the bedroom. The door was locked but the appellant returned after 15 minutes and it was open. Inside the bedroom the complainant was sitting up and Ali said he was going. The appellant said he returned to his own bed and went to sleep. He awoke to find that the complaint’s hand was inside his jeans. He felt something wet on his penis. He just turned away from her. Later they went downstairs. Majeed was angry that they had been in his room. It was only then that the complainant appeared to be upset. At no time did he have sexual intercourse with the complainant.
The complainant’s bad character
6.
At the commencement of trial Mr Corre applied for leave to cross-examine the complainant about her previous convictions. The appellant did not seek to rely upon the facts of any of the offences, to all of which the complainant had pleaded guilty, but he sought to introduce the fact of all the convictions for the purpose of undermining the complainant’s general credit as a witness.
7.
The complainant was born in September 1994. She first appeared in the juvenile court in June 2009 at the age of 14 when she pleaded guilty to an offence of robbery and an offence of assault by beating. On the date of sentence, 11 August 2009, she asked for a further offence of robbery to be taken into consideration. The complainant was made the subject of a referral order for 12 months. She failed to keep to the terms of the order, pleading guilty later in the year to offences of driving a vehicle taken without consent, shoplifting and battery and she was sentenced to a detention and training order for 6 months. In 2010 the complainant pleaded guilty to further offences of battery, burglary, robbery and taking a motor vehicle without consent. She was sentenced to a youth rehabilitation order to which she remained subject in 2011 when she pleaded guilty to an offence of dangerous driving. Finally, in December 2012 she pleaded guilty to battery and received a suspended sentence order.
Section 100 Criminal Justice Act 2003
8.
Section 100 of the Criminal Justice Act 2003 applied to the appellant’s application. The relevant parts of section 100 are as follows:
“(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if –
(a)
…
(b)
It has substantial probative value in relation to a matter which –
(i)
is a matter in issue in the proceedings and
(ii)
is of substantial importance in the context of the case as a whole, or
(c)
…
(2)
…
(3)
In assessing the probative value of evidence for the purposes of sub section (1)(b) the court must have regard to the following factors (and to any others considered relevant) -
(a)
the nature and number of events, or other things, to which the evidence relies;
(b)
when those events or things are alleged to have happened or existed;
(c)
where –
(i)
The evidence is evidence of a person’s misconduct, and
(ii)
it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,
the nature and extent of the similarities and the dissimilarities between each of the alleged incidences of misconduct;
(d)
…
(4) …”
9.
It was not being suggested to the judge that the complainant had behaved on the occasion of the alleged rape in a way similar to previous misconduct so as to engage section 100 (3)(c). It was being contended that the complainant’s repetitive criminal misconduct on earlier occasions went to the issue whether she was a person whose accusation against the appellant was worthy of belief.
10.
Section 100 (1)(b) provided the threshold for admissibility. There were two essential questions to be considered by the trial judge: (1) whether the evidence had substantial probative value in relation to a matter in issue in the proceedings and (2) whether the matter in issue was of substantial importance in the context of the case as a whole. The natural sequence in which to consider those questions is first to identify the matter in issue and its importance in the context of the trial as a whole and, second, to assess the probative value of the evidence upon that issue.
11.
In
Stephenson
[2006] EWCA Crim. 2325
(Hughes LJ, Mackay and Treacy JJ) this court held that the creditworthiness of a witness is capable of being a matter in issue of substantial importance in the context of the case as a whole. In that case the complainant made an allegation of sexual misconduct. The defence wished to cross-examine the complainant about two cautions and a conviction acquired some eight years before in respect of offences of receiving stolen goods and shoplifting. The trial judge declined to permit cross-examination under section 100 on the ground that the offences of dishonesty did not establish any tendency for untruthfulness. At paragraph 27 of his judgment, delivered on behalf of the court, Hughes LJ said:
“27 … It does not follow … that previous convictions which do not involve either making of false statements or the giving of false evidence are incapable of having substantial probative value in relation to the credibility of a non defendant under section 100, or for that matter of a co-accused where the application is made by him under section 101 (1)(e). It is … fully rational that the same degree of caution which is applied to a crown application when considering relevance and discretion does not fall to be applied when what is at stake is a defendant’s right to deploy relevant material to defend himself against a criminal charge. Accordingly (although he cannot be blamed for it), the trial judge misdirected himself in directly applying paragraph 13 of
Hanson
into the situation which was before him. It may be, therefore, that had he addressed the question without believing himself fettered in that way, he might have come to the conclusion that these three incidents were capable of having substantial probative value in relation to the truthfulness of the defendant, which was an important matter in issue in this case. Whether he would or not would have been a matter for the feel of the case and for him at the time. Whether he would or not, we are satisfied that, had those matters been known to the jury, they could not in this case have made any significant difference.”
12.
On the previous day the same constitution of the court had considered a similar issue that arose under section 101 (1)(e) of the 2003 Act:
Lawson
[2006] EWCA Crim. 2572
. At paragraph 34 of his judgment Hughes LJ said:
“34 … A defendant who is defending himself against the evidence of a person whose history of criminal behaviour or other misconduct is such as to be capable of showing him to be unscrupulous and/or otherwise unreliable should be enabled to present that history before the jury for its evaluation of the evidence of the witness. Such suggested unreliability may be capable of being shown by conduct which does not involve an offence of untruthfulness; it may be capable of being shown by widely differing conduct, ranging from large scale drug or people trafficking via house breaking to criminal violence. Whether in a particular case it is in fact capable of having substantial probative value in relation to the witness’s reliability is for the trial judge to determine on all the facts of the case.”
13.
This approach to the issue of the probative value of previous misconduct in the assessment of a witness’s credit was followed in
Brewster and Cromwell
[2010] EWCA Crim. 1194
,
[2010] 2CR App R 20
(Pitchford LJ, Maddison and Macduff JJ). The court held that the question is whether the evidence of previous convictions, or bad behaviour, is sufficiently persuasive to be worthy of consideration by a fair minded tribunal upon the issue of the witness’s creditworthiness. At paragraph 23 of a judgment given on behalf of the court Pitchford LJ said at paragraph 23 :
“The first question for the trial judge under section 100 (1)(b) is whether creditworthiness is a matter in issue which is of substantial importance in the context of the case as a whole. This is a significant hurdle. Just because a witness has convictions does not mean that the opposing party is entitled to attack the witness’s credibility. If it is shown that creditworthiness is an issue of substantial importance, the second question is whether the bad character relied upon is of substantial probative value in relation to that issue. Whether convictions have persuasive value on the issue of creditworthiness will, it seems to us, depend principally on the nature, number and age of the convictions. However, we do not consider that the conviction must, in order to qualify for admission in evidence, demonstrate any tendency towards dishonesty or untruthfulness. The question is whether a fair-minded tribunal would regard them as affecting the worth of the witness’s evidence.”
14.
At paragraph 12 of
Braithwaite
[2010] EWCA Crim. 1082
the Vice President, Hughes LJ, emphasised that the assessment whether the bad character evidence is of substantial probative value in relation to an issue of substantial importance in the case as a whole is “highly fact-sensitive in each case”. This was the approach adopted by the court in a section 101 (1)(e) case,
Phillips
[2011] EWCA Crim. 2935
at paragraph 44 in which Pitchford LJ said:
“44 … What evidence is of substantial probative value should be judged in a fact-sensitive manner in the context of the trial as it appears at the time the application is made.”
The judge’s ruling
15.
In his ruling given on 20 January 2014 His Honour Judge Madge accepted that the complainant’s creditworthiness was a matter of substantial importance in the trial. On the other hand, he ruled that the defence was not suggesting that the complainant had concocted the allegation of rape. It was suggested, he said, that the complainant was “mistaken” in her assertion that there had been penetration of the complainant by the defendant’s penis while she was asleep. The judge concluded that the complainant’s previous convictions were not of substantial probative value on the question of her creditworthiness on this narrow issue.
16.
Mr Corre submits that the learned judge misconstrued the defence case which was that the complainant was not telling the truth about the incident. He contends that her convictions were of substantial probative value on the question whether her evidence was worthy of belief, although it is conceded that they demonstrated no propensity for untruthfulness.
The defence statement
17.
Before reaching a conclusion whether the judge was right to rule as he did, it is necessary to consider other features of the evidence.
18.
On 28 January 2013 analysts found that a mixture of the DNA of the appellant and the complainant was present on swabs taken from the appellant’s pubic area. The complainant’s DNA was found on the inside of his boxer shorts which also tested positive for semen. In the opinion of the forensic scientist these laboratory findings were what might be expected if sexual intercourse had taken place between the appellant and the complainant. The complainant’s DNA would have transferred to the appellant’s penis and then to the inside of his boxer shorts.
19.
Until this point in the proceedings the appellant had given no account to the police as to what had taken place. However, at the adjourned plea and case management hearing a defence statement was served on the court and the prosecution. In its relevant parts it read:
“
Nature of the defence
2 The nature of his defence is that the defendant did not intentionally penetrate the vagina of [N] with his penis.
Matters of fact on which he takes issue
3 Accordingly he takes issue with the prosecution on the allegations that he intentionally penetrated [N’s] vagina with his penis because that allegation is false.
Matters of fact on which he relies for the purposes of his defence
4 On the date in question, when in the company of [N] she acted flirtatiously towards him and asked to borrow money from him to purchase cocaine, which he declined to do.
5 There came a point when the defendant went to bed, alone, in a bedroom in the premises intending to sleep. Sometime after he did so, and whilst he was asleep, [N] got into bed with him, without any invitation or acquiescence on his part. When he awoke to find her in bed with him she again acted flirtatiously towards him and asked if he wanted to have sexual relationships with her, which he declined. She nevertheless unfastened his trouser and masturbated his penis. He further felt something wet upon his penis. It is possible that he ejaculated as a result, but he was extremely tired and sleepy and was semiconscious at this time.”
20.
On receipt of this statement the prosecution sought a further opinion from the forensic scientist. In a statement on 2 October 2013 she concluded that her findings were also what she would expect if the complainant had masturbated the appellant or performed oral sex on him. Transference could have taken place so as to produce the result found. The forensic evidence was the subject of written agreement at trial.
21.
Also agreed at trial was evidence of a medical examination of the complainant following her complaint during which it was found that her inner thigh was tender to touch and that a 1.5 centimetre bruise was present on the outer left thigh. No injuries were found on the vagina or vulva but when a vaginal examination was attempted with a speculum the complainant experienced soreness and she could not tolerate full opening.
Discussion
22.
It can be seen that there was a stark clash in the cases being advanced by the prosecution and the defence respectively. While it is true that the central issue was whether sexual intercourse had taken place, there was a gulf between the prosecution and the defence as to the surrounding circumstances including (1) whether the complainant was in a drunken sleep when the appellant removed her clothing and commenced sexual intercourse, (2) when the complainant woke up, protested, struggled and fought him off, or (3) whether, on the contrary, a sexual advance was made by the complainant towards the appellant and (4) she masturbated him to ejaculation. The only common ground appears to have been that both were in a bedroom upstairs in the house and that some act of sexual intimacy took place between them. We cannot agree with the learned judge that the scope of the issue of the complainant’s creditworthiness was as narrow as he described it. Mr Corre conceded before the full court when making his application for leave that he had not spelled out to the judge the full effect of the defence case but made it clear that the credit of the witness in making the allegation of rape was a central issue. Notwithstanding the misdescription of the issue, the judge correctly, in our view, identified that credit was a matter of substantial importance in the context of the case as a whole.
23.
The second question for the judge was whether the complainant’s previous convictions were of substantial probative value on the issue of credit as we have described it. In
Phillips
at paragraph 13 the court concluded that the term “substantial probative value” must mean that the bad character evidence has an enhanced quality of proving or disproving a matter in issue. In our judgment that assessment must be considered not as a generalised and hypothetical question but specifically within its practical and fact sensitive context.
24.
The issue of credit that arose in the present case was as to the ‘worth’ of the complainant’s assertions that the appellant had sexual intercourse without her consent; that she did not make sexual advances to the appellant and sexually assault him by masturbating him to ejaculation. It is necessary for this court to consider the circumstances as they were at the time the defence application was made and not as they would have appeared after all the other evidence in the case had been adduced. We are persuaded that, having correctly ruled that the complainant’s general creditworthiness was central to the case, the judge should also have ruled that the convictions were so numerous, varied and recent that they were of substantial probative value upon the issue of whether her accusation against the appellant was worthy of belief. It was for the jury to judge whether in the particular factual context of the present case her general bad character was of any assistance to them in resolving who was telling the truth.
25.
We have therefore considered whether the safety of the verdict may have been affected by the exclusion of N’s bad character from the evidence. In our judgment, the bad character on which the appellant relied paled in significance beside a careful examination of the evidence that emerged: of the complainant and appellant respectively, the evidence of other occupants in the house at the time of the complaint, the scientific and medical evidence and the evidence of the police officers to whom the complaint and the complainant’s first account were given. That evidence described a specific context within which the worth of N’s evidence was to be assessed, namely sexual activity between two people after a drunken party. For reasons which follow, we consider that the jury would have been quite unable to conclude that the frequency and nature of the complainant’s misbehaviour in the past provided any ground for rejecting her present complaint against the appellant. Our first observation is that there was nothing about those convictions that established even a tangential connection to the facts of the present case.
26.
The appellant chose to make no response to the evidence put to him in interview. He waited until the forensic evidence was available before putting forward an account in his defence statement, which he repeated with notable inconsistencies in the course of his evidence. It was, in our view, the inconsistency between the defence statement and the evidence given by the appellant that exposed the weakness in the assertions he made. There was a powerful prosecution argument that the appellant had held back from giving an account of the incident until the scientific evidence was to hand in order to adjust his case accordingly; having adjusted it, falsely, he had difficulty in giving a consistent account.
27.
In the course of his evidence the appellant denied that N had been flirting with him. Later, he alleged that she was. In his evidence in chief the appellant said that he awoke to find N next to him with her hand on his penis; he did not say or do anything but turned over. In cross-examination, when reminded of what he had said in his defence statement, he alleged that N had asked him to fuck her. He had responded, “In a bit”. In his evidence the appellant said that his trousers remained fastened. On being reminded of the defence statement the appellant said that N had unfastened them. The appellant could not explain how the complainant may have suffered bruising and soreness. Downstairs, although he was in the presence of Holly and the complainant, he claimed not to have heard any complaint of rape.
28.
The complainant suffered minor injuries that were consistent with her account but not with the appellant’s. She was seen immediately afterwards to be in a state of distress. She gave a consistent account and submitted to an intimate examination. The complainant’s account was given well before the scientific evidence was available and was consistent with it. We have no doubt that had the jury been informed of the complainant’s previous criminal convictions they can have had no significant impact on the specific issues of credit that arose in the case. The complainant was demonstrably truthful on those issues and the appellant was not.
29.
In our judgment the verdict was safe and the appeal is dismissed.
|
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|
Neutral Citation Number:
[2017] EWCA Crim 37
Case No: 2014/05621/B5, 2014/05633/B5, 2014/05622/B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Neil Denison QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
09/02/2017
Before:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE WYN WILLIAMS
and
MR JUSTICE HOLROYDE
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
Respondent
- and -
Andrew James Clarke
Geoffrey Brian Sheppard
Applicants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mathew Ryder QC
and
Ben Newton
(
instructed by
Mr Schwarz
of
Bindmans)
for the
Applicant
Max Hill QC
for the
Respondent
Hearing date: 29 November 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
Lord Thomas of Cwmgiedd, CJ:
The background
1.
On 17 June 1988, at the Central Criminal Court before HH Judge Neil Denison QC, both applicants were convicted of counts of arson arising out of serious fires at Debenhams stores in Harrow, Luton and Romford which occurred in the early hours of 12 July 1987. The damage caused by the fires was estimated at £4.38m with consequential loss of £4.91m. The case against the applicants was that they had planted incendiary devices to further their aims as members of the Animal Liberation Front. Clarke was sentenced to 3½ years imprisonment and Sheppard to 4 years imprisonment with 4 months consecutive in respect of a suspended sentence for an earlier offence.
2.
When allegations came into the public domain from about 2011 in respect of the methods of operation of undercover police operations in respect of political activists, names of police officers that were widely publicised included Robert Lambert. In December 2014, some 26 years out of time, both applicants sought leave to appeal against their convictions on the basis that there had been no disclosure of the position of Robert Lambert as an undercover officer and, if there had been, the applicants would have advanced a defence that he had acted as an
agent provocateur
. The fact that Robert Lambert was an undercover officer at the material time is not disputed but there is a dispute as to the role he played in relation to the applicants.
3.
Sheppard was convicted of another offence in 1995. A similar issue arises out of the involvement of another person who is said to have been an undercover police officer at that time.
4.
In March 2015 the then Home Secretary established, under the chairmanship of Sir Christopher Pitchford, an Inquiry under the
Inquiries Act 2005
into undercover policing (the Inquiry). It is evident that the progress of the application for leave to appeal by these applicants has already been affected by the course of the Inquiry and by on-going police investigations by the Metropolitan Police.
5.
The applications were referred to the Full Court by the Single Judge. The Full Court has held two preliminary hearings, one on 19 July 2016 (Lord Thomas of Cwmgiedd CJ, Openshaw and Holgate JJ) and the second on 29 November 2016 (Lord Thomas of Cwmgiedd CJ, Wyn Williams and Holroyde JJ). At each hearing the parties have sought directions aimed at facilitating the future progress of the applications. The court has been greatly assisted by the parties and by counsel representing the Inquiry. The Full Court has adjourned the applications for leave to appeal for a further preliminary hearing later in 2017.
6.
The timing of the hearing of the applications for leave to appeal and the consideration of the fresh evidence which it is accepted exists is uncertain; to a considerable extent the timing will be affected by the course of the Inquiry, the evidence given to the Inquiry and the extent to which the Inquiry conducts an examination of the role of Robert Lambert, other officers and the applicants; it is also affected by the ongoing investigation by the Metropolitan Police into the original offences. The hearing of the applications will not take place before 2018 and there is a real prospect it may be delayed beyond that time.
The disclosure issues
7.
The applications to this court are based entirely on fresh evidence. No issue arises as to the disclosure at the trial as nothing was disclosed in relation to the undercover policing operation. The status of Robert Lambert and other undercover officers and other matters were not, we are told, brought to the attention of trial counsel.
8.
It is evident, however, that in relation to the application to adduce fresh evidence there is likely to be disclosure of a very substantial number of documents. A significant volume of material has been compiled by the Crown. It was supplied to the court in March 2016. A redacted version of that material has been provided to the applicants, public interest immunity (PII) being invoked in respect of the redactions and the withholding of other material. It is highly likely that a very significant quantity of further documentation will emerge in the course of work being undertaken by the Metropolitan Police and by the Inquiry.
9.
In addition to the issues that will need to be determined on the Crown’s claim for PII in respect of the documentation so far made available, it is clear that other issues will arise as to the scope of the disclosure: Robert Lambert was involved in other undercover operations; it is also said that he was involved with a body or group that attempted to supervise the undercover operations. No doubt, if further material is relevant and has to be disclosed, there will be claims for PII in respect of that further material.
10.
Therefore this court faces unprecedented procedural issues in these applications arising out of:
i)
the historic nature of the underlying events which occurred nearly 30 years ago;
ii)
the timescale of the appeal where two years have already elapsed since the making of the applications for leave and no date can be fixed for the hearing;
iii)
the significant scope and scale of the issues in respect of disclosure relating to fresh evidence; it is again uncertain when the determination of the issues can usefully commence.
11.
At the second preliminary hearing, the court, therefore, raised with the parties how the court should be constituted for the determination of the issues relating to disclosure. If all three members of the court were to be required to determine all of the issues of disclosure in relation to the fresh evidence, it would be necessary to fix the constitution of the court so that all three judges would be available to hear the disclosure issues as and when they arose and for a considerable amount of the court’s judicial resources to be used as each judge would need to read all the documentation and then be present at the hearing and determination of the issues.
12.
The court is greatly indebted to counsel for their written submissions on these issues submitted to the court on 16 December 2016. They have, as throughout, conducted the matter with the greatest skill, courtesy and learning.
The generally applicable principles
13.
In
R (Nunn) v Chief Constable of Suffolk Constabulary & another
[2014] UKSC 37
,
[2015] AC 225
the Supreme Court held that a common law duty of disclosure exists in addition to the statutory duty under
ss.3
and 7A of the
Criminal Proceedings and Investigations Act 1996
(
CPIA 1996
). The statutory duty under
CPIA 1996
ceased when the trial ended, but the common law duty, governed by the principle of fairness, continued to exist but in a modified form to meet the needs of the particular stages of the proceedings. As applied to disclosure after conviction, paragraph 72 of the Attorney General’s Guidelines state:
“Where after the conclusion of proceedings, material comes to light that might cast doubt upon the safety of the conviction, the prosecutor must consider disclosure of such material.”
Lord Hughes summarised the continuing duty at paragraph 35:
“There can be no doubt that if the police or prosecution come into possession, after the appellate process is exhausted, of something new which might afford arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant. Simple examples might include a new (and credible) confession by someone else, or the discovery, incidentally to a different investigation, of a pattern, or of evidence, which throws doubt on the original conviction. Sometimes such material may appear unexpectedly and adventitiously; in other cases it may be the result of a re-opening by the police of the inquiry. In either case, the new material is likely to be unknown to the convicted defendant unless disclosed to him. In all such cases, there is a clear obligation to disclose it. Paragraph 72 of the Attorney General's guidelines … correctly recognises this. This is, however, plainly different from an obligation not to reveal something new, but to afford renewed access to something disclosed at time of trial, or to undertake further inquiries at the request of the convicted defendant.”
14.
Where the prosecution wish to claim PII to justify the non-disclosure of otherwise disclosable material, it is for the Court and not the Crown to decide whether disclosure must be made:
R v Ward
[1993] 1 WLR 619
;
(1993) 96 Cr App R 1
.
15.
Save in exceptional circumstances, the procedure for determining issues in relation to PII at the trial court and on appeal is that the prosecution must (a) give notice to the defence that they are applying for a ruling by the court, (b) indicate the category of the material they hold and (c) the defence must have the opportunity to make representations to the court. In an exceptional case, the Crown must notify the defence that an application to the court is to be made, but the category of material need not be specified and the application will be heard in the absence of the defence
.
Having heard the application in this way, the court may rule that the normal procedure should have been followed or may rule on the application as made. In a highly exceptional case, the prosecution may apply to the court directly without notice to the defence: see
R v Davis Rowe & Johnson
(1993) 97 Cr App R 110
and for the procedure in trial courts: Crim PR 15.3.
16.
In
Davis Rowe & Johnson
, the court made clear that where the court decides in favour of non-disclosure before the hearing of a case begins, that decision is not necessarily final as the situation may change in the course of the hearing. The court further said:
“It will therefore be necessary for the court to continue to monitor the issue. For that reason, it is desirable that that the same judge or constitution of the court which decides the application should conduct the hearing. If that is not possible, the judge or constitution which does conduct the hearing should be apprised at the outset of the material upon which non-disclosure was upheld on the Crown’s earlier application.”
17.
In
R v H & C
[2004] 2 AC 134
;
[2004] UKHL 3
;
[2004] 2 Cr App R 10
, the House of Lords considered whether the procedure for dealing with claims for PII in criminal proceedings was compliant with Article 6 of the ECHR. The House of Lords held that there would be no violation of Article 6 if scrupulous attention were given to the governing principles and continuing regard had to the proper interests of the defendant. Derogation from the general rule of full disclosure might be justified on grounds of PII, but such derogation must always be the minimum necessary to protect the public interest and must never imperil the fairness of the proceedings. A template was provided by which the court was to make PII decisions. Where it is determined that material does attract PII, the court must consider whether the interests of the defence can be protected while giving adequate protection to the public interest in question, which may be achieved by ordering limited disclosure. Exceptionally, the appointment of Special Counsel may be necessary to protect the defendant’s right to a fair trial. Where limited disclosure would render the whole trial unfair, the court should order fuller disclosure, even if to do so leads the prosecution to discontinue the proceedings.
The determination of issues of disclosure in the CACD in relation to disclosure issues which have arisen in the Crown Court
18.
Following the House of Lords ruling in
H and C
, the Court of Appeal in
R v McDonald
[2004] EWCA Crim 2614
considered the procedure for applications where this court has to review a PII exercise conducted in the Crown Court. The Court set out at paragraph 25 the principles that should generally guide the conduct of appeals which raise issues as to the trial judge’s conduct of a PII hearing:
“1.
The approach should be the same whether the
ex parte
PII hearing before the trial judge was or was not on notice. The principles in relation to the appointment of Special Counsel, or the need for the judge to recuse himself or herself are the same in both cases.
2.
The Court of Appeal (Criminal Division) will have to review
ex parte
with the prosecution present all the material which was before the trial judge. A prosecution summary will not usually suffice, but is always desirable and, in a complex case, essential.
3.
It will be necessary for that review to be carried out by the same constitution which is to hear the appeal.
4.
The review will have to take place sufficiently in advance of the substantive appeal hearing to permit, in those exceptional cases where this is necessary, Special Counsel to be appointed and suitably prepared.
5.
In the majority of cases, where the Public Interest Immunity material can be read in an hour or two, this should present no listing difficulty and the Public Interest Immunity hearing can take place, as frequently happens now, in the first week of a constitution sitting with the appeal being heard in the third week.
6.
In the minority of cases, where the PII material is unusually voluminous, special listing arrangements will have to be made over a longer time scale.”
19.
The process has been followed in a number of cases: see for example
R v Austin
[2013] EWCA Crim 1028
at paragraph 79.
20.
The present appeal is very different, as it does not involve any review of the trial judge’s decision. There was no disclosure issue before the judge.
The general jurisdiction of the Criminal Division of the Court of Appeal
21.
The jurisdiction of the court is set out in the
Senior Courts Act 1981
(
SCA 1981
).
S.55
provides that a court is duly constituted for the purpose of exercising any of its jurisdictions
if it consists of an uneven number of judges, not less than three (
s.55(2)
). However
s.55(4)
provides that a court of two judges is duly constituted for every purpose except determining an appeal against conviction, a verdict of not guilty by reason of insanity and various other decisions which are not material.
22.
We see no reason why a two-judge constitution cannot act for all purposes in preparing an appeal against conviction, even though a three-judge constitution is required to ‘determine’ the appeal.
23.
The court also has inherent or implicit powers to avoid real injustice in exceptional circumstances: see
R v Yassin
[2016] QB 146
,
[2015] EWCA Crim 1277
at paragraphs 36-44. We do not consider that the circumstances that have arisen in the present appeal give rise to any consideration of the use of the inherent powers of this court.
The relevant powers under
s.23
of the
Criminal Appeal Act 1968
24.
Under
s.23
of the
Criminal Appeal Act 1968
(
the 1968 Act
) which governs the admission of fresh evidence and which is therefore the principal provision in relation to this application, the court has two relevant powers conferred by
s.23(1)
(a) and (b) under which it may:
“(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case;”
“(b) order any witness to attend for examination and be examined before the Court (whether or not he was called in the proceedings from which the appeal lies.”
s.23
(1A) makes clear that the power under (a) can be exercised so as to require the production of any document to the court, to the appellant and to the respondent.
The exercise of the power under
s.23 (1)
(a) by a single judge
25.
The Court of Appeal may under
s.23(4)
of
the 1968 Act
order the power under
s.23(1)
(b) be exercised by a single judge:
“the Court of Appeal may, if they think it necessary or expedient in the interests of justice, order the examination of any witness whose attendance might be required under subsection (1) (b) above to be conducted, in manner provided by rules of court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court.”
26.
This power was exercised in
R v Erskine
[2010] 1 WLR 183
,
[2009] 2 Cr App R 29
where the court made observations on the benefits of utilising the procedure: see paragraphs 7-10
“7 The powers under this subsection were used in
R v Stafford
[1972] 1 WLR 1649
and in
R v Saunders
(1973) 58 Cr App R 248
, but have rarely been used since then. In the present appeals, although it was clear that there were differences in the opinions of the experts, none of the differences turned on issues of credit. It was desirable to hear these two appeals together, but very difficult to find a time when all the experts and counsel were available. It was therefore proposed that the evidence of the expert psychiatrists be heard in each case by one of the judges who was to hear the appeal on separate days at a time that was convenient to those in each case. The evidence in relation to Williams was heard before Thomas LJ on 16 March 2009 and in relation to Erskine on 21 April 2009.
8 Ahead of the hearings of the evidence, and indeed when the evidence was heard, and then again, in advance of the hearing of the argument before the full court on 6 and 7 May 2009, the areas of disagreement between the experts were clearly identified and then refined. At the appeal transcripts of the evidence were made available to counsel and the court. Thus the hearings took place with a much clearer focus on the evidence actually before the court and its relevance to the submissions and were comfortably concluded within two days rather than the four to five days which would otherwise have been needed.
9 Counsel in both appeals stressed the advantage to them of being able to consider the expert evidence in advance of the legal argument. They accepted that in future it would sometimes be helpful to allow an interval between the hearing of the expert evidence and the listing of an appeal, thus providing an opportunity for reflection. In appeals involving complex and lengthy expert evidence we agree that such an opportunity would be sensible.
10 We therefore suggest that when directions are given in a case involving expert evidence that the court should consider, apart from the usual directions regarding the exchange of expert reports and a meeting of experts, whether the expert evidence should be heard on commission before one of the judges who will sit on the appeal, or whether it should be heard in advance of the legal argument by the full court that is to hear the appeal, or whether it should be heard immediately prior to the legal argument as part of one continuous hearing. The considerations that the court may wish to take into account will include whether any significant issues of credit are involved, the nature of the evidence, its complexity, its length, the scope of the dispute, its relative importance in the appeal and the availability of the experts.”
27.
In
Saunders,
the evidence of an accomplice was heard by James LJ on commission; he sat on the subsequent appeal with the then Lord Chief Justice and Geoffrey Lane CJ. The court observed:
“We would not, I think, in this case have consented to take [the accomplice]’s evidence in the form of a simple written statement, although the powers of this Court extend to doing such a thing. Instead, his evidence was taken on commission, that is to say, on oath, and it was taken by Lord Justice James, a member of this Court on behalf, as it were, of the Court as a whole.”
28.
It may be that the court will consider the exercise of this power in due course in these appeals, but that is an issue for the future. However, the cases of
Saunders
and
Erskine
both show that the court will exercise such powers in respect of important evidence in an appeal and how the receipt of evidence in this way provides benefits to the parties and to the court.
The exercise of the power under
s.23 (1)
(a) by a single judge
29.
The power under
s.23(1)
(a) of
the 1968 Act
may be exercised by a single judge of the court by reason of
s.31(2)
(i) of
the 1968 Act
. The power is among the specific powers which can be exercised by a single judge of the court. A safeguard is provided to the appellant by
s.31(3)
:
“If the 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.”
30.
The question which arises is whether the power of the court in respect of the provision of documents pursuant to a common law duty imposed on the Crown is a power within
s.23(1)
(a) which applies to circumstances where the Crown contests the relevance of the documents or seeks to withhold documents on the basis of PII and these documents have never been the subject of any ruling by the trial judge.
31.
It seems to us that in circumstances where the court will be resolving such issues, it will be doing so by ordering or not ordering the production of documents. This use is entirely consistent with the judgment of Lord Bingham at paragraph 35 of the decision in
R v H
where he frames the questions for the court in terms of what the court should order or not order when considering the PII application.
32.
Thus where on an appeal the disclosure issue before the court does not involve any review of the trial judge’s decision, it is not generally necessary for that review to be carried out by the same constitution which is to hear the appeal: the Full Court, Single Judge or the Registrar may direct that a Single Judge should consider the application. The Single Judge generally might, but does not have to be, part of the constitution which will hear any appeal.
33.
It the Single Judge does not order disclosure, it will be open to the applicants to challenge any adverse decision under the specific power under
s.31 (3)
. The Single Judge can always protect the position of the Crown by adjourning any application where the Crown wishes to argue the matter further to the Full Court. Where the Single Judge is to be part of the constitution, which will hear the appeal, the remaining two-judge court would be properly constituted to consider any challenge under
s.31(3)
as noted in paragraph in paragraph 22 above.
34.
In this case it is understood that the Single Judge will be part of the constitution hearing the appeal. Given the experience and seniority of the Single Judge to whom the Full Court will direct that the applications will be made, namely Holroyde J, we are sure that the circumstances in which the Full Court will be required to exercise the powers in place of the Single Judge, if any ever occur, will be very rare.
35.
The process set out in
McDonald
involved a very different position as it provided specifically for cases where the Court is invited to review and, potentially, overrule the determination of a Crown Court judge. Where no PII application was made at the Crown Court, and the exercise is being conducted for the first time in relation to post-trial disclosure, the procedure we have outlined is entirely appropriate and provides the necessary safeguards and flexibility.
|
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|
Neutral Citation Number:
[2014] EWCA Crim 53
Case Nos: 201205255 B4, 201205238 B4, 201205234 B4, 201205229 B4, 201205159 B4, 201205158 B4, 201205156 B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Liverpool Crown Court
His Honour Judge Aubrey
T20117949, T20117957, T20117958, T20117940
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
24/01/2014
Before :
LORD JUSTICE FULFORD
MR JUSTICE POPPLEWELL
and
HIS HONOUR JUDGE WAIT
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
- and -
John Cooke, David Jolly, Paul McDonald, James Swarez, Jonathan Cromwell, James Beck and John Wildman
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr M Bagley
(instructed by
Potter Derby
for
Mr
McDonald)
,
Mr I Harris
(instructed by
ABR Solicitors
for
Mr
Swarez)
,
Mr K Seal
(instructed by
HPJV Solicitors
for
Mr
Cromwell)
,
Mr S Nolan
(instructed by
David Phillips and Partners
for
Mr Wildman)
,
Mr Barraclough (
instructed by
Hogan Brown
for
Mr Cooke)
Hearing date: 7 November 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Fulford :
1.
This case relates to an extremely grave conspiracy, based in Liverpool, to supply heroin and cocaine to organised criminal gangs in Scotland, South Wales, Lancashire and Cheshire. In all, 13 members of the conspiracy were charged and during the course of the proceedings they either pleaded guilty or were convicted by a jury of a single count of conspiracy to supply a Class A drug. Eight of the conspirators have renewed their applications for leave to appeal their sentences following the refusal of the single judge.
2.
The procedural history relating to the applicants presently before this court can be shortly described. On 12
th
March 2012 at the Crown Court in Liverpool John Cooke, James Swarez, Paul McDonald, Jonathan Cromwell, David Jolly and John Wildman pleaded guilty to conspiracy to supply a controlled drug of Class A.
3.
On 11
th
June 2012 and on the 6 July 2012 at the same court the applicants James Richard Beck and Gordon Smith, were respectively convicted of conspiracy to supply a controlled drug of Class A.
4.
On 8
th
August 2012 the eight applicants were sentenced by Judge Aubrey Q.C., who had presided over all these proceedings, as follows: Cooke and Swarez 17 years’ imprisonment; McDonald 15 years’ imprisonment; Beck 13 years’ imprisonment; Cromwell, Jolly and Smith 12 years’ imprisonment and Wildman 9 years 4 months’ imprisonment.
5.
The judge sentenced the applicants’ co-accused to the following terms of imprisonment: Edward McCreadie 12 years 8 months, David Law 10 years 8 month, Roseanne McCreadie 9 years, Brian Harrison 6 years 8 months and John Earley 6 years. These five defendants either did not appeal their sentences or have not renewed applications for leave to appeal following refusal by the single judge.
6.
The conspiracy lasted between May and November 2011. It involved very large-scale supply and distribution of heroin and cocaine, and the operation was highly sophisticated, efficient and profitable. The headquarters were in Liverpool, and, as we observed above, the drugs were provided to criminal gangs in Scotland, South Wales, Lancashire and Cheshire. As the judge stressed, the objective was “to flood the streets, the pubs and clubs in many corners of the country with Class A controlled drugs” and the strategy involved a complete disregard of the impact of this criminality on our society. The judge highlighted the extent to which drugs wreck lives, causing misery and desperation, and they often lead those who are addicted to commit crimes in order to fund their dependency.
7.
There were eight seizures of drugs between July and November at diverse locations, including Glasgow, Crosby, Ross-on-Wye, Cardiff and Blackpool. Some of the drugs were of very high purity, revealing close proximity to the source in that it is to be inferred that the consignments had just arrived in this country. In all some 17 kilos of heroin were intercepted, but this represented only a proportion of the overall amounts involved in the conspiracy, as demonstrated by the movements of some of the defendants. The repeat journeys of the couriers – 54 relevant trips have been identified – put beyond doubt the scale of this operation. On the basis that on average two kilograms were transported on each occasion there was a delivery, and that the purpose of the trips was alternately to deliver drugs and collect money, this criminal enterprise involved in the order of 54 kilograms of drugs. However, there is evidence that drugs were delivered and monies were collected at the same time, and therefore the applicants have been dealt with on the basis of a lenient assessment, indeed the one most favourable to them. In any event, this offending represents at least 20 kilograms at 100% pure heroin and the wholesale value of the drugs was somewhere between £1,775,000 and £3,555,000. As the judge determined, this was drug dealing on an extensive commercial scale, albeit not on a massive scale.
8.
Although the judge decided that the definitive guideline did not apply because the defendants were due to be sentenced for a conspiracy and the amounts involved in this case far exceeded the quantities addressed in the Sentencing Council’s Definitive Guideline, where appropriate he assessed culpability by reference to the approach set out by the Council for drug offences. We note that authority has subsequently clarified that the guideline covers conspiracy offences (see
R v Khan
[2013] EWCA Crim 800
;
[2014] 1 Cr. App. R. (S) 10
, p. 42 at [23]). It is necessary to emphasise that in determining the category of harm, the guideline’s highest category (category 1) identifies an indicative quantity of 5 kilograms of heroin or cocaine for the purposes of identifying the starting point. In the accompanying narrative it is observed “
where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the role of the offender
”. Historically, the decisions of this court have revealed that sentences in excess of 20 years are justified in cases involving very large quantities of cocaine and heroin (see
Morris
[2009] EWCA Crim 32
;
Attorney Generals References 99 – 102
[2005] 2 Cr App R (S) 82, p. 505 and
Attorney General’s References 15 – 17 of 2012
[2012] EWCA Crim 1414
;
[2013] 1 Cr App R (S) 52
, p. 289).
9.
The judge found that in addition to the highly significant quantities involved, there were a number of other factors to which we will turn when considering the individual cases of these applicants. He determined that a significant number of the defendants fell to be sentenced on the basis that they had played a leading role. In this context, the judge referred to the judgments of this court in
Attorney General’s References 15 – 17 of 2012 (supra)
and
R v. Boakye and others
[2012] EWCA Crim 838
;
[2013] 1 Cr. App. R. (S) 2
, p. 6 in which it was noted that couriers who are aware of the harm they are inflicting and who have nonetheless chosen to participate will be assessed as having played a leading or a significant role, depending on the circumstances.
10.
The judge found that the organisers included Cooke and Swarez, and that as a result they played leading roles. He decided that Cromwell and Beck had “
extremely significant roles
” as major drug dealers in their own right, McDonald had a leading role and that all the other defendants played significant roles, by acting as couriers, providing safe houses or acting as a conduit or go-between, given particularly that without their contribution “the aim and goal of this conspiracy could not succeed”.
11.
We turn now to the individual applicants.
12.
John Vincent Cooke
is 33 years of age. He was sentenced to 17 years’ imprisonment (the starting point was 23 years’ imprisonment). He has no relevant previous offences in that his only convictions relating to drugs in 2002 and 2007 concerned possession of cocaine. He was described by the judge as being at the heart of the business, which he controlled, directed and organised. He had been present at significant meetings and an analysis of the telephone traffic revealed his involvement and close communication with his co-conspirators. The judge noted particularly that when 3 kilograms were seized on 1 September in the possession of Cooke’s courier in Crosby, it reflected “
off the boat purity
”. The judge was certain that this applicant was simply concerned to make as much money as possible. Indeed, the author of the pre-sentence report dated 23
rd
March 2012 reported that Cooke had indicated that he had willingly entered the business of selling drugs and understood the effects of the drugs trade. It was recognised that he was involved in the drugs trade at a higher level than “
street dealer
”.
13.
Perhaps somewhat surprisingly given the key role he played in this offending, he was assessed as posing a low risk of re-offending. His attitude in prison has been commendable, both in terms of addressing his consumption of drugs and his general behaviour.
14.
His counsel advances two principles submissions in support of the general proposition that the sentence was manifestly excessive: first that the judge adopted too high a starting point in all the circumstances of the case, and, second, he failed to give sufficient discount for his early guilty plea (he had told the prosecution he intended to plead guilty before the Plea and Case Management Hearing (PCMH)). In support of the first ground, it is argued that “
the overall guidance from the Court of Appeal in relation to [cases such as this] is that the starting point would not exceed 20 years as a very top figure and 18 would be appropriate
”. Counsel emphasises the circumstances of the applicant, and particularly his age and lack of relevant convictions, and it is suggested the judge erred as to the starting point he identified.
15.
As regards the discount for plea, counsel cites
R v Underwood
[2004] EWCA Crim 2256
;
[2005] 1 Cr App R 13
. p. 178 in which it was indicated that if any factual issues in dispute between the prosecution and the defence are resolved entirely in the accused’s favour, credit should not be withheld. However, we note that the court went on to add that if the defendant showed no insight into the consequences of his offence and no genuine remorse, then the discount may be reduced [11]. Furthermore, it is to be observed that although Cooke pleaded guilty on 12 March 2012, he submitted more than one basis of plea, and on 14 July 2012 he only accepted he was an organiser of the distribution of drugs in Wales and Scotland, and he denied involvement in the activities in Cheshire and Lancashire. He suggested his involvement related to low purity class A drugs, and he contended he was concerned with no more than 3 kilograms of heroin and up to 20 kilograms of heavily diluted cocaine.
16.
We have already addressed the issue of the starting point for defendants dealing in drugs at the level of these applicants. In refusing leave the single judge observed “
having regard in particular to the part played in the conspiracy by the applicant, the scale of the conspiracy and the amount of drugs involved, the judge’s starting point of 23 years, whilst severe, cannot be regarded as manifestly excessive
”. We would add that given the particular role of this applicant, which was that of a singularly active controller of an extensive drug-supply enterprise, the severity of the sentence was entirely appropriate.
17.
As set out above, the applicant tendered his guilty plea at the PCMH in March 2012 on a basis of plea which was revised in July 2012. At the date set for a Newton hearing on 1 August 2012, he did not pursue that revised basis of plea. His decision had been communicated to the prosecution in advance of the hearing. Given he advanced, as set out above, the proposition that he had not been involved in the operations in Lancashire and Cheshire, and he had been concerned with only a small amount of heroin and 20 kilograms of low grade cocaine, we are – without hesitation – of the view that the sentencing judge was fully justified in reducing the credit accorded to the applicant to about 25% to reflect the fact that his plea was for a significant period unjustifiably limited and qualified.
18.
Accordingly, the sentence of 17 years cannot arguably be faulted and his application is dismissed.
19.
James Jack Swarez
is 44 years of age. He was sentenced to 17 years’ imprisonment, with a starting point of 20 years’ imprisonment. The judge found that he was at the heart of the conspiracy in Liverpool and he was, more generally, heavily involved in this criminal enterprise, most notably in Wales, Lancashire and Cheshire but also in Scotland.
He played an organisational and leading role; he was present at significant meetings; and he directed and controlled operations, albeit just below Cooke (the Crown described his role as “
slightly subordinate
” to Cooke). The judge found during the Newton hearing for this applicant that he was an organiser who was “on the board of directors”, although he was not the managing director. He disbelieved the applicant’s evidence in a significant number of respects. In a lengthy and careful ruling the judge analysed Swarez’s movements, the telephone calls and his contact with other conspirators, leading to the conclusion that he had a controlling role. The judge isolated and analysed particular key days and events in support of this conclusion, such as 12 July 2011 (the Pond Restaurant day), 28 July 2011 (the Coastal Southport day), 1 September 2011 (the day of Law’s arrest) and 13 October 2011 (the Hob Inn day). He accepted that this applicant had been involved in some legitimate building works but he rejected many of Swarez’s other contentions, such as the reasons why he visited Wales on a number of occasions.
20.
His offending was, in the view of the learned judge, aggravated by a conviction in 1995 for conspiracy to supply ecstasy for which he received a sentence of 4 years imprisonment.
21.
In support of this application it is argued that the judge’s findings did not sufficiently reflect the difference in the respective positions of Cooke and this applicant, and it is suggested the judge gave insufficient credit for his guilty plea notwithstanding the fact that he fought an unsuccessful Newton hearing. Accordingly, it is argued that the starting point for Swarez was too high and he should have been accorded more than 15% credit. It is observed that witnesses were not called during his Newton hearing and the evidence of the officers was not challenged. It is said that some activity had taken place before the applicant became involved in the conspiracy and that generally the evidence demonstrated that Cooke was “
far superior
” to Swarez in the hierarchy. It was contended that there is no evidence to suggest that this applicant was involved throughout the conspiracy, and – consistent with that submission – the telephone evidence only implicated him to a limited extent. This, it is argued, raises the question as to the true nature of his role. Put otherwise, it is suggested that Cooke had regular control and there was less activity by Swarez, and the few trips on his part may simply have been in the role of a courier. In this context, it is highlighted that Jolly and Swarez tended to be in contact after meetings with Cooke, which would tend to reveal that a consignment had been delivered.
22.
The single judge, when addressing whether the starting point was too high, concluded that having regard in particular to the part which the sentencing judge found that the applicant had played in the conspiracy, the scale of the enterprise, the amount of drugs involved and the applicant’s previous conviction for supplying ecstasy, the starting point of 20 years, whilst severe, cannot be regarded as manifestly excessive. We concur with that observation. The judge was entitled to conclude that Swarez controlled and directed aspects of this criminal enterprise, and enabled a very large quantity of Class A drugs to be supplied, to a number of areas. He issued instructions to subordinates and he operated at the heart of the conspiracy, albeit below Cooke. In
R v Khan
(
supra
) Treacy LJ in giving the judgment of the court observed:
“32. Many conspiracies will involve multiple supply transactions. In those circumstances the judge would be entitled to look at the aggregate quantity of the drug involved.
33. Of course involvement in a conspiracy may vary for individual offenders within it. One core variant is culpability, which is demonstrated in the guideline by the role of the offender, and which is to be assessed by the non-exhaustive indicative factors set out in the guideline. That will enable the judge to assess the level of involvement of an individual within a conspiracy.
34. However, a particular individual within a conspiracy may be shown only to have been involved for a particular period during the conspiracy, or to have been involved only in certain transactions within the conspiracy, or otherwise to have had an identifiably smaller part in the whole conspiracy. In such circumstances the judge should have regard to those factors which limit an individual's part relative to the whole conspiracy. It will be appropriate for the judge to reflect that in sentence, perhaps by adjusting the category to one better reflecting the reality.
35. As a balancing factor, however, the court is entitled to reflect the fact that the offender has been part of a wider course of criminal activity. The fact of involvement in a conspiracy is an aggravating feature since each conspirator playing his part gives comfort and assistance to others knowing that he is doing so, and the greater his or her awareness of the scale of the enterprise in which he is assisting, the greater his culpability.”
23.
We entirely agree with those conclusions, and simply add that the central organisers may well not be involved personally in each and every transaction and instead the judge will need to focus on their overall position in the hierarchy and the particular role that they played. Although defendants in a position of authority may have joined the enterprise at some stage after the conspiracy began and they may not have featured in every aspect of the operation, this does not necessarily lead to a reduction in the level of sentence.
24.
As to the limited credit for the applicant’s guilty plea, this was tendered at the PCMH in March 2012 on a significantly restricted basis. There was a 3-day Newton hearing at which the applicant’s evidence was rejected. In the circumstances, the judge was fully justified in reducing the credit accorded to the applicant to 15%. The judge recognised his lesser to role to that of Cooke, and in the event the sentence of 17 years cannot credibly be criticised.
25.
Paul McDonald
is 45 years of age. He was sentenced to 15 years’ imprisonment, with a starting point of 20 years’ imprisonment. The judge determined that he was a major player within the network; he had a leading and an active role, and he was always able to obtain large quantities of heroin. As a result he supplied very large quantities of heroin to the organisers of the conspiracy, although he was not their exclusive supplier and they were not his only customers. The sheer quantities of heroin supplied by McDonald need emphasising: as a single example, on 26 October 2011, together with Harrison, this applicant supplied 5 kilograms of heroin to Coburn in Blackpool of 25 – 26% purity. He was connected (
via
Caddock and Jolly) to the Scottish limb of this conspiracy and the delivery of drugs in that country on 4 July 2011. McDonald was wholly undeterred by the arrest of other conspirators when they were in possession of very large quantities of drugs (
viz.
the arrests of Petherick in Wales on 13 September 2011 with one kilogram of cocaine and Jolly on 22 September 2011 with two kilograms of heroin). McDonald tried to call Jolly following his arrest, and he continued supplying class A drugs notwithstanding that event.
26.
In passing sentence, the judge indicated that McDonald had played a leading role because he was supplying very large quantities of heroin to the organisers of the conspiracy, as one of the individuals fulfilling that role. The judge described McDonald thus: “
You were hands on and you were always able to get your hands on large quantities of heroin. In my judgment, you were a major player in this network
”.
27.
The judge concluded that his offending was aggravated by a conviction in 1997 for being concerned in the supply of drugs for which he received a sentence of 3 years imprisonment.
28.
In his grounds of appeal, the applicant suggests the judge adopted too high a starting point, in that he failed to give sufficient allowance for what is said to be the applicant’s true role and his overall level of responsibility and activity. It is argued that the observation evidence reveals that only about 14 kilograms of heroin are sustainably linked with this appellant and that there is no evidence that he was involved in dealing with cocaine. In those circumstances it is suggested that he was not one of those running the conspiracy, bearing in mind he was only one of a number of suppliers. His position is compared with McCreadie who was “
running
” the Scottish limb of this criminal enterprise, to whom 18 kilograms of heroin are associated. He had relevant class A previous convictions, and was given a starting point of 19 years. In those circumstances it is argued that McCreadie’s starting point is out of line with that identified for McDonald.
29.
Finally, it is submitted the judge fell into error in not allowing the applicant full credit for his plea, which was entered at the PCMH on 12 March 2012. The judge ordered that a basis of plea was to be submitted in early May, for the Crown’s consideration. It was served on 2 May 2012, and McDonald contended therein that he should only be sentenced on the basis of the seizures and not on any inferences that the Crown invited the Court to draw from the other evidence in the case. It was not suggested by the prosecution that this was an unrealistic and unacceptable basis until 15 June 2012, shortly before the hearing that had been set down for 29 June 2012 when the court proposed investigating whether Newton Hearings were necessary. Although McDonald’s lawyers had difficulties visiting him in prison, it was indicated to the judge on the 29 June 2012 in open court they would not be pursuing the suggestion that he should be sentenced only on the basis of “
actual
” seizures. However, counsel needed to obtain McDonald’s instructions on the issue, which it was expected would be provided on 6 July 2012. The judge then indicated: “
If I take the view that he is not entitled to full credit, the reduction from full credit will be small […]”.
McDonald’s lawyers confirmed his instructions, which were communicated to prosecution counsel at the end of the following week by telephone and repeated in a letter on 23 July 2012.
30.
By the time of the sentencing hearing this exchange was interpreted in submissions by prosecuting counsel as “
on 23 July you indicated […] that Mr McDonald should expect a minimum of 25 % credit but that a maximum may not be available
”.
31.
Against that background, it is argued that McDonald abandoned his short-lived attempt to dilute the basis on which he was to be sentenced at an early stage – considerably in advance of any Newton Hearing – and accordingly there should have been no, alternatively only slight, reduction from full credit in those circumstances.
32.
In the view of the single judge, having regard in particular to the part played in the conspiracy by McDonald, the scale of the conspiracy, the amount of drugs involved and the applicant’s previous conviction for supplying drugs, the judge’s starting point of 20 years, whilst severe, cannot be regarded as manifestly excessive. We agree unreservedly with that conclusion. McDonald was a substantial dealer in heroin, trading in very large quantities. The judge was entitled to view him as an organiser who played a leading role. He would have been aware that there were other suppliers and he nonetheless continued to associate with this criminal enterprise. It was not necessary to link him to every delivery of drugs to those involved in the conspiracy.
33.
On the issue of the discount for plea, as set out above, the applicant tendered his plea of guilty at the PCMH on 12 March 2012. On 2 May 2012, he tendered a basis of plea which was subsequently withdrawn substantially before the date set for the Newton hearing on 1 August 2012. Given the prosecution did not object to the suggested basis of plea until 15 June 2012 and the observation of the judge on 29 June 2012 that the reduction from full credit for his plea would be slight (creating a strong expectation in the mind of the applicant), it was wrong in principle for the judge to reduce his credit to 25% (a reduction that cannot sustainably be described as “
small
”). Given the applicant did not accept the full extent of his criminality at the outset, the credit should have been approximately 30%. Otherwise, given the quantities of drugs with which this applicant was involved, the 20 years starting point was wholly appropriate. Having adjusted the credit by 5%, the sentence will be 14 years. We grant leave and adjust the sentence to this limited extent.
34.
James Richard Beck
is 49 years of age. He was sentenced to 13 years’ imprisonment, following a trial. He had a close relationship with Jolly with whom he was seen on many occasions, and he attended a significant number of meetings and purchased drugs from the organisers. He received drugs from Jolly at his home in Lancashire for onward distribution at least 6 times. The learned judge acknowledged that in his case the quantities involved were difficult to determine, save that the amounts were smaller in Lancashire than those in Wales and Scotland. However, it was observed that following Jolly’s arrest he continued to trade and this applicant was involved in supplying heroin in quantities of a number of kilograms. For instance, when Jolly was arrested on 22 September the 2 kilograms of heroin in his possession were destined for this applicant. Beck bought drugs from Cooke and Swarez which he sold on to others.
35.
He has no relevant previous convictions in the sense that his previous drugs offences relate to possession of cannabis in 2007, 2008 and 2009.
36.
This application is put on the basis that the judge adopted too high a starting point in relation to the applicant’s role in the conspiracy.
37.
In our judgment, the single judge correctly observed that since the trial judge had presided over the applicant’s trial he was particularly well placed to assess his involvement in the conspiracy. As just summarised, the judge concluded wholly sustainably that Jolly’s six visits to the applicant’s home between June and September 2011 related to drug dealing, and that the applicant was buying drugs from Cooke and Swarez and selling them in his own right. The 2 kilos in the possession of Jolly when he was arrested on 22 September 2011 were intended for this applicant. In our view, give the scale of the conspiracy and the amount of drugs involved, the applicant’s sentence of 13 years’ imprisonment, following his trial, was not manifestly excessive.
38.
Jonathan Paul Cromwell
is 37 years of age and was sentenced to 12 years’ imprisonment, with a starting point of 16 years’ imprisonment. He has no relevant aggravating convictions (his previous drugs offences are all spent, and they relate to events between 10 and 20 years ago). The judge correctly determined that in the context of this enterprise he was a significant drugs dealer in his own right, who was involved in the conspiracy from June 2011. He was part of the group in Wales and certainly in the latter stages he acted in as a middleman, in that from September he became more significantly involved and he was sighted on a number of occasions when large consignments of drugs were being distributed. He identified large amounts of drugs in Liverpool for purchase and he had close contacts with the organisers who supplied him with drugs in kilogram quantities.
39.
The author of his pre-sentence report suggests that his offending was the result of financial difficulties and he was assessed as posing a high risk of re-offending.
40.
This application is put on the basis that the judge was wrong not to give the applicant full credit for his guilty plea and the judge failed to reflect sufficiently the fact that he was not one of the original conspirators, that his role developed during the period of his involvement and that he was not the leader of the operation in Wales. Taking the latter issue, it is suggested that although he was an independent actor, he was dealt with on an inappropriate basis. There were 19 relevant trips to South Wales out of a total of 27. The purity of the drugs was at a low level – 18 to 25% – and the total amount involved in his case was 4 - 5 kilograms. It is contended that he straddled a leading and a significant role. Additionally, it is suggested the judge set the sentence for this applicant too high at 16 years (on the basis of a conviction following a not guilty plea) when a starting point of 14 years was considered appropriate for the co-accused Wildman. However, the prosecution argues that his position is not analogous to that of Wildman, who was more of a 'gofer'.
41.
The applicant pleaded guilty on 12 March 2012, on a basis which was not accepted by the prosecution. In the event the applicant did not pursue the basis he suggested at a Newton hearing: he had sought to limit the period of his involvement by 2 months (it was suggested his role commenced in August) and he asserted he was not a dealer but a courier and a middleman. This was rejected by the prosecution and following discussions around 27 June 2012, this basis of plea was withdrawn and the applicant acknowledged he had been involved since June.
42.
It is suggested that since there was no Newton hearing, there should have been no, alternately a lesser, reduction in credit for his plea. However, having regard to the fact that the applicant pleaded guilty on a limited basis, in our judgment the judge was fully entitled to reduce his credit to 25%, and unlike the position with McDonald no legitimate expectation was created as regards the extent of the reduction for the credit that was to accompany the guilty plea. Moreover, we agree with the single judge that having regard in particular to the applicant’s involvement in the conspiracy (he graduated rapidly into becoming a significant participant in the enterprise), the scale of this criminal enterprise in which he participated and the amount of drugs involved, the judge’s starting point of 16 years’ imprisonment was not manifestly excessive, and the sentence of 12 years was wholly appropriate.
43.
David Robert Jolly
is 46 years of age. He was sentenced to 12 years’ imprisonment, with a starting point of 18 years’ imprisonment. He has relevant previous convictions. He was a very active, trusted and professional courier who played a very significant role and who acted as a middleman between the organisers and their dealings with James Beck. He reported to the organisers, he delivered (on a conservative estimate) 25 kg of drugs to the four areas: Scotland (which he visited on at least 18 occasions), South Wales, Lancashire and Cheshire until his arrest on 22
nd
September 2011. He collected payment on behalf of the organisers and he was present at important meetings.
44.
He seeks an extension of time, approximately 14 days, in which to renew his application for leave to appeal against sentence and for a representation order after refusal by the single judge. In support of the application to extend time, the history relied on is that the judge refused leave on 18
th
December 2012. The refusal form was sent to the applicant on 31
st
December 2012 and received by him on 7
th
January 2013. He suggests he handed the completed form to the prison officer on 11
th
January 2013. Enquiries were subsequently made with the prison records department who stated they had no record of having received the single judge’s form from the applicant or having sent a relevant fax message to the court. The renewal form was then re-submitted in identical form as the one completed in January. We have given the applicant the benefit of the doubt as regards the suggested breakdown in the system and we grant the extension of time.
45.
In support of the renewed application, it is argued the judge incorrectly ascribed to the applicant a role which was inconsistent with the evidence in that he should not have been viewed as a “
middleman between others and Cooke
”. In consequence it is suggested a starting point of 18 years was wrong. Further it is argued that the judge failed to reflect the applicant’s remorse and his admissions in interview. In additional submissions received since the single judge considered his case, it is pointed out that the applicant has no previous drug-related convictions; Law and McCreadie were on licence for an offence concerning the importation of drugs; and the applicant was fully co-operative with the police.
46.
In our judgment, on the evidence, the judge was fully entitled to conclude that the applicant was an active courier who had transported, as we have just observed, not less than 25 kilos of Class A drugs. He provided a critical link and conduit between the leaders of the conspiracy, Cooke and Swarez, and another conspirator, Beck. He was clearly involved with all four areas in which drugs were distributed and he had dealings with the lead conspirators, particularly at meetings. Given that involvement, the scale of the conspiracy and the amount of drugs involved, we consider the single judge was wholly correct in her view that this sentence of 12 years’ imprisonment (representing 18 years’ imprisonment after a trial) is not manifestly excessive.
47.
John Frederick Wildman
is 41 years of age. He was sentenced to 9 years 4 months’ imprisonment with a starting point of 14 years’ imprisonment. He was active and “
hands on
” throughout the conspiracy “
at the Liverpool end
” and, on the evidence before the judge, as a trusted assistant to the organisers who gave him numerous tasks to perform, and he was seemingly entirely aware of their activities. He was close to a number of the conspirators and the observation evidence revealed the scale of his involvement in this conspiracy: he was an extremely active participant who was seen at many of the relevant locations with a number of participants in this criminality. Accordingly, although he played a lesser role, he was “
very much hands on
”, to use the judge’s expression to which we have just referred. There was significant telephone contact between Wildman and Cook and Swarez and he delivered drugs to Cardiff and elsewhere.
48.
He has no relevant previous convictions, in that his previous drugs involvement is limited to possession of cocaine in 2002. There was no basis of plea submitted and the applicant accepted the prosecution case.
49.
The author of his pre-sentence report indicated that Wildman accepted responsibility for his actions but claimed he was entirely unaware of the true activities of his co-accused. He suggested to the probation officer that others had taken advantage of him and he had been “
used
” by the organisers. He contended that he routinely agreed to act for Swarez as a driver on the understanding that he would receive legitimate labouring work on properties allegedly owned by Swarez. The applicant’s counsel candidly accepted during mitigation before the learned judge that the pre-sentence report falsely purported to minimise his role and culpability, and he had little personal mitigation save for the support of his wife, a favourable report from the Prison Service and a reference from an employer. He is said to be a vulnerable man, who has had little education and is unable to read or write.
50.
It is argued that he was a trusted drug mule (the trusted assistant of Cook and Swarez), but he was not a worldly wise man. Against that background, this renewed application is advanced on the basis the judge adopted too high a starting point for the applicant in the context of the conspiracy.
51.
However, in our judgment, given the role the judge justifiably identified as played by the applicant in this conspiracy, as a trusted and active lieutenant, and bearing in mind the scale of the operation and the amount of drugs involved, the judge’s starting point of 14 years’ imprisonment was not manifestly excessive.
52.
Gordon Smith
’
s
application was refused at an earlier hearing by a different Division of this court.
53.
It follows that save in the case of McDonald all these applications are refused. For McDonald, we grant leave and reduce his sentence to 14 years.
|
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|
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.
IN THE COURT OF APPEAL
(CRIMINAL DIVISION
)
[2024] EWCA Crim 104
No. 202303819 A1
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 18 January 2024
Before:
LORD JUSTICE POPPLEWELL
MR JUSTICE CHOUDHURY
HER HONOUR JUDGE ANGELA RAFFERTY KC
BETWEEN
:
REGINA
- v -
JAKE COOKE
Respondent
REPORTING RESTRICTIONS APPLY:
SEXUAL OFFENCES (AMENDMENT) ACT 1992 APPLIES
__________
MISS J WALKER
appeared on behalf of the Solicitor General.
MISS S REVEL
appeared on behalf of the Respondent.
___________
JUDGMENT
LORD JUSTICE POPPLEWELL:
1
The provisions of the
Sexual Offences (Amendment) Act 1992
apply to these offences, which were committed against two thirteen-year-old girls, to whom we shall refer as “S” and “G”. No matter relating to either of them shall during their lifetime be included in any publication if it is likely to lead members of the public to identify them as victims of the offences. This prohibition applies unless waived or lifted in accordance with
s.3
of
the Act
.
2
On 30 August 2023, the offender, then aged seventeen, was convicted following trial in the Crown Court at Bradford, before Mr Recorder Hawks and a jury, on two counts of child abduction contrary to
s.2(1)
(a) of the
Child Abduction Act 1984
(Counts 1 and 2 – one count for each victim), on two counts of rape of S (Counts 4 and 6) and on one count of rape of G (Count 5). His co-defendant, Anis Ali, was convicted of the two counts of child abduction and one count of sexual assault.
3
On 6 October 2023, the offender was sentenced by the Recorder to five years’ detention pursuant to
s.250
of the
Sentencing Act 2020
on each of the rape counts, to run concurrently with each other, with no separate penalty imposed on the abduction counts. His Majesty’s Solicitor General seeks leave to refer the sentence as unduly lenient.
The facts of the offending
4
The offender initially had contact with the two thirteen-year-old girls, S and G, via social media. G told him she was aged thirteen when he asked her age. In February 2022, he met S in Leeds city centre. On 30 March 2022, the offender invited S to meet him and she agreed. He was at this time a little under sixteen and a half years old. He and Ali took a taxi from Keighley, where they lived, to Leeds, where the girls were living, a journey of some fifty minutes. In evidence, the girls agreed that they had got into the taxi willingly at first. This was at some stage in the early evening, after 7pm. The girls were driven around the immediate area. G said she wanted to talk to her friends. She saw this as her opportunity to get out. She was, however, persuaded to return to the taxi by S. When she got back in the mood changed. The offender told the taxi driver to lock the doors. The offender told the taxi driver to go to Bradford and Keighley. The girls said they did not want to be taken to these places and told the taxi driver so. However, the taxi driver felt that he could not stop and continued to drive them to Keighley.
5
At one stage police sirens were heard and the offender said, “Oh, shit, I’ve got … a shotgun on me, a gun and a machete”. He said to duck down as he had a shotgun on him. This was said by reference to evading the police rather than as an intended threat to use those weapons, but it caused the girls fear. S saw the outline of a machete in the offender’s tracksuit bottoms and in evidence Ali said he saw what he thought was the handle of a machete. Neither girl said they had seen a gun. The Recorder said, when sentencing, that the offender had boasted about having a gun and that he was acting aggressively and in a volatile manner when in the taxi. At one stage the offender threatened to smash up the taxi.
6
On the way, the offender, Ali and the two girls inhaled nitrous oxide from balloons. They arrived at a house in Keighley. A drug deal took place between the offender and the occupier. Within the house, Ali sexually assaulted G by putting his hand down her pants and over her bottom, notwithstanding her telling him that she did not want him to. That was the subject matter of Count 3. He stopped when she pulled away from him.
7
There was a reference in the evidence to the offender and Ali, and the girls, treating the house as a doss-house but a friend of the occupier arrived and persuaded the group to leave. The group went to a McDonalds and, after that, they went to a taxi office. At this point in the narrative, CCTV showed S wearing the offender’s coat and G wearing Ali’s coat. They got in a taxi, which was directed by the offender to drive to an isolated, boarded up and disused church. By now it was about 11.40pm.
8
At some stage, it seems probably in the taxi on the way there, S had received calls from her mother, who by now realised she was missing. The offender took hold of S’s phone and turned off the location services.
9
At the disused church, the group of four were in the area where the altar had previously been and in the nave. G heard the offender remind them that he had a knife, saying he would use it and was on house arrest with a tag. The offender took hold of S’s neck and kept gripping her. He and S went to a separate room. In that room he told S to get on her knees. He put his hand on the back of her head and orally raped her. That was the subject matter of Count 4. When that was over, she walked away.
10
The offender then took G down some steps. He told her to get on her knees. She refused and he pushed her to the floor. He grabbed her head and orally raped her. When he had stopped, she sat down on some steps and said she wanted to go back to S. He then told her to stay, grabbed her hair and orally raped her again. Those two rapes were the subject matter of Count 5. Tears were falling from her eyes.
11
S was crying and told Ali that she wanted to go home. However, the group stayed at the church for a few hours, before walking to the offender’s house a short distance away. Before going inside, they sat in an abandoned car. In the car S was scared to refuse the cannabis which was offered to her because she remembered that the offender had said that he had a knife and a gun.
12
At the offender’s house, the offender vaginally raped S in the living room. That was the subject matter of Count 6. At that time, his mother and stepfather were in their bedroom and G and Ali were in the offender’s bedroom. The offender turned up the television so S’s shouting could not be heard. S had not had sexual intercourse before. Her vagina was bleeding afterwards. No contraception was used.
13
The group fell asleep on the offender’s bed. They were awoken by his mother shouting at him. It seemed that the mother had heard about two missing girls and was asking the offender whether the missing girls were with him. The victims left the offender’s house and were quickly found by a passing police officer who was looking for them. The offender and Mr Ali were arrested at the house. In interview under caution, the offender denied the offences.
Victim impact
14
Victim Personal Statements were made on 25 August 2023 while the trial was taking place. This was some seventeen months after the incident. S said that the incident had scarred her for life. The night of the offences was the scariest time in her life. Rather than going out with her friends and enjoying days out, she now stayed at home most days and struggled with environments with a large number of people. She worried about relationships she might have in the future. Her education, sleeping routine, eating habits, hobbies and mindset had all changed. She now only attended school three times a week and sat in a classroom with only a teacher for two hours a day due to her anxiety. She slept no more than four hours a night. She felt worthless. She had lost confidence and felt unhappy for a lot of the time.
15
In S’s mother’s statement, she described the impact of the offence on S and her family. S’s mother had taken three months’ leave from work due to lack of sleep and was herself suffering from anxiety. She had attended numerous meetings at S’s school to work out a plan whereby S could attend while feeling safe, which entailed one-to-one tuition. The time since the offences, she said, had been the worst in her life.
16
According to G’s Victim Personal Statement, she struggled with sleep. She relived events in night terrors which caused a huge amount of sadness and distress. She was anxious about leaving the house on her own and was still on edge that someone known to the offender could be out to harm her and her family. She felt depressed and that she was never going to be herself again. She did not want any physical contact with people, such as hugging. She could not concentrate at school, and missed a lot of school because she did not want the attention that she received there. She stopped socialising with her peers and became paranoid that people were talking about her, adding to her anxiety and causing constant mood swings. She felt she could not trust anyone. She did not know how to express her feelings and so most of the time it would come out as anger. This had caused her to self-harm herself, although the manner of that self-harm was not specified.
17
In G’s mother’s statement, she said she could not describe in words the utter terror on learning that G had been abducted. When G returned home, she did not want to talk about what had happened. G struggled with sleep and would often wake up having had a nightmare. Her schooling had suffered and she missed time from school. She was afraid to go out alone. She was afraid of her own shadow. G’s mother also felt depressed and anxious.
Antecedents and reports
18
The offender had ten previous findings of guilt and four cautions. In April 2016, when aged ten, he was cautioned for possessing a knife in a public place and for two offences of assault occasioning actual bodily harm. His first findings of guilt were in September 2017, for possessing an imitation firearm with intent to cause fear of violence and attempted robbery, offences committed when he was aged eleven. On that occasion he was made subject to a referral order for twelve months. In October 2017, a month after the referral order, he committed an offence of battery, then aged twelve, for which he received a six month conditional discharge. In July 2018, he was sentenced to a youth rehabilitation order for affray and using threatening, abusive or insulting words or behaviour with intent to cause harassment, alarm or distress. Those offences had been committed when he was aged eleven.
19
Thereafter, in May 2020, when aged fourteen, he committed common assault and battery, for which he received a caution. In October 2020, the month before his fifteenth birthday, he committed an offence of using threatening, abusive or insulting words or behaviour with intent to cause fear or provocation of violence. In November 2020, now aged fifteen, he committed criminal damage and battery. In March 2021, he assaulted an emergency worker. For these offences he received youth rehabilitation orders with supervision requirements, the first starting in March 2021 and the last one being imposed on 17 January 2022. The instant offences, committed on 30 to 31 March 2022, occurred during the currency of the youth rehabilitation order imposed on 17 January of that year.
20
A pre-sentence report was prepared on 29 September 2023. The author had been responsible for supervising the offender from May 2020, around the time he committed the assault and battery aged fourteen, and from that time until his arrest for the instant matters. During that time he was willing to meet periodically for sessions but he typically presented as someone who romanticised the gangster culture. He began spending longer periods of time away from his parents and their supervision.
21
Severe domestic violence by his father towards his mother appears to have affected him as a young child. Due to his behaviour, he was placed in care for two short periods in September 2020 and March 2021. He had attended a school for children with socially, emotional and behaviour problems and demonstrated academic potential. But his work was negatively impacted by regular cannabis use, exacerbated by ADHD.
22
Whilst on remand at His Majesty’s Young Offenders Institution at Feltham, significant levels of aggression persisted by and towards him until the previous few months. He had only recently opened up about his childhood and the impact it had had upon him.
23
In relation to the instant offences, the offender was either unwilling or unable to take responsibility for his actions, asserting that sexual activity took place with only one of the girls and that it was consensual. The author’s assessment was that the offences clearly indicated a high risk of serious harm to others and a high risk of reoffending.
24
There were two reports from Dr Omar, a consultant clinical psychologist instructed by the defence. The first was in October 2022, prior to the trial. In that report he had concluded that the offender had symptoms of ADHD, which exhibited themselves in impulsiveness. Her view was that he would benefit from an intermediary at trial, which is what occurred. Dr Omar had not had sight of medical records for the purposes of making that assessment.
25
Dr Omar also saw the offender after conviction and prepared a further report, dated 30 September 2023. Again she had not had access to the medical records. In that report, she said that since the previous meeting he had attended education and had passed exams, having previously spent very little time in school. She observed marked improvements in the offender’s demeanour and levels of concentration compared to the first occasion. The offender told her that he was now taking his medication for ADHD on a regular basis, which he considered was helping him to feel calmer and more focused. There were still times when he felt angry but he felt he was able to control it better. He reported and was able to talk about the physical abuse by his father as a child, which had not occurred during the previous assessment.
26
Dr Omar concluded in the second report that the offender’s ADHD symptoms had improved and the medication had had a positive impact. Under a heading that referred to “Maturity levels”, Dr Omar commented that his behaviour had improved. He had referred to plans for his future and for completing his education, and he was engaging with a psychologist in custody. There were a few symptoms of borderline personality disorder which were the kind of symptoms which overlapped with those which are present for ADHD, but Dr Omar did not diagnose borderline personality disorder. She did not express a view as to whether the offender was mature or immature for his age.
The sentencing hearing
27
A sentencing note was served by the Prosecution. It submitted that this was a case of planned abduction by both defendants, the purpose of which was to have sexual activity. In respect of Counts 4 and 5, the oral rapes, it was submitted that the combination of Category 2 features, being the abduction, a sustained incident, and particularly vulnerable victims, might elevate the case to Category 1. Culpability A factors of significant planning, the use of drugs to facilitate the offending and acting with another, were also relied upon. It was submitted that the offender’s antecedents aggravated the rape offences. In respect of Count 6, the vaginal rape of S, factors indicating Category 2 harm and culpability A were referred to and the aggravating features of previous convictions, the fact that the victim was a virgin and that no contraception had been used.
28
In a sentencing note served on behalf of the offender, it was submitted that the offences of rape fell within Category 2B. In particular, in respect of culpability, it was submitted that the cannabis and nitrous oxide were not used to facilitate the offence, that the co-defendant was not involved in the rape offences, and so they were not acting together, and that there was not a significant degree of planning. In addition, defence counsel referred to the Sentencing Council Guideline on sentencing children and young people, and submitted that the sentence should be reduced by one-half from the appropriate adult sentence.
29
During counsel’s submissions at the stage of mitigation, the Recorder said that he did not find that the use of drugs facilitated the offence or that the presence of Ali being “about in the area” made it offending in which he had taken part. Furthermore, he said that whilst there was a degree of planning, it could not properly be said to be significant planning.
30
In his sentencing remarks, the Recorder said he was satisfied that the purpose of the abduction, which was a planned abduction, was to have sex, or try to have sex, with the victims. The offender was in possession of a weapon, likely a machete, and boasted about having a gun, behaving in a volatile and aggressive manner. The girls were “plied with cannabis and nitrous oxide”, although the Recorder repeated that he did not find that the drugs were used to facilitate the rape offences. He referred to the offender’s evidence during trial as having taken place with an intermediary, and said that at the time of the offences he was abusing his medication, by which he is understood to have meant that he was simply not taking his medication at all. The Recorder went on to observe that since his remand in custody he was receiving and taking his medication on a regular basis and his condition had improved.
31
The Recorder said that he took the view that the offences of rape fell towards the top end of the range of Category B. The top end of that range is nine years. He said that individually they would attract sentences for an adult of eight years. He then increased that to an appropriate sentence for an adult of eleven years to reflect the multiple offending. He then took into account the offender’s age and personal circumstances, by reference to the matters referred to in the reports, including his mental health difficulties. Taking those matters into account, he reduced the sentence to one of five years’ detention.
32
In accordance with the guidance given in
Robinson
[2020] EWCA Crim 866
, he correctly imposed the sentence which was appropriate for all the offending, reflecting it in the sentences on the rape charges and imposing no separate penalty in relation to the abduction offences.
Submissions
33
On behalf of the Solicitor General, Ms Walker submits that each single offence should have been placed in Category A because there was a significant degree of planning. Category 2A has a starting point of ten years and a range of nine to thirteen years for a single offence. She submitted that the multiple aggravating features of the multiple offending meant that a sentence for an adult of eleven years for all the offending was clearly well below that which was appropriate, whether or not the individual rapes started in Category 2A or 2B. Moreover, she submitted, a reduction of over 50 per cent to reflect the offender’s youth and ADHD was itself clearly an excessive reduction, resulting in a sentence which was not merely lenient but unduly so.
34
On behalf of the offender, Ms Revel, in attractively presented submissions, argued that the combination of Category 2 factors in this case was not sufficient to elevate the offences into Category 1. The Recorder was well placed to assess the gravity of the offending, having presided over the trial and heard the evidence, including the evidence given by the offender for almost two days. The Recorder had seen CCTV coverage of parts of the events. The abduction of the girls, in Counts 1 and 2, was put on the basis that they went willingly and that the unlawfulness arose from their being removed from the custody of the parents. The Recorder was entitled to reach the conclusion that the degree of planning did not properly attract the epithet “significant” and to place the offending within Category 2B of the Guidelines.
35
Ms Revel emphasised that the references to having a knife and a gun in the car, when the police sirens were going off, involved an element of bravado and was not a threat of violence made directly towards S or G. She also submitted that the Recorder was well placed to assess the immaturity of the offender and his personal circumstances, not only from the reports but from his evidence at trial, and that a reduction of over 50 per cent for his youth, immaturity and mental health difficulties was an offender-focused sentencing exercise, which is what is required by the Guideline. She recognised that an appropriate sentence for an adult of eleven years involved a sentence which could properly be called lenient but she submitted that the sentence overall was not unduly lenient.
Conclusions
36
The Recorder was right to treat the abduction offences as aggravating the rapes and to pass a sentence on the rape counts reflecting the totality of the offending. We accept Ms Walker’s submission that the degree of planning was significant. We recognise, of course, that the Recorder had the benefit of presiding over the trial. However, it seems to us that it is an inevitable and inescapable conclusion from the Recorder’s findings that the degree of planning was significant. That follows from the original purpose of the planned abduction of the girls, being one to have sex or to try to have sex with them. The girls had said they did not want to go to Keighley and Bradford when they were in the taxi and the offender had asked for the doors to be locked. He had turned off the location services on S’s phone to isolate the girls. They had then been taken to the isolated and remote disused church. That shows a degree of planning which cannot be characterised as anything less than “significant”.
37
That would therefore mean that the rapes would individually start in Category A, which has a starting point of ten years and a range of nine to thirteen years for an adult.
38
We should make clear, however, that even if, as Ms Revel submitted, the rape offences individually would start in Category 2B, that would not make any difference to our ultimate conclusions. As has often been said, the Guidelines are guidelines, not tramlines, and in order to arrive at an appropriate sentence for an adult, and then to take account of the particular circumstances of this young offender, it is necessary to take into account all of the aggravating and mitigating features of all of the offending. That is not a mechanical exercise.
39
However, we think it would be helpful to start in Category 2A and to look at the features which put it in that category. There are a number of Category 2 factors, but in order to avoid double counting we find it convenient to start with severe psychological harm.
Ms Revel submitted that the impact reflected in the Victim Impact Statements could be characterised as “serious” but not “severe” psychological harm. We disagree. It is clear that the psychological harm was, after seventeen months, severe and was likely to continue.
40
We then address the further aggravating features, some of which are Category 2 factors, others of which are not. In our view, the main aggravating features were as follows.
(1)
The Guideline is for a single rape against a single victim. The offender was being sentenced for four rapes against two victims. The rapes against S were separate in time, location and nature. This of itself required a very substantial uplift measured in years.
(2)
The girls were particularly vulnerable victims, aged thirteen.
(3)
The vaginal rape of S took her virginity and was without contraception;
(4)
The abduction of the girls was a serious aggravating factor. It was prolonged, for a period of about twelve hours or more, lasting late into the night and overnight. During it their parents became aware that they were missing and were understandably worried and set about getting the police to look for them. The abduction, therefore, caused distress to the families as well as the girls. The abduction was not confined to willing behaviour by the girls. They said in the taxi that they did not want to be taken to Keighley or Bradford. The doors were locked. The offender deliberately isolated the girls by preventing the use of S’s phone and taking them to a remote and unfamiliar location. The abduction offences alone would justify an increase measured in years rather than months, even after allowing for totality and without any double counting for the significant planning aspect which, in our view, puts the rapes individually in Category 2A.
(5)
There was the threat of violence. The Recorder said, when sentencing, that the offender boasted about having a gun and was acting aggressively and in a volatile manner when in the taxi. What happened when the sirens were going off may well have been, as Ms Revel said, bravado, but it nevertheless had the impact on the girls that they were in fear of violence. Moreover, at the church there was a specific threat of violence, with the offender reminding them that he had a knife and saying that he would use it immediately before gripping S and taking her to the location at which the oral rape of her took place.
(6)
There was giving the girls cannabis and nitrous oxide. Whilst this might not have been to facilitate the rape offences, it was clearly an aggravating feature.
(7)
There were the offender’s previous convictions and cautions; and
(8)
The offences were committed during the currency of an existing Youth Rehabilitation Order.
41
The only real mitigation, apart from the offender’s youth, was his ADHD. This had been identified by Dr Omar as leading to impulsive behaviour. However, there is no reason to treat that as having played a significant part in the offending in a way which reduces his culpability given the degree of planning. This was not essentially impulsive behaviour but abduction with a view to sexual activity which took place some hours later. Although the offender’s ADHD is something which might make his time in custody more onerous than for someone without that condition, it appears to be capable of being managed successfully by medication. It therefore affords only limited mitigation.
42
In our view, the appropriate sentence for an adult, after a trial, would have been one of at least fifteen years. The offender was aged a little under sixteen and a half at the time of the offences. Although youth is not automatically to be equated with maturity, there is nothing in his troubled background which suggests to us that he was either more or less mature than other children of his age generally. The Recorder referred to having seen the offender during the trial but did not suggest that that led him to conclude that he was immature for his age. The Recorder relied on the reports, and none of the reports suggest that he was immature for his age. Ms Revel fairly makes the point that Dr Omar’s second report, by which stage he was seventeen, shows a greater level of maturity but there is nothing in her first report which suggests a lack of maturity for a sixteen and a half year old.
43
Accordingly, a deduction of about 40 per cent for the offender’s age at the time of the offence would have been appropriate in application of the Guideline. That would result in a sentence of nine years’ custody.
44
It follows that, in our view, a sentence of five years was unduly lenient. Accordingly, we grant leave. We increase the period of custody on each of Counts 4, 5 and 6 to one of nine years’ detention to run concurrently with each other. The other elements of the sentence remain unaffected.
______________
|
{"ConvCourtName":["Crown Court at Bradford"],"ConvictPleaDate":["2023-08-30"],"ConvictOffence":["Child abduction (s.2(1)(a) Child Abduction Act 1984)","Rape (Counts 4, 5, 6)"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Bradford"],"Sentence":["5 years’ detention (original)","9 years’ detention (on appeal)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[17],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["two"],"VicSex":["All Female"],"VicAgeOffence":[13,13],"VicJobOffence":["Student"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drugs"],"ProsEvidTypeTrial":["Victim testimony","CCTV"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["High risk of harm","High risk of reoffending"],"AggFactSent":["Offence committed while on Youth Rehabilitation Order","Previous convictions and cautions","Use/threat of weapon (machete, gun)","Victims aged 13 (particularly vulnerable)","Abduction was prolonged and caused distress to families","Multiple rapes against two victims","Vaginal rape took victim's virginity and was without contraception","Giving victims cannabis and nitrous oxide"],"MitFactSent":["Offender's youth","ADHD diagnosis"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Reduction for youth and ADHD was excessive","Degree of planning was significant and not properly reflected in sentence","Sentence for adult would have been higher"],"SentGuideWhich":["Sentencing Council Guideline on sentencing children and young people","Sentencing Council Guideline for rape of a child under 13"],"AppealOutcome":["Allowed","Sentence increased to 9 years’ detention"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["Degree of planning was significant, placing offences in higher category","Multiple aggravating features not properly reflected","Reduction for youth and ADHD was excessive"],"ReasonDismiss":[]}
|
Case No:
201800756B4
;
2011802330B4
201802970C1
Neutral Citation Number:
[2018] EWCA Crim 2485
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEWES
Her Honour Judge Barnes T20160506
AND ON APPEAL FROM THE CROWN COURT AT OXFORD
His Honour Judge Daly T20170255
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
08/11/2018
Before :
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE PHILLIPS
and
MR JUSTICE EDIS
- - - - - - - - - - - - - - - - - - - - -
Between :
MATTHEW RAYMOND JOHNSON
Appellant
- and -
THE QUEEN
Respondent
And Between :
RICKY SEAN BURTON
Appellant
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Rebecca Upton
for the Applicant Johnson
Nicholas Bleaney
for the Applicant Burton
Duncan Atkinson QC, Jonathan Edwards
and
Paul Jarvis
for the Crown
Hearing date : 9 October 2018
- - - - - - - - - - - - - - - - - - - - -
Judgment
Sir Brian Leveson P:
1.
These unconnected cases were tried, in separate Crown Court proceedings, on a form of indictment which had been uploaded electronically by the prosecution onto the Crown Court Digital Case System (“the DCS”). In both cases the applicant was put in charge of the jury, which returned a verdict of guilty on counts contained in that form of indictment. It was only after conviction (but before sentence) that a court official realised that the form of indictment used at trial differed from the indictment on which the applicant had been arraigned, in particular, by adding one or more counts on which the jury had returned a guilty verdict but in respect of which the applicant had not entered a plea.
2.
In each case, the prosecution’s intention had been to apply to amend the original indictment under
s.5 of the Indictments Act 1915
(“
the 1915 Act
”) (and, if necessary, to seek to have certain new counts sent to the Crown Court for trial), but by oversight no such application was made and therefore the applicant was not re-arraigned. All parties (including the trial judge), however, proceeded on the basis and understanding that the applicant had been properly arraigned on an indictment (duly amended or otherwise validly preferred) in the form used at trial.
3.
By their counsel, the applicants both accept that they were not prejudiced in any way by the significant procedural errors outlined above and that they had a fair trial. Nevertheless, each contend that the form of indictment on which they were tried was a nullity, the only valid indictment being the unamended original, and that their convictions should accordingly be set aside or (perhaps more appropriately) declared to be invalid. The applicants rely, in particular, on
R v Leeks
[2009] EWCA Crim 1612
;
[2010] 1 Cr. App. R. 5
, where a guilty plea to a count purportedly added to an indictment (but without any order for amendment in fact being made), was held to be a nullity and the conviction quashed. In so doing, the court followed the approach of the House of Lords in
R v Clarke and McDaid
[2008] UKHL 8
;
[2008] 1 WLR 338
to invalid indictments and proceedings based on them, the invalidity in the latter case being that the bill of indictment had not been signed.
4.
The Crown contends that:
i)
following the introduction of new statutory provisions governing the preferment of indictments in 2009 (in particular reversing the effect of
Clarke and McDaid
), the form of indictments used in these trials were valid and effective, or were deemed to be so;
ii)
but in any event, in the light of those changes and the modern approach to procedural irregulates and their effect,
Leeks
no longer represents the law, the proper approach being to consider the fairness of the trial, prejudice to the defendant and the safety of the conviction, not the outdated concept of nullity.
5.
The applications for leave to appeal against conviction accordingly raise important issues as to the modern law relating to the preferment and amendment of indictments. They were referred to this court by the Registrar. We grant leave. Johnson also applies for leave to appeal against sentence.
The Facts: R v Johnson
6.
On 23 January 2018, in the Crown Court at Lewes before Her Honour Judge Barnes and a jury, Matthew Johnson was convicted of assault occasioning actual bodily harm (count 2 on the indictment used at trial), criminal damage (count 3), applying a corrosive fluid with intent (count 7) and sexual assault (count 8). He had previously pleaded guilty to Driving whilst Disqualified (count 9). On 8 May 2018, the judge having concluded that Johnson was dangerous within the meaning of
s. 229 of the Criminal Justice Act 2003
for applying a corrosive substance with intent, he was made subject to an extended sentence of 14 years’, comprising a custodial term of 10 years’ and an extension period of 4 years’. Concurrent determinate terms of imprisonment were imposed for the other offences.
7.
The provisions of the
Sexual Offences (Amendment) Act 1992
apply in this case. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s. 3 of
the 1992 Act
.
8.
The facts were as follows. In September 2015, Johnson and G became partners. Johnson moved into G’s flat, where she lived with her 6-year old daughter. However, by March 2016, there were serious problems with the relationship and Johnson had been excluded from the flat, although he retained a key to the front door.
9.
On 12 March 2016 Johnson forcibly entered the flat by unlocking the front door, then breaking the security chain which secured it. The prosecution case was that an incident ensued during which Johnson broke G’s phone and threw the remains of it at her, only leaving the flat after his mother arrived and calmed him down. This resulted in a charge of criminal damage (count 1), of which he was acquitted.
10.
The next day, 13 March 2016, Johnson returned and again unlocked the front door. He said, “I’ve come to get my things and I’m done with you.” G’s landline phone rang, and he snapped it in half. He then rifled through her handbag; when she objected, he threw her across the room, and when she got up to get her handbag from him, he bit her cheek (count 2, of which he was convicted). G ran outside and Johnson followed with a bag of clothes she had packed for him to collect. He returned to the flat, took a set of kitchen scale weights and smashed the windscreen of G’s car (count 3, convicted). G took her daughter to a friend’s house and stayed the night. It was alleged that Johnson went to this friend’s house demanding that G come outside, but she refused and called the police; he was later arrested but G did not pursue any allegation at that time and he was released without charge.
11.
The relationship improved over the following months, but in late July G reported to the police that further incidents had occurred. She had been the subject of harassment on 16 July (part of an alleged course of conduct charged as count 6); she was assaulted and her mobile phone damaged on 17 July (counts 4 and 5). Johnson was arrested and interviewed; he provided a prepared statement denying the allegations. He was released on police bail with conditions of non-contact and a prohibition on travelling to the location of the G’s flat. In the event, Johnson was acquitted of counts 4, 5 and 6.
12.
At about 12:30 pm on 3 August 2016, Johnson phoned G to say he was going to hand himself in to the police, but that he wanted to meet her first; she agreed to meet and said she would take him to the police station. G drove to a public house where they met, but he said there were too many people there and suggested they drive away to talk. As G was driving, Johnson pulled on the steering wheel and forced the car into a car park. When she tried to open the door, he stopped her by grabbing her hair and hitting her in the face. When she managed to get out, Johnson came around and squirted a liquid in her face, saying that it was ammonia (count 7, convicted). She could not breathe and went to the ground, whereupon he kicked her in the head. He then put her in the back of the car, threatened her and drove to a petrol station to get water to clean her eyes, but that was not successful.
13.
Johnson then drove back to the car park, where he made G masturbate him; she obliged out of fear and he ejaculated on the central console (count 8, convicted). He then drove her to the hospital, as she had promised not to disclose how she was injured, where she got out and he drove away. He was driving whilst disqualified (count 9, pleaded guilty). G was examined by a doctor and found to be badly injured, with a risk that she might suffer permanent damage to her eyes. At the time, she reported that an unidentified woman had thrown the liquid at her.
14.
On the following day, 4 August, G told the police that Johnson was responsible for her injuries. After arrest, he provided a prepared statement denying the allegations, then giving no comment responses. The defence case at trial was that G was jealous and angry, and the allegations were attempted revenge on her part. On 3 August, Johnson said that he met G by arrangement and that he saw that she was injured. He wanted to take her to hospital but she refused and did not let him call the police.
15.
On 5 August 2016 Johnson was charged with assault occasioning actual bodily harm (it not then being known what had been thrown at G), sexual assault, driving whilst disqualified and driving with no insurance (all in relation to 3 August) as well as harassment (in relation to the period 16 July to 3 August). On 6 August 2016 he appeared at the Brighton and Hove Magistrates Court, where his case was sent to the Crown Court.
16.
On 16 August 2016 the original indictment was sent to Lewes Crown Court. On 5 September, at the Plea and Trial Preparation Hearing, Johnson was arraigned on that indictment, containing 6 counts as follows:
i)
Assault by beating on 17 July (count 4 on the trial indictment).
ii)
Criminal damage on 17 July (count 5 on the trial indictment).
iii)
Harassment between 16 July and 3 August (count 6 on the trial indictment).
iv)
Assault occasioning actual bodily harm on 3 August (omitted from the trial indictment).
v)
Sexual assault on 3 August (count 8 on the trial indictment).
vi)
Driving whilst disqualified on 3 August (count 9 on the trial indictment).
Johnson pleaded not guilty to all but driving whilst disqualified, which he admitted.
17.
On 14 September 2016, the CPS wrote to Johnson’s solicitors in the following terms:
“Please find enclosed an amended indictment in respect of this matter. The Crown will apply to amend the indictment at the next court hearing pursuant to
section 5 of the Indictments Act 1915
.
In respect of counts 1-3 an additional statement prepared by [G] will be served with service of this case disclosing these new offences. The Crown will invite the Crown Court Judge to sit as a District Judge at the next occasion, pursuant to
section 66 of the Courts Act 2003
, and send the new offences to the Crown Court. The Crown will then apply for the defendant to be arraigned on the new amended indictment.”
18.
The new form of indictment, which was uploaded onto the DCS, added a count of Criminal Damage in relation to 12 March (new count 1), ABH and Criminal Damage in relation to 13 March (new counts 2 and 3) and replaced the count of ABH on 3 August with Applying a Corrosive Fluid with Intent (count 7). The last of those changes followed the forensic examination of the complainant’s injuries and the identification of the liquid which was squirted in her face as ammonia
19.
At no time did Johnson’s representatives indicate that there would be any objection to the amendment to the original indictment. However, despite the case coming before for the court on numerous occasions, the matter was never resolved. The defence statement nevertheless addressed all the allegations in the new form of indictment which Johnson disputed.
20.
On 9 May 2017, the case was listed for trial. Johnson attended at court (having been granted bail at the expiry of the custody time limits) but thereafter absconded, and a bench warrant was issued for his arrest. In his absence, the need to amend the indictment was discussed in court, but the prosecution did not make an application. The warrant was executed on 11 September 2017.
21.
The trial was re-listed for 15 January 2018 and proceeded on the basis of the new form of indictment, except that count 9 (driving whilst disqualified) had been removed from the document used at trial because Johnson had pleaded guilty to that count. The only application to amend the indictment was to correct the particulars of count 3 (Criminal Damage on 13 March) as the details of the car in question were incorrect. Johnson was therefore never arraigned on counts 1, 2, 3 and 7 of the new form of indictment, although no objection taken when it was put to him at the start of the trial that he had pleaded not guilty to all eight counts on the form of indictment and he was put in charge of the jury on that indictment in terms that he had pleaded not guilty. In the event, on 23 January 2018 the jury convicted Johnson on counts 2, 3 and 7 (as well as count 8, on which he had been arraigned). Sentence was adjourned to 2 March 2018, in particular for an assessment as to whether he was dangerous.
22.
After conviction but before sentence, when the court clerk attempted to add the verdicts to the court system, it became apparent that no application had been made to amend the original indictment and that there had been no arraignment on the new version. The prosecution made an application in writing to amend the original indictment. On 2 March 2018, after hearing oral argument, the judge ruled in favour of allowing the amendment, asking whether Johnson wished to be re-arraigned on it; defence counsel declined on his behalf. After a further adjournment for a full pre-sentence report, on 8 May 2018. sentence was passed and the case concluded.
The Facts: R v Ricky Sean Burton
23.
On 8 March 2018, in the Crown Court at Oxford before His Honour Judge Daly and a jury, Ricky Sean Burton was convicted of one offence of having custody or control of a counterfeit currency note and a second of tendering a counterfeit currency note. On 15 March, the applicant was sentenced to 12 months’ imprisonment on each count, to run concurrently.
24.
The facts were as follows. On 29 March 2017 Scott Reed entered a shop and attempted to purchase a packet of folic acid using a counterfeit £20 note, purportedly issued by Clydesdale Bank. The manager of the shop was suspicious and used an ultraviolet pen to test its authenticity. He considered it to be a counterfeit and told Reed that he would be keeping the note, and Reed left. Reed was seen to meet Burton and they left the area together. The police were called. In the meantime, Burton was seen on CCTV to go to a car, move it and then re-join Reed, by which time Reed was surrounded by police. Both were arrested, and 18 further counterfeit notes were found inside the car which Burton had moved. In his defence statement, Burton’s case was that he and Reed had stopped at a McDonalds to get something to eat and found the notes in an envelope near a parked car. He claimed that he believed the notes were genuine and also was unaware that Reed was attempting to use the notes to make a purchase.
25.
On 23 August 2017 the original indictment was uploaded onto the DCS, containing two counts. The first count, having custody or control of a counterfeit currency note, named both Burton and Reed. However, the second count of passing a counterfeit currency note named only Reed.
26.
On 15 September 2017 both were arraigned on that original indictment and they pleaded not guilty.
27.
On 19 October 2017 the prosecution uploaded a new form of indictment which included Burton in the second count on the basis that the passing of the counterfeit note was a joint enterprise. The prosecution, however, at no point applied to amend the original indictment and neither Burton nor Reed was re-arraigned. The trial commenced on the 5 March 2018, with no suggestion that there was any problem with the new form of indictment, which was read to the jury in the presence of the defendants and both counsel.
28.
On 8 March 2018, after the applicant had been convicted on both counts on the new form of indictment, the fact that no application had been made to amend the original indictment and that there had been no arraignment on the new version came to the court’s attention. The judge heard further argument, but declined to take any action, ruling that the trial had been valid and that any complaint about the form of the indictment had been waived by the defence.
The Procedure for the Indictment of Offenders
29.
Prior to November 2009, it was a strict requirement that a bill of indictment (that is, a draft indictment) be signed by the proper officer of the court in order to become an indictment on which there could be a valid trial.
Section 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933
(“
the 1933 Act
”) provided:
“Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence, and where a bill of indictment has been so preferred the proper office of the court shall, if he is satisfied that the requirements of the next following subsections have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly.”
30.
In
R v Clarke and McDaid
(above) the bill of indictment before the Crown Court had not been signed when the trial began. It was not until the evidence had concluded that the existing form was amended with leave of the trial judge and the amended version was signed by the proper officer. The jury convicted on that signed version. The House of Lords quashed the conviction, holding that the absence of a signed indictment at the outset of and during most of the trial had invalidated the proceedings and the signing of the indictment at a late stage in the trial could not validate the invalid proceedings already conducted. Lord Bingham of Cornhill explained the analysis as follows:
“18. What did Parliament intend the consequence to be, when it enacted
sections 1
and
2
of
the 1933 Act
, if a bill of indictment was preferred but not signed by the proper officer? …. The answer to the question now is the same as it should have been given then. It is inescapable: Parliament intended that the bill should not become an indictment unless and until it was duly signed by the proper officer.
19. It is necessary to consider a second question. What did Parliament intend the consequence to be if there were a bill of indictment but no indictment? The answer, based on the language of the legislation and reflected in 70 years of consistent judicial interpretation, is again inescapable: Parliament intended that there could be no valid trial on indictment if there were no indictment…”
31.
Lord Bingham recognised, (at [22]), that Parliament might be prompted to pass legislation to address the problems where the bill of indictment is not signed, is signed late or by someone who is not the proper officer or is partially signed, and so on.
32.
In
R v Leeks
(above) an initial valid indictment existed, but at trial a revised version, containing a new second count, was put to the appellant by the clerk of the court, notwithstanding that no order had been made for the amendment of the original pursuant to s. 5(1) of
the 1915 Act
, which provides as follows:
“Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice…”
33.
The appellant pleaded guilty to the new second count, but on appeal against his conviction contended that, applying the essential proposition to be drawn from
Clarke and McDaid
, the revised indictment used at trial was no more than simply a piece of paper and that the proceedings which followed were a nullity. The Court of Appeal upheld that contention, rejecting the counter-argument that the making of an order to amend could be inferred in the follows terms (at [26]):
“26. It appears that the researches of counsel have not been able to identify any authority on the question of what is the effect when all parties, including the judge, anticipated that an order would be made for amendment but, by oversight, one was never made. We have to make a decision ourselves on the matter. We are clearly of the view that such an error falls at the fundamental rather than the minor end of the spectrum… It is true that there is a factual and analytical distinction between the situation in this case and that in Clarke and McDaid; but ultimately, in our view, the principle and approach has to be the same. Amendment of indictment is a serious matter and not a mere matter of formality.
Section 5(1)
clearly requires the court itself to exercise discretion, and positively requires the court to ‘… make such order…as the court thinks necessary…’”
34.
On 12 November 2009, s. 2 of
the 1933 Act
was amended (with retrospective effect) by the Coroners and Justices Act 2009. The amendment included the removal from s. 2(1) of the requirement that a bill of indictment be signed in order to become an indictment and introducing a new restriction (in s. 2(6ZA-6ZC)) on objecting to the indictment after the commencement of the trial by reason of any failure to observe rules as to the manner and time in which bills of indictment are to be preferred. The section, as revised in 2009 and subsequently, now provides as follows:
“2. Procedure for indictment of offenders
(1) Subject to provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence… and it shall thereupon become an indictment and be proceeded with accordingly:”
(2) Subject as hereinafter provided no bill of indictment charging any person with an indictable offence shall be preferred unless either-
(a) The person charged has been sent for trial for the offence; or
(aa) The offence is specified in a notice of transfer under
section 4 of the Criminal Justice Act 1987
(serious and complex fraud); or
(ab) The offence is specified in a notice of transfer under
section 53 of the Criminal Justice Act 1991
(violent or sexual offences against children); or
(ac) the person charged has been sent for trial for the offence under
section 51
(committal proceedings for indictable- only offences) of the
Crime and Disorder Act 1998
(“
the 1998 Act
”); or
(b) the bill is preferred by the discretion of the ‘criminal division of the Court of Appeal or by the direction or with the consent of a judge of the High Court… or
(ba) the bill is preferred with the consent of a judge of the Crown Court following a declaration by the court under paragraph 8(1) of
Schedule 17 to the Crime and Courts Act 2013
(court approval of deferred prosecution agreement); or
(c) the bill is preferred under
section 22B(3)(a)
of the
Prosecution of Offences Act 1985
.
Provided that
(i) where the person charged has been sent for trial, the bill of indictment against him may include, either in substitution for or in addition to any court charging an offence specified in the notice under
section 51D(1) of the Crime and Disorder Act 1998
, and counts founded on material which in pursuance of regulations made under paragraph 1 of Schedule 3 to that Act, was served on the person charged, being counts which may lawfully be joined in the same indictment;
(iA) in a case to which paragraph (aa) or (ab) above applies, the bill of indictment may include, either in substitution for or in addition to any count charging an offence specified in the notice of transfer, any counts founded on material that accompanied the copy of that notice which, in pursuance of regulations under the relevant provision, was given to the person charged, being counts which may be lawfully joined in the same indictment;
(iB) in a case to which paragraph (ac) above applies, the bill of indictment may include, either in substitution for or in addition to any count charging an offence specified in the notice under
section 51(7)
of
the 1998 Act
, any counts founded on material which in pursuance of regulations made under paragraph 1 of Schedule 3 to that Act, was served on the person charged, being counts which may be lawfully joined in the same indictment;
(ii) a charge of a previous conviction of an offence… may, notwithstanding that it was not included in such notice or in any such direction or consent as aforesaid, be included in any bill of indictment
and in paragraph (iA) above the “relevant provision” means
section 5(9) of the Criminal Justice Act 1987
in a case to which paragraph (aa) above applies, and paragraph 4 of
Schedule 6 to the Criminal Justice Act 1991
in a case to which paragraph (ab) above applies
(3) If a bill of indictment has been preferred otherwise than in accordance with the provisions of the last foregoing subsection… the indictment shall be liable to be quashed:
Provided that-
(a) if the bill contains several counts, and the said provisions have been complied with as respect one or more of them, those counts only that were wrongly included shall be quashed under this subsection; and
(b) where a person who has been sent for trial is convicted on any indictment or any count of an indictment, that indictment or count shall not be quashed under this subsection in any proceedings on appeal, unless application was made at the trial that is should be quashed.
……………………………………
(6) Criminal Procedure Rules may make provision for carrying this section into effect and, in particular, provision as to the manner in which and the time at which bills of indictment are to be preferred before any count and the manner in which application is to be made for the consent of a judge of the High Court… for the preferment of a bill of indictment.
(6ZA) Where a bill of indictment is preferred in accordance with subsections (1) and (2), no objection to the indictment may be taken after the commencement of the trial by reason of any failure to observe any rules under subsection (6)
(6ZB) For the purposes of subsection (6ZA) the trial commences at the time when a jury is sworn to consider the issue of guilt or whether the accused did the act or made the omission charged, or, if the court accepts a plea of guilty before the time when a jury is sworn, when that plea is accepted.
(6ZC) The references in subsection (6ZB) to the time when a jury is sworn to include the time when that jury would be sworn but for the making of an order under
Part 7
of the
Criminal Justice Act 2003
.”
35.
The Criminal Procedure Rules (“the Crim PR”) (expressly referred to in s. 2(6) of
the 1933 Act
) contain the following provisions as to the manner and time in which bills of indictment are to be preferred as follows:
“
The indictment: general rules
10.2. – (1) The indictment on which the defendant is arraigned under rule 3.24 (Arraigning the defendant on the indictment) must be in writing and must contain, in a paragraph called ‘count’-
(a) a statement of the offence charged that-
(i) describes the offence in ordinary language, and
(ii) Identifies any legislation that creates it; and
(b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.
…….
(5) For the purposes of
section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933
-
(a) a draft indictment constitutes a bill of indictment
(b) the draft, or bill is preferred before the Crown Court and becomes the indictment-
(i) Where rule 10.3 applies (Draft indictment generated electronically on sending for trial), immediately before the first count (or the only count, if there is only one) is read to or placed before the defendant to take the defendant’s plea under rule 3.24 (1)(c),
(ii) When the prosecutor serves the draft indictment on the Crown Court officer, where rule 10.4 (Draft indictment served by the prosecutor after sending for trial), rule 10.5 (Draft indictment served by the prosecutor with a High Court judge’s permission), rule 10.7 (Draft indictment served by the prosecutor on re-instituting proceedings) or rule 10.8 (Draft indictment served by the prosecutor at the direction of the Court of Appeal) applies,
(iii) When the Crown Court approves the proposed indictment, where rule 10.6 applies (Draft indictment approved by the Crown Court with deferred prosecution agreement).
…….
Draft indictment generated electronically on sending for trial
10.3.- (1) Unless the Crown Court otherwise directs before the defendant is arraigned, this rule applies where-
(a) a magistrates’ court sends a defendant to the Crown Court for trial;
(b) the magistrates’ court officer serves on the Crown Court officer the notice required by rule 9.5 (Duty of magistrates’ court officer); and
(c) by means of such electronic arrangements as the court officer may make for the purpose, there is presented to the Crown Court as a count-
(i) each allegation of an indictable offence specified in the notice, and
(ii) each allegation specified in the notice to which
section 40 of the Criminal Justice Act 1988
applies (specified summary offences founded on the prosecution evidence).
……….
Draft indictment served by the prosecutor after sending for trial
10.4.- (1) This rule applies where-
(a) a magistrates’ court sends a defendant to the Crown Court for trial; and
(b) rule 10.3 (Draft indictment generated electronically on sending for trial) does not apply.
(2) The prosecutor must serve a draft indictment on the Crown Court officer not more than 28 days after serving under rule 9.15 (Service of prosecution evidence) copies of the documents containing the evidence on which the prosecution case relies.”
36.
Crim PR 10.5 to 10. 8 make provision for preferment of a bill of indictment in the other situations mentioned in rule 10.2(5)(b)(ii) and (iii).
37.
The effect of the revised version of s.2(1) of
the 1933 Act
and the Crim PR was considered by this court
in R v W(P)
[2017] 4 WLR 79
. It was explained by Treacy LJ in these terms:
“19. Some play has been made before us about the formal requirements for a valid indictment before the court. Those submissions, it seems to us do not appear to recognise the fact that there have been significant changes in the relevant formalities. The correct analysis as it seems to us is as follows. Prior to the amendment of
section 2
of, and
Schedule 2 to the Administration of Justice (Miscellaneous Provisions Act) 1933
by the
Coroners and Justice Act 2009
, it was a requirement of
the 1933 Act
that a bill of indictment be signed by the proper office of the court in order for it to become and indictment. The legal position now is that once a bill of indictment charging a person with an indictable offence for which he may lawfully be indicted in the Crown Court has ben preferred, it becomes an indictment (see
section 2(1)
of the 1993 Act and Archbold: Criminal Pleading, Evidence and Practice 2016 (2015), para 1-191. Accordingly lack of signature does not invalidate an indictment.
20. The
Criminal Procedure Rules 2015
at r.10.1, require service of a draft on the Crown Court no more than 28 days after service of prosecution evidence. Service can now be effected by electronic means. Accordingly it seems to us that a signature is no longer needed to make an indictment valid. An indictment is preferred within the meaning of
section 2(1)
of the 1993 Act, once it is electronically entered onto the court digital system at the Crown Court. The consequence is, as
section 2(1)
provides that “it shall thereupon become an indictment and be proceeded with accordingly”.
Arraignment
38.
The Crim PR make detailed provision, in rule 3.24, for the arraignment of an accused on an indictment, it being clear that such procedure ought to take place in every case. However, it is well established (and the appellants did not argue to the contrary) that where an accused is tried for offences he denies, but without having been formally arraigned, the proceedings (and any convictions) are not a nullity. For example, in
R v Williams
[1978] QB 373 this court held that, where the accused had heard the indictment read out and the assertion that he had pleaded not guilty, without raising any objection, he waived his right to be arraigned by allowing the trial to proceed. There was accordingly no irregularity and the proceedings were valid. (The position is different in the case of a purported guilty plea: such a plea must always be entered in person as part of a proper arraignment (
R v Ellis
(1973) 57 Cr App R 571)).
The modern approach to nullity
39.
In
R v Malachi Lloyd Williams
[2017] EWCA Crim 281
this court rejected the argument that the indictment on which the appellant was tried was a nullity because counts relating to separate incidents had been mis-joined in that indictment. The court recognised that the point would not arise in future due to the introduction of Crim PR 10.2 (4), but nevertheless expressed the following general view in relation to technical arguments that indictments or proceedings were a nullity (per Lord Thomas of Cwmgiedd CJ at [33]):
“We would hope that in future the court would take the view that the highly technical law in relation to nullity is an outdated concept that should no longer prevail, that a modern approach should be taken, which is to decide on the fairness of the trial, prejudice to a defendant and the safety of the conviction.”
These observations were cited with broad endorsement in connection with a different procedural irregularity in
R v Stromberg
[2018] 2 Cr App R 5
(per Lord Burnett of Maldon CJ at [35]).
The Submission
40.
Ms Upton and Mr Bleaney, counsel who appeared both on these appeals and at the trials below for Johnson and Burton respectively, submitted that the reasoning in
Leeks
remains unaffected by subsequent developments and is directly applicable to the facts of these cases. In each case there was a valid indictment on which the appellant was arraigned, and which was at no time amended. The revised draft indictment was intended to be introduced by way of amendment, but that was simply never done, so that the original remained the only “true bill”. The revised version used at trial was no more than a piece of paper which had not been sanctioned by the court or the subject of a re-arraignment. The proceedings, based on the revised draft indictment, were therefore a nullity.
41.
Ms Upton pointed out that the above analysis reflects the position set out in the letter from the CPS dated 14 September 2016, in which it was recognised that an amendment to the indictment was necessary and would be applied for at the next hearing.
42.
Ms Upton further contended that the trial judge, in Johnson’s case, had no power to order that the original indictment be amended at the time that she did. She argued that, whilst s. 5(1) of
the 1915 Act
provides for amendment “at any stage of a trial”, that did not permit amendment after the jury had returned a verdict, at which point the trial was over. In any event, Ms Upton submitted that amending the indictment at that point made a mockery of the process of indictments and arraignment.
43.
During the course of argument, Mr Bleaney acknowledged that the effect of the appellants’ contentions, if accepted, would not be limited to Burton’s conviction on the second count (to which he was added in the revised indictment) being quashed or declared invalid. That consequence would also apply to Burton’s conviction on the first count and to the convictions of his co-accused (Reed) on both counts, notwithstanding that they were placed on those counts in the original indictment. Those convictions would be nullities because the entirety of the proceedings on the form of indictment used at trial would be so declared.
Analysis
44.
There is no doubt that, in both these cases, the proper course would have been for the indictment to have been amended (and any new counts formally ‘sent’ to the Crown Court if they could not otherwise be joined on the basis of evidence previously served) and for the accused to have been re-arraigned. There is also no doubt that if any of the procedural errors had resulted in unfairness to the appellants or otherwise called into question the safety of their convictions, this court would intervene.
45.
The question on these appeals, however, is whether such procedural errors, in what was otherwise a fair trial process, require a determination that the proceedings, and the resulting convictions, were invalid. The primary issue, therefore, is whether the form of indictment on which the trial proceeded had been “preferred” within the meaning of s. 2 of
the 1933 Act
, as amended in 2009, with the result that the draft became an indictment “to be proceeded with accordingly”.
46.
The amended s. 2 of
the 1933 Act
now simply provides that a draft indictment may be preferred “by any person” before the court, imposing no restrictions on that process, but providing, in s. 2(6), that the Crim PR may make provision for the manner and timing of such preferment.
47.
The basic method of preferring a draft indictment under the rule 10 of the Crim PR, as confirmed by the decision in
W(P)
(above), is the service of such a draft on the Crown Court by uploading it onto the DCS. Rule 10 makes provision for the appropriate process in various situations, including where the draft is generated electronically by the magistrates’ court (rule 10.3) or where is it served by the prosecutor after sending by the magistrates (rule 10.4), in the latter case not more than 28 days after the service of prosecution evidence.
48.
Those rules must of course be complied with, and necessary extensions of time obtained (see rule 10.2(8)). But s. 2(6ZA) of
the 1933 Act
provides that, if a draft indictment has been preferred in accordance with subsections (1) and (2), no objection may be taken to the indictment after the commencement of the trial by reason of any failure to observe any of those rules. That provision, introduced in 2009 following the decision in
Clarke and McDaid
and at the same time as the removal of formal requirements in relation to the preferment of draft indictments in s. 2(1), is a broad anti-technicality provision, clearly intended by Parliament to prevent belated technical objections to the validity of a form of indictment and the proceedings which follow. It complements the pre-existing requirement that any application to quash an indictment on the basis that the draft indictment included counts which were not permitted under s. 2(2) had to be made at the trial.
49.
It follows that we accept the submission of Duncan Atkinson QC, for the Crown, that the revised draft indictments in these cases were preferred by being uploaded on the DCS. Any objection that the prosecution had not complied with the detailed rules in relation to such preferment was lost when the trial commenced.
50.
The second issue is whether the fact that there was an existing unamended indictment (being the only one on which the accused had been arraigned) nevertheless rendered the indictment or the proceedings a nullity, notwithstanding that the draft had been preferred and so became an indictment within s. 2 of
the 1933 Act
.
51.
The main thrust of the argument advanced on behalf of the appellants is that the continuing existence of the original indictment in some way renders proceedings on the revised form of indictment invalid, particularly given that the appellants had each case been arraigned on only that original indictment. Again, however, whilst it is clear that the procedure was flawed in these cases, there is no basis for a finding that the trial was a nullity. Neither of the two aspects relied upon (existence of another indictment and lack of arraignment) give rise to invalidity for the following reasons:
i)
As Mr Atkinson has set out in his helpful skeleton argument, an accused may have two or more indictments outstanding against him for the same offence:
Poole
[1961] AC 223
, referred to in Blackstone’s Criminal Practice
(2019) at para D11-22.
It is clear that the existence of a prior indictment does not prevent the prosecution preferring one or more fresh indictments, although the prosecution must elect between them. In the present cases there was a clear election to proceed with the fresh indictments.
ii)
Further, and as set out above, the fact that the appellants were not arraigned on the fresh indictments does not invalidate proceedings in circumstances where they disputed the charges. The fresh indictment was read in their presence, as was the (assumed) fact that they had pleaded not guilty.
Conclusion
52.
In our judgment, in each of these cases, the indictment, the trial process and the convictions which resulted were all valid and the appeals are dismissed. The reasoning of this court in
Leeks
was firmly based upon the strict approach taken by the House of Lords in
Clarke and McDaid
to indictments and their validity, but that decision and its approach was fully reversed by revision of s. 2 of
the 1933 Act
in 2009. It is clear, therefore, that
Leeks
no longer represents the law.
53.
We emphasise that our conclusion should not in any way be taken to condone a lax or informal approach to the preferment of draft indictments, amendments to existing indictments or arraignments. As this court has emphasised on numerous occasions, compliance with the Crim PR (and getting procedures right first time) is of paramount importance to the efficient working of the criminal justice system, both in individual cases and overall.
54.
Indeed, as this case demonstrates, the modern practice of uploading draft indictments onto the DCS, intended to be convenient for all parties and to improve efficiency, is capable of leading to confusion and serious error if care is not taken to ensure that appropriate steps are taken to apply for orders to amend existing indictments and/or to ensure re-arraignment. The risk of multiple versions and uncertainty as to which is the “true bill” is obvious. We emphasise that it is the duty of both prosecution and defence representatives to ensure that steps are taken to regularise the position as the case progresses and, in particular, that the form of indictment used at trial has received all necessary consideration. In that regard, it would also obviously be good practice for trial judges to enquire of counsel whether there were any outstanding issues in relation to the indictment before it is read before the jury at trial: whether that should be incorporated into a rule is a matter for the Criminal Procedure Rule Committee. However, if, notwithstanding, such obligations and practices, a trial proceeds on the basis of a form of indictment which was not properly dealt with, the primary consideration (as recognised in
Malachi Lloyd Williams
(above))
will be the fairness of the trial and the safety of the conviction, not the technical validity of the indictment.
55.
In view of our conclusion above, the question of whether the Judge Barnes had the power to amend the original indictment in the case of Johnson after the jury’s verdict does not arise. Mr Atkinson recognised that there are difficulties in extending the power under s. 5(1) of
the 1915 Act
to a stage after the trial has concluded with the return of verdicts. We are inclined to agree, but do not need decide the point.
Johnson’s Application for Leave to Appeal sentence
56.
Ms Upton did not contend that the custodial terms imposed on her client were manifestly excessive. The sole proposed ground of appeal is that, although the question of dangerousness properly arose as Johnson was convicted of applying a corrosive substance with intent, the judge did not have sufficient evidence before her to justify a finding that Johnson posed a significant risk of causing serious harm to members of the public through the commission of further specified offences. It was therefore wrong in principle, Ms Upton submitted, to impose an extended sentence.
57.
The facts of the offences of which he was convicted, involving the deception and manipulation of a vulnerable partner in order to carry out a planned and sustained attack on her (including throwing ammonia in her eyes, causing serious damage and lasting psychological injury), are sufficient in themselves to justify the judge’s conclusion that Johnson constitutes a serious danger to women and in particular to future partners. That conclusion is further supported and fortified by his appalling record. By the age of 26, he had amassed 29 convictions for 85 offences, including robbery (in 2011) and causing grievous bodily harm (in 2013).
58.
Although Johnson had never previously been convicted of an offence of the gravity of this offending, the judge took time (twice adjourning for reports) and conducted a careful sentencing exercise. Her determination that he was dangerous is not open to serious criticism. It is simply not arguable that the sentence was wrong in principle or manifestly excessive. This application is refused.
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{"ConvCourtName":["Crown Court at Lewes","Crown Court at Oxford"],"ConvictPleaDate":["2018-01-23","2018-03-08"],"ConvictOffence":["assault occasioning actual bodily harm","criminal damage","applying a corrosive fluid with intent","sexual assault","having custody or control of a counterfeit currency note","tendering a counterfeit currency note"],"AcquitOffence":["criminal damage (count 1, Johnson)","assault by beating (count 4, Johnson)","criminal damage (count 5, Johnson)","harassment (count 6, Johnson)"],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at Plea and Trial Preparation Hearing (Johnson, count 9)","at arraignment (Burton, both counts)"],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Lewes","Crown Court at Oxford"],"Sentence":["14 years' extended sentence (Johnson, count 7)","concurrent determinate terms for other offences (Johnson)","12 months' imprisonment on each count, concurrent (Burton)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Female"],"VicAgeOffence":[6],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV (Burton)","victim testimony (Johnson)","forensic examination (Johnson)"],"DefEvidTypeTrial":["prepared statement denying allegations (Johnson)","alibi claim (Burton)"],"PreSentReport":[],"AggFactSent":["planned and sustained attack (Johnson)","serious damage and lasting psychological injury (Johnson)"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction","Sentence (Johnson only)"],"AppealGround":["form of indictment used at trial was a nullity; only valid indictment was the unamended original; convictions should be set aside or declared invalid (both)","insufficient evidence to justify finding of dangerousness for extended sentence (Johnson)"],"SentGuideWhich":["s. 229 of the Criminal Justice Act 2003","s. 5 of the Indictments Act 1915","s. 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["indictment, trial process and convictions were all valid under amended law; Leeks no longer represents the law; no unfairness or prejudice; sentence not manifestly excessive or wrong in principle"]}
|
No:
200906765/A3
Neutral Citation Number:
[2010] EWCA Crim 700
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday 5th March 2010
B e f o r e
:
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE FOSKETT
- - - - - - - - - - - - - -
R E G I N A
v
PETER ADCOCK
- - - - - - - - - - - - - -
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 S Nichol
appeared on behalf of the
Appellant
- - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE GRIFFITH WILLIAMS: On 28th September 2009, the day his case was listed for trial in the Crown Court at Manchester Minshull Street, Peter Adcock pleaded guilty to three offences (counts 6, 7 and 8) of sexual activity with a person with a mental disorder impeding choice. On 20th November 2009 he was sentenced to concurrent terms of 4 years, 4 years and 18 months' imprisonment respectively. Offences of sexual assault on a female (counts 1, 2 and 3) and assault by penetration (counts 4 and 5) were left on the file on the usual terms. He was required to comply with the notification to the police requirements in Part II of the
Sexual Offences Act 2003
, indefinitely. He appeals against the sentence of imprisonment by leave of the single judge.
2.
The facts of the offending were as follows. The appellant's wife suffered from Huntingdon's disease and was a long time resident at a care home where he visited her on virtually a daily basis, but as she could not communicate with him, he frequently visited other residents at the home and gained a reputation as the "chocolate man" because he often gave residents After Eight mints.
3.
The 57-year-old victim, BG, had been a resident at the home since 2000. She had suffered a severe stroke in 1999 which had left her with significant cognitive difficulties and unable to care for herself. She had been left with poor vision, little capacity for short-term memory, only patchy long-term memory. She was unable to care for her basic needs without prompting and was generally apathetic lacking in initiative and was incapable of even asking for a glass of water.
4.
If she was left alone she would drift off to sleep and she could not hold full conversations with people but restricted her answers to "yes" and "no". Over her years at the home BG had displayed both sexual and non sexual dis-inhibited behaviour, although there is no evidence that the appellant knew of this. Her behaviour had been managed through a behavioural management programme but she was not someone who was able to decide whether or not to take part in a physical relationship with someone.
5.
On 18th August 2008 the appellant visited his wife at the home. He was seen by two care assistants sitting with BG in the residents' lounge. It was noticed that her dress was up over her knees and he was rubbing her vagina through her underwear. A few minutes later he was seen to be holding her hand and rubbing her right breast. The two care assistants noted that both the appellant and BG appeared to be smiling. They reported the matter to the manager, who informed the police and on 20th August 2008 the appellant was arrested.
6.
When he was interviewed under caution, he confirmed the observations of the care assistant. He added that such activity with BG at first occurred a few weeks earlier, that he had rubbed her breasts on three or four occasions and had inserted his finger into her vagina twice. On each occasion he stated that he held his hand and put it against her breast or vagina thus initiating the activity. He insisted that she had her own mind and was capable of refusing anything if she wanted to.
7.
In his written advice, Mr Nichol, who acted for the appellant in the Crown Court, set out the history of negotiations which took place on 28th September 2009 and which led to the indictment being amended to add counts 6, 7 and 8, to the appellant pleading guilty and to the basis of plea.
8.
The basis of plea was in these terms:
"Peter Adcock pleads guilty to three counts of sexual activity with a mentally disordered person contrary to
section 30(1) of the Sexual Offences Act 2003
on the following basis:
1. That [BG] was a resident at Marple Dale Hall nursing home and, that he had known her for years prior to the incidents in June-August 2008.
2. That he fondled her breast on 3 or 4 occasions.
3. That he rubbed her vagina and inserted his finger in it on two occasions.
4. On each of the above occasions [BG] initiated the contact by guiding the defendant's hand and encouraged him to continue."
9.
While the prosecution was not prepared to accept paragraph (d) of that basis of plea, the judge (His Honour Smith) said that if the appellant was to plead on that basis the factual issues in paragraph (d) could not be resolved in a
Newton
hearing and he would be constrained to sentence on that basis. The appellant then pleaded guilty and the case was adjourned for reports.
10.
We were told that although His Honour Judge Smith had reserved the case to himself, it was listed on 20th November 2009 before His Honour Judge Hull who was told by counsel for the prosecution of the history of proceedings before His Honour Judge Smith.
11.
We consider it unnecessary to investigate the circumstances in which a case reserved to one judge was listed before another judge as the facts of this case demonstrate that practice should be avoided whenever possible.
12.
Passing sentence His Honour Judge Hull said:
"The case that you put forward to the police and the case which you pursued, albeit upon a diminishing basis, in these proceedings was that she led you on, that in particular she took your hand and put it where you believed she wanted you to put it and, whilst there clearly is material in the case (the nursing records and the like), which indicates that she would have been capable of executing that physical act, there is also an abundance of evidence to the effect she did not anything like the requisite mental capacity to engage in any form of sexual relationship with you and you would have known that and it is because of that that really it not open to you to suggest that you could have regarded anything which she did as leading you on. You knew that she extremely vulnerable and that she was, if I can put it this way, off limits and it follows from that, that the court inevitably regard these offences by you as involving significant depravity on your part."
Those sentencing remarks are a odds with paragraph d of the basis of plea and with the approach to sentence which His Honour Judge Smith had indicated. They are also seemingly at odds with the observations and experiences at the home of the victim's sexually dis inhibited behaviour.
13.
Returning to the sentencing remarks the judge said:
"In my judgment, the fact of these offences means that you must regard as posing a significant, if not high, risk of causing serious harm in the future to vulnerable females and it follows from that, that you must be dealt with today by the imposition of a significant determinate custodial sentence."
We are concerned by those observations. The appellant was to be sentenced for his offending. Any future risk should have been addressed by provisions such as a sentence for public protection, an extended sentence or a sexual offences protection order, if available. We will return to this.
14.
The Definitive Guideline on offences pursuant to
section 30(1) of the Sexual Offences Act 2003
, provides a sentencing range of 8 to 13 years, with a starting point of 10 years' imprisonment, for one offence of penetration, with no aggravating or mitigating factors and a sentencing range of 36 weeks to 3 years, with a starting point of 15 months custody when the type of activity is contact with the naked genitalia of the victim by the offender using part of his body other than his genitalia.
15.
Section 172 of the Criminal Justice Act 2003
requires a court to have regard to Guidelines, which are relevant to offender's case and section 174(2) of the Act, requires a court to give reasons for deciding on a sentence of a different kind or outside a particular range indicated by the guidelines.
16.
Mr Nichol told us that there was mention of the Guidelines during his submissions in mitigation but the sentencing judge said nothing about them in his sentencing remarks and so we do not know why he decided to depart from the Guidelines. Furthermore, he said nothing of his starting point, or of the amount of discount that he gave for appellant's guilty pleas. It is unfortunate that this court does not have the benefit of that assistance. We have considered sentence afresh and for the reasons which follow, have determined there must be a departure from the relevant guideline.
17.
Section 143(1) of the Criminal Justice Act 2003
provides that the seriousness of an offence should be determined by two main parameters: the culpability of the offender and the harm caused by the offence including the impact on the victim. Further, one of the general principles applicable to sentencing for sexual offences is that found in paragraph 1.3 of the Definitive Guideline on the
Sexual Offences Act 2003
. It reads:
"The guideline has been formulated on the basis of sentencing framework that is currently in force. For these types of offences more than many of others the sentencing process must allow for flexibility and variability. The suggested starting points and sentencing ranges contained in the offence guidelines are not rigid and movement within and between ranges will be dependent upon the circumstances and individual cases, and in particular the aggravating and mitigating factors that are present."
18.
We return to the basis of plea because the sentence had to reflect it. On that basis of plea there is force in the submission made by Mr Nichol that this was a case of ostensible consent, where the defendant's criminality arose out of his lack of judgment in acquiescing to the victim's request. He submitted there was no evidence that the defendant had planned the activity, nor that the victim had suffered mentally or physically as a result of that activity. The care home had in earlier years allowed the victim to behave in this way with others, and the records made it plain that she made sexual demands from time to time of those around her.
19.
The appellant was 62 years old at the time of the offences. He was a man of previous good character. There were many witnesses (18 in all) who wrote of his devotion to his wife and to his two daughters, whose childhood was blighted by their mother's condition, of his exemplary employment record and of his standing in the community. The judge concluded in the passage from his sentencing remarks which we cited earlier that the facts of these offences mean that the appellant must be regarded as posing a significant, if not high risk of causing serious harm in the future to vulnerable victims. If that was his conclusion then, as the offences were specified offences, the dangerous offender provisions of the
Criminal Justice Act 2003
should have been considered. That said, in the judgment of this court, that was not a conclusion which was justified on the evidence. Any risk of reoffending could have been addressed by measures such as a sexual offences prevention order.
20.
Nothing we say in this judgment should be taken as in any way diminishing the gravity of the appellant's offending. He knew BG was vulnerable and he committed more than the one offence. But we have concluded that a sentence of 4 years' imprisonment was manifestly excessive. In the judgment of this court, following a trial, the appropriate sentence would have been 4 years. Although the appellant pleaded guilty when the case was listed for trial, it was only then that the prosecution abandoned its case that the offending was non consensual and added by amendment as we stated earlier, counts 6, 7 and 8 to which the appellant then pleaded guilty, on the all important basis of plea, which we emphasise lies at the heart of our decision on sentence in this case.
21.
We consider that a 25 per cent discount would have been appropriate for the change of plea. In the result, we quash the sentences on counts 6, 7 and 8, and substitute for them sentences of 3 years, 3 years and 15 months' imprisonment respectively. To that extent and that extent alone the appeal is allowed.
22.
MR JUSTICE GRIFFITH WILLIAMS: Mr Nichol, may we thank you for your assistance.
23.
MR NICHOL: Thank you my Lord.
|
{"ConvCourtName":["Crown Court at Manchester Minshull Street"],"ConvictPleaDate":["2009-09-28"],"ConvictOffence":["sexual activity with a person with a mental disorder impeding choice (count 6)","sexual activity with a person with a mental disorder impeding choice (count 7)","sexual activity with a person with a mental disorder impeding choice (count 8)"],"AcquitOffence":["sexual assault on a female (counts 1, 2 and 3) (left on file)","assault by penetration (counts 4 and 5) (left on file)"],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on day of trial"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Manchester Minshull Street"],"Sentence":["4 years imprisonment (count 6, original)","4 years imprisonment (count 7, original)","18 months imprisonment (count 8, original)"],"SentServe":["Concurrent"],"WhatAncillary":["Notification to the police requirements in Part II of the Sexual Offences Act 2003, indefinitely"],"OffSex":["All Male"],"OffAgeOffence":[62],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Female"],"VicAgeOffence":[57],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Care assistant eyewitness testimony","Nursing records"],"DefEvidTypeTrial":["Offender admits conduct but claims ostensible consent"],"PreSentReport":[],"AggFactSent":["Victim was extremely vulnerable","Offender knew of victim's vulnerability","Multiple occasions"],"MitFactSent":["Offender of previous good character","No evidence of planning","No evidence of mental or physical harm to victim","Ostensible consent","Exemplary employment record","Devotion to family"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Sentencing judge departed from guidelines without explanation","Insufficient discount for guilty plea","Sentence did not reflect basis of plea"],"SentGuideWhich":["Definitive Guideline on offences pursuant to section 30(1) of the Sexual Offences Act 2003","Section 172 of the Criminal Justice Act 2003","Section 174(2) of the Criminal Justice Act 2003","Section 143(1) of the Criminal Justice Act 2003"],"AppealOutcome":["Allowed and sentence reduced: sentences of 3 years, 3 years and 15 months' imprisonment substituted for 4 years, 4 years and 18 months"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Sentence of 4 years was manifestly excessive","Sentencing judge did not explain departure from guidelines","Sentence did not reflect basis of plea","Insufficient discount for guilty plea"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
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No.
2007/02845/A2
Neutral Citation Number:
[2007] EWCA Crim 2413
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Wednesday 3 October 2007
B e f o r e:
MR JUSTICE UNDERHILL
and
MR JUSTICE GRIFFITH WILLIAMS
- - - - - - - - - - - - - - -
R E G I N A
- v -
DAVID CHRISTOPHER HEMMINGS
- - - - - - - - - - - - - - -
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 A Mathieson
appeared on behalf of the Appellant
- - - - - - - - - - - - - - -
Judgment
Wednesday 3 October 2007
MR JUSTICE UNDERHILL:
1. On 14 March 2007, at the Crown Court at Snaresbrook, before His Honour Judge Zeidman QC, the appellant, who is aged 40, pleaded guilty to one offence of battery and another of criminal damage. He was sentenced to a Community Order with requirements of supervision for 18 months and attendance on an Integrated Domestic Abuse Programme. The indictment contained a number of much more serious counts, but those were not in the end proceeded with. The appellant appeals against sentence by leave of the single judge.
2. In view of the basis on which this appeal is advanced, we need say little about the facts of the offences. They arose in a context of domestic violence and difficulties between the appellant and his partner. The offence of criminal damage occurred in October 2006 when he pursued her to her mother's home and caused £300 worth of damage to the panel of a door by punching it. On 2 December 2006, he went round to his partner's home and found another man there. During the course of an argument he grabbed hold of the victim and pushed him onto a chair in order that he could continue to speak to him in the hope of sorting their differences out.
3. It seems clear that, although the two offences in question appeared on the indictment, the only reason why they came before the Crown Court was the context of the other charges to which we have referred. They are otherwise of a character which would have been heard before the magistrates. The appellant has only minor previous convictions of some age.
4. The crucial point in this appeal is that the appellant had been remanded in custody between the date of his arrest and the date of sentence for a period of 99 days. As Mr Mathieson, his solicitor who appeared below and appears before us, pointed out to the judge, that was equivalent to a custodial term of six months. It is clear that in practice no longer custodial term could (or in any event would) have been imposed had he been on bail until the trial. In these circumstances, Mr Mathieson submitted, it was wrong in principle that the appellant should receive any further substantial punishment. He referred to
R v McCabe
(1988) 10 Cr App R(S) 134 and
R v Peppard
(1990) 12 Cr App R(S) 88, where this court deprecated the passing of a suspended sentence on a defendant who had already served on remand a period equivalent to the suspended term. Although the present case is not precisely identical, in that the term imposed by the judge was not a term of imprisonment (albeit suspended) but was a community penalty, Mr Mathieson submits that the principle is equally applicable. As he pointed out, even with a community penalty there remained an element of double jeopardy since the appellant would be at risk of a further custodial term if he breached the requirements of the community order.
5. The judge did not accept that argument. He took the view, based on the contents of the pre-sentence report, that the appellant posed a real risk, particularly to his partner or to other women with whom he might be in a relationship; and that for the protection of such people or the protection of society generally it would be desirable that he should be subjected to a community penalty. Having set out in some detail the contents of the pre-sentence report, the judge said:
"You have never had the benefit of probation intervention and the recommendation of the experienced probation officer is that you should be required to go on what they call an Integrated Domestic Abuse Programme ....
I am satisfied that, despite the fact that you have had the punishment of being in prison, that I would be failing in my duty if I left it at that. I need to protect the public. I need to protect future girlfriends and I need, in effect, to protect you from yourself.
In those circumstances, I am going to follow the recommendation of the probation officer. I am going to make an order that you attend a course."
6. We understand, and to a considerable extent sympathise with, the judge's reasoning. It was no doubt the case that both the appellant and the wider community were likely to benefit if he had been obliged to undergo a period of supervision and take the course proposed. Nevertheless it seems to us that the order is wrong in principle. A sentence of a community order, and all the more so one coupled with requirements which have a real impact on the offender's liberty, is a form of punishment. It does not seem to us to be right that the appellant should receive a substantial further punishment in circumstances where he has already received what was in practice the maximum punishment by way of imprisonment which the law could have imposed. That reasoning seems to us to be in line with the reasoning in the cases of
McCabe
and
Peppard
to which we and the judge were referred.
7. In the result we feel obliged to allow the appeal. In
McCabe
and
Peppard
the court took the course of imposing a conditional discharge. Mr Mathieson submitted to us that even that was inappropriate because the effect of a conditional discharge might be that if the appellant committed a further offence he would be liable to be re-sentenced for the present offence. We are not sure that that is a valid objection. The restriction which weighed with the court in
McCabe
and in
Peppard
was that contained in
section 11(3)
of the
Criminal Appeal Act 1968
, which precludes the court from dealing more severely with the appellant. We do not see how a sentence of conditional discharge can be described as more severe than a community order. Nevertheless, insofar as there is a potential problem of the sort identified by Mr Mathieson, it can be guarded against by making the term of the conditional discharge such that it will have expired by today's date. With that in mind we make an order of conditional discharge with a term of four months. I hope the dates work, Mr Mathieson. I have not checked them, but I think they should.
8.
MR MATHIESON:
I think they will, my Lord. The sentence was in April, so that the four months will have expired.
9.
MR JUSTICE UNDERHILL:
Thank you. The sentence will be on both counts concurrent.
|
{"ConvCourtName":["Crown Court at Snaresbrook"],"ConvictPleaDate":["2007-03-14"],"ConvictOffence":["battery","criminal damage"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[99],"SentCourtName":["Crown Court at Snaresbrook"],"Sentence":["Community Order with requirements of supervision for 18 months and attendance on an Integrated Domestic Abuse Programme"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[40],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Male"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":["High risk of harm"],"AggFactSent":["offence occurred in a context of domestic violence"],"MitFactSent":["offender has only minor previous convictions of some age"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["appeal against sentence"],"AppealGround":["Appellant had already served on remand a period equivalent to the maximum custodial term"],"SentGuideWhich":["section 11(3) of the Criminal Appeal Act 1968"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Appellant had already received the maximum punishment by way of imprisonment which the law could have imposed; further substantial punishment was wrong in principle"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
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Case No: 201202246 B2 & 201202650 B2
Neutral Citation Number:
[2013] EWCA Crim 1394
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
His Honour Judge Beaumont QC
T20117292
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
31/07/2013
Before:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE SIMON
and
MRS JUSTICE CARR DBE
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Between:
R
Respondent
- and -
SHIRLEY BANFIELD & LYNETTE BANFIELD
Appellants
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- - - - - - - - - - - - - - - - - - - - -
William Clegg QC and Adam Kane
for the Appellant
Shirley Banfield
Jeffrey Samuels QC and Phillip Parry
for the Appellant
Lynette Banfield
Crispin Aylett QC and Louis Mably
for the
Respondent
Hearing date: 9
th
July 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lady Justice Rafferty:
1.
Shirley Banfield (“SB”) (65) and Lynette Banfield (“LB”) (41)
on 22 December 2011 in the Central Criminal Court pleaded guilty to conspiracy to defraud (Count 2), forgery (Count 4) and conspiracy to pervert the course of justice (Count 5). Shirley Banfield
pleaded guilty to dishonestly retaining a wrongful credit (Count 3).
2.
On 3 April 2012 both Appellants were convicted of murder of Donald Banfield (“DB”) (Count 1).
3.
On the same date, Shirley Banfield was sentenced as follows:
COUNT
OFFENCE
SENTENCE
1
Murder
Life imprisonment with a minimum term of 18 years,
2
Conspiracy to defraud
18 months imprisonment, to run concurrently
3
Dishonestly retaining a wrongful credit
12 months imprisonment, consecutive to Count 2 but concurrent to Count 1
4
Forgery
12 months imprisonment, consecutive to Count 2 but concurrent to Count 1
5
Conspiracy to pervert the course of justice
12 months imprisonment, consecutive to Count 2 but concurrent to Count 1
4.
The total was life imprisonment with a minimum term of 18 years
5.
Lynette Banfield was sentenced as follows:
COUNT
OFFENCE
SENTENCE
1
Murder
Life imprisonment with a minimum term of 16 years,
2
Conspiracy to defraud
18 months imprisonment, to run concurrently
4
Forgery
12 months imprisonment, consecutive to Count 2 but concurrent to Count 1
5
Conspiracy to pervert the course of justice
12 months imprisonment, consecutive to Count 2 but concurrent to Count 1
6.
The total was life imprisonment with a minimum term of 16 years
7.
Each appeals against conviction by leave of the Full Court.
8.
SB married DB in 1980 and they had Kevin born in 1968 and LB born in 1971. In May 2001 DB disappeared aged 63. His body has never been found. There was evidence he was a heavy gambler and a womaniser. He had on 22 January 2001 retired from William Hill, bookmakers, at short notice.
9.
He and SB lived in their family home in 146 Lockett Road (“Lockett”) in Harrow. The marriage was turbulent. He drew a pension from William Hill and in February and March 2001 he had drawn down lump sums from it.
10.
In spring 2001 the sale of Lockett for £179,000 was agreed. Proceeds of the sale were to be split equally between DB and SB.
11.
On 11 May 2001 DB told PC Riley his concerns about the malign attitude of his family. He co-signed the contract for the sale of Lockett, the last substantiated independent evidence of him in life. He has not been traced since.
12.
On 15 May 2001, as SB had asked, LB forged a letter to his pension administrators asking that his pension go into his joint Nationwide account with SB. On Saturday 19 May 2001 DB was reported missing by his friend, Mr McIntosh.
13.
The Crown’s case was that between 11-16 May 2001 the Appellants both murdered DB.
The defence
was that absent a body and any evidence DB had in fact been killed, the Crown could not prove a death let alone a murder, nor that either or both appellant/s had committed it or was present at the time of it. The case was speculative and circumstantial.
14.
The Appellants relied on evidence that DB had previously disappeared from his native Trinidad and intended once again so to do prior to his disappearance in 2001. He had debts of £50,000. His financial affairs were tangled. He had drawn down £30,000 from his pension shortly before his disappearance. PC Savage saw him driving locally after he was said to have been murdered. His mobile telephone had been used on 14 May 2001 and was charged and able to receive calls for months after the alleged murder. The disposal of a body would have been extremely difficult and possible burial sites had been thoroughly investigated. The lies and deception of the Appellants were not evidence of murder. The Appellants confessed to the jury that their motive to the crimes of which they had pleaded guilty was financial gain but also initially to force DB to return, when they could hope to regularise the sale of Lockett.
15.
The Crown relied upon evidence documentary and oral that DB complained to his doctor, the police, his friends and family of assaults it suggested were highly indicative of failed murder attempts by both Appellants shortly before his disappearance and on his expressed concerns that they would kill him. In the period leading up to his disappearance, DB described to Dr Karia his GP, the police and his friends domestic tension between himself and his wife and daughter, and their assaults on him. He told Mr McIntosh SB had tried to suffocate him as he slept and that he woke to find his hands handcuffed, a plastic bag nearby. He had started kicking and screaming and LB had released him. He thought his post was being interfered with. Once Mr McIntosh allowed him to have his mail sent to Mr McIntosh’s address letters addressed to DB started arriving.
His post was intercepted and he found a stash of letters addressed to him behind the sofa including cheques from William Hill. Nothing like this happened prior to his retirement. He did not want the police to do anything. He could not risk his wife knowing he had gone to them. His house was about to be sold and he was thinking about returning to Trinidad.
16.
Dr Karia recorded this account:
“A couple of weeks ago, in the middle of the night, he found himself having been handcuffed behind his back and his wife trying to tie down his legs and put a plastic bag over his head. He says that he woke up and was able to salvage the situation. Another time his daughter tried to spray in his eyes whilst he was asleep and when he tried to confront her, his wife started screaming at him, at which point his wife brought a knife and they both said to him, ‘Why don’t you die?”
17.
The last independent evidence of DB alive came from PC Riley. On 11 May 2001 he signed her pocket book entry that he did not want the police to take any further action. The same day he co-signed the contract for the sale of Lockett.
18.
On Saturday 19 May 2001, after he had not heard from DB for over a week, Mr McIntosh reported him missing. When police visited the Appellants that day SB said he had a habit of disappearing. Told that Mr McIntosh had reported DB missing she said Mr McIntosh had mental health problems (as to which she was correct).
19.
Next day, Sunday 20th May 2001, LB telephoned the police saying that about three months ago her father had started moving his possessions out of the house and she had now noticed his passport missing.
20.
On 22 June 2001 SB made a witness statement to the High Court in support of an application for the appointment of a trustee to complete the sale of Lockett. She alleged that after DB had gone missing he had been seen locally. She did not provide the police with further details. The sale was completed, and the proceeds paid to SB.
Mr Banfield’s state pension
21.
On 22 January 2003, his 65
th
birthday, DB would have become entitled to his state pension. The Appellants made a claim in his name, and from 22 February 2003 to 17 February 2008, a (gross) £26,811 was paid in and from 18 February 2008 to 4 May 2009, a further (net) £7,571.
22.
On 31 December 2004 SB took early retirement from the Inland Revenue. On 10 June 2005 she submitted a claim for Disability Living Allowance including an entry purportedly by DB but written by LB detailing SB's disability.
23.
The Crown relied on DB’s disappearance being immediately after he had signed the contract for the sale of Lockett which SB wrongly believed entitled her to complete the sale on her own. After he was reported missing, both Appellants were in the contention of the Crown unconcerned and both reported seeing him on Sunday 13 May 2001. They subsequently gave what the Crown said were misleading and untrue accounts to police and the High Court including:
i)
LB said he had voluntarily removed possessions and his passport from Lockett months before his disappearance and, in a joint statement with SB, that she had seen him at Christmas 2007 and 2008.
ii)
SB said he had a habit of disappearing, Mr McIntosh the friend who reported him missing had mental health issues (as was correct), DB had been seen locally in betting shops after his disappearance and, as PC Savage had said, driving a car in August 2001.
iii)
She and LB saw him at Christmas 2007 and 2008. She told police he had probably returned to Trinidad and was ill.
24.
Within six months of his disappearance the Appellants used the proceeds of the sale to set up home together, 200 miles away.
25.
In July 2009, DB by now missing for over eight years, the investigation was re-opened.
Defence evidence
26.
SB told the jury that during their long relationship and marriage DB would frequently disappear. He indulged in gambling and womanising. SB put up with all this because she loved him and they were mutually supportive.
27.
As his
retirement approached they made plans to move to the North East where property was cheaper. SB did not know DB had personal debts of £50,000 or that he was writing to his sister in Trinidad. After his retirement he became very depressed and his behaviour irregular. She denied any attempts to kill him and said and there was no truth in his complaints to others.
28.
When they signed the contract for sale on Friday 11th May 2001 SB knew it was only the first stage of the process. The Saturday was a normal day. DB returned in the evening and may have left early on Sunday morning. After some time he did not return and she noticed he had taken personal belongings. Concerned about how the deed of transfer would be done and the sale completed without DB, on the Monday or Tuesday she telephoned LB and on Tuesday her solicitors told her exchange had taken place. LB told SB that DB had been moving his clothes for the last 2-3 months. They rang his mobile which rang but was not answered. SB immediately decided to transfer his pension into their (his and her) joint account, calculated to bring him back when he discovered it, since SB needed him to sign the transfer deed. LB agreed to forge the letter - it was clear DB had left for good. It was thoroughly dishonest and SB intended to repay William Hill.
29.
SB did not contact the police since he had gone missing before and had taken all his clothes. SB gave the police his contact numbers and was in regular contact with them. The disappearance caused many problems for SB and she lied to the solicitors about having been told that she and DB had to sign the transfer deed. Through the Citizens Advice Bureau she instructed another solicitor and two applications were made to the High Court to convey the house and release the sale proceeds. SB then moved to the north east as originally planned.
30.
His 65
th
birthday on 22
nd
January 2003 left DB eligible for a state pension. SB telephoned the Department for Work and Pensions and, as she had done with the William Hill pension, arranged for it to be paid directly to their joint account. SB had pleaded guilty to this offence and was ashamed about it. She also lied on a claim for Disability Living Allowance but that was more out of stupidity. She lived in fear of her frauds being discovered but four years after the disappearance was still hopeful that he would return. She lied about seeing him so as to cover up the frauds.
31.
SB lied in police interview because she panicked. She went on the extravagant holiday to Grenada as she had not been on holiday for a long time and the plan had been to make inquiries about the deceased in Trinidad.
32.
LB
said she originally worked at a solicitors firm before reading an undergraduate degree at Bristol University. She visited SB regularly and then moved in with her parents to help care for her grandfather. She took out a mortgage to buy her grandfather’s council flat and moved in with him to help with his care. LB got on well with DB who often confided in her. He did not cope well with retirement and she knew nothing of her parents’ finances. There had been no incidents of violence or threats towards DB whom she and SB had never harmed.
33.
LB was present when the papers were signed on Friday 11th May 2001, the last time she saw DB. His disappearance was not unusual. On the Tuesday, SB asked her to forge the pension letter to complete the house sale. They knew that if the pension were transferred DB would be very angry and come back. Hence LB agreed. She did not understand the seriousness of the forgery and also thought SB was being melodramatic. After a couple of years they had to keep the pension payments going because they were worried about what William Hill would do. They still hoped DB would return. He would have been angry but they could have sorted it out and he would not have gone to the police.
34.
LB had told the police what she knew but had not mentioned the pension letter. She thought DB had wanted to disappear and was surprised to hear he had been seen driving locally. LB was not involved in the applications to the High Court but was aware of the problems with the solicitor and agreed to be a trustee so as to help. She signed a statement in those proceedings but did not read it.
35.
LB knew SB claimed his state pension. Part of this was to conceal the fraud on the William Hill pension. LB agreed they had lied about seeing DB and in interview and said this was because she was worried about being implicated in the pension frauds.
36.
The Appellants called Alan Strickland who said
he had seen DB between 2005 and 2007.
Ruling on submission of no case
37.
The Appellants submitted that the evidence was insufficient to prove (a) which Appellant was responsible for the murder, or (b) whether both were responsible. They relied on
R v Strudwick and Merry
[1993] 326 in which Farquharson LJ said:
“This case has considerable similarities with
R v Lane and Lane
(1986) 82 Cr.App.R 5, when the court was confronted with the same problem. It involved a charge of manslaughter of a child against the mother and stepfather. As in the present case neither of the accused made any admission and the Crown invited the jury to find that the accused were responsible. It was proved that they had told lies, but these did not lead to the inference of that appellant's presence. The defendants' purpose was to "alibi" each other, but as Croom-Johnson LJ pointed out, if the lie was shown to be false it did not advance the prosecution case.
There are cases in which the present problem is overcome if the presence of both accused can be established at the time the assaults took place. An example is to be found in
R v Lawson
and Thompson
(unreported) where the presence of both appellants was admitted at a time when the child victim was heard screaming by the next door neighbour. If of course evidence of that kind is available it avoids the problems which arise in the present appeal. For these reasons we are of the opinion that the Crown had not made out a prima facie case of manslaughter against the appellants and those convictions will be quashed.”
38.
Arguing successfully that the case should be left to the jury, the Crown relied upon:
i)
The letter of 15th May 2001 - diversion of pension - forged by LB for the benefit of SB.
ii)
The joint actions and responses of both prior to and after the disappearance, including their lack of helpful input into the Missing Persons Inquiry and the false trails they created.
iii)
Their £26,365 holiday to Grenada booked on 22 March 2010 for departure in April 2010.
iv)
Their purchase within 6 months of May 2001 of a property 200 miles away.
v)
They acted jointly in the deception offences over 7 years.
vi)
They benefited financially.
vii)
They admitted lies that they had seen DB alive after May 2001. Their only motive was to create false trails.
39.
The Judge said the evidence was sufficient directly to implicate each and that the case was not akin to
R v Lane & Lane
[1986] 82 Cr.App.R 5 or
R v Strudwick and Merry
[1993] 326.
40.
By the time he came to sum up the Crown could also rely on the Appellants’ failure in interview to mention matters they sought to rely on at trial.
41.
The Judge provided to the jury a document headed Route to Verdicts, only Question 3 of which need concern us. It read:
“Are we sure that the defendant whose case we are considering caused DB’s death by either being involved directly in the fatal attack on DB or else was present at the time of that fatal attack and encouraged the other who carried it out to do what she did that caused DB’s death? If the answer is (sic) No, then that defendant must be found Not Guilty of his Murder and no alternative verdict of Manslaughter arises. If the answer is Yes then (Q4)”
42.
Grounds of appeal for each Appellant are that the Crown was unable to say which of the two killed him, or that it must have been both acting jointly. The submission at the close of the case for the Crown should have succeeded.
Submissions developed
43.
There was acceptance that Question 3 in the Route to Verdict was, so far as it went, an accurate statement of applicable law. The criticism is that it failed to reflect the lacuna identified in the Grounds and advanced during submissions at the close of the case for the Crown. “….
either being involved directly in the fatal attack on DB
or else was present at the time…….”
(our emphasis). The Appellants argue that the fatal act could not be excluded as having been carried out by one or other Appellant. That being so, the Crown could not prove that it must have been carried out jointly. The evidence was as consistent with one Appellant acting alone later assisted by the other as it was with a joint enterprise murder.
44.
The Crown submitted that a substantial body of evidence demonstrated they had acted together in recently assaulting him, in diverting his pension shortly after he was last seen (demonstrating confidence that he was dead), and in maintaining the pretence that he was still alive for their own financial gain. These facts were capable of establishing a pre-meditated joint enterprise to murder. This was not a case where the evidence could go no further than establishing that the offence was committed by one or other or possibly both, rather it was capable of proving the positive case of joint enterprise.
45.
For SB Mr Clegg QC with whom Mr Parry, for LB agreed made three concessions: DB was murdered, his death was between 11
th
and 16
th
May 2001, and he was murdered either by both Appellants together or by one of them. The indictment did not plead, though it could have done, conspiracy to murder. Rather the Crown led a simple joint enterprise choate offence. Had the conspiracy been pleaded against SB he concedes that the way he puts her appeal today would not be open to him.
46.
He postulated five explanations for the death of DB:
i)
The applicants acted in concert.
ii)
SB killed him and LB encouraged her.
iii)
LB killed him and SB encouraged her.
iv)
SB killed him absent LB.
v)
LB killed him absent SB.
47.
It was agreed that to succeed the Crown must prove that at the infliction of fatal injury both women were present and acting in concert. Mr Clegg QC argued that since the Crown could not even prove presence of either, necessarily proof of concert fell away. He challenged its reliance on ante and post mortem joint activities as permitting an inference that the murder was also joint. He conceded from the outset that were the Crown able to prove the Appellants acted in concert it did not have to prove who was the principal and who the secondary party.
48.
The Crown relied insofar as was permissible on ante mortem events which it advanced as capable of being seen as attempts upon the life or at least health of DB and as involving both Appellants. This Mr Clegg QC pointed out was accurate only in some respects. Some assaults were alleged as by individual Appellants. The Crown suggested that SB tried to poison him, used a knife upon him, and cuffed and smothered him whilst he was in bed. Some of these indignities were said to be in the presence of LB but not all. (DB had said LB rescued him when he was in bed and awoke cuffed). The Crown suggested one Appellant hit him whilst he slept. It suggested LB had a knife, squirted polish into his eyes and wanted him dead.
49.
For LB it was argued that the Crown could not even positively assert that LB was in the house at the time of the killing. She lived elsewhere and did not habitually stay at her parents’ house. The Crown however relied upon the words of DB to a third party that LB still lived with her parents. We did not need to resolve this issue.
50.
For the Crown Mr Aylett QC sought to distinguish the ruling of the Judge at the conclusion of the case for the Crown from his summing-up. By the time of the latter SB and LB had told the jury that there was nothing in what DB had said which was to their disadvantage. By the time they gave evidence, he argued, their joint responsibility was strongly made out. At the close of the case for the Crown there was ample evidence, he suggested, of concert. He relied on what he called evidence of a pattern of dishonest conduct from Tuesday 15 May 2001 until arrest. Additionally each woman was unconcerned. The two lied on and on, and the lies were common to each.
Discussion and conclusion
51.
This was an alleged joint enterprise murder with no body, no suggested mechanism of death, no identified day when the murder was said to have occurred, no time and no place and no suggestion of what happened to the body.
52.
The appeal turns on whether there were evidence at the close of the case for the Crown from which the jury could infer that the two defendants must have killed together and not one in the absence of the other.
53.
It is true that the test for the Judge hearing a submission was whether a jury could infer joint responsibility, not whether it were obliged so to do. The test for the jury was whether the Crown had made it sure of joint responsibility. The Crown’s difficulty is readily apparent. If at the close of its case the evidence were consistent both with inculpation and exculpation of either defendant then it had not established a prima facie case of murder, against either.
54.
If circumstantial evidence, upon which much of this case was built, were to allow of but one interpretation, then a jury would be driven to a finding of guilt. That was not the position here.
55.
The Crown relied on animus. It contended it had proved the intention to cause grievous bodily harm, and that each Appellant had both opportunity and motive. Mr Aylett accepted it was unusual that the Crown had pleaded so narrow a range of dates.
56.
The Crown also argued that one Appellant woman alone would have found it difficult to kill DB. We were unpersuaded. The courts regularly see proved allegations of homicide against a woman acting alone. A moment’s reflection demonstrates the fallacy in the Crown’s argument – for example a knife used whilst the victim is unwary or asleep. Disposal of the body is more readily argued as difficult for one woman alone but post mortem activities are not capable without more of proving guilt of murder. If it were otherwise, every relative assisting in the disposal or delayed finding of a body would be guilty of murder. The Crown is entitled to suggest such activities give rise to suspicion but suspicion without more does not equate to proof.
57.
Given its decision to indict murder but not conspiracy to murder (which latter would at the very least significantly have modified the submissions open to the Appellants, as Mr Clegg readily conceded) the Crown’s consequential difficulty was its inability to prove that the two women acted in concert to bring about DB’s death. It could, many would accept, prove that they had a motive so to do, and that each, singly and with the other, had in his life done enough to suggest animus. It could fortify that in reliance upon the post mortem dishonesty of both, jointly. What it could not do was prove a joint enterprise to be present when he was murdered either as killer or as participant in a joint enterprise.
58.
As the authors of Smith and Hogan’s Criminal Law, 13
th
Ed, para 8.4.1.5 remark, if all that can be proved is that the principal offence was committed either by the first or the second accused, each must be acquitted:
Richardson
(91785) 1 Leach 387;
R v Abbott
[1955] 2 QB 497
. We have reminded ourselves of the example given by Finnemore J and referred to in the judgment of Croom-Johnson LJ in
Lane:
If two sisters were provably in the room when X was murdered, and either both together or one alone were responsible, there is no prima facie case against either since the Crown would be unable to exclude either. We have reminded ourselves too that in that case there had been no suggestion that two had acted in concert, rather that one or the other was responsible. Nevertheless, the logic of the approach is not weaker as a consequence.
59.
In our judgment t
he words of Farquharson LJ in
Strudwick
resonate as powerfully in this case as then they did: It was proved that [the Appellants] had told lies, but these did not lead to the inference of [a single] Appellant's presence, let alone participation. These Appellants by their pleas and in evidence admitted lies, but the subject-matter even allied to motive came nowhere near proving their presence at the killing of DB.
60.
We were grateful for the sharp focus on reality of Mr Clegg QC who accepted that the likelihood is that one or other appellant murdered DB. This case however demands the application of established law to fact even if the outcome appears troubling. As the LCJ said in
Abbott:
“Although it is unfortunate that a guilty party cannot be brought to justice, it is far more important that there should not be a miscarriage of justice and that the law should be maintained rather than that there should be a failure in some particular case.”
61.
The five postulations as to what might have explained the death, lucidly set out by Mr Clegg QC, are an useful guide to the problem the Crown’s choice of a count of murder not of conspiracy to murder created.
i)
SB killed him and LB encouraged her.
ii)
LB killed him and SB encouraged her.
iii)
SB killed him absent LB.
iv)
LB killed him absent SB.
v)
The applicants acted in concert.
62.
The first four show how obvious were the tenable alternatives which could have led to DB’s death. Once the Crown was unable to identify of which of the four options the jury could be sure, the fifth could not on the evidence provide a backstop.
63.
The submission of no case to answer should have been allowed. These appeals will be allowed and both convictions will when we complete this judgment be quashed.
|
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|
Neutral Citation Number:
[2016] EWCA Crim 1543
Case No:
201600728 B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 22nd September 2016
B e f o r e
:
LORD JUSTICE DAVIS
MRS JUSTICE CARR DBE
MRS JUSTICE PATTERSON DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
ROBERT QOSJA
- - - - - - - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - - - - - - -
Miss A Scott
appeared on behalf of the
Applicant
Mr G Carse
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
1.
MRS JUSTICE CARR
:
2.
Introduction
3.
On 8th January 2016 the appellant, who is now aged 27 years, was convicted of and then sentenced for the following offences: count 1, stalking involving fear of violence contrary to
section 4A(1)
((b)(i) of the Protection from Harassment Act 1977, three years' imprisonment; count 2, assault by beating contrary to
section 39 of the Criminal Justice Act 1988
, three months' imprisonment, such sentence to run concurrently. Thus, the total sentence was one of two years' imprisonment.
4.
This is his appeal against his conviction on count 1, brought with the leave of the single judge.
The facts
5.
The facts are as follows. KL, the complainant, started work as a barmaid at the [a name] public house in Nunhead on 10th July 2015. At the time she lived in [an address], New Cross, in a shared three bedroom house. Her room was on the second floor. The appellant was a regular customer at this particular pub.
6.
The prosecution case was that the appellant had stalked the complainant between 28th July and 2nd August 2015. He telephoned and sent her over-familiar text messages. On 1st August 2015 he gained unauthorised entry into her house and entered her bedroom while she slept. She woke to find him sitting on her bed. He was drunk and angry, and indeed went on to slap her face twice. Later that day in the afternoon he returned to her room, again uninvited, to return keys which he had taken to the house without authorisation.
7.
The prosecution sought to prove its case by relying on evidence from the complainant and from her house mate, together with cell site and fingerprint evidence. The defence case was one of denial and alibi. The appellant contended that he was not present at the complainant's home on either of the alleged incidents on 1st August 2015; those allegations were simply false.
8.
The issue for the jury on count 1 was whether or not they were sure that between 28th July and 2nd August 2015 the appellant's conduct towards the complainant amounted to stalking. In particular, could the jury be sure that on at least two occasions between those dates the appellant had caused the complainant to fear that he, the appellant, would use violence against her and that on at least two occasions he knew, or ought as a reasonable person to have known, that his course of conduct would cause her to fear that violence would be used against her. With respect to the second count, the question was whether or not he had been there at all, and if so whether or not he had slapped the complainant.
9.
It is necessary, given the issues arising on this appeal, to set out, albeit briefly, the evidence given by the complainant. She stated that she had started work at the pub on 10th July, where the applicant had been a regular customer, and he had been friendly and polite. She was not romantically interested in him and had reluctantly only given him her telephone number when asked. When she lost her telephone she accepted his offer to use his sister's mobile telephone. She went on to give evidence as to how matters developed in the days leading up to the events of 1st August.
10.
In summary, on the Monday, 27th July, she had left the pub just after her shift had ended. She was walking along the street when the appellant drove alongside her and offered her a lift home. She agreed and they had chatted. He told her that he knew where she lived because he had followed her there on a previous occasion. Before they got to the complainant's address the appellant said that he could find her better paid work by babysitting or a cleaning job at a friend's house. He drove her to the friend's house to discuss the job with the family, but that family was not in and he returned her to her home. Again, on the way they talked about the job and how much she could earn. She told him that she had just left an unhappy relationship and became slightly tearful. When they got back to her house the appellant asked if he could use the toilet and, with some hesitation, she allowed him in. He stayed for a cup of tea for about half an hour, during which time asked the complainant to come and live with him at his house rent-free.
11.
On 28th July, now the Tuesday, the complainant did not go into work as she felt unwell. Later in the same day, however, she received text messages and missed calls from the appellant. She accepted that she allowed the appellant to visit her that day and he brought her soup and stayed with her for between one and two hours. Her evidence was that she had not expected him to stay so long. They spoke about the family in Peckham that she might work for and the proposed new job. When the appellant left, he asked her to come with him to the front door, and as he was leaving he gave her a hug. She agreed that she had hugged him back, but then he had tried to kiss her on the lips, which she did not like and to which she had not agreed. She stepped back, making it clear that she did not want to be kissed. She said goodbye and the appellant left. At about ten in the evening the appellant phoned her to say he was outside and wanted to come in. She refused, it was too late, and her evidence was that she felt uncomfortable about it.
12.
The next day, on Wednesday, the complainant was back at work. The appellant sent her a text to the effect of, "Hi baby girl; how's your day?". Her evidence was that she did not like the tone of that text and ignored it.
13.
On the next day, the Thursday, she received two missed calls from the appellant. On the evening of Friday, now 31st July, she was at work when the appellant came to the pub. He appeared to be angry and rude, and when he bought a drink he threw the money towards her, complaining that the change that she had given him was wet. The argument which ensued was sufficient for the complainant's manageress to intervene. It was at that stage that the complainant gave the appellant back his sister's phone, saying that she did not need it any more. Her evidence was that he was angry, went to the door of the pub and threw the phone outside in an angry fashion. He shouted at her. The argument was such that another customer was caused to ask what was going on. Her evidence was that she was shocked at the appellant's reaction.
14.
After this incident the appellant had wanted to speak to her alone and asked her why she had turned down the job offer. She tried to explain that she liked the bar job better and did not want to be beholden to the appellant; she did not want him to get her a job, she wanted her independence. The appellant had been drinking, she said, and he had bought some beer to take away with him from the pub. When the pub closed the staff had a private party, continuing until about 3 o'clock in the morning, at the end of which the complainant's manageress gave her a lift home. She got home, she went upstairs and she fell asleep, now the early hours of the morning of 1st August.
15.
At around 5 or 5.30am she woke to find the appellant sitting on the foot of her bed. She thought that he seemed drunk. She asked him what he was doing there and how he had got in. She said that she was panicked, shocked and very scared. He said that he had failed to get in using an oyster card and had in fact managed to get in through the kitchen window. Her evidence was that he moved her clothes which were on the chair onto the floor, lit a cigarette and started talking. He was complaining that she had been rude to him. He was angry about various matters: her refusal of the job offer and the return of his sister's telephone in the pub in a public place with other people around, in circumstances which he thought were embarrassing. He asked her why she had not replied to his texts. She said that she was confused and fearful that he was going to beat or sexually assault her. She said that the appellant offered her his telephone and challenged her to call the police. She said that she was too scared to use his telephone. Then he tried to hug her, and when she resisted he became angry and slapped her twice on the face. She said that she was very frightened. When questioned, she answered this:
"Q: The slaps themselves, did they cause you any injury?
A: No, it wasn't strong, I didn't feel any pain but it was just scared me a lot because he touch me. He was touching me and it was more dangerous in this situation."
16.
At around 6am the complainant's housemate returned home from a night out. The complainant swiftly went down to his room on the ground floor and seconds later heard the appellant leave the house.
17.
18.
Later that afternoon, at around 2pm she thought, although it appears that it was probably somewhat later, the appellant returned to the complainant’s house. The complainant had not slept since the appellant had left earlier in the morning. The appellant had taken her keys and wanted to give them back. This scared her. She was confused as to why he would have her keys in the first place and was frightened at the thought that it was possible that he, or someone he knew, might come back at any time to her room. She denied in cross-examination that she had given him the keys on any earlier occasion.
19.
In re-examination she was asked in some detail as to how she felt upon the appellant's return that second occasion on 1st August:
"A. When he came to bring my keys back ... my emotion I was scared.
Q. What were you scared of?
A. That he --
Q: What did you think in that moment might happen?
A. Yes, I was scared that he came back and he still can get to my house. He came, break in twice so he can do that every time, any time and now my housemates are downstairs but maybe one day if they wasn't they would not be at home and I would be alone and that makes me feel dangerous".
20.
The appellant himself did not give evidence at trial. He had been interviewed under caution and gave no comment responses after providing a prepared statement in which he denied stalking the complainant, denied causing her to fear for her own safety or engaging in any course of conduct amounting to harassment.
Submission of no case to answer
21.
At the conclusion of the complainant's evidence, by agreement between the parties in terms of timing, a submission of no case to answer was made on behalf of the appellant. The submission was made on the basis that it was agreed that an offence under
section 4A(1)(b)
(i) of the
Protection from Harassment Act 1997
required the victim to be caused fear on at least two occasions that violence would be used against them. In the instant case, even if, assuming the complainant was telling the truth about the incident on 1st August, she had not given evidence that she was caused fear of violence on more than one occasion. That application was opposed on the basis that the victim had given evidence of being put in fear of violence on at least two occasions and that the interpretation of her evidence of fear of violence could not be divorced from the effect of the appellant's behaviour in the lead-up to the events on 1st August.
22.
The judge gave an overnight indication of his decision that he would reject the submission of no case to answer and in due course provided a short written ruling. In relation to the first accepted incident in the early part of the morning of 1st August, it was accepted there had then been a second incident later that day, and he summarised and referred to the appellant's evidence in this regard. In particular, he recorded the fact that she said that she felt she was in a dangerous situation. The judge ruled that this had been an escalating course of conduct with quite a lot of violent behaviour which would readily, and did, engender fear of further violence in the complainant's mind. The face-slapping was just the start of potential further violence from a man who had entered her bedroom as a trespasser when she was asleep. The return visit with the keys was, a jury could reasonably find, intended to frighten, with an underlying threat of further physical attack if his increasing demands were not met.
Grounds of appeal
23.
On this appeal we have been assisted by succinct and able submissions on both sides, on behalf of the appellant from Miss Scott and on behalf of the respondent from Mr Carse.
24.
On this appeal Miss Scott submits as follows. It is accepted that the complainant gave evidence of fear of violence in the morning visit on 1st August sufficient to fall within the relevant section. It is, however, submitted that the fear of violence on any second occasion was too speculative. In her evidence the complainant expressly stated that she felt no fear of violence on any occasion prior to 1st August, and even on the occasion of the appellant's second visit on the same date, whilst stating that she felt "scared that ... he still can get into my house", and that "one day if [my housemates] would not be at home and I would be alone and that makes me feel dangerous", she did not say that she felt fear of violence during this incident. It is submitted that the relevant provision of the statute is ambiguously drafted and that the judge erred in interpreting the statute in such a broad way as to encompass an unspecified potential future occasion when the appellant might have returned and might have gone on to use violence, especially given those sets of facts, in contrast for example with those set out in cases such as
R v Haque
[2012] 1 Cr App R 5
, where here there were no threats of a return or of violence made on the second visit.
25.
Miss Scott urges on us a narrow approach to the construction of the relevant section : there should be behaviour leading to a fear of violence arising directly from the incident in question. Even if a wider approach were to be taken, Miss Scott submits there has to be fear that violence will occur, and here, on the evidence, the most that could be said was that there was a fear that violence might occur. The existence of an underlying threat, to use the words of the judge below, would be insufficient.
26.
Mr Carse, opposing the appeal, submits that the conviction is safe: the judge was correct in his interpretation of the relevant section; there was sufficient evidence of the complainant being caused to fear violence on at least two occasions; the judge was correct in his analysis of the factual matrix and correctly exercised his discretion in rejecting the submission of no case to answer.
Ruling
27.
It is, as we have recorded, common ground that the early morning trespass into the complainant's house and room on 1st August 2015 amounted to an occasion, if the jury were to believe the complainant, causing her to fear that the appellant would use violence and that the appellant knew, or ought as a reasonable person to have known, that his course of conduct would cause her to fear that violence would be used against her.
28.
The issue on this appeal relates to the afternoon visit later that same day, when the appellant returned saying that he had taken the house keys and wanted to give them back. The judge, as we have recorded, concluded that this second visit was one that a jury could reasonably find satisfied the conditions of the relevant provision.
29.
The question that arises for us as a matter of principle is what degree of immediacy and/or specificity is required in relation to the fear of violence for the purpose of
section 4A(1)(b)
(i) of the
Protection from Harassment Act 1997
for the conditions of the section to be met.
30.
Section 4A(1)(b)
(i) was inserted by
section 101(2) of the Protection of Freedoms Act 2012
. It provides materially :
"(1) A person ('A') whose course of conduct -
(a) amounts to stalking, and
(b) either -
(i) causes another ('B') to fear, on at least two occasions, that violence will be used against B ...
is guilty of an offence if A knows or ought to know that A's course of conduct will cause B so to fear on each of those occasions ..."
31.
The offence of stalking is defined in
section 2A of the Protection from Harassment Act 1997
by reference to
section 1
of the same Act (which prohibits harassment as defined in section 7 of the same Act).
32.
We have considered various authorities which deal with
section 4 of the Protection from Harassment Act 1997
, that is, the offence dealing with putting people in fear of violence. It is, of course, a different offence but contains materially identical wording.
33.
In
R v Henley
[2000] Crim LR 582 confirmation is given that the statute does not in terms specify the need for a fear of immediate violence such as is required for common assault and battery in
section 39 of the Criminal Justice Act 1988
. In
R v DPP
165 JP 349 the court held that it was not the intention of Parliament to legislate for specific circumstances which fell within or without the section. There was a variety of means of making threats of violence to another which could be and were frequently adopted during a course of conduct falling within the
Protection from Harassment Act 1997
. In that case a threat directed to the complainant's dogs was capable of falling within
section 4
. We have noted the commentary of Professor Ormerod in the Criminal Review Case Comment 2001 on this authority. He commented that a narrow interpretation of the section would be that the prosecution must prove that the behaviour caused the victim to fear that violence would result directly from that incident forming part of the harassing course of conduct. He commented that a wider interpretation suggests that it is sufficient that personal violence will occur by some means at some unspecified time in the future. The limiting factor would lie in the requirement that the reasonable man would have to think that the fear would be caused. He commented that in
R v DPP
the court appeared to have favoured the wider interpretation, although it could also be seen as a generous application of the narrow view since the threat to the dog was made in the present of the complainant. Importantly, he noted, on either interpretation the fear of personal violence is a matter of fact.
34.
In our judgment, a plain and natural reading of the wording of
section 4A
(1)(b) (i) of the
Protection from Harassment Act 1997
reveals that the section is wide enough to look to incidents of violence in the future and not only to incidents giving rise to a fear of violence arising directly out of the incident in question. Nor is there any requirement for the fear to be of violence on a particular date or time in the future, or at a particular place or in a particular manner, or for there to be a specific threat of violence. There can be a fear of violence sufficient for the statute where that fear of violence is of violence on a separate and later occasion. The position can be tested simply by reference to the example of somebody saying "I'll come back and get you". On Miss Scott's interpretation that would be insufficient fear to fall within the scope of the section; that is not a position that we consider to be correct.
35.
Whether or not fear of violence is sufficient to satisfy the requirements of
section 4A(1)
(b(i) is a question of fact and degree on the evidence. What is key is that the complainant has to fear on at least two occasions that there
will
(rather than
might
) be violence directed at him or her.
36.
At the end of the day Miss Scott's main point perhaps was that on the evidence here, taken at its highest from the complainant, the necessary ingredients from the statute so identified could not be made out.
37.
In our judgment, however, the complainant's evidence here fully entitled a jury to conclude that there was a second occasion when she feared violence towards her from the appellant, that occasion being in the afternoon of 1st August 2015. That second incident, which of course the appellant denied even occurred, was highly menacing when set in context. It matters not, as we have stated, that he made no specific threats of violence or that the complainant's flatmates came back. Context here was all important. As the judge said, this was an escalating course of conduct over a very short period of time within a week. On the Monday the appellant had been driving the complainant and going into her home. On the Tuesday there had been text messages and missed calls, followed by the unwanted attempt to kiss, followed by being outside her house at night. On the Wednesday there was the text that she did not like. On the Thursday there were two missed calls. On the Friday there was the evening argument, with the appellant's anger boiling over such that he was throwing money and a telephone and shouting. Then of course there was the serious early morning incident with the trespass into the house by entry through a window and actual violence involving the slapping. When the appellant returned in the afternoon the complainant discovered that he had, without her knowledge or consent, taken her house keys. She was understandably scared of future danger to her and violence from him gaining unauthorised entry again in the future.
38.
On these facts and in these circumstances there was, in our judgment, a proper case to be left to the jury to decide whether this was a second occasion when the appellant caused the complainant to fear that violence would be used for the purpose of the section. The jury was entitled to draw proper inferences as it saw fit. This was, in our judgment, classic jury territory following a summing-up which has not been criticised.
39.
For all these reasons, we would dismiss the appeal.
|
{"ConvCourtName":[""],"ConvictPleaDate":["2016-01-08"],"ConvictOffence":["stalking involving fear of violence contrary to section 4A(1)(b)(i) of the Protection from Harassment Act 1997","assault by beating contrary to section 39 of the Criminal Justice Act 1988"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["three years' imprisonment (count 1)","three months' imprisonment (count 2), to run concurrently"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[27],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Testimony of housemate","Cell site evidence","Fingerprint evidence"],"DefEvidTypeTrial":["Offender denies offence","Alibi claim","No comment interview","Prepared statement"],"PreSentReport":[],"AggFactSent":["offence involved trespass into victim's home","offence involved actual violence (slapping)","offence involved escalation over a short period"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["insufficient evidence of fear of violence on two occasions","judge erred in interpreting section 4A(1)(b)(i) of the Protection from Harassment Act 1997"],"SentGuideWhich":["section 4A(1)(b)(i) of the Protection from Harassment Act 1997","section 2A of the Protection from Harassment Act 1997","section 1 of the Protection from Harassment Act 1997","section 7 of the Protection from Harassment Act 1997","section 39 of the Criminal Justice Act 1988","section 101(2) of the Protection of Freedoms Act 2012"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["complainant's evidence entitled jury to conclude there was a second occasion of fear of violence","context of escalating conduct justified jury's finding","no requirement for specific threat or immediacy under the statute","classic jury territory following a proper summing-up"]}
|
No:
201006036/A8
Neutral Citation Number:
[2011] EWCA Crim 459
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Monday, 7th February 2011
B e f o r e
:
LORD JUSTICE MOORE-BICK
MR JUSTICE NICOL
SIR DAVID CLARKE
- - - - - - - - - - - - - -
R E G I N A
v
JAMES MUIR BAIRD
APPEAL UNDER SECTION 13 AMINISTRATION OF JUSTICE ACT 1960
- - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
QWordWave 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 Lennon
appeared on behalf of the
Appellant
Mr B Douglas-Jones
appeared on behalf of the
Crown
- - - - - - - - - - - - - -
J U D G M E N T
1.
SIR DAVID CLARKE: The appellant is aged 29.
2.
On 10th June 2010 he was charged with offences of fraud in a case investigated and prosecuted by the Serious Fraud Office. On 14th June, four days later, in the Central Criminal Court, on an application made by the SFO, a restraint order was made against him pursuant to section 41 of the Proceeds of Crime Act 2003. This prohibited him from dealing with, disposing of or diminishing the value of his assets, with certain exceptions for living expenses and the like. It was a detailed order in conventional terms requiring him also to disclose all information about his assets, including specific requirements to disclose all assets worth over £1,000 transferred to others since May 2005 and any vehicles owned by him since then.
3.
On 22nd October 2010, on the application of the SFO, the appellant was before the court on an application that he be committed to prison for contempt of court for being in breach of the restraint order in five respects. He admitted the five breaches. Four of them related to positive actions which he had taken and which contravened the restraining provisions. The first, however, constituted his continuing failure to give full disclosure as required.
4.
Counsel on his behalf sought more time for him to comply with that provision but the judge, reviewing the full history and applying the relevant law and authorities, to some of which we will return, said that enough was enough. He proceeded to impose an immediate custodial sentence of 18 months' imprisonment for breach No 1, the continuing failure to disclose his asset and 6 months' imprisonment concurrent for each of the other breaches. The appellant appeals to this court as of right.
5.
The two grounds of appeal as presented in writing were, firstly, that the judge should have held back from imposing an immediate prison sentence but should have given more time for compliance with the disclosure requirement, and secondly that if immediate imprisonment was to be imposed the 18 month term was too long against a statutory maximum of 2 years.
6.
The appellant, apart from the false passport offence to which we will refer shortly, is a man of previous good character.
7.
The breaches arose in this way. He failed to provide any information concerning his assets within 21 days. However, within a week after the commencement of the order, correspondence ensued between the parties. Eventually, on 15th September a statement of his assets was provided.
8.
There were provisions of the order requiring him to provide the names and addresses of all the persons holding such assets including financial institutions or banks. Another paragraph required him to details of all accounts held by him, or in which he had an interest. It is accepted that he did not comply with those provisions. In the statement he said:
"I believe I have one or two bank accounts in Spain, one of which is with BBBA. I can't recall the details of bank accounts in Spain as the paperwork is still in Spain. I also have an account in Cyprus. I believe that all the information relating to this is in Spain still."
9.
As regards the provision about transferred assets, he was required to disclose those matters which we have already recited. In fact on 6th January 2009, a matter not referred to in the statement, he had transferred the property in this country in Braintree in Essex to a former partner for no consideration. She sold the property on 28th May 2010 for £535,000. None of that was mentioned in his statement. He also failed to mention an expensive Ferrari motorcar which he had sold within the last 2 years. No supporting documentation was provided as required by the order.
10.
That was the state of affairs when the matter came before the court. On 6th July, and this is the second of the breaches, the appellant opened a bank account - this is a month or so after the making of the restraint order - with a false passport in the name of "Rowley" which bore his photograph. He paid £200 into the account and that represented a disposal of an asset in breach of the order.
11.
As regards the possession of false passports, he was arrested subsequently, as we shall relate, and he was sentenced to 6 months' imprisonment for an Identity Cards Act offence. Two days after the opening of that account - and this is now breach No 3 - he converted 4,000 Euros into a sum of sterling and paid that into the Lloyds TSB bank account which he had opened. He signed the transfer form in the name "M Rowley", the name on that passport.
12.
On 12th July, a few days later - this is now breach No 4 - he went to the Chelmsford branch of Lloyds TSB where he aroused the suspicion of staff. He had £8,500 in cash in sterling and Euros in his possession and a second passport in another name. It was following his arrest on that occasion that he was charged with the false passport offence committed on 6th July. He was dealt with very promptly through the courts for that, being sentenced to 6 months on the 23rd July 2010.
13.
The fifth contempt arose on the day after his arrest of the 12th, when £77.50 was paid to the Peterborough Passport Office to apply for a passport under a false identity "Paul Williams Jones". All those breaches the appellant admitted.
14.
The judge heard this case carefully. Before imposing the term of imprisonment, he summarised the history of the appellant's failure to give full disclosure. He summarised the four subsequent breaches which we have just summarised, describing them as arguably less serious, and he then went on to direct himself in accordance with the appropriate authorities.
15.
It is appropriate to read into this judgment the parts of his sentencing remarks in which he did so. He cited from the Court of Appeal (Civil Division) in
Lightfoot v Lightfoot
[1989] FLR 414 as follows (in the judgment of Donaldson MR):
"It would be consistent with the previous practice of the courts and give full effect to the modification required by statute if courts considered imposing a 2-year sentence when the contemptor was in continuing and wilful breach of court orders. Whilst there might be cases in which such a sentence would be disproportionately severe, any wilful defiance of the court and its orders is necessarily a very serious offence and if the contemptor is aggrieved he has a remedy in his own hands - he can seek his immediate release by ceasing his defiance, complying with the order thereby purging his contempt."
The judge said:
"I bear those principles in mind."
He went on:
"On his behalf, Mr Lennon submits that Mr Baird should be given credit for his frank admission that he has failed to comply with the order. It is difficult to see how he could argue otherwise. Submission is made that matters should be adjourned to a date after 5 November this year to enable all matters to be considered overall..."
We pause to remark that was the date of next court hearing in the fraud case.
"Mr Baird to give instructions to his solicitors and a further statement to be forthcoming.
This court takes the view that enough is enough. Mr Baird had had since June to comply with the order and instead of complying with the order, it being said on his behalf he wanted to go to Spain to get details of his bank accounts, rather than using more conventional methods to obtain documentation there is, in my judgment, a wilful defiance of the order and continuing willful defiance of the order and a continuing willful breach by Mr Baird.
It is submitted that he has already been sentenced in respect of a passport offence and has served 6 months in respect of that matter, it being imposed on 23 July of this year. It was upon his release from that sentence that Mr Baird was arrested at the gate of the prison and was held in custody.
I take the view that credit should be given to him for his admission of his failings in respect of breach but I do regard this as a very serious contempt of a restraint order. I do not accept the mitigation that this was difficulty over taking instructions, that it was misunderstanding by Mr Baird or that he was not yet in a position to supply the information. I am afraid those submissions do not hold water.
I therefore look at the circumstances here, I take the view that a 2 year sentence is excessive but I do take the view that it is inappropriate to show the Court's displeasure at a continuing and wilful breach."
He then sentenced the appellant to 18 months for contempt No 1 and currently 6 months each for the others.
16.
Mr Lennon, in excellent written submissions, supplemented orally before us today, says that the judge's approach was unduly harsh. In writing he submitted that this court should hold that the judge should have given more time. In this court he emphasises the submission that 18 months was excessive. He relies on the fact that the appellant did not turn a blind eye to the order but through his solicitors engaged in correspondence with the SFO and obtained a number of agreed variations. He made some disclosure in September but it is accepted that it was far from complete.
17.
Mr Lennon has drawn attention to the dual purposes of imprisonment for contempt of court. It is not only punitive, within which we would include deterrent in many cases, but it is also (and in many cases primarily) coercive, to secure compliance with an order properly made in the public interest. The court should not be thinking primarily in terms of punishment in cases where the primary aim is to secure a full disclosure and thus compliance with the restraint order.
18.
We are referred to the dictum of Neuberger J (as he then was) in
Shalson v Russo & Ors
[2001], who, whilst referring to the factors went on:
"... I suspect in the great majority of the cases where the contempt has not been purged, the most important element in the sentencing exercise is coercion."
He refers to
Taylor Made Golf Co v Rata
[1996] FSR 528
. Laddie J, there held back from imposing a prison sentence after a flagrant breach, subsequently partly purged, and remarked:
"... that the penny was beginning to drop so far as these defendants were concerned."
19.
We have considered these arguments. We are not able to accept them in this case. The judge was entitled and, in our judgment, right to say that enough was enough. The argument that there was here engagement with and co-operation with the SFO is, in our view, fatally undermined by the deceptions which the appellant was perpetrating in false names.
20.
As to the length of the sentence, the judge was conscious in the light of
Lightfoot
, that he might have been justified in imposing a maximum of 2 years but he held back on the ground that this was excessively severe.
21.
Our attention is drawn to recent decisions of this court, in which the length of sentence for contempt of court for breaching Proceeds of Crime Restraint Orders was reduced. In
R v Adewunmi
[2008] 2 Cr App R(S) 52, the appellant was sentenced to 18 months for contempt of court, consecutive to a 4-year term for fraudulent trading, in which he had stolen very large sums from a government department in which he had obtained employment by false pretences. He was ordered to repatriate funds which he had transferred overseas and he was in breach of that order. He committed a breach of that order by transferring funds from the USA to Cyprus. That was a very serious case. By the time of the appeal some of the funds had been repatriated. Furthermore there was an addition coercive sanction upon him by then, because after conviction a confiscation order had been put in place with a substantial term in default. In those circumstances we are not persuaded the reduction of the 18-month sentence to 12 months in that case, by this court, is of any assistance to the appellant.
22.
In
R v Roddy
[2010] 2 Cr App R(S) 107, in which the judgment of this court was given by my Lord, Nicol J, a sentence of 20 months consecutive to 7 years for serious drugs offences was imposed for a flagrant breach of a restraint order, committed very soon after the order was made, selling his house, cashing the proceeds and removing them from the jurisdiction. This was a punitive and indeed perhaps also deterrent sentence rather than a coercive one. This court held it was too high, being too close to the maximum term, despite the plea of guilty to this offence. The sentencing judge had been influenced by the adverse view he had formed of the appellant during a trial. But as this court pointed out, that element was already reflected in the 7-year term imposed for the principal offence.
23.
We have considered whether that decision is of any assistance to the present appellant. In our judgment, it is not, in a case where the primary purpose of the sentencing exercise was coercive and where the appellant can return to court to purge his contempt. In light of what we have heard it seems that steps are well on the way for such a hearing to take place before long, one attempt to purge having already been made.
24.
We have come to the conclusion that the judge in the present case cannot be faulted, either in his decision to proceed or in the length of term which he imposed. It was not disproportionate. It was not manifestly excessive. This appeal is therefore dismissed.
|
{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2010-10-22"],"ConvictOffence":["Contempt of court (breach of restraint order)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["18 months' imprisonment for breach No 1 (failure to disclose assets)","6 months' imprisonment concurrent for each of the other breaches"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[29],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["wilful and continuing breach of court order","deceptions perpetrated in false names","failure to provide full disclosure as required by the order"],"MitFactSent":["admission of breaches","some disclosure made in September (though incomplete)","previous good character (apart from false passport offence)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["judge should have given more time for compliance with the disclosure requirement","18 month term was too long against a statutory maximum of 2 years"],"SentGuideWhich":["section 41 of the Proceeds of Crime Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["judge was entitled and right to say that enough was enough","argument of engagement/cooperation undermined by deceptions in false names","sentence was not disproportionate or manifestly excessive"]}
|
Neutral Citation Number:
[2014] EWCA Crim 945
Case No:
201303293/C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 8th April 2014
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE JEREMY BAKER
RECORDER OF REDBRIDGE
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
JASON ANTONIO MILITY
- - - - - - - - - - - - - - - - - - - - -
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 T Siddle
appeared on behalf of the
Appellant
Mr I Way
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE ELIAS: The appellant was convicted by a majority of 11 to 1 to three counts of robbery, one of attempted robbery and three of possessing an offensive weapon. He was sentenced by Mr Recorder Syfret QC in the Crown Court at Nottingham on 22nd March 2012, to 6 years for each of the robberies, 4 years for the attempted robbery and 2 years for each of the possession counts, all to run concurrently with each other, giving a total sentence of 6 years. He was acquitted on two counts of robbery and one of possessing an offensive weapon, on the judge's direction, following a half-time ruling there was no case to answer with respect to those counts.
2.
There was a co-accused, his partner, Paula Baptiste. She gave the police a statement providing the appellant with an alibi for each offence to the indictment. It was alleged that she had solicited her mother to provide a false alibi in respect of one of the robberies. She was accused of perverting the course of justice but she too was acquitted on the judge's direction, again following a half-time ruling that there was no case to answer. This is now an appeal against conviction by leave of the single judge.
3.
For the purposes of understanding this appeal it is not necessary to set out the facts in any detail. On three occasions during October and November 2011 three women were the victims of knife-point street robberies. In each case the victim identified the appellant at an identification parade with a greater or lesser degree of certainty. In the case of one of the offences, committed against B on 15th October 2011, there were two other witnesses who also identified the appellant in identification parades, again with different degrees of certainty.
4.
The attempted robbery occurred on 3rd November 2011 when the appellant sought to grab a mobile phone but was unsuccessful. No knife was used on that occasion. Again the victim identified the appellant without being certain that it was him.
5.
Each of the victims (and in the case of Miss B the two other witnesses) gave evidence in which they described their attacker and spoke about the confidence they had in their identification. Of course in each case the identification was necessarily very limited in time and in some cases it was made in the dark.
6.
The jury were directed that they should place no weight at all on the evidence of another alleged victim, whose case had been dismissed at half time. As we have said, there was also a further victim whose case was dismissed at half time. No direction was specifically given in relation to the jury that they should ignore her evidence although it is not suggested in the circumstances that was a material error. Both those victims had failed to pick out the appellant in their identification parades.
7.
There were originally a whole series of grounds in relation to this conviction. Some, once a transcript became available, were plainly misconceived and had not been pursued; others have been developed in light of comments by the single judge granting leave.
8.
We can deal first with very much a secondary argument advanced by Mr Siddle on behalf of the appellant. It was submitted that the judge erred in failing to direct the jury about the elements of these offences and in failing to tell the jury that they had to be sure that the offences were committed as alleged. The critical paragraph in the summing-up is as follows:
"Everything is proved except the identity of the robber, and that will be for you to decide. So you don't have to worry about the elements of the offence. They are quite simple.
Have the prosecution proved on each count that it was this defendant who committed the crime you are concerned with?"
Counsel submitted that it is not for the judge to direct the jury that matters have been proved. Whether or not these offences had occurred was something for the jury itself to determine, and in order to do that they needed to know the elements of the offence. The judge had usurped their role and sought to reach conclusions on matters within their province. Strictly, that is entirely correct. It would better have reflected the respective functions of judge and jury if the judge had summarised the elements of the offences, albeit briefly, and perhaps told the jury that they might think that there was no doubt these offences had occurred, particularly since no one at all is asserting to the contrary. But in truth nothing turns on that error. Nobody was disputing these offences had occurred. The essential question, as the judge rightly observed, was one of identification: was it this defendant? The judge had in fact got to the heart of the matter without formally leaving it to the jury to decide whether these offences had been committed. Strictly he ought not to have approached the summing-up in that way. But it would have made no difference whatsoever to the outcome had he approached matters as he ought. His failure to do so does not begin to render these verdicts unsafe.
9.
The second and principal ground of appeal is directed against the conduct of counsel at trial. He was not Mr Siddle, who conducted the appeal. It is said that he ought to have pursued an application for a fresh trial once it had been determined that there was no case to answer in respect of two of victims or in respect to the case against Paula Baptiste. Counsel had in fact made an application to that effect but he withdrew it after discussion which the judge. It is submitted that there was real prejudicial effect in allowing the case to continue and not seeking a fresh trial. First, there was prejudice in allowing the evidence of the two additional victims to be adduced before the jury. This suggested that there may have been even more offences committed by this appellant. This was particularly so with respect to one of the victims because the appellant had advanced an alibi that he was with his probation officer at the material time, as part of the weekly visits, thereby disclosing that he must have committed criminal offences before. That evidence, it is said, would not have been before the jury had there been a retrial because of course there would be no case advanced with respect to that particular victim.
10.
Also the evidence of Paula Baptiste's mother had been heard by the jury and it was said that this too was prejudicial. It consisted of a note given by her daughter, it was alleged, on which the dates of the robberies had been identified and it was intended, it was alleged, that the mother should say that the daughter and the appellant had been with her on these occasions.
11.
Again, since this was relevant only to Paula's case, it is submitted that that evidence would not have been available at the fresh trial. The mother would not have given evidence and it is submitted that the note could not have been adduced in evidence either. Finally, it is said that there was perfectly understandable reluctance to call Paula at this trial given that she was a co-accused. Tactically it would have been dangerous to do that. But that would not have been so at a re-trial. Her evidence could then have been helpful to the defendant in establishing his innocence and in relying on alibi.
12.
Privilege was waived and the original counsel has provided an explanation why, having initially made the application for the jury to be discharged, he decided not to pursue it. He said that Paula would have been a disastrous witness and there was some benefit in the jury believing, as indeed they were told by defence counsel in his closing speech, that she did not want to give evidence because she had been charged and was a co-accused. The jury had in fact heard her interview which counsel said helped the appellant. Counsel recognised that he could have called Paula as a witness but did not think it was wise. Furthermore, the fact that there were two further robberies at which the victims had failed to pick out the appellant was potentially a powerful point in the appellant's favour. It highlighted the problem of relying on identification evidence and reinforced the submission that these other victims and other witnesses who had purported to identify him, none with absolute certainty, may well have been making a mistake.
13.
In our judgment, these are good and cogent reasons for not pursuing the application. It is by no means self evident, as counsel submits, that this application should have been made or that counsel failed in his duty to his client by not doing so. We also reject a submission that he did not discuss the position fully with his client before adopting this course. Counsel, who made his response after privilege was raised, as we have indicated, said there had been those discussions, and indeed the transcript of the discussion of the original application indicates that he was given time specifically to discuss the matter with his client.
14.
Where incompetence of counsel is alleged, the onus is on the defendant to show that the verdict is unsafe - see
R v Day
[2003] EWCA Crim 1060
, where in giving the judgment of the court Buxton LJ said this:
"... in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe."
15.
In our judgment, that burden has not been discharged here. In addition, once counsel had taken the view that it would be a mistake to pursue the alibi defence, because that hinged critically on Miss Baptiste, whom he believed would have been a disastrous witness, then we see very powerful reasons why he would want to have gone on with the trial in the way that he did. Of course it may be that other counsel would have called differently but that is a far cry from saying that there is the kind of error or incompetence which begins to render the verdicts in this case unsafe.
16.
Finally, counsel pursued another ground which was of some concern to the single judge granting permission. Specifically the judge in granting leave had considered that arguably there should been some reference in the summing-up to the significance of the half-time decisions. The judge identified two matters in particular. First, that it might have been appropriate to direct the jury that they should ignore entirely any of the evidence relating to Paula Baptiste and specifically should be told not rely on it to the prejudice of the appellant. Secondly, the judge ought to have directed the jury that they ought not to speculate as to reason why the defendant was on probation. The judge had in fact, during the course of the original application, indicated that he would give directions on both these matters.
17.
However, in connection with the probation point there was a further discussion with counsel before the summing-up and the appellant's counsel, at that stage, indicated that he thought it better not to have any specific direction on the point. In counsel's closing speech he reminded the jury that the defendant had said in his evidence, just a little earlier that day, that "he was no angel" or words to that effect but that he had not committed these robberies. Counsel felt that nothing more needed to be said.
18.
We accept of course that the fact that counsel did not want the direction is not decisive of this ground of appeal. We would have to interfere if we considered that the failure to give this direction rendered these verdicts unsafe. In our view it did not do so. We think it highly unlikely in fact that a jury would assume that because somebody was on probation he would have committed these very serious offences involving knife robberies. Moreover, the jury were told, repeatedly in fact throughout this whole summing-up, that the key issue on which they had to focus was the identification issue. We have no reason to suppose they did not do that.
19.
As to the question of whether the judge ought to have referred to the half-time decision to drop the case against Paula Baptiste, in our view, the judge did just that. As we have indicated, the thrust of the case at the trial was not that the appellant had an alibi for each and every occasion when these robberies had occurred but rather that he could not remember necessarily what he was doing on each and every occasion. The judge summed up to the jury by saying: "There is no alibi in this case because the defence case is essentially very simple." That simple case was summarised by the judge as follows:
"His position is this: I did not commit any of the robberies concerned. It's pure misfortune that I am picked out on the identification parade by these people. It wasn't me. I can't say particularly where I was, but it wasn't me because I haven't robbed them."
The judge then went on to say:
"... in fairness, even if he was an innocent man, what more could he say in the circumstances than it wasn't me, I can't be particular as to time and place going back over a number of weeks?"
The judge then later said in terms to the jury the following:
"Now, members of the jury, the next part of the case was taken up with the evidence concerning Mrs Gardner [that was Miss Baptiste's mother] and Miss Baptiste. It didn't go anywhere very fast. You will remember, there was a considerable amount of confusion in the course of the evidence, but in any event you don't have to think about it because that charge had been withdrawn from you."
Mr Siddle submitted that this fell far short of the undertaking that the judge had effectively given, that he would tell the jury that they should pay no attention to that evidence. With respect, we do not accept that. It seems to us that it was a very clear direction they should pay no attention to that evidence and there is no reason to suppose they did not comply with that direction.
20.
We think overall that the judge dealt fairly with the question of alibi, and he dealt fairly with the evidence of Mrs Gardner and Miss Baptiste. It may be that it would have been better had he given a specific direction in relation to the probation officer point but it is always difficult issue as to whether it is better to remind the jury of that evidence or whether it is better simply to let it lie.
21.
It was not an error such as to cast doubt on the safety of the conviction in our view. Accordingly we dismiss the appeal.
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Neutral Citation Number:
[2014] EWCA Crim 2907
Case No:
201403968/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 18th December 2014
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE SIMON
MR JUSTICE COX DBE
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R E G I N A
v
K
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Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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Miss J Beckett
(Solicitor-Advocate) appeared on behalf of the
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J U D G M E N T
LORD JUSTICE ELIAS: On 24th July 2014 in the Crown Court at Bradford before the Recorder of Bradford (His Honour Judge Thomas) the appellant was convicted of assault of a child under 13 by penetration, contrary section to 6(1) of the Sexual Offences Act and a separate offence of rape, a vaginal rape of a child under 13, contrary to section 5 of that Act. He sentenced to 4 years for the rape and 2 years concurrent for the assault. He was 14 at the time of these offences, so the sentence was one of 4 years' detention in a young offender institution, pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The time spent on remand was allowed to count in the usual way. He now appeals against sentence by leave of the single judge and he also renews an application to appeal against conviction after refusal of leave by the single judge.
The background is this. On 27th January 2013 the complainant, GR, was then 12 years old. She agreed to meet the appellant, who was then 14, near some shops close to her home in Bradford. They had previously contacted each other on Blackberry telephone messaging service but they had never met in person until that date.
The prosecution case was that the appellant had been with a group of youths where he met GR. She sat on his knee but declined his advances when he tried to kiss her. He took her into an alleyway and put his hand into her knickers. He touched her anus with his fingers and then inserted his penis into her anus. He put his finger into her vagina. He touched her breasts under her clothes and attempted to lick her vagina. He then inserted the tip of his penis into her vagina (that was the rape count). He pulled her by the hair and attempted to force his penis into her mouth. She managed to make good her escape and ran to her grandfather's house and later went home.
Medical evidence showed that she had sustained a number of superficial wounds about her body consistent with having been held against a rough surface with her legs forced apart. The trace of blood was found in her knickers. There was no evidence of infection on menstrual bleeding and so it appears to have been due to a graze to the vaginal caused by penetration. A swab taken from her breast contained the appellant's DNA.
The appellant lied in interview. He initially maintained that he had not met the victim and had never had sexual contact with her or anyone else. It was at his third police interview that he admitted meeting her but denied touching her breasts.
When giving evidence at trial he said that he had met her, that they hugged and kissed and with her consent he had touched her bottom and touched her breast underneath her clothes and underwear but she was happy and normal when she left him.
The evidence of the victim was not entirely satisfactory. She told a number of lies in her account. She had initially told her mother she was going to meet a friend when she had in fact arranged to meet the appellant. She did not make any immediate complaint when she returned home about the alleged incident. She lied to police officers who had taken details of her account and she said she had initially not named the appellant because his mother knew someone in her family.
There was an application for the case to be dismissed at half time on grounds there was no case to answer. Reliance was placed on the fact that the victim, as we have indicated, was in many respects an unreliable witness and had given inconsistent evidence. It was said that her evidence was not sufficiently credible.
In addition, a co-accused had made a similar application and that was successful. The submission of no case had some legs as the judge recognised in his ruling. There were very real criticisms to be made of the complainant's evidence as we have indicated. However, she had all times asserted that there had been the sexual assault including sexual penetration and her evidence had not wavered about that. As the judge noted too, there was independent evidence consistent with the Crown's case and her allegation of rape. There was the DNA evidence from the appellant found on her breast, there was the evidence of blood and some grazing of her intimate parts and, as the judge rightly noted, it would be rare for a judge to refuse to leave to a jury allegations of this nature.
The judge, it is true, did accede to the half-time application in relation to another boy, the other co-accused. We have not seen the ruling with respect of him but the judge did refer to the position of that defendant in his summing-up, when he said this:
"Just pausing there for a moment, [GR], of course, in her video recording had spoken about, not just [HK], being responsible for their sexual activity, but also being held by somebody else. When she came to give evidence before you of course in relation to the then defendant [KH], she gave an entirely different account of it and spoke about [KH] only at the very end of events giving her a cuddle before she went off, when all the sexual activity down the alleyway had finished."
One of the submissions advanced before us is that having allowed the submission with respect to the co-accused it should have been allowed here too. We wholly reject that submission. It is plain from that part of the transcript we have read that the position of the co-accused was an entirely different one. The evidence in relation to this applicant was very different and there was the supporting evidence which we have indicated over and above the testimony given by the victim herself.
In our judgment, the judge was fully entitled to leave this matter to the jury to assess the witnesses and to evaluate the evidence. He obviously gave the matter careful thought and reached a conclusion which he was perfectly properly able to reach. We therefore do not grant leave to appeal against conviction.
As far as the sentence is concerned, the judge indicated that if the appellant had been an adult he would have received a custodial sentence of 8 years. In the circumstances, given the age, he reduced this to 4 years' imprisonment in relation to the rape. He did not think a consecutive sentence would be appropriate because of the age of the appellant and also because the offence was committed on the same occasion.
The short point in relation to the sentence advanced by counsel is that insufficient consideration was given to the age and perhaps more importantly to the maturity of this particular appellant. It is said that in the circumstances something more than a reduction by 50% was appropriate.
It is unfortunate that he was sixteen-and-a-half by the time that he was sentenced. But the judge did recognise that he was only 14 when he committed the offences. The judge also had the victim impact statement which indicated, not surprisingly, that this young girl, not yet a teenager, had been badly affected by the experience. Nonetheless, we take into account the fact that a 4 year sentence is a very long time for a 14-year-old boy albeit now 16. We have reached the conclusion that the judge ought to have allowed a little more credit in this case, bearing in mind the age and maturity. We are aware the defendant had been the subject of a referral order on two occasions, one for burglary and one for theft of a cycle but they were very different offences to the sexual offences committed here. We also respectfully bear in mind that the judge was in a particularly good position to assess this defendant during the trial.
Nonetheless we have come to the view that in all the circumstances, given his age at the time of committing this offence and given the maturity or lack of it, that an appropriate sentence would have been one of 3 years' detention in a young offender institution. Accordingly we uphold the appeal in respect of sentence and for the sentence of 4 years' detention imposed by the learned Recorder, we substitute a sentence of 3 years' detention. To that extent the appeal against sentence succeeds.
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{"ConvCourtName":["Crown Court at Bradford"],"ConvictPleaDate":["2014-07-24"],"ConvictOffence":["assault of a child under 13 by penetration","rape of a child under 13"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court at Bradford"],"Sentence":["4 years' detention in a young offender institution for rape","2 years concurrent for assault"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[14],"OffJobOffence":["Child"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[12],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony","Medical evidence","DNA match"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Victim was a child under 13"],"MitFactSent":["Offender was 14 at time of offence","Offender's maturity considered"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["appeal against sentence","Conviction is unsafe"],"AppealGround":["insufficient consideration given to age and maturity of appellant","should have allowed submission of no case to answer as with co-accused"],"SentGuideWhich":["section 91 of the Powers of Criminal Courts (Sentencing) Act 2000","section 6(1) of the Sexual Offences Act","section 5 of the Sexual Offences Act"],"AppealOutcome":["Sentence reduced to 3 years' detention","Leave to appeal against conviction refused"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["insufficient credit given for age and maturity"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["judge was fully entitled to leave matter to jury","evidence against appellant was different from co-accused"]}
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202303508/A1
[2024] EWCA Crim 257
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 14 February 2024
Before:
LADY JUSTICE MACUR
MRS JUSTICE FARBEY
MR JUSTICE LINDEN
REX
V
MASON RODGERS
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
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MR M HAGGAR
appeared on behalf of the Appellant.
_________
J U D G M E N T
MRS JUSTICE FARBEY:
1.
The appellant appeals against sentence by limited leave of the single judge. He renews before us the grounds on which the single judge refused leave.
2.
On 25 July 2023, having pleaded guilty before Warrington Magistrates’ Court, the appellant was committed for sentence, pursuant to section 14 of the Sentencing Act 2020, for five offences relating to the supply of controlled drugs.
3.
On 12 September 2023, in the Crown Court at Chester before HHJ Berkson, he was sentenced as follows. For one offence of supplying a Class B drug, namely ketamine, 8 months’ detention in a Young Offender Institution (“YOI”); for one offence of possessing a controlled drug of Class A with intent to supply, namely MDMA, 3 years in a YOI; for one offence of possessing a controlled drug of Class A with intent to supply, namely cocaine, 2 years in a YOI; for one offence of possessing a controlled drug of Class B with intent to supply, namely ketamine, 8 months in a YOI; and for one offence of supplying a controlled drug of Class A, namely MDMA, 3 years in a YOI. These were concurrent sentences so that the total sentence pronounced by the judge was 3 years’ detention.
4.
The appellant was 20 years old at the time of his offending. He was 21 years old at the date of conviction and sentence. It will readily be seen that, as the appellant was aged 21 at the date of conviction, the judge made a slip in sentencing him to detention in a YOI rather than to a term of imprisonment. The Crown Court record should be amended to correct that slip which is otherwise immaterial.
5.
We turn to the facts. On 27 August 2022, at around 5.00 pm, the appellant was searched by a police officer while trying to enter the Creamfields Music Festival in Cheshire. During that search, the police seized a three-day non-camping ticket to the festival, an iPhone and some drugs. The drugs were subsequently analysed and found to be: 18 MDMA tablets, with a value of £180; a further 29 MDMA tablets, with a value of £290; 0.87 grams of cocaine, with a value (at the festival) of between £80 and £100; and 2.3 grams of ketamine in five resealable plastic bags, with a value of £100.
6.
The appellant was arrested. In interview, he provided a prepared statement in which he stated that the drugs were for his own personal use. He denied that he would have sold the drugs to anyone and stated: “I do not supply drugs”. His mobile phone was analysed and messages indicative of an intention to supply drugs at the festival were found. He had no previous convictions.
7.
The judge had the benefit of a pre-sentence report and a detailed community impact statement from a police officer with knowledge of Creamfields, which is an annual dance music festival. In 2022, when the appellant’s offending took place, the festival ran from Thursday 25 August to Sunday 28 August. The community impact statement makes clear that the festival is considered a high risk for drug consumption. Police data suggests that the price of controlled drugs is higher at the festival than on the streets, to compensate for the risk of smuggling controlled drugs past the security arrangements and because of the closed market conditions. Tragically, at the 2022 festival, a young woman died from the consumption of drugs. When she fell ill, she was in possession of MDMA and cocaine.
8.
The prosecution case (which the judge sensibly clarified with prosecuting counsel and which the appellant accepted on a “full-facts” basis) was that the two offences of supplying drugs related to 25 August. The evidence of supply on that date came from messages on the appellant’s phone. The three offences of possession with intent to supply related to the drugs seized by the police when the appellant was searched on 27 August. The offences were therefore committed on two different days. As the judge noted, the appellant went into the festival to supply drugs and came out to replenish his stock with a view to re-entering to supply some more.
9.
In his sentencing remarks, the judge generously accepted that the appellant had sold the drugs to a group of 30 people who were his friends and who had gone together to the festival. The judge applied the relevant sentencing guideline. He concluded that the offences involved category 3 harm as they had involved selling directly to users. In relation to culpability, he accepted the prosecution submission that the appellant had a significant role. For present purposes, we focus on the more serious, Class A offences. The starting point in relation to those offences was 4 years 6 months’ custody. The category range was 3 years 6 months’ to 7 years’ custody.
10.
By way of aggravating factors, the judge took into consideration the appellant’s determined efforts to smuggle the drugs into the festival despite the warning signs that any drugs should be put in bespoke on-site bins. It was an aggravating factor that the supply of drugs took place at a festival. The appellant had been involved with more than one type of drug.
11.
By way of mitigating factors, the judge took into consideration the appellant’s age, his lack of previous convictions and his positive good character, including the high regard in which he was held by his employer. Balancing these various factors, the judge concluded that the overall sentence after a trial would have been 4½ years’ imprisonment, which was reduced to 3 years after full credit for the appellant’s early guilty pleas. He then pronounced the individual sentences for each offence, as we have already mentioned.
12.
The single judge granted leave on the ground that the judge had erred in concluding that the appellant had a significant role. In support of this ground, Mr Haggar emphasises that the judge accepted that the drug dealing was exclusively to friends. The quantities of drugs seized were not indicative of the sort of significant financial advantage that characterises a significant role. The valuation of the drugs was low. They were worth hundreds and not thousands of pounds. Mr Haggar submits that, in these circumstances, the appellant should have been categorised as having a lesser role. In sentencing him on the basis of a significant role, the judge had adopted an excessive starting point.
13.
Renewing the grounds of appeal on which leave was refused, Mr Haggar submits that the judge did not sufficiently reduce the sentence to reflect the appellant’s significant mitigation which outweighed the aggravating factors of the offending. He emphasises that the appellant had no previous convictions and was of good character. He was aged only 20 at the time of the offences. He had demonstrated remorse, as detailed in the pre-sentence report. He was at the time of the offences a drug user, owing to difficulties in his personal life but he has stopped taking drugs in light of lessons learned from his offending.
14.
Mr Haggar submits that the delay of around a year between the offending and the commencement of a prosecution amounted to undue delay. He reminds us that this Court has held that sentencing judges should bear in mind the effect of custodial sentences in the context of a high prison population (
R v Ali
[2023] EWCA Crim 232). He submits that it is further mitigation that the appellant is still being held under the very restrictive conditions of the Covid-19 pandemic in prisons (see
R v Manning
[2020] EWCA Crim 592; [2020] 2 Cr App R(S) 46). Mr Haggar is instructed that the appellant is permitted to leave his cell for only 2 hours each day.
15.
We are asked to consider reducing the sentence to the level that it may be suspended.
16.
We are prepared to accept that the judge was wrong to treat the appellant as having a significant role under the guideline. Despite some evidence of advance planning in the phone messages, there is no clear evidence of the sort of awareness of, or role in, the supply of drugs that would fall into the guideline criteria for a significant role. On the evidence before the judge, the appellant had no expectation of more than limited financial or other advantage. His offending was consistent with only a limited role and the judge should have sentenced him on that basis. It follows that the starting point was 3 years for the Class A offences.
17.
We accept that the appellant had strong mitigation. Prior to custody, he was working full time and undertaking college work, which was to his credit. Custody interrupted his good progress towards qualifying as an electrician. The pre-sentence report concluded that he had genuine remorse and that he had made efforts to put drugs behind him. However, as the sentencing remarks make plain, the judge had this mitigation in mind.
18.
The three-year starting point applies to a single offence. In this case, the judge was sentencing the appellant for three Class A offences, as well as for two Class B offences. The appellant could expect an upward adjustment from the starting point to reflect the number of offences and the seriousness of his offending overall.
19.
As the judge observed, the appellant supplied or intended to supply two different Class A drugs. He made determined efforts to sell drugs to a group of (on his own admission) 30 individuals. Nor can his offending be regarded as a single course of conduct: the appellant sought to evade the festival’s very considerable security regime on two different days. As the community impact statement vividly demonstrates, there is a need to deter people from exploiting a closed and susceptible group whose guard may be down as they enjoy themselves. The context of drug supply at a festival was a further, serious aggravating factor. All these factors warranted a further significant upward adjustment from the starting point.
20.
In our judgment, notwithstanding the appellant’s mitigation, the seriousness of the appellant’s offences warranted an overall sentence, before discount for pleas, at the top of the category range which is, as we have said, 4½ years. That is what the judge concluded. The question for this Court on an appeal is whether the sentence was manifestly excessive. Irrespective of the route by which the judge reached his conclusion, the sentence of 4½ years, reduced to 3 years for pleas, is not manifestly excessive. It follows that no question of a suspended sentence can arise. We refuse leave to appeal on the renewed grounds, which are not arguable, and we dismiss the appeal. It remains for us to express our gratitude to Mr Haggar for his helpful submissions.
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{"ConvCourtName":["Warrington Magistrates’ Court"],"ConvictPleaDate":["2023-07-25"],"ConvictOffence":["Supplying a controlled drug of Class B (ketamine)","Possessing a controlled drug of Class A with intent to supply (MDMA)","Possessing a controlled drug of Class A with intent to supply (cocaine)","Possessing a controlled drug of Class B with intent to supply (ketamine)","Supplying a controlled drug of Class A (MDMA)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["before Warrington Magistrates’ Court"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Chester"],"Sentence":["8 months’ detention in a Young Offender Institution (YOI) for supplying Class B drug (ketamine)","3 years in a YOI for possessing Class A drug (MDMA) with intent to supply","2 years in a YOI for possessing Class A drug (cocaine) with intent to supply","8 months in a YOI for possessing Class B drug (ketamine) with intent to supply","3 years in a YOI for supplying Class A drug (MDMA)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[20],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Mobile phone messages","Drugs seized and analysed","Community impact statement"],"DefEvidTypeTrial":["Prepared statement denying supply","Claimed drugs for personal use"],"PreSentReport":[],"AggFactSent":["Determined efforts to smuggle drugs into the festival","Supply of drugs at a festival","Involvement with more than one type of drug","Supplying or intending to supply two different Class A drugs","Supplying drugs to a group of 30 individuals","Offending on two different days"],"MitFactSent":["Age (20 at time of offence)","No previous convictions","Positive good character","High regard by employer","Full time work and college work","Genuine remorse","Stopped taking drugs after offence","Delay between offence and prosecution","Restrictive prison conditions due to Covid-19"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge erred in concluding significant role under guideline","Judge did not sufficiently reduce sentence for mitigation","Delay between offence and prosecution","Restrictive prison conditions"],"SentGuideWhich":["Sentencing guidelines for drug offences","Section 14 of the Sentencing Act 2020"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Sentence not manifestly excessive","Seriousness of offences warranted sentence at top of category range","Mitigation was considered by sentencing judge"]}
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Case No:
2006/3823/C5
Neutral Citation Number:
[2007] EWCA Crim 234
IN THE COURTS-MARTIAL APPEAL COURT
Royal Courts of Justice
Strand
London, WC2
Date:
Thursday, 1 February 2007
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE LATHAM)
MR JUSTICE FORBES
MR JUSTICE TUGENDHAT
- - - - - - -
R E G I N A
-v-
DANIEL ASHTON
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR R CLARK
appeared on behalf of the APPELLANT
MR D RICHARDS
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: On 12th June 2006 at a General Court Martial held at Bulford, this appellant was charged with one offence under section 70 of the Army Act, namely the commission of a civil offence, the offence being attempting to sell a prohibited weapon. Following a ruling of the Judge Advocate at the end of the prosecution case, he pleaded guilty to that offence and on 27th June 2006 he was sentenced to six months' military detention suspended for one year and reduced to the ranks. He appeals against both conviction and sentence with leave of the single judge.
2.
The facts can be shortly stated. The appellant was, and maybe still is, a gun enthusiast who collected weapons and items relating to weapons and, as many other collectors like him do, would buy and sell such items on e-Bay. Many of the items he sold were accessories such as magazines or gun cleaning kits. However, on 21st April 2001 he listed the gas plug of a general purpose machine gun for sale. That was identified by the Ministry of Defence Police; and they searched his home where they found the gas plug which he was intending to sell. That gas plug was alleged to be a component of an automatic weapon; and as a result he was charged with the offence to which we have referred.
3.
The relevant statutory provisions of the civil offence are
sections 5
and 57 of the
Firearms Act 1968
. By sub
section (1
) of
section 5
:
"A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers-
(a) any firearm which is so designed or adapted that two or more missiles can be successfully discharged without repeated pressure on the trigger."
By section 57(1) it is provided:
"In
this Act
, the expression 'firearm' means a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes-
...
(b) any component part of such a lethal or prohibited weapon."
The only relevant exception to those prohibitions is contained in
section 8
of the
Firearms (Amendment) Act 1988
which provides that an offence under
section 5
is not permitted if a person has in his possession a firearm rendered incapable of discharging any shot, bullet or other missile and it bears a mark approved by the Secretary of State for denoting that fact and that it has been de-activated by one of two companies specifically identified in the principal act and finally that the company itself has certified in writing that the work in question has been carried out on the firearm in question.
4.
The evidence put before the Court Martial by the prosecution was essentially agreed. The gas plug was accepted to have been a gas plug which formed a necessary part of a general purpose machine gun and was in working order. The only relevant question which was raised by Mr Blades acting on behalf of the appellant at the Court Martial was the fact that the prosecution expert accepted that he could not say whether the gas plug came from a de-activated weapon (that is a weapon complying with the section to which we have referred) or not. On the basis of that answer, Mr Blades at the end of the prosecution case submitted that the prosecution had failed to prove its case on the grounds that it had failed to establish that the gas plug had not formed part of a de-activated weapon and accordingly was exempt from the provisions of
section 5
and 57.
5.
The Judge Advocate, having considered the submission, ruled in the following terms:
"We have heard so far in evidence, evidence from the prosecution expert Mr Ridyard, his evidence followed on from a series of admissions common to both sides, which effectively deal with the entirety of the prosecution case, save to preserve the one line of issue in this case, which is whether our exhibit one, a gas plug, is in fact properly called a component part of a General Purpose Machine Gun. So it is common ground on the basis of the evidence the court has heard, that exhibit one is a gas plug for a General Purpose Machine Gun. It is common ground that a General Purpose Machine Gun cannot function as a General Purpose Machine Gun, without a gas plug... And it is unchallenged evidence that the particular gas plug in this case, our exhibit one, was tested and performed its function as a gas plug correctly. Further, it is common ground that it is specifically manufactured, in the sense that it has no purpose once manufactured, other than as a gas plug in a General Purpose Machine Gun."
After citing the relevant statutory provisions, the Judge Advocate went on as follows:
"Whether in fact our exhibit one, this particular gas plug is a component part of a prohibited weapon, is a matter of fact for the court to decide, and I refer in general terms to the proposition that must follow on from the authorities that determine whether a weapon is a firearm, is a question of fact for a court, ie jury or in this case a Board to decide, those apart (sic) as being set out in Archbold of 24-86. The accepted position between prosecution and defence, is that there is no statutory definition what a component part is, that the words have their ordinary natural meaning. I shall avoid any possibility of semantic absurdity being reached, by in due course indicating that component part for present purposes must as a matter of reasonable interpretation, mean a part that is manufactured to the purpose, in this sense of general purpose screw or washer, would not be a component part for present purposes. Similarly, a component part must be a part that if it were removed, a General Purpose Machine Gun could not function without it."
Then the Judge Advocate dealt with the submission made by Mr Blades that as the evidence could not exclude the possibility that it came from a de-activated weapon that would preclude it from being a component part as a matter of fact. The Judge Advocate having stated that as the issue went on:
"Now, it seems to me that de-activated weapons are conceptually different to component parts, here a General Purpose Machine Gun, specific provisions apply to the activated weapons,
section 8
of the Firearms Amendment Act 1988 applies, that is to be found in Archbold at 24-95, but the mischief that the
Firearms Act 1968
in its present context is designed to prevent or direct seems to be this, the mischief of having prohibited weapons and component parts of prohibited weapons, in any sense in general circulation. It is a matter of broad proposition if you have a component part of a prohibited weapon, that you try to sell or however you do so at your peril. It is hard to see how this gas plug could conceivably be anything other than component parts of a weapon, whatever the history of its ownership, its past usage or the circumstances of its acquisition. But I stress that is not for me to decide, that is a matter of fact for the Board to decide in due course. But whether or not as a component part, ie a properly functioning part of a General Purpose Machine Gun, it may or may not have at some stage been in a weapon that someone regarded as de-activated, does not seem to me to deal with the point at all, so I reject the submission."
6.
It seems to us that the Judge Advocate directed himself impeccably in those passages. The question posed by
sections 5
and 57 are matters of fact and the only realistic conclusion to which any fact finder could come was that indicated by the Judge Advocate himself.
7.
The position so far as Mr Blades' submission was concerned, which is repeated before us today by Mr Clark, seems to us to be this. Clearly the exception is a considered and careful exception and from the detailed requirements set out in the relevant statutory provision it is clear that Parliament intended to restrict tightly the operation of that exception. So long as a de-activated weapon remains in its complete state, there is therefore a justification in permitting it to be possessed or indeed traded on the open market. But it is clear from the exception that it is not intended to apply to any component part of such a weapon and that must be for the good public policy reason that once a weapon, de-activated or not, is disassembled then the parts which are then made available are capable of being re-assembled into a working weapon. The mischief to which section 57 in particular is directed therefore exists whether or not the origin of the component part is a working or a de-activated weapon. It seems to us in those circumstances that the submission by Mr Blades was properly rejected by the Judge Advocate and accordingly this appeal against conviction must be dismissed.
8.
Turning then to sentence. The material before us makes it plain that the appellant was a man who had impeccable service in the army for the previous 12 or so years of service. It also makes it plain that those who were responsible for him were anxious to retain him as a serving soldier and he was held, and has always been held, in the highest regard. It was against that background that the court martial had to consider the appropriate sentence. But it also had to bear in mind that the public policy in relation to firearms is one which demands that sentences should reflect the fact that the purpose of the legislation is to prevent items capable of forming part of lethal weapons should not be made freely available. The only way in which that message can in fact be expressed is by significant sentences.
9.
In the present case, it seems to us that the court martial properly reflected the public policy considerations in such cases by imposing what in relation to custody was effectively the minimum sentence which could be considered by the court martial, namely detention, and by suspending it reflected the particular circumstances in which the offence was committed. Of course to the general public policy (to which we have referred) has to be added the fact that there is a specific public policy consideration in relation to firearms offences where serving soldiers are concerned which is that they have ready access to firearms in circumstances which mean that the military authorities quite rightly seek to ensure that any transgression of the prohibitions in relation to the holding or selling of prohibited material should meet with significant punishment. It seems to us that in all those circumstances, despite the glowing reports in relation to this appellant, there is no way that we could say that the sentence in fact imposed upon him was either wrong in principle or manifestly excessive. Accordingly, we dismiss this appeal against sentence.
|
{"ConvCourtName":["General Court Martial at Bulford"],"ConvictPleaDate":["2006-06-12"],"ConvictOffence":["Attempting to sell a prohibited weapon (contrary to section 70 of the Army Act 1955, by reference to sections 5 and 57 of the Firearms Act 1968)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at end of prosecution case"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["General Court Martial at Bulford"],"Sentence":["Six months' military detention suspended for one year","Reduced to the ranks"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Prosecution expert evidence","Admissions common to both sides"],"DefEvidTypeTrial":["Submission that prosecution failed to prove gas plug was not from a de-activated weapon"],"PreSentReport":[],"AggFactSent":["Public policy in relation to firearms"],"MitFactSent":["Impeccable service in the army for 12 years","Held in highest regard by superiors","Anxious to retain him as a serving soldier"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe","appeal against sentence"],"AppealGround":["Prosecution failed to prove gas plug was not from a de-activated weapon","Sentence was wrong in principle or manifestly excessive"],"SentGuideWhich":["section 5 of the Firearms Act 1968","section 57 of the Firearms Act 1968","section 8 of the Firearms (Amendment) Act 1988"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge Advocate directed himself impeccably","Only realistic conclusion was that indicated by the Judge Advocate","Submission by defence was properly rejected","Court martial properly reflected public policy considerations","Sentence was not wrong in principle or manifestly excessive"]}
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[2022] EWCA Crim 1548
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No: 2022/01698/A3
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 11
th
November 2022
B e f o r e:
LADY JUSTICE CARR DBE
MRS JUSTICE MAY DBE
THE RECORDER OF THE ROYAL BOROUGH OF KENSINGTON & CHELSEA
(
His Honour Judge Edmunds KC
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
____________________
R E X
- v -
R A T S H
____________________
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 C Harper
appeared on behalf of the Applicant
____________________
J U D G M E N T
____________________
Friday 11
th
November 2022
LADY JUSTICE CARR:
1.
This is a case to which the 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 the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
Introduction
2.
We have before us an application for leave to appeal against sentence, alongside an application for an extension of time of 60 days. The single judge, whilst considering the appeal to be arguable, declined to grant leave in the light of this delay and referred the matter as a whole to the full court.
3.
The applicant is now 30 years old. He pleaded guilty to a number of sexual offences committed on his stepdaughter, "C". On 4
th
March 2022, in the Crown Court at Aylesbury, he was sentenced by Her Honour Judge Tulk ("the judge") to a standard determinate sentence of 12 years and four months' imprisonment, and to a special custodial sentence, pursuant to section 278 of the Sentencing Act 2020, comprising a custodial term of six years and an extended licence period of one year, to run consecutively. Thus, the total sentence imposed was one of 18 years and four months' imprisonment, together with the extended licence period.
4.
In more detail, the sentences imposed were as follows, grouped into three separate categories: firstly, on counts 3 and 4 (assault of a child under 13 by penetration, contrary to section 6(1) of the Sexual Offences Act 2003), a seven year special custodial sentence, made up of a six year custodial term and a one year extended licence, those sentences to run concurrently with each other but consecutively to the sentence on count 10. The second category of offences, on counts 5, 6 and 14 (sexual activity with a child family member, contrary to section 25(1) of the Sexual Offences Act 2003), three years' imprisonment on each count, to run concurrently with each other, but again consecutively to the sentence on count 10. Finally, on counts 8 and 10 (rape, contrary to section 1(1) of the Sexual Offences Act 2003), seven years' imprisonment on count 8 (vaginal rape) and nine years' imprisonment on count 10 (oral rape), those sentences to run concurrently with each other and concurrently with the sentences on counts 11 and 12 (making indecent photographs or pseudo-photographs of a child, contrary to section 1(1)(a) of the Protection of Children Act 1978), two years' imprisonment on count 11, and five years' imprisonment on count 12. On count 13 (inciting a child family member to engage in sexual activity, contrary to section 26(1) of the Sexual Offences Act 2003, three years' imprisonment. On count 15 (causing a child to watch a sexual act, contrary to section 12(1) of the Sexual Offences Act 2003), two years imprisonment. Finally, and separately, the applicant admitted failing to surrender, contrary to section 6 of the Bail Act 1976, for which a consecutive term of four months' imprisonment was imposed. A statutory surcharge order was imposed, alongside a restraining order and a Sexual Harm Prevention Order.
5.
The basis of the application before us is that the judge was wrong to find on count 10 (the oral rape) that the applicant had transmitted a sexual disease to C, leading to a sentence that was manifestly excessive. The applicant has had the considerable benefit of representation by Mr Harper.
The Facts
6.
The applicant was in a relationship with C's mother and lived in the family home. He and C's mother had a son together. The applicant started to sexually abuse C in June 2018, when she was 12 years old, and the offending carried on until Christmas Day of the following year.
7.
On New Year's Eve in 2019 C was staying with her grandmother, who found some messages on C's telephone between C and the applicant, one of which the grandmother showed to C's mother. The applicant had sent C a text on Christmas Day, reading: "Are you going to wank me off or give me a blow job tonight?" C replied: "Sure". The applicant then said: "Which?" C replied: "The first one".
8.
C's mother asked C about the messages. C became upset. Her mother sent a screenshot of the messages to the applicant who replied, "What the fuck?" He denied the offences. He said that he had intended to send the messages to C's mother and that he must have sent them to C's telephone by mistake. C's mother knew immediately that this was simply not true.
9.
The police attended and spoke to C on the same day. C said that the applicant had sent her text messages about doing sexual things, and that on Christmas Day, whilst her mother had been in bed feeling sick, he had entered her room and done sexual things to her. She said that it was not the first time this had happened. On Christmas Day she had "wanked him off". He had not ejaculated on that occasion. She said that she had received messages from him on Christmas Day and that night he had come into her room, lain on her bed and she had touched him. When asked why she had not told anyone about it, C said that she did want her stepfather to get into any trouble. She did not want anything bad to happen.
10.
When asked what, if anything, had happened on other occasions, C described the applicant touching both the inside and outside of her vagina under her clothing. She said that she did not like it. She said that it had not happened too many times, but it had happened on her bed in her bedroom. It had then progressed from him touching her to her touching him a few times. When he wanted something to happen, he would say: "Can I get some?"
11.
When interviewed again a few weeks later, C made further disclosures. There had been an occasion when she had been off school with a headache, alone in the house with the applicant. They had been on the sofa and C had masturbated him. He had removed his penis from his trousers, put her hand on it, and moved it up and down. He had then ejaculated on to her hand and she had wiped the ejaculate off on to a towel and had washed her hands because it was "gross". There had been an occasion when the applicant had asked her to sleep without her pyjamas on at night, but she had not agreed to do so and nothing had happened.
12.
C said that there had been a few occasions when the applicant had put his penis inside her, but she had held herself tightly so it did not go all the way in. It had hurt a bit, but it was not "super painful", and she would cry a little bit. The applicant would be lying over her, holding his penis and moving it whilst it was inside her. He would tell her not to hold herself so tightly so he could get it in. He would usually ejaculate on her, aiming at her stomach or vagina. She would tell him to wipe it off, which he would do with his blue towel or her pink towel. He would bring the towel into the room with him and leave it on the floor. This again happened in her own bed in her bedroom in her new house, but not in her old house.
13.
She said that the applicant would sometimes ejaculate on to her bed sheet and she would then strip the bed and tell her mother that the sheets were dirty. On occasions the applicant would put his fingers insider her vagina, but she would pull them out. She said that at the old house he would lick her vagina. He would bribe her when she wanted something to eat, saying that she could have something to eat if she let him lick her "down there", so she let him. She said that he would lick her vagina and it would hurt when he put his tongue in too far. This happened at the old house when she was aged 12. It happened every time he went into her room, she said, at her old house.
14.
From that it moved on to him ejaculating on her, her masturbating him, and then him putting his penis inside her at the new house. He had told her that she could go to a show with her mum if he licked her and ejaculated on to her. On one occasion he walked in when she was in the bath, and he touched and sucked her breast on that occasion.
15.
After the sexual acts took place, she said that the applicant would message her to say that he was sorry, and she would always forgive him. She said that the applicant would send her detailed sexual cartoon images of people licking each other's vaginas, two of which she had deleted straight after. One message contained sexual depictions of characters from the Disney film "The Little Mermaid", which he had sent to her on Christmas Day. She also said that when the applicant got on to her bed and was touching her, or she was touching him, he would also be watching pornography on his telephone, which he would show to her, but she would close her eyes.
16.
On one occasion she said that the applicant asked her whether she went to her grandmother's house to get away from him "doing stuff" to her. She thought that he had asked this because he knew that she did not like what he was doing to her. Although he did not tell her not to tell anyone, she knew not to say anything and did not want to get him into trouble or get into trouble herself.
17.
In her final police interview C made the disclosures the subject of counts 8 and 10. The applicant on one occasion put his penis into her mouth and then put his penis into her vagina. She had said that she did not want it in her mouth and she had kept her lips shut, but he had managed to put his penis inside her mouth. She did not like it and pushed it out. He then put his penis into her vagina. This was at her new house when she was 13 years old. The doctor from the Sexual Offence Referral Centre had called her subsequently to say that she had had an infection in her mouth and she had then told her grandfather about this occasion.
18.
During their investigations the police seized a number of items from the house, including C's onesie and her bedding. The applicant's semen was found on the onesie and on the duvet and bedding. C's laptop and smartcard were also examined. They contained indecent videos of a child. These appeared to be recordings of the applicant's sexual assaults of C. Three indecent videos, two of which were Category A, showed the applicant having vaginal intercourse with C who was saying "Stop"; and one showed oral sex, then penetrative vaginal sex again with C saying "Stop". One video was Category B, showing the applicant ejaculating over C on a bed whilst she was asleep.
19.
As we have indicated, C was examined at a Sexual Assault Referral Centre. She was then informed that there had been a positive test for gonorrhoea in her mouth swab. Subsequently, it was explained to her that there may have been a cross-reaction in the laboratory test that may have given a false positive test result. A further full test 11 days later indicated that C was clear of infection by that stage.
The Sentencing Exercise
20.
The applicant failed to attend his plea and trial preparation hearing on 13
th
July 2021 and did not surrender until 6
th
January 2022. He then entered his guilty pleas. As the judge commented, his abscondment must have had a severe impact on both C and her mother, not least because of the consequences of delay for them.
21.
The prosecution sentencing note, in the context of count 10, referred to a call by a doctor from the Sexual Assault Referral Centre to C's mother, saying that C had tested positive for gonorrhoea in her mouth. When opening the facts in court, prosecuting counsel again referred to this positive test, but with reference also to false positives and negatives. The judge questioned counsel for clarification. Prosecuting counsel maintained that on the face of the medical notes, which stated that the tests had been correct, it appeared to her that C had been infected with a sexually transmitted disease, which had then cleared up spontaneously. On the evidence, submitted prosecuting counsel, this transmission could only have been caused by the oral rape the subject of count 10.
22.
Thus, when sentencing, the judge said this:
"… so far as the oral rape is concerned, there is evidence that that caused a sexually transmitted infection; it caused gonorrhoea. So, so far as the oral rape is concerned, it clearly was a category 2 harm."
She found the vaginal rape to be category 3 harm. Specifically, C was not to be treated as particularly vulnerable due to her personal circumstances.
Grounds of Appeal
23.
Mr Harper submits that the sentence on count 10 was excessive because there was insufficient evidence for the judge to find to the necessary criminal standard that the oral rape had caused C to contract a sexually transmitted infection. Without that finding, the offending on count 10 would have been placed by the judge in category 3A, rather than 2A, making a likely difference of two years to the overall length of the custodial sentence. The judge should have resolved the doubt as to C's positive test for gonorrhoea in the applicant’s favour.
24.
Given the judge's very careful structure in her sentencing approach, it is clear, submits Mr Harper, that she would not have imposed a sentence of the magnitude that she did, and the sentence was manifestly excessive.
Discussion
25.
In order to sentence the applicant on count 10 on the basis that the offending had caused C to be infected with a sexually transmitted disease, the judge had to be sure that this was the case. If there was only one possible interpretation of the situation, the judge had to sentence on that basis.; if there was more than one possible interpretation, however, the judge had to make up her own mind to the criminal standard as to the factual basis upon which to impose sentence; if there was more than one possible interpretation, and the judge could not be sure of any of them, then she had to pass sentence on the basis of the interpretation most favourable to the applicant: see
R v Cole Jarvis
[2022] EWCA Crim 1251 at [44], endorsing the well-known dictum in
R v King
[2017] EWCA Crim 128, [2017] 4 WLR 95 at [31].
26.
It is clear to us from a letter dated 30
th
January 2020 from a Dr Sheila Paul, Clinical Director of the Thames Valley Sexual Assault Service, that C was tested initially for oral gonorrhoea and returned a positive result. Equally, a full sexually transmitted infection screen was performed 11 days later, and C tested negative.
27.
However, Dr Paul recorded that Dr Sherrard, a Sexual Health Consultant, had explained that in relation to the first positive test there could have been a cross-reaction with Neisseria meningitidis, leading to a false positive test. False positives could occur.
28.
Three explanations were advanced for the apparent discrepancies, namely, that the first test was a false positive; that the second test was a false negative; or that both tests were correct and the infection had cleared spontaneously in the 11 days between tests. In her concluding comments, Dr Paul stated that the discrepancies in these tests meant that the initial finding of gonorrhoea was "less robust" than initially thought.
29.
In these circumstances there was more than one possible interpretation of the relevant facts, and there was no proper basis on which the judge could be sure that the third explanation was the correct one. We are therefore satisfied that the judge should not have categorised the offending on count 10 as category 2A offending on the basis of the transmission of a sexually transmitted infection. Category 3A offending carries a starting point of seven years' custody, with a range of six to nine years.
30.
However, this error does not determine the outcome of the appeal, since the question remains as to whether or not the sentence overall was manifestly excessive in all the circumstances.
31.
The sentencing structure adopted by the judge was very fair to the applicant. She divided the sentences into three groups, as we have set out above, with a clear eye to totality. The judge passed concurrent sentences on the two rapes, with a term of nine years' custody, after 25% credit for the guilty plea on count 10, and also concurrent sentences with those two sentences on the further offences of making indecent photographs, inciting a child family member to engage in sexual activity, and causing a child to watch a sexual act.
32.
The rapes, we note, fell only just within the adult rape guideline, since C was only 13 years of age. A category 3A rape in respect of a child has a starting point of ten years' custody. Further, there were here multiple features of category A culpability, with further aggravating factors, including that the applicant did not wear a condom, and the offences took place in C's bedroom.
33.
The task for us is not an exercise in reconstruction. Standing back, we do not consider that an overall term of nine years' imprisonment for both rapes, taken together with the offending on counts 11 to 13 and 15 was manifestly excessive. A term of 12 years' imprisonment, before credit for the guilty plea, was outside the range for a single rape, based on category 3A offending. But, as we have emphasised, there were here two rapes, and other serious sexual offences carried out on a child. It is also not to be forgotten that, whilst there may have been ambiguity as to the outcome of the tests for sexually transmitted infection, there was no ambiguity about the fact that for a significant period both C and her mother believed that she had been infected with a sexually transmitted disease as a result of the oral rape, and that there as an uncertain necessity for treatment. Even after the second test, that uncertainty remained.
34.
Nor, in our judgment, can the term of nine years' imprisonment on this group of offences be said to have led to an ultimate sentence that was disproportionate to the applicant's offending overall.
Conclusion
35.
We consider the appeal to be arguable and the application for leave to appeal against sentence is granted, as is the necessary extension of time. The reasons for the delay are set out in a detailed solicitors’ letter dated 31 May 2022. The appellant was not to blame, and his grounds of appeal stood a real prospect of success.
36.
However, the substantive appeal is dismissed. The final sentence of 18 years and 4 months’ imprisonment, together with an extended licence period of year, was not manifestly excessive or wrong in principle.
_______________________________
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 Aylesbury"],"ConvictPleaDate":["2022-01-06"],"ConvictOffence":["Assault of a child under 13 by penetration (section 6(1) Sexual Offences Act 2003)","Sexual activity with a child family member (section 25(1) Sexual Offences Act 2003)","Rape (section 1(1) Sexual Offences Act 2003)","Making indecent photographs or pseudo-photographs of a child (section 1(1)(a) Protection of Children Act 1978)","Inciting a child family member to engage in sexual activity (section 26(1) Sexual Offences Act 2003)","Causing a child to watch a sexual act (section 12(1) Sexual Offences Act 2003)","Failing to surrender (section 6 Bail Act 1976)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Aylesbury"],"Sentence":["7 year special custodial sentence (6 year custodial term + 1 year extended licence) on counts 3 and 4 (concurrent, consecutive to count 10)","3 years' imprisonment on each of counts 5, 6, 14 (concurrent, consecutive to count 10)","7 years' imprisonment on count 8 (concurrent with count 10 and others)","9 years' imprisonment on count 10 (concurrent with count 8 and others)","2 years' imprisonment on count 11","5 years' imprisonment on count 12","3 years' imprisonment on count 13","2 years' imprisonment on count 15","4 months' imprisonment for failing to surrender (consecutive)","Statutory surcharge order","Restraining order","Sexual Harm Prevention Order"],"SentServe":["Combination"],"WhatAncillary":["Statutory surcharge order","Restraining order","Sexual Harm Prevention Order"],"OffSex":["All Male"],"OffAgeOffence":[26],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[12],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Text messages","Forensic evidence (semen on clothing and bedding)","Indecent videos (recordings of assaults)","Medical evidence (tests for sexually transmitted infection)"],"DefEvidTypeTrial":["Offender denies offence","Claimed messages were sent by mistake"],"PreSentReport":[],"AggFactSent":["Multiple offences over a significant period","Offences committed in victim's bedroom","Did not wear a condom","Victim was a child and stepdaughter","Offending escalated in seriousness"],"MitFactSent":["Guilty plea (25% credit)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Insufficient evidence for finding that oral rape caused transmission of sexually transmitted infection","Judge should have resolved doubt as to positive test for gonorrhoea in applicant's favour"],"SentGuideWhich":["Section 278 of the Sentencing Act 2020","Sexual Offences Act 2003","Protection of Children Act 1978","Bail Act 1976","R v Cole Jarvis [2022] EWCA Crim 1251","R v King [2017] EWCA Crim 128"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Judge was wrong to find to the necessary criminal standard that the oral rape had caused the victim to contract a sexually transmitted infection"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Overall sentence was not manifestly excessive or wrong in principle","Sentencing structure was fair and took account of totality","Multiple serious offences justified the sentence imposed"]}
|
No:
200705580/C4
Neutral Citation Number:
[2008] EWCA Crim 1308
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 15th May 2008
B e f o r e
:
LORD JUSTICE LATHAM
(VICE-PRESIDENT OF THE CACD)
MR JUSTICE DAVID CLARKE
MR JUSTICE MACDUFF
- - - - - - - - - - - - -
R E G I N A
v
STAPLETON
- - - - - - - - - - - - -
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 L Pepper
appeared on behalf of the
Applicant
Mr T Brown
appeared on behalf of the
Crown
- - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE LATHAM: On 7th February 2007 in the Magistrates' Court at Redditch, this appellant pleaded to six offences of furnishing false information under
section 17(1)
(b) of the
Theft Act 1968
. The appellant was then committed for sentence to the Crown Court pursuant to
section 70
of the
Proceeds of Crime Act 2002
. That was with a view to a confiscation order being considered. On 29th March 2007 she was sentenced to a suspended sentence order with a supervision requirement for 18 months, and ordered to pay £1,300 towards the costs of the prosecution. The matter then adjourned so far as the confiscation proceedings were concerned, and which were ultimately disposed of on 27th September 2007 when she was ordered to pay a confiscation order of £24,975.85 under the Proceeds of Crime Act 2000, or to serve 9 months' imprisonment in default. She appeals against her sentence, that is the confiscation order only, by leave of the Single Judge.
2.
The background facts are relevant simply and solely in relation to dates, because the offences related to obtaining of housing benefit of £15,946.46 from the London Borough of Lewisham between 22nd July 2002 and 16th August 2006. The relevance of those dates is that the provisions of the
Proceeds of Crime Act 2002
, in relation to offences, did not come into force until 24th March 2003. In other words, there were some offences, in particular, two offences on 28th May 2002 and 3rd February 2003 which had been committed prior to the commencement of the
Proceeds of Crime Act 2002
.
3.
The argument on behalf of the appellant before the judge who made the confiscation order, repeated for us on appeal, is quite simply that, as a consequence, the judge had no power to make any confiscation order, as he purported to do, under the
Proceeds of Crime Act 2002
. The provision upon which she relies is paragraph 3 of the
Proceeds of Crime Act 2002
, Commencement No 5 Transitional Provision Saving and Amendments Order 2003, which is in the following terms:
"(1)
Section 6
of
the Act
(making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in
section 6(2)
was committed before 24th March 2003."
4.
The original application by the prosecution for a confiscation order was undoubtedly incompetently prepared. It confused the powers of the court under the
Criminal Justice Act 1988
and those under the
Proceeds of Crime Act 2002
; and from the procedural history given to us by Mr Pepper it is plain that it took some time for the prosecution eventually to get its house in order, which it did by indicating that it was intending to ask for the confiscation order, under the
Proceeds of Crime Act 2002
, simply in relation to those offences which postdated March 2003. The judge, in those circumstances, accepted that he had jurisdiction to make an order under
the 2002 Act
, and did so in the terms to which we have referred.
5.
Mr Pepper repeating, as we have said, the submission that he made to the judge, states that on a simple straightforward reading of the transitional provisions there was no power to make any such order under
the 2002 Act
. It had to be made, if any confiscation order was made at all, under the provisions of
the 1988 Act
, as amended. He has submitted that it is a matter of pure statutory construction; the House of Lords in the case of
Clarke & McDaid
[2008] UKHL 8
has made it clear that where there are statutory provisions which are clear in their terms, then the court is bound to apply them, even if the consequence may appear to suggest that a defendant is being able to take advantage of an unmeritorious technicality. He points out that the speech of Lord Bingham, at paragraph 17, makes that point expressively.
6.
The prosecution have throughout relied, in order to found the claim for confiscation under
the 2002 Act
, on two decisions of this Court:
R v Simpson
[2004] QB 118
and
R v Aslam
[2004] EWCA Crim 2801
. In the latter case the court was concerned with the provisions, as it had been with
Simpson
, of the 1995
Proceeds of Crime Act 1995
.
That Act
made amendments to
the 1988 Act
, in relation to confiscation provisions but
section 16(5)
of
the Act
was in the following the terms:
"Section 1 above shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence which was committed before the commencement of that section."
As the court noted in
Aslam
, the effect of that particular subsection was that if the confiscation proceedings did relate to an offence which was committed before the commencement of the section, then the relevant powers of the court were the powers under the previous statutory provisions. In other words, the argument in
Aslam
was fairly and squarely on the same basis as the argument before us, albeit the statutory provisions are in slightly different terms. They are however not in any material way different. The court concluded that the prosecution in effect had a discretion as to the offences upon which they could ask for a confiscation order and, if they chose not to proceed on any offences which predated the commencement of the relevant Act, the court was entitled to exercise the powers of the later Act in relation to those offences rather than the former Act. In other words, the statutory provision could be read in effect, in the following terms:
"Section 1 above shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence in respect of which a confiscation order is or could be sought which was committed before the commencement of that section."
7.
In the context of the present statutory provision, the judge concluded that those same words could in effect be read into paragraph 3 of the transitional provisions of the relevant statutory instrument. It seems to us that unless there can be shown to be any proper distinction between the statutory regime with which we are concerned and that with which the court was concerned in
Aslam
, we in effect are bound to follow the reasoning in that case. We note that the reasoning has been subject to criticism from Professor Thomas in [2005] Crim LR, 154. However, despite that criticism, we do not consider that we could properly say that the decision in
Aslam
was plainly wrong; and since the wording of the statutory provisions is in no material particular different, we conclude that the same consequence must follow in relation to the
Proceeds of Crime Act 2002
. Accordingly, the court was entitled to apply the provisions of
the 2002 Act
to this particular case.
8.
There are, however, two other grounds upon which Mr Pepper seeks to rely in support of this appeal. The first is that the effect of the
Proceeds of Crime Act 2002
is more severe in relation to defendants such as the appellant than the previous statutory provisions. The consequence is that in effect there has been a retrospective application by reason of the fact that two offences with which we are concerned predate the provisions of
the Act
, contrary to the general principles which preclude retrospective legislation. That, in our judgment, simply misunderstands the effect of the application of the
Proceeds of Crime Act 2002
in this case. There is no doubt that it applied to the offences after March 2003. If the prosecution had sought simply to rely upon those offences, there could be no doubt that the Proceeds of Crime Act regime would have applied. The more Draconian -- if that is the right way of putting it -- effect of the criminal life-style provisions would have been available to the court in the same way as they were applied in this case. It follows that there is in effect no retrospective effect of the legislation. The judge was not seeking to apply it retrospectively in any way. He was applying the law, as he was entitled to, in relation to matters which had postdated March 2003.
9.
Turning then to the final ground of appeal, it is suggested that the judge in the present case was wrong to come to the conclusion that the appellant had failed to discharge the civil burden on her in relation to assets that she had. It is necessary to say something very shortly about these assets. She had in a bank account something in excess of £31,000. The judge concluded that the right way to approach the confiscation order in the present case was to take the current balance of the accounts less the balance that had been in the account 6 years ago, that is before first of the offences with which she was charged and conclude, unless she was able to provide him with evidence to the contrary, that that sum represented the proceeds of her criminal activity. The appellant, unhappily, has a history of alcoholism, which made it difficult for her to provide any coherent account of her life-style during the relevant period. The judge in those circumstances decided that there was no evidence that she had been working during the material period. There was therefore no evidence of any income which could originate from a legitimate source. In those circumstances there was no material upon which he could come to any other conclusion but that the assumption in relation to the sums in question had to be applied. It is said that that was unfair to appellant. The judge was wrong to come to the conclusion that he did. It was clear that she was in serious difficulty in being able to give a coherent or any account to the court about her life and that, in those circumstances, the judge was wrong to hold that she had failed to discharge the burden that was on her.
10.
One has simply to state the argument to appreciate that there is and can be no substance in it. The judge was not only entitled to conclude that there was no evidence which could displace the assumption, he was bound to do so on the material before him. Accordingly that ground of appeal fails also. In those circumstances, we dismiss this appeal.
11.
MR BROWN: There is still a restraint order which unless the money is paid into court, so I would ask your Lordship--
12.
LORD JUSTICE LATHAM: -- discharge the restraint order. Are there any other matters?
|
{"ConvCourtName":["Magistrates' Court at Redditch"],"ConvictPleaDate":["2007-02-07"],"ConvictOffence":["Furnishing false information under section 17(1)(b) of the Theft Act 1968"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court"],"Sentence":["Suspended sentence order with a supervision requirement for 18 months","Ordered to pay £1,300 towards the costs of the prosecution","Confiscation order of £24,975.85 or 9 months' imprisonment in default"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Female"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["No power to make confiscation order under the Proceeds of Crime Act 2002 for offences committed before 24 March 2003","Application of more severe regime is retrospective and contrary to general principles","Judge was wrong to conclude appellant failed to discharge civil burden regarding assets"],"SentGuideWhich":["section 17(1)(b) of the Theft Act 1968","section 70 of the Proceeds of Crime Act 2002","Proceeds of Crime Act 2002","Proceeds of Crime Act 2002, Commencement No 5 Transitional Provision Saving and Amendments Order 2003","Criminal Justice Act 1988"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Court entitled to apply Proceeds of Crime Act 2002 to offences after March 2003","No retrospective application of the Act","Judge was entitled and bound to conclude there was no evidence to displace the assumption regarding assets"]}
|
Neutral Citation Number:
[2016] EWCA Crim 1631
Case No:
201503078 B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday 14 October 2016
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE GREEN
HIS HONOUR JUDGE AUBREY
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
V
CALVIN CHAPMAN
- - - - - - - - - - - - - - - - - - - - -
Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited trading as DTI
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J Hedworth
appeared on behalf of the
Appellant
The
Crown
did not appear and was not represented
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
MR JUSTICE GREEN:
1.
There is before the court a renewed application for leave to appeal conviction. On 12th June 2015 the applicant was convicted of two counts of rape (counts 7 and 8) and one of dangerous driving (count 1). On 28th September 2015 he was sentenced to nine years' imprisonment on counts 7 and 8 and nine months' imprisonment on count 1 to be served concurrently. The applicant was acquitted of two counts of assault by the jury upon the direction of the judge, one count of assault by penetration and two further counts of rape. The application for permission to appeal against sentence and conviction was refused by the single judge. The applicant now renews his application for leave to appeal against conviction on counts 7 and 8 only.
2.
The provisions of the Sexual Offences (Amendment) Act 1990 apply to this offence. 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 the offence. That prohibition remains. In this judgment we anonymise the identity of the victim accordingly.
3.
The facts relating to the dangerous driving were as follows. The complainant explained that a few weeks prior to the rape the applicant was driving her home. During the journey he accused her of being with somebody else. As the complainant exited the vehicle, the applicant reversed the car so that the door hit her and she fell over. As she lifted the child out of the back the car went forward and the door caught the child's leg.
4.
The facts relating to counts 7 and 8 may be stated shortly. On 18th June 2014 the complainant contacted the police and explained that she had been raped by the applicant. The couple had been in a relationship for approximately 12 months. At the time of the incident the complainant was seven months pregnant with the applicant's child. On the night of the offence the complainant informed the applicant that she did not wish to have sex with him as it was uncomfortable. She had rebuffed his sexual advances and they had argued.
5.
On the morning of 18th June the complainant awoke to find that the applicant was penetrating her vagina. She told him to stop and pushed him away. Throughout, she repeatedly told him to stop. The prosecution relied upon a variety of different pieces of evidence. First, the evidence of the complainant herself. Second, evidence of the complainant's distress when she was collected from the applicant's address. Third, evidence of recent complaints to a friend and to her mother. Fourth, text messages between the applicant and the complainant subsequent to the incident during which the applicant appears to admit the rape. Fifth, other messages passing between the applicant and the complainant. Sixth, text messages between the applicant and the complainant's mother on the morning after the alleged assault.
6.
By way of illustration, there were before the court the text messages passing between the applicant and the complainant in which the complainant persistently over an extended period demanded an apology from the applicant for what she explicitly stated to be rape. In the course of this extended exchange the applicant apologised and in response to demands from the complainant that he acknowledge that he had raped her, in effect conceded that this is what had happened.
7.
The defence case was that the sexual activity had occurred but that it had been consensual. The only question therefore for the jury was one of consent.
8.
In the course of the trial, counsel for the applicant applied, pursuant to
section 41
of the
Youth Justice and Criminal Evidence Act 1999
, for permission to question the complainant about, amongst other things, sexual activity occurring some seven months after the alleged rape which was said to be consensual. The judge in a careful ruling rejected the application. He accepted that in principle it was open to him to permit questioning about these incidents. However, he refused permission for the following reasons. First, he concluded that the incidents in issue were not proximate in time to the alleged rape, being seven months afterwards. Second, the incidents were not relevant to the issues before the jury which were largely self-contained. Third, there was evidence that at the time of the later sexual activity the complainant was in a state of confusion and she was not sure whether she loved the applicant or not despite what she was still alleging against him. The judge was of the view that to permit questioning about these incidents risked reinforcing the stereotypical view about the manner in which victims of rape and alleged perpetrators of rape behave towards each other after an alleged sexual assault. Fourth, the judge was of the view that the only purpose of the cross-examination upon these incidents was to impugn the credibility of the complainant by reference to post-rape consensual activity. The object of the question would be to suggest that the earlier incident was consensual and that therefore the complainant was lying.
9.
For all those reasons, the judge concluded that no cross-examination should occur in relation to these matters. He did however permit evidence to be tendered that the complainant spent time with the applicant subsequently in the sense that they had met and that there had been occasions when they were on friendly terms. However, that questioning was not permitted to extend to sexual activity. The judge considered that this was necessary to ensure, as he put it, "some balance to the evidence which has been produced from the text exchanges."
10.
In our judgment, the ruling of the judge was entirely correct. We are reinforced in our conclusion by points made in the Respondent's Notice to the effect that the argument of the applicant was that it was a matter of common sense that no victim of serious sexual assault would subsequently instigate and engage in consensual intercourse with their attacker. This approach does indeed strike at the stereotypical and potentially false view of how a rape victim ought to behave in relation to a perpetrator, in cases where there is a complex relationship between the defendant and the victim.
11.
For all of these reasons we reject the renewed application for permission to appeal conviction.
|
{"ConvCourtName":[""],"ConvictPleaDate":["2015-06-12"],"ConvictOffence":["Rape","Dangerous driving"],"AcquitOffence":["Assault","Assault by penetration","Rape"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["9 years' imprisonment (counts 7 and 8)","9 months' imprisonment (count 1)"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony","Text messages","Recent complaint evidence","Evidence of distress"],"DefEvidTypeTrial":["Offender denies offence","Consent claimed"],"PreSentReport":["High risk of harm"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction"],"AppealGround":["Judge refused permission to cross-examine complainant about post-rape consensual sexual activity"],"SentGuideWhich":["section 41 of the Youth Justice and Criminal Evidence Act 1999"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge's ruling on cross-examination was correct; no error in law; argument relied on stereotypical and potentially false views of victim behaviour"]}
|
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