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Neutral Citation Number: [2009] EWCA Crim 1942 Case No: 200904902 B5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BOURNEMOUTH CROWN COURT HHJ HARROW T20080365 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/10/2009 Before : LORD JUSTICE DYSON MR JUSTICE DAVIS and MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - Between : Regina Appellant - and - EGS Ltd. Respondent/Defendant - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7404 1424 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Charles Parry ( instructed by Lester Aldridge LLP) for the on behalf of the Appellant Ben Compton (instructed by messrs Morgan Cole ) for the Defendant/Respondent Hearing date: Thursday 24 September 2009 - - - - - - - - - - - - - - - Judgment Lord Justice Dyson: 1. This is the judgment of the court. 2. The Respondent (EGS) and two co-defendants, (PEL and FGL) face trial in the Bournemouth Crown Court on an indictment containing 5 counts alleging breaches of Health and Safety legislation. Counts 1, 2 and 3 allege respectively against each defendant a failure to discharge a duty in the conduct of an undertaking to ensure the safety of persons not in its employment, contrary to section 3(1) and 33(1) of the Health and Safety at Work Act 1974 (“the 1974 Act”). Counts 4 and 5 allege against EGS alone supply of machinery which did not comply with the requirements of Regulation 12 of the Supply of Machinery (Safety) Regulations 1992 (“SMSR”) contrary to Regulations 11 and 29 of the SMSR and section 2(2) of the European Communities Act 1972. 3. This is an application for leave to appeal by the prosecution against the ruling by the trial judge (HH Judge Harrow) allowing a submission by EGS of no case to answer in respect of counts 3 and 4 at the close of the prosecution case. On 24 September, we gave leave to appeal and made an order under section 61(4)(a) of the Criminal Justice Act 2003 that the proceedings in relation to those counts may be resumed. We now give the reasons for our decision. 4. The facts which gave rise to these proceedings are truly tragic. On 13 April 2006, JK (aged 9) went with his mother and sister to visit his grandparents at their apartment in a newly built block of flats. The entrance gates to the driveway leading to the block measured 1.96m x 1.96m. They were heavy and made of steel in the style of wrought iron and were fixed to brick pillars. They were electronically operated. The gates could be opened from the street by means the use of remote control fobs or by the use of the two-way intercom system which was sited on the outside of the right brick pillar. 5. There was also a pedestrian egress button on the inside face of the same pillar. This was intended to be operated by pedestrians on leaving the premises. The gap between the gate heel and the right hand pillar was 160 mm when the gates were closed, but this gap reduced to about 110 mm when the gates opened. As the facts of this case cruelly demonstrate, it was possible for a small person to lean through the gap of 160 mm and reach the egress button on the back of the pillar and open the gates by pressing the button. The crushing force exerted when the gates opened was great. JK leant through the gap and pressed the egress button. He was still leaning through the gap as the gates opened and was unable to extricate himself through the narrowing gap. He was crushed between the right hand gate and the pillar and suffered fatal injuries. 6. PEL was the main contractor for the development. FGL was the contractor which fabricated and installed the gates. EGS, a small company whose sole director is NP, undertook the installation of the components necessary to enable the gates to operate electronically. Count 3 7. Count 3 is in these terms: “STATEMENT OF OFFENCE Failing to discharge a duty in the conduct of an undertaking, to ensure the safety of persons not in their employment, contrary to section 3(1) and section 33(1)(a) of the Health and Safety at Work etc Act 1974. PARTICULARS OF OFFENCE ELECTRIC GATE SERVICES LIMITED between the 1 st day of August 2004 and the 14 th day of April 2006, as an employer, failed to conduct its undertaking, namely the construction and installation of a pair of electrically powered entrance gates, in such a way as to ensure, so far as was reasonably practicable, that persons not in its employment who might be affected thereby, including JK, were not exposed to risks to their health and safety.” 8. Section 3 of the 1974 Act provides: “(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not exposed to risks to their health or safety.” Section 40 provides: “In any proceedings for an offence under any relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something .....so far as is reasonably practicable....., it shall be for the accused to prove (as the case may be) that it was not....reasonably practicable to do more than was done to satisfy the duty or requirement...” 9. At para 12 of his witness statement, NP said that he agreed the location of the pedestrian egress button with H, a director of PEL. At para 31, he said: “I thought the pillar would be built straight upwards and with the gates closed the gap between the heel of the gate and the face of the pillar would have been substantially less than in fact turned out to be the case. The dimension of the gap that I envisaged would not have allowed anyone to fit their head through the gap as happened in the accident.” 10. At para 46, he said that he was not involved in the decision to change the design of the pillar so as to create a gap between the heel of the gate and the side of the pillar of 160 mm. Nevertheless, he saw the gap and said that he “not pick it up as a potential hazard”. 11. In his ruling, the judge recorded that B, the managing director of Came UK, part of a group of companies which was the largest supplier of electrical gate equipment in the UK, accepted that locating the egress button on the inner face of a pillar was common practice at the time. Dr Swan, a specialist inspector with the Health and Safety Executive, who was called on behalf of the Crown, agreed that there was no standard that prohibited its being located there, although he said that in his opinion the button should have been placed at least 850 mm from the gate or pillar, perhaps on a post, in order to prevent operation of the gates by a person outside the property except by remote function. 12. The prosecution sought to prove its case by pointing to the bare fact that JK had died, but supplemented this by alleging and seeking to prove that EGS (and indeed the other defendants) had been in breach of a number of regulatory requirements, relevant European Norms and British Standards and codes of practice. We say more about the way in which the prosecution supplemented its case later in this judgment. The ruling on count 3 13. At para 6, the judge said: “In order to engage section 3, the prosecution must prove against each defendant to the criminal standard that:” (a). There was a material risk to JK and/or to the other non-employees’ health and safety which any reasonable company in the defendant’s position would appreciate and take steps to guard against (“appreciable and foreseeable risk”) and (b). JK and/or any other non-employee was exposed to that risk by the manner in which the defendant conducted the construction and installation of the gates (“the connection or causation”). 14. At para 34, he said: “Whilst undoubtedly, the accessibility of the egress button played a material part in the accident, the question arises whether, to P, it represented an appreciable risk. On its own, probably not, given there were several alternative methods to gain entry legitimately. Dr Swan’s opinion that the button should have been on a post was based only on norms and standards relating to dangerous machinery generally, there being no regulations or guidance about the positioning of gate buttons.” 15. At paras 36 and 37, the judge considered whether EGS was a “designer” within the meaning of regulation 2 of the Construction (Design and Management) Regulations 1994 (“CDMR”), whether the gates were part of the “structure” as defined in that regulation 2 of the CDMR and whether EGS was a “contractor” as defined in that regulation. He held that EGS was not subject to the CDMR because the gates were not part of the “structure”. 16. He expressed his overall conclusion in the following terms: “39. The prosecution cannot, in my view, satisfactorily establish a connection between EGS conduct and the accident or that the risk was foreseeable in their case or that it should have been foreseeable. It was too remote.” 40. Looking at the case against EGS on count 3 in the round, and applying the Galbraith test, in my judgement there is insufficient evidence, taking the prosecution case at its highest, upon which a jury properly directed could properly convict and I will in due course direct the jury to return a not guilty verdict.” Discussion 17. It is submitted on behalf of the prosecution that the judge misdirected himself as to what it had to prove in order to establish a breach of duty under section 3 of the 1974 Act. We agree. 18. The judge rightly recognised that the decision of the House of Lords in R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73 , [2008] 1 WLR 1 was highly relevant to the issue that he had to decide. That was a case which concerned a prosecution under section 2(1) and 3(1) of the 1974 Act. A central question was whether the prosecution had to identify the acts or omissions by which it was alleged that there was a breach of statutory duty by the employer. The House of Lords held that all that was required was that the prosecution prove that the result described in the statutory provisions had not been achieved or prevented (as the case may be), whereupon the onus passed to the defendant employer to establish, on a balance of probabilities, that it was not reasonably practicable for the employer to do more than he did to achieve the required objectives of health and safety. 19. Lord Hope gave the leading speech. He said at [17] that the duties imposed by sections 2(1) and 3(1) are expressed in general terms. They “describe a result which the employer must achieve or prevent”. The duties are not absolute, since they are qualified by the words “so far as is reasonably practicable”. At [18], Lord Hope said: “It is the result that these duties prescribe, not any particular means of achieving it”. At [21], he said: “For these reasons I would reject Mr Lissack’s primary submission that sections 2(1) and 3(1) require the prosecution to identify and prove the acts and omissions by which it is alleged that there was a breach of the duty to achieve or prevent the result that they describe. What the prosecution must prove is that the result that those provisions describe was not achieved or prevented. Once that is done a prima facie case of breach is established. The onus then passes to the defendant to make good the defence which section 40 provides on grounds of reasonable practicability. A contrast may be drawn with sections 4 to 6, which set out a series of more particular measures that must be taken. Where breaches of those sections are alleged, the respects in which there was a breach must be identified.” 20. At [22] to [26], under the heading “prosecution practice”, Lord Hope discussed how the prosecution can prove its case. At [22], he said: “Mr Lissack then said that it was not enough for the prosecution simply to assert that a state of affairs existed. This proposition raises the issue of prosecution practice. As I have said, the statute prescribes the result that must be achieved. That is one thing. How the prosecution proposes to prove that this was so is another. The situation will vary from case to case. In cases such as the present, where a person sustains injury at work, the facts will speak for themselves. Prima facie, his employer, or the person by whose undertaking he was liable to be affected, has failed to ensure his health and safety. Otherwise there would have been no accident. But a case where the alleged risk has not had this result cannot be dealt with so easily. It will be necessary to identify and prove the respects in which there was a breach of duty. This is likely to require more by way of evidence than simply an assertion that that state of affairs existed. The particular risk to which the employees, or the persons referred to in section 3(1) as the case may be, were exposed must be identified. This will require an analysis of the facts in each case. Even where an injury has occurred it may not be enough for the prosecutor simply to assert that the injury demonstrates that there was a risk. Where a prosecution is brought under section 3(1), it may be necessary to identify and prove the respects in which the injured person was liable to be affected by the way the defendant conducted his undertaking” 21. Under the heading “Proportionality” at [27], Lord Hope said this: “The question then is whether this approach to the legislation is proportionate. The first point to be made is that when the legislation refers to risks it is not contemplating risks that are trivial or fanciful. It is not its purpose to impose burdens on employers that are wholly unreasonable. Its aim is to spell out the basic duty of the employer to create a safe working environment. This is intended to bring about practical benefits, bearing in mind that this is an all-embracing responsibility extending to all workpeople and all working circumstances: Robens report, para 130. The framework which the statute creates is intended to be a constructive one, not excessively burdensome. In R v Porter [2008] ICR 1259 , the Court of Appeal set aside the conviction of the headmaster of a school where one of his pupils lost his footing on a step which gave access from one playground to another while he was unsupervised, with tragic consequences. It held that there was no evidence that the conduct of the school had exposed the child to a real risk: para 22. The situation was not such as to give rise to a risk of the type that section 3 identifies: para 25. That was an exceptional case, but it makes an important point. The law does not aim to create an environment that is entirely risk free. It concerns itself with risks that are material. That, in effect, is what the work “risk” which the statute uses means. It is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against. ” 22. Lord Brown agreed with Lord Hope. At [44], he said that sections 2 and 3 do not impose a duty merely to take reasonable care; rather they impose a duty on employers to ensure health and safety, leaving it to the employers to establish if they can, on the balance of probabilities, that it was not reasonably practicable for them to do more than they did to achieve the required objectives of health and safety. He concluded: “It is unnecessary for the prosecutor to identify, allege and prove specific failures on the employer’s part, for all the world as if these were necessary ingredients of the offence charged.” 23. Thus, in the present case, the burden is on the prosecution to prove to the criminal standard that EGS failed to conduct its undertaking in such a way as to ensure that persons not in its employment who might be affected thereby were not exposed to risks to their health or safety. As Lord Hope made clear at [27] of his speech in Chargot, the risks must be “material” risks to health or safety. The judge may have misunderstood what Lord Hope meant by a “material” risk. In our judgment, Lord Hope was referring back to the earlier part of [27], where he said that the legislation is only concerned with risks that are not trivial or fanciful. A risk that is trivial or fanciful is not material. 24. It is not entirely clear to us why Lord Hope added the words “where there is a material risk to health and safety” with the words “which any reasonable person would appreciate and take steps to guard against”. We think the explanation is that he considered that, in practice, any reasonable person would appreciate and take steps to guard against a risk which is more than trivial or fanciful. In other words, it is helpful to ask whether a reasonable person would appreciate and guard against the risk in deciding whether the risk is more than trivial or fanciful. 25. But we do not think that it is incumbent on the prosecution to prove that the risk was one which any reasonable person would appreciate and take steps to guard against. The language of section 3(1) is clear and, save for the qualification introduced by the words “so far as reasonably practicable”, unqualified. The word “risk” has been interpreted in Chargot as meaning a risk which is not trivial or fanciful, but that is not a qualification to the statutory provision. It is a question of fact and degree whether a risk is trivial or fanciful. It is pre-eminently a jury question. 26. The judge was, therefore, wrong to say at para 6 of his ruling that the prosecution had to prove that there was a “material risk to...health and safety which any reasonable company in the defendant’s position would appreciate and guard against (“the appreciable and foreseeable risk”)”. This view of what the prosecution had to prove led the judge to make statements such as those in para 34 (see [14] above). The prosecution did not have to prove that the risk was appreciable or foreseeable. They had to prove that the risk was not fanciful and was more than trivial. 27. In any event, it is strictly inapt to speak of a risk being foreseeable. A risk is a present potential danger the existence of which may or may not be appreciated: see per Steyn LJ in R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 , 1177F, approved in Chargot at [20]. If the risk eventuates and an accident occurs, then a question may arise in the context of a section 40 defence as to whether the accident was foreseeable or unforeseeable: see R v H.T.M. Ltd [2006] EWCA Crim 1156 . But it is not relevant to the issue of whether the prosecution has proved the existence of a material risk. It may be that the judge used the word “foreseeable” inaccurately and that he used it interchangeably with “would have been appreciated”. 28. For the same reasons, the judge was also wrong to say at para 39 that “the prosecution cannot establish….that the risk was foreseeable….or that it should have been foreseeable. It was too remote.” Further, we regret that we cannot agree with the judge’s statement that “the prosecution cannot...establish a connection between [EGS’] conduct and the accident...” Causation is not an essential ingredient of the offence. The prosecution did not have to establish that EGS caused the accident, although in the present case, as in most, they did in fact rely on a causal connection between ESG’s acts and omissions as going to establish risk. They merely had to prove that EGS exposed persons not its employment to risks to their health or safety. Nor do we understand the reference to remoteness. It would appear that the judge was treating the prosecution as if it were a civil claim for damages for breach of statutory duty. But it is clear from Chargot that this is the wrong approach. 29. On behalf of EGS, Mr Compton does not seriously argue that the judge directed himself correctly. He submits, however, that there was no evidence that the egress button increased the likelihood of the risk to health and safety eventuating. He relies on the evidence of Mr B who said that it was common practice to place the egress button on the inside face of the pillar to which the gates were fixed. He submits that the judge was best able to assess the evidence that he had heard and that this court should not interfere with that assessment. We note in passing that there is no reason to suppose that the common practice of which B spoke applies where there is a gap between gate and pillar large enough for a young person to lean through as JK did on 13 April 2006. 30. We cannot accept these submissions. The question whether in all the circumstances of the case the siting of the pedestrian egress button exposed persons not in EGS’s employment to a material risk to their health or safety was pre-eminently one for the jury to decide. The fact that the egress button was within reach from the outside and a death resulted from a child reaching through the gap and pressing the button raised a prima facie case of breach of section 3(1) of the 1974 Act without more. As Lord Hope said at [21] in Chargot, once the result that section 3(1) describes is not achieved, a prima facie case of breach is established and the onus passes to the defendant to make good the section 40 defence, if that defence is raised. He made the same point at [22], where he said that where an injury is caused, the facts will speak for themselves. If the judge had focused on this simple way of putting the case, he would surely have rejected the submission of no case to answer. It may well be that he was distracted by the complicated way in which the prosecution was presented. 31. Even if (contrary to the above) it was incumbent on the prosecution to prove that the siting of the egress button exposed persons not in EGS’s employment to a risk to their health or safety which any reasonable person in EGS’s position would have appreciated and guarded against, that question too would be pre-eminently one for the jury to decide. 32. We should add that, in reaching our conclusion, we have not found it necessary to consider what the judge said about the prosecution’s case that EGS had committed breaches of various regulations, standards and codes of practice. In our judgment, the simple fact that the gap between the pillar and the gates (when they were closed) was wide enough to enable a 9 year old child to press the egress button from the outside and open the gates raised a prima facie case of breach of section 3(1) of the 1974 Act. Count 4 33. Count 4 is in these terms: “STATEMENT OF OFFENCE Supplying machinery which did not comply with the requirements of Regulation 12 of the Supply of Machinery (Safety) Regulations 1992 contrary to Regulations 11 and 29 of the Supply of Machinery (Safety) Regulations 1992 and section 2(2) of the European Communities Act 1972. PARTICULARS OF OFFENCE EGS LIMITED between the 1 st day of May 2005 and the 14 th day of April 2006, being a responsible person, supplied relevant machinery which failed to comply with the requirements of Regulation 12, namely, that the relevant machinery satisfied the relevant essential health and safety requirements.” 34. The judge held that EGS was a “responsible person” within the meaning of regulation 2 of the SMSR. Regulation 11(1) provides that “no person who is a responsible person shall supply relevant machinery unless the requirements of regulation 12 are complied with”. Regulation 12(1) provides that the requirements of this regulation are that “(a) the relevant machinery or relevant safety component satisfies the relevant essential health and safety requirements”. The “relevant health and safety requirements” means the requirements in Annex 1 of the Machinery Directive which is set out in Schedule 3 to the SMSR: see regulation 2. Schedule 3 contains approximately 30 pages of detailed requirements relating to the design and construction of machinery. 35. It will be seen that count 4 does not specify which of the many requirements it is alleged that EGS has not complied with. We were told that the relevant requirements were specified in Dr Swan’s report. It seems that 5 requirements were mentioned in that report, although by the time of the trial only two were being pursued, namely paras 1.7.3 and 1.7.4 of Schedule 3. We are bound to say that we regard this as an unacceptable way of proceeding. The indictment should have been drafted so as to specify the requirements that were being relied on. We should add, however, that no point has been taken before us that the indictment is defective and the defect did not form the basis of the judge’s decision to withdraw count 4 from the jury. 36. There was an issue at the trial as to whether EGS was a “supplier” of goods, namely the electric gate. It is not clear how the judge resolved this. At para 53 of his ruling, he said that he was “not entirely sure” what the “relevant health and safety requirements” of regulation 12 were. That merely serves to highlight the unsatisfactory way in which count 4 has been drafted. 37. But the judge said that he did not find it necessary to decide what the essential health and safety requirements were because regulation 31(1) of the SMSR provides that it shall be a defence to a charge of breach of regulation 11 for the defendant to show that “he took all reasonable steps and exercised all due diligence to avoid committing the offence”. He said: “55. Although the burden of establishing this lies with the defendant, one has to ask at this stage what evidence the prosecution have adduced to establish that he did not exercise due diligence. 56. On count 4, it is arguable that, given the stage he entered the work and the nature of his contribution, he did all that was reasonable, and on that basis, in my view, it would be unsafe to leave the matter to the jury.” 38. We have great difficulty in seeing how the judge could come to a conclusion on the prospects of success of a regulation 31(1) defence without knowing which health and safety requirements were in play and in relation to which particular offence the defence was being relied on. 39. Be that as it may, however, it is clear that, although the judge purported to acknowledge that EGS had the burden of proving that it took all reasonable steps and exercised all due diligence to avoid committing the offence, he withdrew count 4 from the jury on the grounds that the prosecution had not adduced any or any sufficient evidence to show that EGS had not exercised due diligence. Thus, the reason why the judge withdrew count 4 was that he considered it to be arguable that EGS would make out its regulation 31 defence because the prosecution had not adduced sufficient evidence to rebut it. But there was no burden on the prosecution at that stage to adduce any evidence to rebut the defence. It was for EGS to advance the defence. If it did so, it would be the subject of evidence and argument. The prosecution would be able to test it by cross-examination of any witnesses called on behalf of the defence. But that all lay in the future. It was not open to the judge to prejudge the defence case. Until and unless the defence was raised during the defence case, it was not open to the judge to prejudge it in the way that he did. 40. We should add that a further reason why the judge should not have withdrawn count 4 was that the regulation 31(1) defence was wholly unparticularised. The Defence Statement said no more than this: “In relation to count 4, if it is established to the necessary standard that the Defendant was “the responsible person” under the regulations, then the Defendant will aver that it took all reasonable steps and exercised all due diligent (sic) to avoid committing the offence(s)”. This was inadequate. It did not put the prosecution on notice of the case it had to meet in relation to the regulation 31(1) defence. 41. For these reasons, in our view the judge was wrong to withdraw count 4 from the jury. Conclusion 42. For these reasons, we allowed the appeal in relation to the judge’s decision to withdraw counts 3 and 4 from the jury. Some observations on prosecution practice 43. We cannot conclude this judgment without making some observations about the way in which this prosecution of the section 3(1) offence was presented to the jury. As we have said, the prosecution relied in part on the simple fact that the result prescribed by section 3(1) was not achieved as is demonstrated by JK’s death. But in addition they sought to prove that EGS was in breach of regulations, standards and codes of practice in order to support its case. This led to much evidence and argument (both as to the law and the facts) on a number of issues including the question of whether the CDMR applied to the activity of EGS at The Orchard at all. The evidence was technical and must have been difficult for the jury to follow. It is not clear from his ruling that the judge entirely followed it. It undoubtedly added considerably to the length of the trial. The prosecution evidence occupied 6 ½ days of court time. 44. We were told by Mr Parry that it is common practice for prosecutions to be presented in this way even in cases where a death or injury has resulted from the alleged breach of section 3(1). This is often done in anticipation of a section 40 defence where the defendant says that it was not reasonably practicable for him to do more than he did to achieve the required objectives of health and safety because he complied with all relevant regulations, standards and codes of practice. In a case where that issue has been properly raised and particularised in the Defence Statement, it is obviously appropriate that the prosecution should be able to lead evidence, whether as part of its case as opened or, in appropriate circumstances, in rebuttal to show that the defendant did not comply with the regulations, standards or codes of practice relied on. But the evidence should be directed to the particular points relied on in the Defence Statement. 45. In the present case, the Defence Statement did not give notice that a section 40 defence would be relied on. Mr Parry told us that it is not uncommon for judges to allow defendants to raise section 40 defences of which they have not given notice in their Defence Statements. That, he said, is the reason why prosecutors often take the course that he did in this case and lead evidence of breach of regulations, standards or codes of practice in support of an allegation of breach of section 3(1). In our judgement, judges should not normally allow a defendant to raise a section 40 defence of which reasonable notice has not been given to the prosecution. But we accept that it will always be a matter for the judge to decide whether in the particular circumstances of the case fairness requires that the defendant should be permitted to raise a section 40 defence of which notice has not been given in his Defence Statement. 46. Furthermore, prosecution cases should not be overloaded with evidence which is adduced solely in order to meet a technical case of which no notice has been given. That is not to say that it may not sometimes be appropriate for the prosecution to lead evidence of breach of regulations, standards and codes of practice in support of its own case: see Chargot at [22] and [25]. But in cases such as the present, where, to use Lord Hope’s words, the facts speak for themselves and no section 40 defence has been raised, it will often not be necessary for the prosecution to seek to prove that the defendant failed to comply with regulations, standards or codes of practice. The routine practice of adducing evidence of breach of regulations, standards and codes of practice is inconsistent with the ratio of Chargot that section 3(1) does not require the prosecution to identify and prove the acts and omissions by which it is alleged that there was a breach of duty, unless fairness so requires: see [24] to [26] of Chargot. Case management 47. In the light of the problems that have been illustrated by this case, we suggest that in health and safety prosecutions in the Crown Court, at all events when the matter is not the subject of an early plea, a judge may need to be nominated at an early stage to manage the case to trial. This should be done in all cases involving death or very serious injury and in any other cases where there is potential complexity. It should be the duty of all advocates to raise this with the judge at the first plea and case management hearing, so that in an appropriate case suitable directions for a nominated judge may be given. Thereafter, those cases which proceed to trial should be vigorously case managed by the nominated judge, who should be astute to ensure, in advance of the trial, that the parties confine the case to the issues that really matter and that the case does not become overloaded. 48. We are told that in this case no judge was nominated. It seems that at the pre-trial hearings that were held, no attempt was made to define and delimit the issues. In the result, the jury were presented with an unduly and unnecessarily complicated case. Proper case management by a nominated trial judge should ensure that the situation that arose here does not readily occur again.	{"ConvCourtName":["Bournemouth Crown Court"],"ConvictPleaDate":[""],"ConvictOffence":["Failing to discharge a duty in the conduct of an undertaking, to ensure the safety of persons not in its employment, contrary to section 3(1) and 33(1) of the Health and Safety at Work Act 1974","Supplying machinery which did not comply with the requirements of Regulation 12 of the Supply of Machinery (Safety) Regulations 1992 contrary to Regulations 11 and 29 of the SMSR and section 2(2) of the European Communities Act 1972"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["Mixed"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[9],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Witness statement","Expert report/testimony"],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":["Death of a child"],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[2],"AppealAgainst":["Ruling to withdraw counts from jury"],"AppealGround":["Trial judge misdirected himself as to the requirements for breach of duty under section 3 of the 1974 Act; judge wrongly withdrew counts 3 and 4 from the jury"],"SentGuideWhich":["section 3(1) and 33(1) of the Health and Safety at Work Act 1974","Regulations 11 and 29 of the Supply of Machinery (Safety) Regulations 1992","section 2(2) of the European Communities Act 1972"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge misdirected himself as to the law; judge wrongly withdrew counts from the jury; prosecution did not have to prove foreseeability or causation, only that a material risk existed; judge erred in approach to statutory defences"]}
Neutral Citation Number: [2017] EWCA Crim 648 Case No: CM02831/2016 IN THE COURT MARTIAL APPEAL COURT ON APPEAL FROM THE COURT MARTIAL CENTRE AT BULFORD (ASST JUDGE ADVOCATE McGRIGOR AND BOARD) Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/05/17 Before : LORD THOMAS OF CWMGIEDD (The Lord Chief Justice of England and Wales) LORD JUSTICE HICKINBOTTOM and MR JUSTICE GOSS - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - DANIEL JEFFREY MARTIN Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Gemma White appeared on behalf of the Appellant Commander D J Ward MBE appeared on behalf of the Respondent Hearing date: 14 March 2017 Additional written submissions: 17-23 March 2017 - - - - - - - - - - - - - - - - - - - - - Judgment Approved Lord Justice Hickinbottom: 1. On 18 May 2016, at the first hearing at Bulford Military Court Centre, the Appellant, Sgt Daniel Jeffrey Martin, pleaded guilty to two charges of common assault contrary to section 39 of the Criminal Justice Act 1988 and section 42 of the Armed Forces Act 2006 (“ the 2006 Act ”). On 14 July 2016, at the same court, he was sentenced by Assistant Judge Advocate General McGrigor and a sentencing board to reduction in rank by one rank, from Sergeant to Bombardier, the equivalent of Corporal in other parts of the service. With the leave of the single judge, the Appellant now appeals against sentence. 2. The facts can be briefly put. In the summer of 2015, the Appellant was stationed on the Falkland Islands. On the evening of 4 July 2015, he went to the Mount Pleasant Airfield Sergeants’ Mess. Later, he moved on to the Gull and Penguin public house, which is also on the airfield. By that time, he was drunk. Craftsman Reilly, who was known to the Appellant, was in the pub. He too had been drinking that evening. At around 11pm, the two men began talking and engaging in banter which was initially friendly, but became heated. The Appellant slapped Craftsman Reilly in the face, with his open palm, no more than three times. That formed the basis of the first charge. 3. The Appellant was asked to leave the pub, which he did. Craftsman Reilly left fifteen minutes later, and began making his way to his accommodation with some friends. En route, he encountered the Appellant again. It seems that that was an unfortunate coincidence, there being no evidence that the Appellant had sought him out. The Appellant approached him, and said, “Let’s settle this now”. When Craftsman Reilly tried to walk away, the Appellant punched him once to the face, causing his lip to swell, an injury which required no medical treatment. Others quickly intervened, and there followed a scuffle during which the Appellant himself sustained a black eye. The punch was the basis of the second charge. 4. The following day, a complaint was made, and the Appellant was interviewed. It is fair to say that his recollection of the previous evening was very vague, although he accepted that he had slapped and later punched Craftsman Reilly. He initially suggested that he had been provoked and had struck Reilly in self-defence; but, as we have described, he pleaded guilty to the two charges at the first court martial hearing, and the court indicated that he was entitled to full credit for his plea. That first hearing took place about ten months after the incidents, and no real explanation as to why the matter took so long to come before the court has ever been given. 5. At the relevant time, the Appellant was a longstanding member of the Armed Forces. He was born on 14 January 1983, and so was 32 at the time of the offences, and 33 at the date of sentence. As at that latter date, he had completed 16 years 208 days from his enlistment at the age of 16. 6. He joined the Army as a gunner. Following completion of training, he served with 7th Parachute Regiment for four years; but injury prevented him from continuing, and he returned to 32nd (Minden) Battery Royal Artillery. He was promoted to Sergeant in November 2013, serving as Motor Transport Sergeant and Battery Quartermaster Sergeant. He was the subject of numerous deployments, including two in Iraq as part of Operation Telic, and three in Afghanistan as part of Operation Herrick, the most recent of which had been April 2012. He had been awarded the appropriate service medals. 7. At the time of sentence, he was a serving soldier. However, on 13 March 2017 he was honourably discharged, on medical grounds. He had been diagnosed as suffering from post-traumatic stress disorder, as result of his active service. At the time of sentence, he appeared to be suffering from some symptoms, but no diagnosis had been made and he made it clear to the court that he wished to have the matter dealt with and did not want an adjournment whilst the medical position became clearer. In the event, understandably, the Appellant’s condition does not appear to have featured large in the sentencing hearing. We shall return to the consequences of his discharge from the service, upon which the Appellant relies, shortly. 8. The Appellant had two previous convictions, both for common assault whilst in drink, in 2002 and 2005, for which he was sentenced by a civilian magistrates’ court to a conditional discharge and a £500 fine respectively. There were no convictions between 2005 and 2015, and none since the index offences. Indeed, the reference from Capt D J Wright RA, his senior officer, written for the sentencing board, indicates that the Appellant’s conduct and behaviour both before and after these incidents had been “exemplary”; the Appellant had shown himself to be “extremely apologetic and remorseful”; and, in the officer’s view, these incidents were “absolutely out of character for him”. There is reference to the Appellant’s “high leadership ability and consistently impressive personal standards”. 9. In sentencing the Appellant, the Assistant Judge Advocate on behalf of the sentencing board said, with some force, that, if these assaults had been by a subordinate upon a superior, then the sentence would almost certainly have been custodial. He then focused upon what might be described as the service considerations of these offences: “Now violence by superiors upon their subordinates undermines the trust and loyalty that underpins the ethos of soldiering. It has the potential to affect operational effectiveness. We note that you have two previous incidents of violence, although they are over ten years old. We find that your excessive consumption of alcohol aggravates the matter. We find it too serious for a fine or a fine or reprimand and you must be reduced by a rank to demonstrate to both your subordinates and colleagues that such behaviour by a senior non-commissioned officer cannot be tolerated in the Army. We accept that this is a harsh punishment on a guilty plea but you only have yourself to blame.” That was a clear conclusion that, in the board’s view, the Appellant was not fit to hold the rank of Sergeant. In the event, in respect of the second charge (the punch) the board imposed a sentence of reduction in rank to Bombadier, with no separate penalty for the first count. 10. In this appeal, Miss Gemma White for the Appellant submits that that sentence was, in all the circumstances, manifestly excessive. Those circumstances, she contends, include substantial mitigation, notably (i) the fact that he pleaded guilty at an early stage, (ii) his service record, including (she submits) the absence of evidence that he was unfit to hold the rank of Sergeant, and the positive evidence (particularly from Capt Wright) that he was fit to hold that rank, and (iii) the delay of about a year in bringing this matter to a conclusion, a period in which he continued his good service as a Sergeant. 11. Miss White further submits that the sentence is out of line with the relevant services and general sentencing guidance, and with sentences imposed by other military courts for similar offences. The guidance within the courts martial upon which she relies is the Commanding Officers’ Guide to Sentencing, which, for common assault where the offence is “low” (i.e. where there is a “preponderance of mitigating features and no serious aggravating features present”), has a sentencing range after an admission is a “fine or restriction of privileges/stoppage of leave”. The relevant Sentencing Guideline Council’s guideline is that for common assault, in which a case such as this, with lesser harm and lower culpability, has a starting point of a Band A fine (equivalent to half a week’s pay for a Sergeant); and, indeed, a range that does not go above a financial penalty at Band C (the equivalent of a week and a half’s pay). 12. That strand of the appeal has been made the more forceful, it is said, because of the consequences of the Appellant’s recent discharge from the service, which means that his pension will be for ever based upon the rank of Bombardier rather than Sergeant, because he effectively lost the opportunity of regaining rank. Miss White submitted that, even taking account of the importance of discipline in service life, the financial impact of the sentence imposed is both outside the relevant guidelines, and disproportionate, amounting to perhaps thousands of pounds per year, as well as the loss of seniority and associated benefits. 13. In the light of those submissions, which were developed at the hearing before us, we sought further assistance from the parties in relation to two specific matters; and we thank Miss White and Commander Ward for their helpful further written submissions on those. 14. First, it is well-established that the Court of Appeal (Criminal Division) is a court of review; and, as such, it maintains a particularly restrictive approach to receiving new evidence, in particular with respect to matters which have occurred since the original sentence upon which generally an appellant cannot rely. However, we asked for submissions as to whether the approach of the Court Martial Appeal Court differed. Although we considered it unlikely, the courts martial have a disciplinary role, which civilian courts do not; and we considered that it was at least conceptually possible that there might be some difference. We were told at the hearing that there were no authorities on this point. 15. The diligent researches of Miss White and Commander Ward resulted in their coming to the common view that the Court of Appeal and Court Martial Appeal Court have a materially identical review role, with no significant difference between their practice and procedure with regard to the way in which post-sentence matters are treated. 16. We share that view. The relevant statutory provisions are found in the Criminal Appeal Act 1968 for the Court of Appeal (Criminal Division), and in the Court Martial Appeals Act 1968 for its services equivalent. The powers on appeal are set out in section 11(3) and section 16A(2) respectively; the powers to consider fresh evidence in section 23(1)(c) and section 28(1)(c) respectively; and the matters to which the court must have regard in section 23(2) and section 28(2) respectively. These provisions are each materially the same. Of course, this court on appeal will give particular deference to a sentence of a court martial insofar as it is disciplinary in nature – because a sentencing board has particular experience and expertise in services discipline including the extent to which an offence might be potentially detrimental to operational effectiveness, a factor absent from sentencing criteria in a civilian court – but, in a sentence appeal, the Court Martial Appeal Court performs the same review function as the Court of Appeal (Criminal Division). 17. Second, it was clear from the hearing before us, that the consequences of a reduction in rank are far from straightforward; and, the Appellant’s discharge having taken place only the day before, Commander Ward had had insufficient time to make enquiries of those that deal with such matters in Armed Forces. There can be no criticism of him for that; but we asked that further evidence and/or submissions be made in respect of the financial position of the Appellant since his discharge. 18. Evidence has been obtained by the Appellant’s former regiment from Veterans UK, for which we are most obliged. It shows that the position is not as feared by the Appellant himself. Some of the elements of his pension will be unaltered by his reduction in rank (e.g. his ill health pension award and the pension scheme lump sum payable immediately on discharge). Two will be reduced, namely (i) a further, tiered lump sum award payable on discharge was reduced by £186; and (ii) his deferred pension (payable monthly from state pension age) will be reduced by £36 per annum. Those figures are not in dispute. 19. The grounds of appeal relied upon by Miss White have to be read in the light of this new material. Despite the vigour with which the submissions were made, we are unpersuaded by them. 20. The starting point is the relevant sentencing guidance. In relation to the services guidance, by section 259 of the Armed Forces Act 2006 , in sentencing, a court martial is required to take into account relevant Sentencing Council Guidelines, but, importantly, the court may depart from the guidelines “if in its opinion the departure is justified by any features of service life or of the service disciplinary system that are relevant to the case”. That is a reflection of the principle, set out in the Judge Advocate General’s Guidance of Sentencing in the Court Martial (“the JAG Guidance”) at paragraph 2.7, that “the Court Martial must take account of what is in the best interests of the Service because the whole Services justice system is designed to underpin the operational effectiveness of the Armed Forces”. 21. Thus, in relation to offences of violence, the same JAG Guidance, under the heading Service Policy Considerations, states (at paragraph 5.9.1) that: “Personnel in the Armed Forces are trained to exercise controlled and lawful violence towards the enemy. Unlawful violence displays a lack of discipline and can corrode unit cohesiveness and operational effectiveness, particularly when directed towards service colleagues. Deterrent sentences are often necessary particularly where violence is associated with excess alcohol. The entry points for more serious offences of violence are those provided in the [Sentencing Council] guidelines. Where the violence is directed at superiors, or is an abuse of rank or authority against junior personnel, the aggravation may justify heavier sentences than the [Sentencing Council] guidelines…”. That guidance was cited with approval by the Vice President, Hughes LJ (as he then was), in this court, in Birch [2010] EWCA 46 at [9]. 22. In respect of a sentence of reduction in rank – which is necessarily unique to the services – section 248 of the 2006 Act proscribes such a sentence by a court martial “unless it is of the opinion that the offence… was serious enough to warrant such a sentence.” 23. The JAG Guidance deals with reduction in rank in paragraph 3.6. Paragraph 3.6.1 notes the financial effect of such a sentence; but paragraph 3.6.2 goes on to say: “It would be wrong to consider this punishment in purely financial terms. A reduction in rank is mainly a reduction in responsibility and status which remains a visible indication of conviction, and may include changes in messing and accommodation arrangements. The important question is whether the offender by committing this offence has demonstrated that he is unfit to hold his present rank. Whether he is reduced to the ranks or allowed to retain some intermediate rank will depend on how seriously the court views his conduct, and on the mitigating factors.” Paragraph 3.6.5 makes clear that the court should be aware of the likelihood of the offender regaining rank, and the probable timescale. In that context, the Royal Artillery Soldier Wing Military Secretary Soldiers Combat Support: Soldier Instruction 4.1 states that: “Soldiers reduced to a lower rank due to discipline… will be eligible for substantive or acting promotion once they have an SJAR (over 6 months in rank) in the lower rank and a recommendation for promotion within this report. The individual filling all these criteria would attend the next promotion board.” 24. Given this guidance, looked at as a whole, we consider that Miss White’s focus upon the financial impact of the sentence upon the Appellant was misplaced. Whilst that impact is of course material, the focus must be on the question of whether the offender, by committing the offence(s), has demonstrated that he is unfit to hold his present rank. Indeed, we note from the transcript of the proceedings before the sentencing panel that Miss White – who also appeared for the Appellant there – made clear that he was not so concerned about the necessary financial implications of reduction in rank, but the importance of the rank to him. 25. From the full transcript, which we have seen, it is clear that the sentencing board clearly had that central question in mind, and Miss White addressed her submissions to the board to that very issue. She rightly accepted – and said that the Appellant well-appreciated – that that the most aggravating factor here was that he, as a senior non-commissioned officer, assaulted a subordinate of three ranks below, on two separate occasions. As we have described, that feature (including the risk posed to operational effectiveness) was, rightly, central in the Assistant Judge Advocate’s sentencing remarks. 26. Furthermore, whilst it is open to this court, extraordinarily, to consider on appeal post-sentencing matters, in this case there is no evidence that the Appellant’s subsequent discharge has had any unforeseen detrimental effect upon him, that we should take into account. 27. A sentence after conviction of an offence often has an adverse financial effect upon the perpetrator. The financial effect of the Appellant’s reduction in rank was something which the sentencing board no doubt had in mind; but, as seems to have been accepted by Miss White at that hearing, it was not a matter which warranted any substantial weight in the face of a finding that the Appellant was not fit to hold the rank of Sergeant. As the recent evidence shows, the Appellant’s discharge has not had had any substantial compounding effect on the reduction in rank; and clearly does not begin to approach the sorts of case in respect of which this court might consider intervening on grounds of mercy. 28. In our view, in sentencing the Appellant, it is clear that the sentencing board had in mind all of the relevant factors, and all that Miss White had put before it in mitigation. Whilst the board did not expressly say what sentence it would have imposed if the charges had been contested, it clearly had the basis of plea in mind and it expressly remarked that the sentence being imposed was “harsh on a guilty plea”. In our view, there is no proper basis for the contention that the board did not properly take into account the plea as mitigation. It clearly took into account the supportive reference from Capt Wright, to which it referred; it also expressly referred to the pre-sentence report. It took into account the Appellant’s military record, both before and after the offences. Furthermore, the board also had well in mind the absence of other factors that might have aggravated the offence, such as serious injury to Craftsman Reilly or that the Appellant went looking for him, the sentencing board making expressly clear that the second meeting was purely coincidental. 29. We do not accept the contention that there was no evidence that the Appellant was not fit to hold his rank. The sentencing board, rightly, considered the aggravating factors – notably that these were assaults in drink on a subordinate, where there was a significant disparity in rank – to be serious. Despite the reference of Capt Wright to which we have referred, it is noteworthy that the Appellant himself accepted that this was unacceptable behaviour from a senior non-commissioned officer. Further, we note that the author of the pre-sentence report said that the offences exhibited impulsive thinking and behaviour, the Appellant had at times minimised the seriousness of the offences, and that there was a low to medium risk of further conviction and a medium risk of him causing serious harm to someone. The report concluded that alcohol had been, if intermittent, a long-standing theme in his offending. The court was entitled to take all of this into account in considering the appropriate sentence. 30. We, like the court martial, consider that, for a man with the military record of the Appellant, the sentence imposed was severe. However, in our view, the sentencing board clearly approached the question of sentence in this case properly. It did not take into account any extraneous matters. It took into account all matters which it was required or entitled to take into account, giving weight to those factors as it considered fit. It was entitled to give the fact that these assaults were by a senior non-commissioned officer on a subordinate, in drink, considerable weight, for the reasons it gave. The sentence was not, in our view, outside the sentencing guidance, looked at as a whole and taking into account the service considerations. Nor do we consider the sentence out of kilter with other sentences imposed by military courts, to which we were referred. Those other cases were significantly different on their facts: for example, in Robinson [2014] EWCA Crim 1601 , upon which Miss White substantially relied, the assault was not upon a service man at all, but upon a taxi driver, so that the service considerations were different. We did not find the fact-specific cases to which we were referred of any significant assistance. 31. In all the circumstances, and given the deference that this court pays to sentences of the court martial – particularly in respect of those offences which are considered potentially detrimental to operational effectiveness – we cannot say that the sentence imposed was either manifestly excessive, or wrong in principle. 32. This appeal is dismissed.	{"ConvCourtName":["Bulford Military Court Centre"],"ConvictPleaDate":["2016-05-18"],"ConvictOffence":["Common assault contrary to section 39 of the Criminal Justice Act 1988 and section 42 of the Armed Forces Act 2006"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Bulford Military Court Centre"],"Sentence":["Reduction in rank by one rank, from Sergeant to Bombardier (the equivalent of Corporal)"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[32],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":["Medium risk of reoffending","Medium risk of harm"],"AggFactSent":["offence committed while in drink","assault by senior non-commissioned officer on subordinate","significant disparity in rank","previous convictions for common assault in drink"],"MitFactSent":["offender showed genuine remorse","offender apologetic","offender's exemplary service record","long period without offending","guilty plea at earliest opportunity"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["sentence manifestly excessive","mitigation not properly considered","sentence out of line with guidelines"],"SentGuideWhich":["Commanding Officers’ Guide to Sentencing","Sentencing Guideline Council’s guideline for common assault","Judge Advocate General’s Guidance of Sentencing in the Court Martial"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["sentence not manifestly excessive","sentencing board considered all relevant factors","sentence within guidance and not wrong in principle","service considerations justified sentence"]}
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. 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 661 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202301004/A2 Royal Courts of Justice Strand London WC2A 2LL Tuesday 23 May 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE JAY HIS HONOUR JUDGE BATE (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REX V LIAM HASLAM _______ 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) _______ THE SOLICITOR GENERAL and MS F ROBERTSON appeared on behalf of the Solicitor General. MR D OUTTERSIDE appeared on behalf of the Offender. ______ J U D G M E N T LORD JUSTICE DINGEMANS: Introduction 1. This is a hearing of an application by His Majesty's Solicitor General for leave to refer a sentence which the Solicitor General considers to be unduly lenient. The Reference raises issues about: first, whether the increase to the maximum sentence for the offence of causing death by dangerous driving from 14 years to life imprisonment, on 28 June 2022, as a result of the coming into force of the Police, Crime, Sentencing and Courts Act 2022 (" the 2022 Act "), should affect and increase the sentences for levels 2 and 3 offending, the levels being set out in the relevant Sentencing Council Guideline for causing death by dangerous driving; and secondly, whether the judge was right to categorise this as a high level 3 offence and not a level 2 offence. We grant leave for the Reference. 2. The relevant offence took place on Sunday 24 July 2022. The respondent, Liam Haslam, was born on 22 December 2002. He was, before these offences, of previous good character and Mr Haslam had passed his driving test on 13 October 2021, when he was aged 18 years and 9 months. He was aged 19 years and 7 months at the date of the offence. 3. On 24 February 2023, when Mr Haslam was aged 20 years and 2 months, he was sentenced in the Crown Court at Nottingham to 32 months' detention in a young offender institution for causing the death of Luke Worley by dangerous driving. At the time of the offence Mr Worley was Mr Haslam's best friend. A sentence of 14 months' imprisonment concurrent for causing serious injury to Lydia Wilson by dangerous driving was also imposed and at the time of the offence Ms Wilson was Mr Haslam's girlfriend. Mr Haslam was disqualified from driving for 5 years with an extension period of 16 months and a requirement to take an extended driving test. The victim surcharge of £228 was also imposed. 4. The Solicitor General and Ms Robertson, on behalf of the Solicitor General, submit that the judge should have increased the sentence to take account of the increase in the 2022 Act . The issue of an increase for level 1 offences was addressed by the Court of Appeal decision in R v Soto [2023] EWCA Crim 55 , decided on 26 January 2023. This case gives the Court an opportunity to address the situation for levels 2 and 3 offending. Further, they submit that the offending in this case was level 2, squarely within level 2, and that the judge was wrong to find that this was level 3 offending albeit towards the top end. The sentence was therefore unduly lenient. 5. Mr Outterside, on behalf of Mr Haslam, submits that this Court should leave the issue of any adjustment to the sentences for levels 2 and 3 to the Sentencing Council, which is reviewing the Guideline for causing death by dangerous driving, and we were told in the course of submissions that it is anticipated that the amended Guideline for causing death by dangerous driving will be published next month. It was further submitted that the fact that other judges might have imposed a higher sentence was irrelevant and the question was whether this was unduly lenient, and it was submitted that the sentence showed no gross error. The judge had provided thoughtful and well-structured remarks. We are very grateful to the Solicitor General, Ms Robertson and Mr Outterside and their respective legal teams for all of their assistance. The relevant circumstances 6. On 6 April 2022, which was some 5 months after Mr Haslam had passed his driving test, he was warned by his insurers that he had exceeded the speed limit, according to a black box fitted on his previous car. We were told in the course of submissions by both sides today, and accept, that that is triggered on any occasion where there is a breach of the speed limit, but no further details of the speeding are known. 7. On 30 April 2022, so some 6 months after he had passed his driving test, a black box was fitted to Mr Haslam's silver Fiat Punto motorcar which he had purchased earlier that month. On 1 July 2022, Mr Haslam was detected travelling at 62 miles per hour in a 50 mile per hour zone. A “Notice of Intended Prosecution” was sent on 11 July 2022 and returned by him on 15 August 2022. He later pleaded guilty on 11 January 2023, which was after the offending in this case took place. On 17 July 2022, some seven days before this accident, he received a further email warning that he had exceeded the speed limit according to the black box and that speeding can be dangerous. There were also messages and social media messages which show that Mr Haslam had abused cannabis in the weeks leading up to the offence. 8. On the day of the offence, data from the black box confirmed that Mr Haslam had collected Ms Wilson from her home address at 2.45 pm and then he had gone to collect Mr Worley from his home address shortly after 3.00 pm. They had gone to the Toby Carvery in Chaddesden shortly before 4.00 pm and stayed there until just after 5.00 pm. Over the course of the evening the group travelled to Mr Haslam's address, Mr Worley's address and a number of other unknown addresses. Mr Haslam was the driver of the vehicle at all times. It is apparent from CCTV footage, which we have seen, that there were wet conditions that night. 9. The black box recorded a crash trigger in Kilburn, a slight impact to the offside of the vehicle, and at that stage the vehicle was being driven at 85 kilometres per hour in a 48 kilometre an hour speed limit, ie 30-mile zone. Thereafter the vehicle stopped at an address in Kilburn before setting off again to Ilkeston. At 10.30 pm the black box registered hard acceleration and a high speed of 101 kilometres an hour in a 48 kilometre per hour zone on Stanton Road in Ilkeston. This was 3 seconds before the fatal collision. The black box registered a speed of 77 kilometres an hour at the time of the collision, indicating a strong impact to the offside of the vehicle. The collision occurred when it was dark and the road surface was wet. A witness saw the Fiat Punto driving in the opposite direction on the wrong side of the road before moving back onto the correct side. The witness believed that the driver was speeding and did not have control of the car. The witness' impression was that the driver had overcorrected himself as he moved to the correct side of the road, resulting in the front nearside wheel clipping the kerb and that explains the offside movement detected by the black box. The witness observed that the vehicle was airborne for a few moments, turned in the air before he thought it hit a tree, flipped over and landed on its roof on a strip of grass. 10. Another person heard the collision and went to assist. He observed the car on its roof with people trapped inside. Together with others he tried to open the driver's door without success. That witness borrowed a hammer from a neighbour to try and force open the passenger door. Emergency Services were called and arrived. The three occupants of the vehicle were rescued from the car. On being removed from the vehicle Mr Haslam appeared to be in shock commenting: "What have I done?" He appeared to be unable to recall what had happened. He co-operated with roadside tests. He passed a breath alcohol test, but a saliva drug test provided a positive result for the presence of cannabis. A blood sample was subsequently taken and that showed a reading of 2.2 micrograms of cannabis per litre of blood. The legal limit for those who have been prescribed cannabis as a medicine is 2 micrograms per litre. 11. All the occupants were taken to hospital for treatment. Mr Haslam was arrested at hospital following the death of Luke Worley who, despite medical intervention, was pronounced dead at 2.08 in the morning of 25 July. The cause of death was head and abdominal injuries. 12. Ms Wilson sustained multiple spinal fractures, two vertebrae in her neck and two vertebrae in her lower back. She underwent spinal surgery for the broken bones in her lower back. She was discharged from hospital on 1 August 2022, and she was required to wear a collar for 8 weeks and underwent subsequent medical consultations. In October 2022 it was noted that Ms Wilson reported that she had no pain and no issue with walking. Medical information suggested that Ms Wilson was likely to suffer long-term back pain and possibly neck pain in the future. 13. There were no material faults with the car. A forensic collision investigator concluded that Mr Haslam had accelerated to 49 mph in the area of Union Road and continued to do so as he descended Lower Stanton Road, reaching over 63 miles per hour (over twice the speed limit) on a wet road surface. As he begun to negotiate a nearside bend he encroached onto the opposite of the carriageway, then steered to the left to correct this but lost control of the vehicle, before striking the kerb and concrete post at a speed of 61 miles per hour. The car had rotated clockwise and begun to roll before striking a substantial tree with its rearward roof area. In summary, Mr Haslam had driven whilst impaired through consumption of cannabis, had been unable to follow the path of the road, and had lost control of the vehicle whilst attempting to negotiate a nearside bend and subsequently collided with a tree. That was the forensic collision report. The sentencing 14. Mr Haslam pleaded guilty at a pre-trial preliminary hearing. A pre-sentence report was obtained which noted that custody was inevitable and that the report writer had not been able to meet Mr Haslam. Mr Haslam was assessed as presenting a low risk to the public and reference was made to his guilt level eating away at him, and that Mr Haslam felt that he deserved a custodial sentence and wanted to try to feel that he could make up for his actions. 15. There were victim personal statements from Mr Worley’s mother who said she had not blamed Mr Haslam and did not feel bitter towards him. Ms Wilson provided a victim personal statement which catalogued her injuries and recovery, and which recorded that Mr Haslam was a loving, caring person who had helped her recovery. Both Mr Worley's mother and Ms Wilson said they did not want to see Mr Haslam imprisoned. 16. At the sentencing hearing the prosecution and defence submitted that this was a level 2 offence because there was a substantial risk of danger caused by greatly excessive speed and driving whilst impaired by drugs. That was a starting point of 5 years with a range of 4 to 7 years. The prosecution submitted that there were aggravating factors of serious injury to another victim and disregarding previous warnings about speed. There were mitigating factors of the victim being a close friend, Mr Haslam's youth and previous good character. 17. It was submitted on Mr Haslam's behalf that he should have full credit for his guilty pleas because the delay in entering them was caused only because his legal team had been concerned about his mental health. Privilege was waived in the file notes from the solicitors at the police station. There were character references showing that Mr Haslam had been loving and kind, caring and willing to help anyone. 18. The judge stated that Mr Haslam had held his licence for about 9 months and his car for about 3 months at the time of the fatal collision. He had received warning messages from his insurer on 6 April and 17 July, and he was aware on 24 July that he was being prosecuted for an offence of speeding. The collision had taken place when it was dark, the road conditions were wet and Mr Haslam had accelerated to 63 miles per hour in a 30-mile per hour limit. The vehicle had some defects, but it was unclear that these contributed to the crash. It was only by good fortune that no other vehicles and pedestrians were involved. 19. The judge noted that the maximum sentence for causing death by dangerous driving had recently gone up to life imprisonment but for less serious offences of dangerous driving, ie offences which were not level 1 the current Sentencing Guideline remained valid. 20. Although the prosecution and defence considered that the offence fell within level 2 on the Guidelines, the judge was of the view that that was too high and the offence was in fact a level 3 offence on the Guidelines, as it was short-lived driving at excessive speed that had caused a significant risk of danger. The significant risk of danger was the combination of speed and the road conditions. 21. The judge did not sentence on the basis that the cannabis was impairing Mr Haslam's driving but on the basis that he was prepared to take the dangerous risk of driving having consumed cannabis. In that sense, cannabis was still relevant. It was also relevant that Mr Haslam was prepared to drive passengers who did not wear seatbelts despite the obvious risk from failure to use them. They were Mr Haslam's passengers and therefore his responsibility. The judge took a starting point of 3 years' custody for level 3 but increased this to 4 years to take account of aggravating factors in the driving. The fact that there was a second victim who sustained serious injury was a serious aggravating factor. That offence would have attracted a sentence of 2½ years alone after trial before discounts for plea and mitigation. Having regard to totality and not simply aggregating the sentences for counts 1 and 2, the overall sentence would have been one of 5 years’ custody before considering mitigation and guilt pleas. The judge noted psychiatric reports and the pre-sentence reports and the mitigation was considerable. The good character, the hard working, the fact that the deceased was a close friend and that Ms Wilson was his partner. He had emerging post-traumatic stress disorder. He was an inexperienced driver, and he was aged 19 at the time. The judge accepted that Mr Haslam was very remorseful and would carry the guilt of this tragic event with him forever more. The judge said that custody sadly was inevitable to reflect the gravity of a crime in which a life was lost to punish and deter Mr Haslam and others. The sentence of 5 years was reduced to 48 months to reflect the mitigation. A final reduction was made to give full credit for the guilty plea giving 32 months or 2 years 8 months. The sentence on count 1 was therefore the 2 years 8 months and the sentence on count 2, as we have already indicated, was concurrent. Post hearing matters 22. A prison sentence report, produced for the purpose of this Reference, shows that Mr Haslam has engaged well with staff, his cellmate and other prisoners. He is completing a construction course and in-cell learning. He still gets upset when discussing the offence, saying that he feels guilty. He does not sleep well at night and is struggling with his mental health. Relevant provisions of law 23. Section 86(2) of the 2022 Act provided for an increase in the maximum sentence for causing death by dangerous driving from 14 years' imprisonment to life imprisonment. The explanatory notes for section 86 of the 2022 Act provide: "14 years’ imprisonment is the current maximum custodial penalty available for the offences of causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs. Increasing the maximum penalty to life imprisonment for these offences will provide the courts with enhanced powers to sentence appropriately for the most serious cases." 24. We note the wording "for the most serious cases". It is clear that every case of causing death by dangerous driving is serious because of the harm caused but the reference to “the most serious cases" suggests a reference to level 1 offences. 25. As was confirmed in Soto , at paragraph 4, sentencing courts have to take into account increases of sentences provided for by the legislature, see generally R v Richardson & Ors [2006] EWCA Crim 3186 ; [2007] 2 Cr App R(S) 36. The maximum sentence for the offence of causing death by dangerous driving was increased in the past from 5 to 10 years and then from 10 to 14 years before the latest increase from 14 years to life. It was the increase from 10 to 14 years which was addressed in Richardson . At that time the Court recorded that judges were required to take legislative changes into account when deciding the appropriate sentence in each individual case, or where guidance was being offered to sentencing courts. An issue in Richardson was whether the increase in sentence should affect the judicial guidance in only the most serious of offences. At the time Richardson was decided there were no Sentencing Council Guidelines for causing death by dangerous driving. The Court concluded at paragraph 13 that the primary object of that increase was to address the cases of the utmost gravity but that even, in other cases, there might be an increase in sentences immediately below the most serious of offences. 26. After Richardson and before the passing of the 2022 Act , the Sentencing Council produced a Guideline for causing death by dangerous driving, which was effective from 4 August 2008. The relevant Guideline for causing death by dangerous driving has three levels of offending. Level 1 is reserved for the most serious offences encompassing driving that involved a deliberate decision to ignore or a flagrant disregard for the rules of the road and an apparent disregard for the great danger being caused to others. Such offences were likely to be characterised by, among other things, a prolonged, persistent or deliberate course of very bad driving, providing a starting point of 8 years' custody and a range of 7 to 14 years' custody. 27. Level 2 concerns driving that created a substantial risk of danger. The Guideline states that such offences are likely to be characterised by greatly excessive speed, racing or competitive driving against another driver, gross avoidable distraction such as reading or composing text messages over a period of time, or driving whilst the ability to drive is impaired as a result of consumption of alcohol or drugs, failing to take prescribed medication or as a result of a known medical condition, or a group of determinate seriousness which, in isolation or small number, would place the offence in level 3. It provides a starting point of 5 years' custody and a range of 4 to 7 years. 28. Level 3 involves driving that created a significant risk of danger. The Guideline states that such offences are likely to be characterised by driving above the speed limit, at a speed that is inappropriate for prevailing conditions, or driving when knowingly deprived of sleep or rest, or knowing that the vehicle had a dangerous defect or was poorly maintained or dangerously loaded, or a brief but obvious danger from a seriously dangerous manoeuvre or driving whilst avoidably distracted or failing to have proper regard to vulnerable road users. That has a starting point of 3 years' custody and a range of 2 to 5 years' custody. 29. After the 2022 Act was brought into force, the effect on the level 1 offences was addressed in Soto and sentences were increased for level 1 offending. The Court also concluded that prior to consideration by the Sentencing Council of the effect of section 86(2) of the 2022 Act , sentences for lower levels of offending should not be increased, and it was not for the court to take account of the Sentencing Council's work on the new Guideline. No increase for levels 2 and 3 pending the new Guideline 30. We do not consider that this Court should increase the sentences for levels 2 and 3 offences from those set out in the Sentencing Council Guideline applicable at the time of sentence because of the enactment of the 2022 Act for a number of reasons. First, the increase in the maximum sentence for the 2022 Act was addressing the most serious of offences. Secondly, the increase to the maximum may have some effect on sentences below the most grave, as Richardson made clear was a possibility, but this is being addressed by the Sentencing Council, which is amending and consulting on amendment of its Guideline for causing death by dangerous driving. The Sentencing Act 2020 makes it clear that courts must follow any relevant guideline produced by the Sentencing Council, thereby giving it an important role in setting Sentencing Guidelines. Thirdly, this was the conclusion reached in Soto at paragraph 37, where it was said: “Prior to proper consideration by the Sentencing Council of the effect of Section 86(2) of the 2022 Act , sentences for the lower levels of offending should not be increased.” 31. The Solicitor General is right to point out this statement was obiter because there was no level 2 or 3 case before the court. This means that we are not bound by the dicta in Soto , but we can see no reason to take a different approach from the court in Soto , particularly where we understand that the Sentencing Council will produce its amended Guideline sometime next month. The correct level of offending 32. It is common ground that at the sentencing hearing the judge was not bound first, by the wishes of the victims of the offending, that Mr Haslam should not be imprisoned. This is because the purposes of sentencing are the punishment of offenders, the reduction of crime, including by deterrence, the reform and rehabilitation of offenders, the protection of the public and the making of reparation by offenders to persons affected by their offences. The wishes of the victims that Mr Haslam should not be imprisoned could not dictate the judge's sentence, any more than could Mr Haslam' professed desire to be sent to prison for his wrongdoing. Further, it is common ground that the judge was not bound by the agreement of the parties that this was level 2 offending. Clearly, any judge will give careful consideration to what the parties consider to be the correct level but the decision about level offending must be for the judge, subject to review by this Court. In this case the court found that this was level 3 offending albeit at a high level. In our judgment, the judge was wrong to categorise this as level 3 offending because it was, properly analysed, level 2 offending. This is because there was more than a significant risk of danger, there was a substantial risk of danger. The main problem was that Mr Haslam was driving above the speed limit, at twice the speed limit (being 61 miles per hour in a 30 mile per hour zone) on a wet road. This is greatly excessive speed. 33. In our judgment, there were no other features which, on its own, would have made this level 2 offending. Level 2 gives a starting point of 5 years' custody with a range of 4 to 7 years. There were the aggravating factors identified by the judge. These were ignoring previous warnings about the speed and the consumption of cannabis albeit without an effect on the accident. There were the serious injuries caused to Ms Wilson, which the judge said would have merited a sentence of 2½ years alone, but which he said to have regard for the purposes of totality would add 1 year. Although the Solicitor General submitted that that increase was insufficient, we do not agree. The judge had proper regard to totality and reflected the separate harm caused to Ms Wilson in the same criminal culpability and offending. 34. We can well see that the judge's sentence of 5 years, before discounting for mitigating and guilty pleas, was generous to Mr Haslam and could properly be described as lenient. We are, however, in the final event, not persuaded that the sentence was unduly lenient. This was because the judge had gone up in level 3 to 4 years before adding the further year to reflect the serious injury suffered by Ms Wilson. Any adjustment we might make to the sentence of 5 years, such as increasing it to 6 years before discounting for mitigation and plea, would be very close to making only minor amendments to the sentence, which is sometimes called "tinkering" by the appellate court. This Court will interfere with a sentence which is manifestly excessive but not with one which is only excessive, and similarly will interfere only with a sentence which is unduly lenient, and not just lenient. We consider, however, that this was a sentence which was lenient, but not unduly lenient. Conclusion 35. For all those reasons, having granted leave, we will dismiss the Reference. 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 Nottingham"],"ConvictPleaDate":["2023-01-11"],"ConvictOffence":["Causing death by dangerous driving","Causing serious injury by dangerous driving"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at pre-trial preliminary hearing"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Nottingham"],"Sentence":["32 months' detention in a young offender institution","14 months' imprisonment concurrent","Disqualified from driving for 5 years with an extension period of 16 months and a requirement to take an extended driving test","Victim surcharge of £228"],"SentServe":["Concurrent"],"WhatAncillary":["Disqualified from driving for 5 years with an extension period of 16 months and a requirement to take an extended driving test","Victim surcharge of £228"],"OffSex":["All Male"],"OffAgeOffence":[19],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Black box data","Witness testimony","Forensic collision report","Medical evidence","Drug test results"],"DefEvidTypeTrial":["Character references","Mitigation submissions","Psychiatric reports"],"PreSentReport":["Low risk of harm"],"AggFactSent":["Serious injury to another victim","Disregarding previous warnings about speed","Driving at greatly excessive speed","Driving after consumption of cannabis"],"MitFactSent":["Victim was a close friend","Offender's youth","Previous good character","Remorse","Emerging post-traumatic stress disorder","Inexperienced driver"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Judge should have increased the sentence to take account of the increase in the 2022 Act","Judge was wrong to find this was level 3 offending and not level 2"],"SentGuideWhich":["Sentencing Council Guideline for causing death by dangerous driving","Police, Crime, Sentencing and Courts Act 2022 section 86(2)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["Judge had proper regard to totality and reflected the separate harm caused to Ms Wilson in the same criminal culpability and offending","Sentence was lenient but not unduly lenient","Any adjustment would be minor and amount to 'tinkering'"],"ReasonDismiss":["Sentence was lenient but not unduly lenient","Judge's sentence was within the appropriate range","Court will only interfere if sentence is unduly lenient, not just lenient"]}
No: 200504875/A1 Neutral Citation Number: [2005] EWCA Crim 3429 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 25th November 2005 B E F O R E: MR JUSTICE GRAY MRS JUSTICE DOBBS DBE - - - - - - - R E G I N A -v- ANDREW STEPHAN - - - - - - - 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 L SELLICK appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. MRS JUSTICE DOBBS: On 18th July 2005 at the Truro Crown Court, this appellant pleaded guilty to ten counts of theft and was sentenced to 150 hours community punishment on each to run concurrently and made the subject of an Anti-social Behaviour order for 7 years. He was ordered to pay £1,000 towards the costs of the prosecution. The terms of the order were as follows: the appellant was forbidden from landing on or entering the Isles of Scilly; (ii) entering the curtilage of any dwelling house within the United Kingdom unless so invited in writing or verbally by a person authorised to give consent at that time. He appeals against sentence by leave of the Single Judge. 2. The facts are these. Prior to 2004 the appellant lived on the Isles of Scilly with his wife who ran a bed and breakfast. The appellant assisted. He lived in a bungalow. The bed and breakfast accommodation was in a loft conversion. The appellant had completed the loft conversion himself in 1999 and during the course of that had built a number of access hatches into the eaves so access could be gained to storage and the pipe work. 3. On 10th January 2004, after the appellant had separated from his wife, her new partner had a problem with the plumbing and went into the converted loft area. He removed some flooring to see if he could find the cause of the problem. He found items of women underwear, vibrators, some pornographic magazines and photographs of various friends of the appellant's wife. 4. Mrs Stephan looked at the photographs and recognised her friends. The police were then contacted. 5. Mrs Stephan's partner found other items of women's underwear, videos, personal photographs and more vibrators over the next week and these were handed over to the police. A number of ladies on the island heard about the discovery and they had to go to the police station to identity their own very personal items and the photographs. 6. The appellant was subsequently arrested. When interviewed he admitted stealing items of underwear from washing lines and using them as a sexual aid to masturbate. He said he was trying to get help and that he was deeply ashamed of his actions. 7. The appellant was born on 10th April 1963, making him 42 years of age. He was a man of previous good character. The pre-sentence report recommended a community penalty. It said because of his good character there was a low risk of re-offending, but concern was expressed due to the nature of his offending because his motivation and thinking underpinning the offending was not understood. He seemed unaware of the impact of his offending and he believed that the offences had been blown out of all proportion. This was not helpful to his understanding of the victims' issues. 8. In sentencing, the judge noted that these offences had taken place over a 4 to 5 year period, which is what made them serious. They were offences which would be particularly upsetting to those who owned the various items he had stolen. In some instances they must have been committed in breach of specific trust vested in him by the people who were prepared to admit him in his home. They were committed in breach of general trust in the Isles of Scilly, since it was a community where people did not have to lock their doors because they trusted everyone to behave in an honourable and decent way. He had eventually pleaded guilty, so would receive some credit for that, as it meant the complainants did not have to come to court to give evidence for a second time. He was a hard working man of good character and had been a considerate father to his elder child. 9. The first order that was flowers from his conviction was the anti-social behaviour order which would contain the conditions which we have already alluded to. The judge recognised the effect on this appellant of such an order would be considerable punishment. 10. The original grounds of appeal are that in the circumstances of the case the order banning the appellant from the Isles of Scilly for 7 years was too long. 11. Leave was granted by the Single Judge, on the basis that (a) the Full Court should consider, whether in the light of R v Boness [2005] EWCA Crim 2395 an order should have been made against a man with the appellant's good character and (b) if appropriate, whether it is too wide and too long. Counsel for the appellant now adopts those grounds. He argues today before us that it was not necessary to impose such an order in this case, due to the appellant's age and his hitherto good character, saying that the deterrent factor of any further thefts of underwear in such a small community, inevitably leading to his arrest was sufficient. Relying further on Boness , he submits that the order had been imposed by way of punishment, when clearly on the authorities it is not to be used in that way. The purpose of the order, it was said, was to prevent the appellant from committing further thefts in the Isles of Scilly and anywhere else in the United Kingdom. Given that this is the only behaviour complained of and the maximum sentence for theft is 7 years, then it is difficult to see what further deterrent an ASBO can have over and above the theft. 12. We do not accept all the submissions made in the light of the particular facts of this case. In our view, the making of an order was right in principle. We will come to the question of detail later. 13. We deal with the facts, set against the principles one has to have in mind for the making of such an order, those principles being derived from the many authorities which now exist on the subject. First of all, there is clear evidence that the appellant acted in an anti-social way. Secondly, that his course of conduct had, without doubt, caused alarm and distress to those women in that small community. Thirdly, given the appellant had not clearly not yet fully got to the root of his behaviour, the imposition of the ASBO was necessary for the protection of those persons from any further anti-social behaviour on his part. The underlying cause for the behaviour of that kind, without some kind of intervention, is not necessarily deterred by the fact of detection and prosecution, nor does the question of good character assist this aspect. 14. We note in the pre-sentence report that the appellant is unable to accept the possible motivation for these offences, nor understand the impact of his offending on the victims. Rather, he has sought to minimise and justify his actions and indicates that he thinks things have been blown out of all proportion. Whilst his motivation and thinking underpinning his behaviour is little understood, there continues to be concern about his re-offending. Moreover, the behaviour to be prevented is not only theft of woman's intimate clothing or possessions but also inappropriate behaviour towards women not necessarily amounting to an offence. It is to be noted that the appellant himself admitted to the probation officer that, in relation to one of the victims, he found her to be a sympathetic listener when he shared with her some of his marital problems he was experiencing. He conceded that the underwear might have been taken to bring him closer to her. The order also has the added benefit of protecting those women in the Isles of Scilly from the distress and alarm of seeing the appellant and re-living the effect of his anti-social behaviour, namely the deep embarrassment and invasion of privacy that each woman must have felt. The aim of the order therefore is not simply a matter of preventing the commission of a particular criminal offence. 15. The real questions, in our judgment therefore, are the questions of the scope and lengths of the orders. Orders of this kind have to be proportionate, that is commensurate to the risk to be guarded against. The appellant was given a community punishment order rather than a community rehabilitation order. Thus there has been no mandatory treatment or therapy programme that he has been subjected to. Time must be given therefore to allow the appellant to address and manage his problem, whilst at the same time protecting certain members of the public from him. 16. In relation to scope, we remind ourselves of the observations made by Hooper LJ in the case of Boness at paragraph 47 in which he refers to the question of policing. This is pertinent to the second half of the order which restricts entry to any curtilage of any dwelling-house in the United Kingdom without permission. The scope of this clause is very wide. It is impracticable to police. There is not the added concern of the women in that small community on the Isles of Scilly to consider. It seems to us therefore that the scope of the second clause is too wide and should be deleted. 17. We turn to the question of length. The appellant still has family on the island. Access to his children is restricted in any event in the light of his separation from his wife. It seems that access now takes place on the mainland, where the appellant works. In our judgment, the period of 7 years was too long. The judge spoke of the effect of it as being punishment which it should not be. 18. Doing the best we can, we think an appropriate period of restraint would be one of 2 years. That is, bearing in mind the fact that this appellant has already been off the island for a period approaching 2 years in any event. 19. The second clause in the order will be deleted and the period of restraint from landing or entering the Isles of Scilly will be reduced to one of 2 years. To that extent, this appeal is allowed.	{"ConvCourtName":["Truro Crown Court"],"ConvictPleaDate":["2005-07-18"],"ConvictOffence":["Theft"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Truro Crown Court"],"Sentence":["150 hours community punishment on each of ten counts to run concurrently","Anti-social Behaviour Order for 7 years","£1,000 costs order"],"SentServe":["Concurrent"],"WhatAncillary":["Anti-social Behaviour Order (ASBO) for 7 years (reduced to 2 years on appeal)","Ordered to pay £1,000 towards prosecution costs"],"OffSex":["All Male"],"OffAgeOffence":[42],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":[],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Offences committed over a 4 to 5 year period","Breach of specific trust","Breach of general trust in a small community"],"MitFactSent":["Offender of previous good character","Offender pleaded guilty","Hard working man","Considerate father"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["Order banning appellant from Isles of Scilly for 7 years was too long","Order was too wide","Order should not have been made against a man of good character","Order imposed by way of punishment, not prevention"],"SentGuideWhich":["R v Boness [2005] EWCA Crim 2395"],"AppealOutcome":["Allowed in part"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Scope of the order was too wide","Length of the order (7 years) was too long and amounted to punishment"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
No: 201702367 A1 Neutral Citation Number: [2018] EWCA Crim 1068 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 3 May 2018 B e f o r e : LORD JUSTICE FLAUX MR JUSTICE JEREMY BAKER THE RECORDER OF CARDIFF (HER HONOUR JUDGE REES) - - - - - - - - - - - - - - - - - - R E G I N A v KIERAN CALLAGHAN - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - MR FADI DAOUD (a solicitor advocate) appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity ( Sexual Offences (Amendment) Act 1992 ), or where an order has been made in relation to a young person. 1. MR JUSTICE JEREMY BAKER: On 27th April 2017 Kieran Callaghan, who is 22 years of age, having pleaded guilty on an earlier occasion, was sentenced at Harrow Crown Court to two-and-a-half years' imprisonment in respect of an offence of being concerned in supplying a controlled drug of Class A, cocaine, to another and five years' imprisonment in relation to an offence of possession of a disguised firearm, contrary to section 5 (1A)(a) of the Firearms Act 1968 . The two periods were ordered to run concurrently with each other, making a total of five years' imprisonment. 2. Kieran Callaghan applies for an extension of time – approximately 383 days - in which to renew his application for permission to appeal against sentence following refusal by the single judge. 3. On 7th October 2016 police officers attended the applicant's home address in order to execute a search warrant. During the course of this search, they found three large wraps with cocaine residue inside together with a viable taser device (disguised as an Iphone) in his bedside drawers. He was arrested and taken to the police station. 4. In subsequent police interviews, the applicant admitted selling cocaine. However, he stated that he had a cocaine habit and that his sales were limited to his friends in order to finance his own usage. 5. In relation to the disguised taser, the applicant stated that he had purchased this approximately four months previously, when he was approached by a number of males outside a bookmakers and they sold it to him for £40. He stated that he had purchased it because of a previous incident when he was sprayed in the face with pepper by someone from whom he had been purchasing cocaine on tick. The applicant stated that he was fearful that he might be attacked in his own home by those who supplied drugs to him and he needed the taser in order to defend himself. 6. At the time of having committed these offences, the applicant was 20 years of age and had no previous convictions. 7. The applicant had submitted a written basis of plea in the following terms: "1. I rely on my interview account and the phone download analysed by the Crown. I was not selling Class A drugs for profit but was instead supplying to friends and acquaintances in order to fund my own drug addiction as is demonstrated by the messages on my phone. 2. I was not aware that the taser was a prohibited weapon." 8. The basis of plea was not accepted by the Crown and a Newton hearing was conducted by the sentencing judge, during which the applicant gave evidence. In the course of his evidence the applicant stated that, as a result of his involvement with purchasing cocaine, he had got himself into debt to the tune of around £800 or £900 and had been unable to pay it. As a result, he had received death threats. It was in these circumstances that he had decided to purchase the disguised taser. He admitted that he had tested it on one occasion on himself and that it worked. He was proposing to use it to frighten those who had threatened him if the need arose in order to defend himself in his own home. He admitted that he had the disguised taser for his own protection in relation to his drug activities but had had no idea that it was a weapon. 9. In the course of his sentencing remarks the judge, when dealing with the drugs offence, stated: "I will accept that there was a significant degree of supplying to fund your own use, but it does not end there, as the statement of the police officer Mr Jones at page 18 shows. Overall, I take the view that the drugs offending falls into Category 3, street dealing, but very much at the lower end, where the starting point would be in the order of three-and-a-half years' imprisonment." 10. 11. In relation to prohibited weapon, the judge went on to state: "The disguised taser is more serious. This is a weapon where I am required to pass a prescribed minimum custodial sentence of five years' imprisonment, unless I find exceptional circumstances for not doing so. By reference to your interview and what I have heard from you today, this was a weapon that you knew to be disguised and offensive and designed, specifically, for causing harm or incapacity. Bought by you, I am entitled to infer, for use in connection with your illicit drug activity. It was bought in circumstances from unknown males, or maybe one who was known, outside a bookmaker. You knew what it was. You knew what it was for and you were prepared to use it, I find, although I accept there is no evidence of it being used. In those circumstances, it is inconceivable, in my view, that you did not know that it was prohibited. This is a very sad case indeed. You are of good character. You have a supportive family. You have pleaded guilty at what I will accept is the earliest opportunity. I accept your remorse and I have read some very impressive references that have been provided. But, in accordance with the law, I find that there are no exceptional circumstances here for not imposing the minimum sentence." 12. In the original grounds of appeal which were considered by the single judge it was argued by counsel who had acted for him at the plea and sentencing hearings that the judge had been wrong to conclude that there were no exceptional circumstances and that the judge did not appear to have considered whether there were exceptional circumstances arising from the applicant's personal circumstances. It was submitted that, as a result, the imposition of the minimum term was both arbitrary and disproportionate, and therefore manifestly excessive. 13. However, since then, the applicant has instructed new lawyers; and Mr Daoud, who appears before us this morning, has drafted a written note of appeal in which it is submitted that the principal basis of the application is based upon fresh evidence provided by a consultant clinical psychologist, Dr Marriott, in a report dated 23rd October 2017. Dr Marriott states that the applicant's cognitive abilities fell between the extremely low to low/average abilities and that as a result: "His cognitive abilities are significantly impaired and it is possible that he did not understand that the taser that he had bought was dangerous and classed as a firearm." 14. It is now sought to be argued on the applicant's behalf that, had the judge been aware of this matter, he would have found that exceptional circumstances existed. It is also sought to be argued that, having failed to appreciate that the applicant suffered from cognitive difficulties, the conduct of a Newton hearing was unfair, and in any event the judge's findings as to the nature and extent of the drug supplied was not supported by the evidence. 15. The type of situation in which new grounds are sought to be relied upon following the single judge's refusal of the original grounds has been the subject of guidance by the Vice President in James & Others [2018] EWCA Crim 285 , namely that an application to vary the grounds is required and that the determination of that application will include consideration of both the merits of those grounds and the explanation for any delay. Moreover, in the present case, as fresh evidence is sought to be relied upon, section 23 of the Criminal Appeal Act 1968 will also be required to be considered, which will in itself require consideration as to whether there is a reasonable explanation for the failure to adduce the evidence in the original proceedings and whether it appears to the court that the evidence may afford any ground for allowing the appeal. 16. Although it is submitted by Mr Daoud that he does not seek to criticise the applicant's previous legal team for not having provided the sentencing court with a report from the clinical psychologist, in truth there is no other explanation provided by him; and we note that, bearing in mind the requirements in McCook , there has been no waiver of privilege nor any steps taken to seek an explanation for this omission from the lawyers originally instructed on behalf of the applicant. Moreover, despite the report being drafted on 23rd October 2017, it was not provided to this court until 23rd February of this year, and Mr Daoud's note on appeal was not provided until yesterday. However, despite the unexplained delays in the case, we will consider whether there is any merit in the grounds of appeal as a whole, including those contained in the recent note on appeal. 17. In so far as the judge's determination as to the nature and extent of the applicant's drug supplying is concerned, this was not only based upon what was found at the applicant's home but in particular upon the evidence of Police Sergeant Jones who analysed the applicant's mobile phone. His evidence was to the effect: "It is apparent that the user PAG/1 is involved in the supply of cocaine. He agrees to supply several individuals here, or chases money he is owed by individuals he has supplied. In one message he boasts of being a cocaine supplier, and in others he refers to making himself available to meet drug buyers any time day or night. When amounts are discussed, they are lower amounts of a single gram or less. When monies are mentioned, they are lower amounts - and even when the user references all the monies he is owed, the total is fairly low at £700. It is apparent that this person is also using the drugs, and is likely funding their own habit through the enterprise. The user certainly seems desperate for money judging by the amount of effort he puts into collecting monies owed to him." 18. 19. In our judgment that evidence taken together with what was found at the applicant's home amply justified the judge's determination under the guidelines that the applicant played a significant role in Category 3 street dealing of Class A drugs, albeit at the lower end of the category range of between three-and-a-half and seven years' custody; and that, whilst the applicant may have sought to provide funds to feed his own drug habit from the profits he made by his drug supplying, this was not the type of joint purchase or sharing of minimal quantities which would have supported a finding that he played only a lesser role under the guidelines. 20. Furthermore, having read the transcript of the Newton hearing, it is apparent that the applicant was enabled to give such evidence as he chose to provide to the court, both on the subject of the nature and extent of his drug dealing and in relation to his possession of the disguised taser, such that no arguable unfairness arose from the judge not being in possession of the report of the clinical psychologist. 21. In relation to the issue of whether 'exceptional circumstances' exist for the purposes of section 51 A(2) of the Firearms Act 1968 , this court has issued guidance in Rehman & Wood [2005] EWCA Crim 2056 , which has been considered and followed in more recent cases, including, most recently, Tuka [2017] EWCA Crim 2210 . 22. It is clear that, when considering whether exceptional circumstances arise from the circumstances of such an offence, it is first of all necessary for the court to consider the four firearms related questions which are set out in Avis [1998] 1 Cr App R (S) 420 : firstly, what sort of weapon is involved; secondly, what use has been made of it; thirdly, with what intention was the applicant in possession of the weapon; and fourthly, what is the applicant's criminal record. 23. In the present case, despite the fact that three of the answers to the Avis questions are favourable towards the applicant's position - namely, the type of weapon involved, the use that the applicant had made of the weapon to date and his lack of criminal antecedents - nevertheless the judge went on to find that the applicant had the weapon in his possession with the express intention of using it in the course of his illegal drug trade in the event that those supplying him with Class A drugs sought to extract retribution from him for failing to pay his drug-related debts. In our judgment this was a particularly significant finding - indeed one that was admitted by the applicant - and was one which, in our view, entitled the judge to find that there were no exceptional circumstances arising from the circumstances of the offence. 24. Furthermore, although it is possible that the judge's determination that the applicant knew that the taser was a prohibited weapon may have been affected by the opinions expressed by Dr Marriott's report, this was but one factor, and there is nothing in her report which would have affected the judge's far more significant finding that the applicant had the taser in his possession with the express intention of using it in the course of his illegal drug trade. 25. Undoubtedly the court is enjoined to take a holistic view as to the existence of otherwise exceptional circumstances and to take into account the accused's personal circumstances. However, in the present case, not only do we consider that none of his personal circumstances which were considered by the judge (including his lack of previous convictions, the existence of a more positive side to the applicant's character as disclosed in various character references and his post-offending engagement with a drugs awareness agency) are sufficiently exceptional to justify the non-imposition of the minimum sentence in this case. Moreover, there is nothing in the more recent report from Dr Marriott to persuade us that exceptional circumstances exist in this case. 26. In any event, we are satisfied that this conclusion does not result in the imposition of a sentence that is either arbitrary or disproportionate, in that, even if we had been minded to consider that exceptional circumstances existed in this case, the sentence in relation to the disguised firearm would have still been in the region of two-and-a-half to three years, which would have been ordered to run consecutively to the sentence of two-and-a-half years' imprisonment in relation to the applicant's drugs supply. In these circumstances the resulting sentence which would have been imposed upon the applicant would still have been in the region of five years' imprisonment. 27. In the circumstances, as there is no merit either in the grounds originally considered by the single judge nor those in the note on appeal, not only do we refuse the application for an extension of time for which there is no satisfactory explanation, but we also refuse the application to amend the grounds of appeal and the application to rely upon fresh evidence. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 28. Email: [email protected]	{"ConvCourtName":["Harrow Crown Court"],"ConvictPleaDate":[""],"ConvictOffence":["Being concerned in supplying a controlled drug of Class A, cocaine, to another","Possession of a disguised firearm"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":["earliest opportunity"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Harrow Crown Court"],"Sentence":["two-and-a-half years' imprisonment (supply of cocaine)","five years' imprisonment (possession of disguised firearm)"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[20],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Has learning difficulties"],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Police testimony","Phone download analysis","Physical evidence (cocaine residue, disguised taser)"],"DefEvidTypeTrial":["Defendant's testimony","Written basis of plea","Expert report/testimony (clinical psychologist)"],"PreSentReport":[],"AggFactSent":["Possession of disguised firearm in connection with illegal drug activity"],"MitFactSent":["No previous convictions","Supportive family","Genuine remorse","Impressive character references","Pleaded guilty at earliest opportunity","Cognitive difficulties"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge was wrong to conclude there were no exceptional circumstances","Judge did not consider exceptional circumstances arising from applicant's personal circumstances","Imposition of minimum term was arbitrary and disproportionate","Fresh evidence of cognitive impairment","Unfairness in Newton hearing due to cognitive difficulties","Judge's findings as to nature and extent of drug supplied not supported by evidence"],"SentGuideWhich":["section 5(1A)(a) of the Firearms Act 1968","section 51A(2) of the Firearms Act 1968"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["None of the applicant's personal circumstances were sufficiently exceptional to justify non-imposition of the minimum sentence","Nothing in the clinical psychologist's report to persuade the court that exceptional circumstances exist","Judge's finding that applicant had the taser for use in illegal drug trade was significant and justified the sentence"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["No merit in the grounds of appeal","No satisfactory explanation for delay","Judge's findings justified under the guidelines","No arguable unfairness from lack of psychologist's report at Newton hearing"]}
Case No: 200603873 A3; 200604935 A3; 200606195 A3; 200604385 A3 Neutral Citation Number: [2007] EWCA Crim 876 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 23 March 2007 B E F O R E: LORD JUSTICE KEENE MR JUSTICE OWEN MR JUSTICE WALKER - - - - - - - R E G I N A -v- RICHARD SALTMARSH JOHN MARK RICHARDSON ANTON VASINORAS - - - - - - - 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 D ROBSON QC AND MR J LENNON appeared on behalf of the SALTMARSH MR T SINGH appeared on behalf of RICHARDSON MR G WOODHALL appeared on behalf of the PROSECUTION - - - - - - - J U D G M E N T 1. MR JUSTICE OWEN: We propose first to consider the renewed applications for leave by Richard Saltmarsh and Anton Vasinoras in relation to indictment T20067171, the Manchester firearms indictment; then secondly, to consider the renewed application for leave by Richard Saltmarsh and the appeal by John Richardson in relation to the drugs indictment, indictment T20057304. 2. On 27th April 2006 the applicant, Anton Vasinoras, appeared at the Crown Court at Manchester, where he pleaded guilty to two counts of an indictment - count 1, conspiracy to contravene section 170 of the Customs and Excise Management Act 1979 ; and count 2 - conspiracy to present firearms with intent to enable another person or persons unknown to endanger life. On 7th July 2006 the applicant, Richard Saltmarsh, was convicted on the same counts and was sentenced to 20 years' imprisonment on count 2, there being no separate penalty imposed on count 1. On 28th July Vasinoras was sentenced to 14 years' imprisonment on count 2, no separate penalty being imposed on count 1. In his case there was a direction that 360 days spent on remand should count towards the sentence. 3. Both renew their applications for leave to appeal against sentence following refusal by the single judge. 4. The applicants were jointly indicted with four others - Marius Renke, who pleaded guilty on re-arraignment after the jury had been sworn, on count 1 and count 2, and was sentenced to 18 years' imprisonment; James Parker, who pleaded guilty to both counts and was sentenced to 13½ years' imprisonment; Dawson Wray, likewise, pleaded guilty to the two counts and was sentenced to 11½ years' imprisonment. A fourth man, Robertas Bauzys, was acquitted by the jury. 5. The conspiracy involved the importation of 30 9 mm self-loading pistols and 1220 rounds of live ammunition. The guns and ammunition were imported from Lithuania. The pistols were Kuno Meltcher guns of German manufacture. They were designed for blank firing and would normally have had choke barrels. But the barrels had been cut off and replaced with steel tubes with external screw threads at their ends. Silencers had been fabricated to fit the steel tubes. The magazines had been adapted to fire live ammunition. 6. The handguns were concealed in a secret compartment of a specially adapted Volvo motor vehicle which was driven across Europe and entered the United Kingdom by ferry. The man who drove the vehicle was Bauzys, who was acquitted by the jury. The car was originally from Belgium but had been modified and welded together with parts from an English market right-hand drive Volvo. The floor had been raised and the secret compartment welded beneath it. It was in this compartment that the firearms and ammunition were hidden. 7. The car arrived at Harwich on 2nd August 2005. On the same day Vasinoras and Renka flew into Gatwick from Lithuania. They made their way by train to Coventry where they were met by Parker. The car also made its way to Coventry where there was a rendezvous. The four men then made their way to Manchester, travelling in convoy in two cars, one being the Volvo containing the firearms and ammunition. They drove to the home of the co-defendant, Wray. They were then under police observation, and attempts to recover the guns from the compartment in the vehicle were observed. 8. It was on that day that a number of the defendants were arrested. But it was the analysis of mobile telephones recovered by the police that led the police to Richard Saltmarsh, who was in regular contact with Graham Parker at very significant times whilst these events were unfolding. 9. It was the Crown's case that Richard Saltmarsh was at the head of the conspiracy and was its controlling mind, whilst keeping himself distant from the importation and subsequent onward distribution of the firearms. 10. In passing sentence on Saltmarsh on 7th July, and on Wray, Parker, Renke and Vaisnoras an 28th July, HHJ Lever summarised the expert evidence as to the modification of the firearms and the construction of the false floor in the Volvo, observing that it involved a considerable amount of planning. He continued: "This method of concealment and importation of firearms has not been seen in the UK before. The 30 guns and silencers and 1,220 rounds of live ammunition, make this one of the largest single seizures of firearms ever imported into the United Kingdom. If successful, the impact on gun crime in Greater Manchester would have been potentially enormous. From January 2004 to March 2006 there were in Greater Manchester 1,378 crimes in which firearms were used. 759 or 55% definitely involved handguns, with a further 504 where the exact nature of the weapon was unknown, so it may have been higher. There are 125 firearms forensically identified as outstanding. An extra 30 guns in this case represents a 24% increase on the streets of Greater Manchester which would potentially represent an enormous escalation of the threat, particularly having regard to the large amount of accompanying live ammunition. Of those 125 outstanding firearms, 25 have been discharged on 79 occasions, and 20 used in murders or attempted murders. Ammunition, particularly factory made, is scarce in Greater Manchester, so 1,220 additional rounds would have presented a significant danger to the community. Since April 2003, 128 people have been killed or injured by firearm discharge in Greater Manchester. Handguns are more popular because they are easier to conceal than shotguns, and are a status symbol amongst young gangsters. Because these 30 guns can fire at least five rounds from the magazine without a need to reload, they are significantly more of a threat than single shot firearms. Gun crime is by its nature chaotic and unpredictable, and in Greater Manchester innocent people have been murdered or injured in the cross-fire in recent years. These crimes lead to a severe fear factor in the community. If these guns and ammunition had reached local gangsters, it would greatly have impacted on the community as a whole." Those are observations that we strongly endorse. 11. As to the roles of the conspirators the learned judge, having heard the evidence at the trial of Richard Saltmarsh, was satisfied that he was a prime mover. When sentenced he was a man of 27 with a record of minor offending. 12. As to Vasinoras, it was the Crown's case that he was the interpreter, the key contact between the English end of the conspiracy and the Lithuanian end. He had flown to the United Kingdom with Renke and it was he who was revealed by the text messaging to have been involved in negotiating a price for the firearms. 13. Renka pleaded guilty at the late stage of his trial having already given evidence. In passing sentence on him, the learned judge observed that his evidence had been a pack of lies from start to finish, and that it was an aggravating feature of the case that he had attempted to offload responsibility on to Bauzys, who was acquitted by the jury. The learned judge concluded that he, Renka, was "nothing short of a young Lithuanian international gangster." 14. Wray, a man of 31 years, was the Manchester end of the conspiracy. Parker was a close friend of Saltmarsh and a mere neighbour in Coventry. The judge was satisfied that he was Saltmarsh's right-hand man at the Coventry end of the conspiracy. Both, he concluded, were highly involved. 15. Richard Saltmarsh now seeks permission to appeal on the basis that that the learned judge erred in taking a term of 20 years as his starting point, and in his case his end point. Vasinoras also contends that the starting point of 20 years was out of line with recent authority and was too high. The supplementary point advanced on his behalf is that his was a lesser role than that of Saltmarsh, and that the lesser degree of culpability ought to have been reflected in the sentences passed upon him. 16. In support of the principal submission, our attention was invited to the decision of this court in Attorney-General's Reference Nos 120 and 121 of 2004 [2006] 1 Cr App R (S) 7 at 44. In that case the offenders had pleaded guilty to conspiring to manufacturer prohibited weapons, conspiring to sell or transfer prohibited weapons and conspiring to possess firearms with intent to enable others to cause fear of violence. Over a period of 10 months the offenders obtained large quantities of blank firing handguns and corresponding blank ammunition. The offenders converted the weapons and ammunition into effective lethal prohibited weapons capable of firing ammunition. The adapted firearms and ammunition were then sold direct to interested parties. It was estimated that about 150 weapons were sold in this way. 17. The defendants had been sentenced to six years' imprisonment concurrently on each count; and the Attorney-General asked the court to review the sentences on the grounds they were unduly lenient. This court considered that the appropriate starting point for such criminality would be a total of about 15 years. From that starting point there would be a reduction to 9 years allowing for the full discount promised to the offenders, and a period to allow for double jeopardy inherent in a reference. The court therefore reduced the total sentences to 9 years imprisonment. 18. In passing sentence on these applicants HHJ Lever took express account of that decision, but rightly, in our judgment, drew attention to the important distinguishing feature, namely, that the maximum sentence for each of the conspiracies to which those offenders pleaded guilty was 10 years; whereas in this case the maximum sentence for the offence of possession of a firearm with intent to enable others to endanger life contrary to section 16 of the Firearms Act 1968 (as amended) is life imprisonment, and accordingly the conspiracy to which Vasinoras pleaded and Saltmarsh was convicted also carries a maximum term of life imprisonment (see section 3 of the Criminal Law Act 1977) . 19. In our judgment, the element of intent raises the offence into a significantly more serious category. We consider that the learned judge was fully justified in taking a term of 20 years as a starting point. We take account in the case of Saltmarsh that he had not hitherto been sentenced to a custodial term, and of his relatively young age. But we have to take full account of the horrific consequences of putting guns of this sort into circulation; consequences that are all too apparent from recent killings in London and in Manchester. In our judgment, there is no basis for arguing that the starting point, and in the case of Saltmarsh the end point, of 20 years was manifestly excessive. 20. As to the supplementary point advanced on behalf of Vasinoras in his written application, the learned judge noted that he had pleaded guilty at the first available opportunity, but that he had put in a "false, lying and untrue basis of plea." The learned judge continued: "The evidence I heard during the trial made it clear to me that the basis was not in accordance with the evidence, and I offered you a Newton hearing, and you very wisely did not pursue that Newton hearing, otherwise would you have lost even more credit, but you promptly abandoned the false and untrue basis, and in the circumstances you too will not receive 30% but a 25% discount." He continued, however, that a strict mathematical calculation of the sentence would therefore lead to one of 15 years, but, "I do justice as instinct tells me, having the total feel of the whole case, and in your case the appropriate sentence is one of 14 years imprisonment." In our judgment, that the further reduction reflected an acknowledgment that whilst Vasinoras was an essential link in the conspiracy his was a somewhat lesser role than that of Saltmarsh and Renka, warranting the further discount of one year. In our judgment that approach cannot be faulted. In those circumstances, we are not persuaded in his case that there is any arguable basis for the contention that the sentence was manifestly excessive. 21. Before giving our decision in relation to those applications, it is appropriate to turn to the second indictment. 22. On 23rd January 2006 Richard Saltmarsh appeared at the Crown Court at Coventry and pleaded guilty to an offence of conspiracy to supply a Class A drug. I note that in the course of his trial on the firearms offences the applicant, Saltmarsh, had given evidence in terms that he was a drug-dealer on a substantial scale. On 1st August 2006 John Richardson pleaded guilty to the same offence and on 1st September was sentenced to six years' imprisonment, the 161 days spent on remand to count towards his sentence. On 3rd November Richard Saltmarsh appeared at the Crown Court at Manchester before HHJ Lever who had sentenced him to the term of 20 years' imprisonment on 7th July. He then sentenced Saltmarsh to six years' imprisonment to be served consecutive to the term of 20 years. Richardson appeals against sentence with the leave of the single judge. In the case of Saltmarsh, his application was referred to the full court by the Registrar. 23. Saltmarsh and Richardson were indicted for conspiracy with a number of others, two of whom were convicted: Thomas Maloney on a plea of guilty, and his brother, Quintin Maloney by a verdict of a jury. Thomas Maloney was sentenced with Saltmarsh at the Manchester Crown Court on 3rd November. He received a sentence of 8 years, less 388 days served on remand. Quintin Maloney was sentenced with Richardson on 1st September at the Crown Court at Warrick and, like Richardson, received a sentence of 6 years less 153 days spent on remand. 24. Before addressing the grounds advanced on behalf of Saltmarsh and Richardson, it is necessary shortly to consider the roles played by both them and their co-defendants. Thomas Maloney and Richard Saltmarsh were the principal parties to the conspiracy which involved the preparation of large quantities of Class A drugs for retail distribution. The evidence against them related to a period of four months during which they operated as suppliers of Class A drug with the street value of the order of £160,000. Richardson and Quintin Maloney played a lesser role, succinctly summarised by HHJ Coates when passing sentence upon them: "John Richardson and Quintin Maloney, during the period covered by the indictment you both helped the principal characters in this saga - Thomas Maloney and Richard Saltmarsh - in the conspiracy to prepare vast quantities of Class A drugs for retail distribution. I am quite satisfied that you were both involved because you could provide safe houses in the sense they were not addresses that the police were going to be automatically interested in and you were not people they were going to be automatically interested in. You were of good character. Your job, Quintin Maloney, was to allow your garage to be used for the storage of these drugs, the garage to which Thomas Maloney had access, and certainly on the night that I heard about I have to conclude that you delivered the drugs to Richardson's address. Your part, Richardson, on the evidence, was to allow those drugs to be cut and prepared for retail distribution in your kitchen; it happened on more than one occasion during the period covered by the indictment. You both participated in this conspiracy with your eyes wide open, you both knew the risks you were taking; you both knew the consequences that would result if you were detected. I have made it quite clear and I make it clear again that you were not as involved as Thomas Maloney and Richard Saltmarsh; it was, in my judgment, having heard the evidence, entirely their enterprise, but they were people in respect of whom the police may well have had interests." 25. In support of his submission that the sentence imposed upon Richardson was manifestly excessive, Mr Singh essentially advances three arguments: first, that insufficient credit was given for his plea; second, that no account was taken of the principle of parity in passing the same sentence on him as on Quintin Maloney; and thirdly, in any event the learned judge took too high a starting point, given the quantity of drugs involved - 365 grams at 100 per cent purity. 26. The learned judge addressed the discount for plea in the following terms: "You, Richardson, pleaded guilty at trial and you are entitled to some credit for that, and I give you some, but not much; the reason for that is that you then gave evidence during the trial, it was inconsistent with your plea of guilty, inconsistent with your case statement, and, indeed, the reality is you committed perjury, but I hope there will be no action taken as a result of it. Your sole purpose was to try and help your girlfriend, who indeed was acquitted, but I am quite satisfied was not acquitted because of anything you had to say to the jury." 27. The learned judge did not indicate the starting point before discounting for plea. The SGC guidelines recommend a discount of one-sixth for a plea at the last moment. But, as we have already indicated, when called to give evidence by his co-defendant, his girlfriend Sarah Maloney who was the sister of Thomas and Quintin Maloney, the appellant gave an account that was inconsistent with that plea. 28. In those circumstances the judge was fully justified in giving a lesser discount than the one-sixth recommended in the SGC guidelines. But that issue cannot be addressed in isolation. It is submitted on the appellant's behalf that the failure to give any, or any adequate, discount is demonstrated by the fact that he received the same sentence as Quintin Maloney, and it is therefore necessary to move to the second strand of his case, the parity argument. 29. Quintin Maloney was not, of course, entitled to any credit for plea. He fought the case. The learned judge was plainly impressed by his personal mitigation, saying this: "You, Quintin Maloney, I have said on more than one occasion, it is a very sad feature to see you standing before me. You are a talented man, you came over well when you gave your evidence - the jury did not believe you - but you are a talented man, you are well educated, you are a family man, and you had a very good job which paid you very well, you had good prospects, but out of some sort of family loyalty you allowed your brother to use your garage to store these Class A drugs. You have lost a lot because of this conviction." 30. But it is submitted on behalf of Richardson that he too was, in effect, a man of good character, having a single conviction for simple possession of cannabis, and was in work as a self-employed heating engineer. As to their roles, it was submitted that Quentin Maloney's was, if anything, the greater, as he provided a secure storage for the drugs allowing the safe in which they were stored to be kept at his property. But in any event, it is clear from the sentencing observations and from the manner in which the prosecution put the case that the learned judge treated them as operating at the same level. He was in the best position to judge their relative involvement, having heard the evidence at the trial of Quintin Maloney and the evidence that Richardson gave in the course of that trial. Thus, the position is that they were sentenced to the same term on the basis that their roles in the conspiracy were essentially the same, both having provided safe houses. Yet Quintin Maloney was not entitled to any credit for plea, whereas the judge stated in terms that he was giving Richard some, albeit limited, credit. The question is, therefore, whether the personal mitigation available to Quintin Maloney was such as to cancel out the discount for plea given to Richardson. Whilst Quintin Maloney had clearly made a favourable impression upon the judge in giving his evidence, whereas Richardson manifestly did not, it has to be borne in mind that Quintin Maloney's evidence was rejected by the jury. 31. In those circumstances, we consider that there is substance to the submission as to parity, tied in closely as it is with the submission in relation to credit for plea. 32. The third strand of the argument advanced on behalf of Richardson is that the judge took too high a starting point. In this context our attention was directed in the written grounds of appeal to two decisions of this court: R v Sykes [2002] 2 Cr App R (S) 83 and R v Phillips [2003] 2 Cr App R (S) 14 at 61. In Sykes the court allowed the appeal against the sentence of 4 years' imprisonment on a man who had pleaded guilty to permitting premises to be used for supply of a Class A drug. He was a long-term heroin addict who occupied a room in a hostel for the homeless. When police raided the premises they found six people in a room and various small quantities of heroin consistent with personal use by the occupants. The sentence was reduced to 3 years. 33. In Phillips , the court allowed an appeal against a sentence of 4½ years on a man who had allowed his premises to be used for the supply of Class A controlled drugs. The appellant was the tenant of a council house. Police officers stopped and searched a man leaving the premises. He was carrying about £2,000 and 32 wraps of crack cocaine. The appellant was found in the living room of the house, and near him a piece of foil containing an amount of 0.65 grams of crack cocaine. He admitted that over a period of about two months he had allowed two men, including the man arrested, to use his premises to sell cocaine, and was paid in kind with drugs. His sentence was reduced to 3 years. But in both Sykes and Phillips the offending was of a very different character and scale to that involved in this case, which involved a major conspiracy to distribute commercial quantities of Class A drugs. We do not consider that the decisions provide support for the contention that the starting point was too high or that the sentence was manifestly excessive. 34. But given the validity of the argument as to parity, we consider that in the case of Richardson the appeal should be allowed. We therefore propose to reduce the sentence to one of 5 years' imprisonment. 35. We turn then to the renewed application for leave on behalf of Richard Saltmarsh, who was sentenced to 6 years' imprisonment to be served consecutively to the 20-year term imposed for the conspiracy to possess firearms and ammunition with intent. The argument advanced on his behalf is essentially the totality argument. Mr Robson invited us to consider whether, given his age, and taking full account of the criminality involved, a sentence of 26 years' imprisonment was not simply too high. 36. In our judgment that argument is not made out. The co-defendant, Thomas Maloney, who pleaded guilty at the first opportunity was sentenced to eight years' imprisonment, the sentencing judge having taken a term of 12 years as his starting point. That was entirely appropriate, given the nature and scale of the conspiracy. It is clear that the learned judge did not consider that Richard Saltmarsh's degree of culpability was less than that of Thomas Maloney, and in his sentencing observations quoted at length from the evidence given by Saltmarsh in his trial on the firearms offence as to his drug-dealing. It is not necessary to repeat it. Suffice it to say that it bore out the judge's view that Saltmarsh was operating as "a premier league gangster". The only distinction between Saltmarsh and Thomas Maloney was that Maloney had a previous conviction in dealing in cannabis and shortly before the conspiracy had completed the long custodial part of a term of 3 years 3 months' imprisonment for that offence. But the sentence imposed on Richard Saltmarsh was 2 years less than that imposed on Thomas Maloney. That no doubt reflected to some degree the distinction between them in terms of the previous conviction of Thomas Maloney, but more importantly was clearly a recognition of the totality argument. We are satisfied that the learned judge took full and proper account of the totality of the sentence that he was imposing, and that it cannot be said to have been manifestly excessive. It follows that his application for leave will be dismissed. 37. LORD JUSTICE KEENE: I make it clear the number of days spent in custody in your client's case to be taken into account will still be take into account for that reduction, Mr Singh.	{"ConvCourtName":["Crown Court at Manchester","Crown Court at Coventry"],"ConvictPleaDate":["2006-04-27","2006-07-07","2006-01-23","2006-08-01"],"ConvictOffence":["Conspiracy to contravene section 170 of the Customs and Excise Management Act 1979","Conspiracy to present firearms with intent to enable another person or persons unknown to endanger life","Conspiracy to supply a Class A drug"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","Yes","Yes"],"PleaPoint":["at first available opportunity","at trial"],"RemandDecision":[],"RemandCustodyTime":[360,161,153,388],"SentCourtName":["Crown Court at Manchester","Crown Court at Coventry","Crown Court at Warrick"],"Sentence":["20 years' imprisonment (Saltmarsh, firearms)","14 years' imprisonment (Vasinoras, firearms)","6 years' imprisonment (Saltmarsh, drugs)","6 years' imprisonment (Richardson, drugs)","8 years' imprisonment (Thomas Maloney, drugs)","6 years' imprisonment (Quintin Maloney, drugs)"],"SentServe":["Consecutive"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[27,31],"OffJobOffence":["Employed","Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Mobile telephone analysis","Expert evidence (firearms modification)","Police surveillance"],"DefEvidTypeTrial":["Defendant gave evidence"],"PreSentReport":[],"AggFactSent":["Offence involved importation of large number of firearms and ammunition","Offence involved significant planning","Attempted to offload responsibility on co-defendant (Renke)","False, lying and untrue basis of plea (Vasinoras)"],"MitFactSent":["Plea of guilty at first available opportunity (Vasinoras)","Relatively young age (Saltmarsh)","No previous custodial sentence (Saltmarsh)","Good character (Richardson, Quintin Maloney)","Employed (Richardson)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[4],"AppealAgainst":["Sentence is manifestly excessive"],"AppealGround":["Starting point for sentence too high","Lesser role not reflected in sentence (Vasinoras)","Insufficient credit for plea (Richardson)","Parity with co-defendant (Richardson)","Totality (Saltmarsh)"],"SentGuideWhich":["Attorney-General's Reference Nos 120 and 121 of 2004 [2006] 1 Cr App R (S) 7 at 44","Section 170 of the Customs and Excise Management Act 1979","Section 16 of the Firearms Act 1968 (as amended)","Section 3 of the Criminal Law Act 1977","SGC guidelines"],"AppealOutcome":["Dismissed (Saltmarsh, firearms)","Dismissed (Vasinoras, firearms)","Allowed and sentence reduced to 5 years (Richardson, drugs)","Dismissed (Saltmarsh, drugs)"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["No basis for arguing starting point was manifestly excessive (Saltmarsh, firearms)","Further reduction for lesser role was given (Vasinoras)","Judge took full account of totality (Saltmarsh, drugs)","Judge justified in giving lesser discount for plea (Richardson)"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge justified in taking 20 years as starting point (Saltmarsh, firearms)","Further reduction for lesser role was given (Vasinoras)","Judge took full account of totality (Saltmarsh, drugs)","Judge justified in giving lesser discount for plea (Richardson)"]}
No. 2014/00855/C4 Neutral Citation Number: [2014] EWCA Crim 734 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 10 April 2014 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Thomas of Cwmgiedd ) THE PRESIDENT OF THE QUEEN'S BENCH DIVISION ( Sir Brian Leveson ) and THE VICE-PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION ( Lady Justice Hallett ) - - - - - - - - - - - - - - - - - R E G I N A - v - JASON TREVOR McCOOK - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - J U D G M E N T Thursday 10 April 2014 THE LORD CHIEF JUSTICE: 1. There is before the court a reference by the Registrar under section 20 of the Criminal Appeal Act 1968 in respect of an application for leave to appeal which the Registrar has referred to us on the basis that we should consider the case to see if we should summarily dismiss it as an appeal which is frivolous or vexatious and can be decided without a full hearing. 2. The facts can be briefly set out. The applicant was charged with robbery. He raised various defences, including a wrong identification and that his medical condition was inconsistent with his being able to carry out the crime of robbery. On 14 December 2011 he stood trial in the Crown Court at Guildford before His Honour Judge Matthews QC and a jury. Medical evidence was read to the jury. He was convicted of robbery on 15 December 2011 and was subsequently sentenced to six years' imprisonment. 3. An application was made to this court on the basis that the list of previous convictions, which the judge had admitted as bad character evidence, was not correct. In a judgment given on 4 July 2012 this court allowed the appeal and ordered a retrial. 4. In pursuance of that order, on 27 July 2012 there was a hearing for directions in the Crown Court at Guildford. It is evident from a transcript of that hearing that further steps were to be taken on behalf of the applicant to obtain medical evidence in respect of the further trial. On 5 November 2012 the retrial commenced. Medical evidence (more extensive than that at the first trial) was placed before the jury in the form of statements. On 7 November 2012 the applicant was again convicted and sentenced to a period of six years' imprisonment. 5. It is apparent that, immediately after the trial, pursuant to the arrangements that exist for advice to be given in respect of conviction and sentence, counsel who had represented the applicant throughout advised that there were no grounds on which an appeal could be brought. That written Advice was sent by the solicitors to the applicant on 19 November 2012. The solicitors endorsed the view of counsel. 6. In April 2013 new solicitors named Prime Solicitors were instructed. 7. On 13 February 2014 an application was made for an extension of time and for leave to appeal against conviction. The grounds of appeal that were before the court were directed at the first trial, the conviction for which had been set aside by this court in July 2012. From the papers that were served on this court on 13 February 2014 it was apparent, first of all, that on 9 September 2013 the Legal Aid Agency had extended the amount of money that could be spent on this case with their authority to £1,503.87, and on 21 January 2014 they had further extended the authority to spend from £1,503.87 to £2,056.56. It was also clear from the papers that at least the solicitors had the Advice of counsel and solicitors given after the retrial. Also contained in the papers was the first summing-up, but it appears not the second. 8. The grounds of appeal were settled by counsel. They contained essentially one point: that there had been a failure to call proper medical evidence at the first trial. 9. After these matters were drawn to the attention of the applicant's solicitors and counsel, counsel returned the case on the basis that he had not been given the relevant information and the grounds of appeal could not therefore be sustained. The solicitors attempted to withdraw the appeal, but did not obtain the necessary forms. There was a further attempt by the applicant's mother who said that her son did not wish to continue with the appeal. None of those is effective. 10. It is plain from the facts that we have set out that the appeal is frivolous and vexatious, and can be summarily dismissed without a hearing. 11. This case illustrates, however, two matters. First, it is always desirable to consult those who have acted before in a case where fresh counsel and solicitors have been instructed. In R v Achogbuo [2014] EWCA Crim 567 we stated that it was necessary to do so where criticisms of previous advocates or solicitors were made, or grounds were to be put forward where there was no basis for doing so other than what the applicant said. Second, it is clear from this case that we must go further to prevent elementary errors of this kind. In any case where fresh solicitors or fresh counsel are instructed, it will henceforth be necessary for those solicitors or counsel to go to the solicitors and/or counsel who have previously acted to ensure that the facts are correct, unless there are in exceptional circumstances good and compelling reasons not to do so. It is not necessary for us to enumerate such exceptional circumstances, but we imagine that they will be very rare. 12. Unfortunately, although we had asked the solicitors to return at 2pm to explain what has happened, they have not done so. This court cannot in the circumstances delay the matter further. It will not comment in any way on the conduct of the solicitors concerned, but merely refer them to the Solicitors Regulatory Authority. If, in the course of the investigations by the Solicitors Regulatory Authority, it transpires that there are issues involving counsel, they will no doubt consider whether they should refer the matter to the Bar Standards Board. 13. For those reasons, therefore, this application for leave to appeal is summarily dismissed.	{"ConvCourtName":["Crown Court at Guildford"],"ConvictPleaDate":["2011-12-15","2012-11-07"],"ConvictOffence":["Robbery"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Guildford"],"Sentence":["6 years' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Medical evidence"],"DefEvidTypeTrial":["Wrong identification","Medical condition inconsistent with robbery"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction"],"AppealGround":["Failure to call proper medical evidence at the first trial"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Appeal is frivolous and vexatious","Grounds of appeal could not be sustained","Conviction for first trial already set aside; current conviction not challenged on valid grounds"]}
Neutral Citation Number: [2010] EWCA Crim 372 Case No: 2009/04363/D1 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHWARK His Honour Judge Hardy Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/03/2010 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE PENRY-DAVEY and MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between : R - v - W - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr N Saunders for the Appellant Mr D Miller for the Crown Hearing date : 4 th February 2009 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. This is an appeal by W against his conviction on 24 July 2009 in the Crown Court at Southwark before His Honour Judge Hardy of misconduct in a public office. It raises an interesting question about the state of mind required before this common law offence whose origins can be traced back to the thirteenth century can be established. (See Pollock and Maitland, The History of English Law 2 nd edition (1898) Vol 2 p 520/521)). 2. Between 1999 and 2008 the appellant was a serving police officer in the Metropolitan Police. It was alleged that in that capacity between 1 July 2006 and 5 October 2007 he wilfully misconducted himself by improperly using an American Express (AMEX) credit card to the extent that he incurred expenditure of approximately £12,500 for personal use funded from public monies. Save to the extent that it arose from his employment as a police officer the misconduct did not take the form of a breach of or failure to perform his duties as a police officer. 3. The evidence to support the misuse of the AMEX card was clear. At the material time the appellant was heavily in debt. He admitted that, contrary to Force Instructions, he used the AMEX card for personal expenditure as well as official expenses but said that he did so believing that he was entitled to use it in this way provided he intended to refund the cost attributable to personal expenditure. This practice was widely followed by very large numbers of his colleagues. Therefore although he had wilfully used the card in the way alleged, he denied that he was guilty of deliberate misconduct or dishonesty. For completeness, we should record that the Crown did not accept the exculpatory elements of the appellant’s case. 4. At the earlier stages of the trial process, it was expressly alleged that the appellant had acted dishonestly but that allegation was not made either when the case was opened, nor indeed in the Crown’s closing submissions to the jury. However when the appellant gave evidence, although the allegation of dishonesty was not put directly to him, he was cross examined on the basis that he had acted dishonestly. Comparisons were made between the conduct of the appellant and shoplifting, reference was made to the fact that he had in effect given himself a “whopping pay rise”, promoted himself to a higher rank with “quite a hike in pay”, and treated the card as “some sort of cash cow”, or as a “bank, really”. The theme of his answers to these questions was that he honestly thought that he could use the card for his personal use provided he intended to repay the sums in due course and that he did so intend. He was reflecting the “culture in the office at the time” and he “knew that officers more senior to him were doing it to”. He honestly believed that he was doing nothing wrong “…so long as I paid it back I did not see that it was wrong”. 5. Before the summing up it was submitted to the judge that the ingredients of the offence of misconduct in a public office required specific focus on the defendant’s subjective state of mind. The only authority to which he was referred was Attorney General’s Reference (No 3 of 2003 ) [2005] QB 73 . One of the questions for the opinion of the court was: “What are the ingredients of the common law offence of misconduct in a public office?”. Following the death of an apparently healthy man detained in a police station, a number of police officers were charged with gross negligence manslaughter and, alternatively, misconduct in a public office because they failed in their duty properly to care for the man. It was held that: “There must be an awareness of the duty to act or a subjective recklessness as to the existence of the duties. The recklessness test will apply to the question whether in particular circumstances a duty arises at all as well as to the conduct of the defendant if it does. The subjective test applies both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission”. In short, even in the context of misconduct said to arise from failure to perform a police duty, it was necessary for the Crown to establish some subjective mental element. 6. The Crown submitted that no such ingredient was required. It was therefore not open to the appellant to advance a defence on the basis that he was not dishonest. That argument may well be unanswerable in the context of police disciplinary proceedings, but its application to the trial in a criminal court of misconduct which involves a police officer misappropriating public funds for his own use seems surprising. 7. The judge concluded that the Attorney General Reference (No 3 of 2003) was not a case “on all fours” with the present case, and that it “may be in that case there were elements of recklessness that the jury had to be directed about”. They did not apply to the present case. He was determined to give directions to the jury which would make the law “as uncomplicated as possible”. In short, the judge rejected the appellant’s contention in relation to the defendant’s subjective state of mind at the time of his actions: accordingly no such direction was given. Its absence provides the basis for the present appeal. The jury was directed that the prosecution had to prove that the appellant “wilfully – that means to say, deliberately – misconducted himself to such a degree as to amount to an abuse of the public’s trust in that office holder, without reasonable excuse or justification. …the prosecution must prove misconduct of a high degree. We are not talking here about a mere bending of the rules or cutting corners…to amount to abuse of public trust a mistake, even a serious one, will not suffice either. The prosecution must prove that the office holder has fallen way below, or far below, the standards expected of him as, in this case, a police officer”. He effectively repeated this direction shortly before the jury retired. 8. The offence of misconduct in a public office may arise from acts or omissions by holders of that office, and depending on the acts and omissions alleged, the mental element of the offence will vary. The Law Commission Consultation Paper on Corruption, Legislating the Criminal Code, 1997, in a passage addressing the offence of misconduct in a public office records, perhaps unsurprisingly in view of the antiquity of the offence, that it is not “easily defined”. It refers to the Salmon Report which observed that the offence “embraces a wide variety of misconduct including acts done with a dishonest, oppressive or corrupt motive”. It also highlights a paper by PD Finn, entitled “Official Misconduct” [1978] 2 Crim LJ 308, in which the difficulty of attempting a definition of the offence is acknowledged but its principal applications are said to include: (a) frauds and deceits (fraud in office); (b) wilful neglect of duty (nonfeasance); (c) “malicious” exercises of official authority (misfeasance); (d) wilful excesses of official authority (malfeasance); and (e) the intentional infliction of bodily harm, imprisonment, or other injury upon a person (oppression). Accordingly the nature of the conduct falling within the ambit of the offence is very wide, and logically it would follow that any necessary element relating to the defendant’s subjective state of mind cannot be identical for each and every one of its different manifestations. 9. The Committee on Standards in Public Life also issued a consultation paper on the offence of Misuse of Public Office in 1997. It recommended the creation of a new offence. “18. The unifying factor of the common law cases appears to be the existence of some improper, dishonest or oppressive motive in the exercise or refusal to exercise some public function, rather than a mere abuse of power. There are few prosecutions, suggesting that action is taken only when the conduct is particularly gross. The advantage of creating a statutory offence of misuse of public office would be that some clearer indication could be given in the statute of the circumstances in which an offence might occur. The limits should not have to be drawn by the jury unguided. 19. We consider that the new offence might …identify the two situations in which an offence might occur as unlawfully incurring expenditure, or incurring expenditure as a result of wilful misconduct”. 10. Both consultation papers reflect a careful analysis of the existing authorities. The breadth of the offence is underlined by two contrasting, relatively recent decisions of this court. In R v Llewellyn-Jones [1968] 1 QB 429 a County Court Registrar exercised his judicial responsibility in such a way that he gained an “improper” financial advantage for himself. His appeal was directed at the absence of any express allegation of dishonesty, but was dismissed on the basis that dishonesty or fraud were inherent in the offence. In this case, the court was focussing on the nature of the misconduct alleged, which took the form of deceit and fraud. On the other hand in R v Dytham [1979] 2 QB 722 a police officer deliberately neglected to intervene to prevent what turned out to be a homicidal attack. He failed to respond to what he knew to be his duty. He was plainly not dishonest. In the context of the misconduct alleged, the court observed that the offence was “not restricted to dishonesty”, an observation which carries the clear implication that dishonesty would be a necessary ingredient of some manifestations of the offence. 11. Like Attorney General (No 3 of 2003 ) these decisions are entirely consistent with many earlier authorities which underlined that what we shall describe as a criminal state of mind is required. Thus, nearly 200 years ago, in R v Borron [1820] 3B and Ald 432, in the context of misconduct by a magistrate, Abbott CJ said: “…the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description fear and favour may generally be included, or from mistake or error. In the former case, alone, they have become the objects of punishment. ” (Our emphasis) 12. In argument before us Mr Miller for the Crown submitted that the ingredients of the offence were (a) an intentional act by the defendant and (b) that the defendant “must know what he was doing was wrong” and (c) that the act must be “serious” or “have serious consequences”. In the course of the argument (b) was amplified to “it must be wrong and he must know it was wrong”. When invited to explain what “wrong” meant in this context, he suggested “misuse or abuse of the card”. If however the appellant deliberately misused the card (whose only purpose was to cover expenses) in circumstances which he knew were wrong, it is very hard to see how his state of mind does not require to be addressed as dishonesty. 13. We have been unable to discover any authority which suggests that the observations in R v Borron are no longer apposite to a case like the present, and indeed, R v Llewellyn Jones confirms their continuing applicability. Attorney General Reference (No3 of 2003) reinforces the requirement for some subjective mental element, appropriate to whatever form of misconduct is alleged. It would be wrong in principle to extend the ambit of an ancient common law offence by narrowing the requirements relating to the defendant’s state of mind ( R v Rimmington [2006] 1 AC 459 . Consistently with principle, and addressing the realities, it is in any event difficult to see how the defendant can have fallen so far below the standards required of him as a police officer that, in the context of the misuse of a card issued to him by his superiors for “expenses”, his conduct is properly to be stigmatised as criminal, unless he was dishonest. 14. In our judgment it is clearly established that when the crime of misconduct in a public office is committed in circumstances which involve the acquisition of property by theft or fraud, and in particular when the holder of a public office is alleged to have made improper claims for public funds in circumstances which are said to be criminal, an essential ingredient of the offence is proof that the defendant was dishonest. 15. The directions to the jury omitted this ingredient. Accordingly it is conceivable that the jury may have concluded that the act was “wrong” because the defendant flagrantly broke the rules governing the use of the card without being sure that he was dishonest: alternatively, they may have convicted him because in their view he plainly was dishonest, but without receiving any direction from the judge about how to approach the dishonesty issue. Although the evidence appears to have been powerful, the question whether the appellant was acting dishonestly, or not, is pre-eminently one for the jury after a correct direction from the judge. The conviction will be quashed. Although the penalty in court was relatively modest, the ramifications of the case are important. We shall order a new trial.	{"ConvCourtName":["Crown Court at Southwark"],"ConvictPleaDate":["2009-07-24"],"ConvictOffence":["misconduct in a public office"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Evidence of misuse of AMEX card","Cross-examination of defendant"],"DefEvidTypeTrial":["Defendant's testimony"],"PreSentReport":[],"AggFactSent":["Misuse of public funds"],"MitFactSent":["Practice was widely followed by colleagues","Defendant intended to repay sums"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Jury was not directed on the requirement of dishonesty as an ingredient of the offence"],"SentGuideWhich":[],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Jury was not directed that dishonesty was an essential ingredient of the offence"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
No: 200205207/1848/Z4 Neutral Citation Number: [2003] EWCA Crim 1555 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 7th May 2003 B E F O R E: LORD JUSTICE KENNEDY MR JUSTICE HUNT MR JUSTICE PITCHERS - - - - - - - R E G I N A -v- MICHAEL RAY THOMAS - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR T MUNYARD appeared on behalf of the APPELLANT MR E BROWN appeared on behalf of the CROWN - - - - - - - J U D G M E N T 7th May 2003 1. LORD JUSTICE KENNEDY: This matter comes before us having been referred to the Court by the Criminal Cases Review Commission. 2. On 17th November 1993 at 10.25 a.m. there was a raid at a bookmakers in Upper Clapton Road, London. There was one armed raider who went inside that shop. It was the Crown's case that this appellant was also there acting as a look-out inside the shop and just inside the door. Police officers had been keeping watch upon this particular premises and possibly on others as well. As a result, whilst the raid was in progress, two armed police officers went into the bookmakers shop and one of those who was inside, namely this appellant, was arrested. 3. The Crown's case as developed at trial on 22nd July 1994 was that initially observation had been kept by two police officers, PC Douglas and PC Howlett, from a building on the other side of the road. According to PC Douglas he had seen two black men walking on the same side of the street as the bookmakers and talking to each other. One of them, the Crown said, was the appellant, clad in a black baseball cap and wearing a black jacket. The other was wearing a light brown jacket. It was the appellant's case at trial that if that was what the officer saw, the officer did not see him because he did not approach the bookmakers shop from that direction. According to the officer the two men went into the shop, and undoubtedly, from what was seen inside the shop, the man who carried the gun was wearing a light brown jacket. 4. A customer inside the shop, Mr Burke, saw a man with the gun going behind the counter and addressing the manager. He said that there was a second man by the door, that they were both black, but that he did not see the second man's face. 5. The two police officers who entered the bookmakers shop were Detective Constable Howell and Sergeant Miller. They passed the appellant, who was by the door, their eyes were undoubtedly on the man who was behind the counter, who, it was said, had a blue cloth over his face. According to the officers the appellant shouted "Run, old bill" by way of warning to what they claimed was his confederate, the man with the gun. According to the officers the man with the gun then dropped his blue cloth and ran. 6. The officers shouted, "Armed police, stand still". The man who had the gun, wearing the brown coat, ran into Sergeant Miller and at that stage, according to the officers, the appellant attempted to free his confederate by grabbing the Sergeant. The second officer, Detective Constable Howell, took hold of the appellant. 7. The appellant's case was that he was playing no part at all in any criminality. He was simply there because he had gone into this betting office in order to look at odds in relation to a forthcoming football match and he laid hands on nobody. 8. The struggle spilled out on to the pavement and at that stage the man who had the gun was able to escape, but the appellant was not. Other officers, Detective Constable Hayes and Detective Constable Smith, were involved in the arrest of the appellant. It was claimed that at that stage the appellant said, "Don't shoot me I haven't got the gun." It was the appellant's case that he never said anything about not having the gun. Furthermore, it was his case that, although it was contended for the Crown that he made an incriminating remark in relation to his confederate, he was not in fact asked about the other man at all. 9. At the Central Criminal Court on 22nd July of 1994 he was convicted of robbery, of possessing a firearm with intent on the basis, of course, that he was a party to the overall criminality, and he was by reason of those convictions in breach of a probation order which had been in existence at the time of the offending on 17th November of 1993, so he was sentenced to a total period of five years' imprisonment. 10. He appealed. His application for leave to appeal was refused. He renewed that application to the Full Court on 20th December 1994 and before the Full Court he failed to obtain leave. When dealing with the matter MacPherson J said this: "The conflict between this applicant's evidence and that of DC Howlett was one of the central issues which the jury had to resolve." 11. As we have already indicated, they resolved it by accepting the evidence of the police officer. (The reference there to DC Howlett was in fact an error; it was DC Howell who was the relevant officer). 12. However, in the late 1990s allegations emerged in relation to the Flying Squad officers who were based, as were the main officers concerned in this investigation, at Rigg Approach. In particular it was alleged that they had with them on many occasions what were described as first aid kits which consisted of items which they could plant on persons whom they believed to have committed offences. As a result of those investigations, Detective Sergeant Miller was prosecuted, but, for reasons with which we need not be concerned, that prosecution had to be brought to an end. Nevertheless, his conduct was investigated with the result that he was required to resign. 13. Detective Constable Howell, who had played a key part in the investigation with which we are concerned and indeed had been the second officer who had entered the betting office together with Sergeant Miller, was convicted of doing acts tending to pervert the course of justice and was sentenced to a period of seven years' imprisonment. That sentence has recently been confirmed, in that his appeal against, as we understand it, conviction and sentence has been dismissed. 14. Detective Constable Smith who played a somewhat lesser role in the present matter, in that he was one of the officers outside the betting office when the struggle spilled on to the street, has also been suspended. He would have been prosecuted but because of ill health no prosecution was pursued. 15. It is said on behalf of the appellant, and indeed is the substance of the reasons why the matter was referred to this Court by the Criminal Cases Review Commission, that as a result of all these events this conviction can no longer be regarded as safe and satisfactory. In the statement of reasons the Commission said this: "The Crown's case relies heavily on the evidence of Detective Inspector Miller and Detective Constable Howell to demonstrate Mr Thomas's participation in the robbery and relies in part on DC Smith to corroborate the incriminating remarks attributed to Mr Thomas. The Commission believes that even if the other officers had been presented to the jury as untainted, and taking account of the evidence of the civilian witnesses, it cannot be said with confidence that the jury would have been bound to convict Mr Thomas had they known that the Crown did not regard Detective Sergeant Miller, Detective Constable Howell and Detective Constable Smith as witnesses of truth. The Commission considers that there is a real possibility that Mr Thomas's conviction would not be upheld were the case to be referred." 16. As Mr Munyard has pointed out this morning, although Police Constable Douglas was not himself based at Rigg Approach, he was working with the officers who were and on the day of the incident with which we are concerned he undoubtedly made up his notes in broad terms at the same time as they made up theirs. Whether Detective Sergeant Miller was there throughout, or only for part of the time, is not a matter which we need investigate further, suffice to say that his association with those officers would of itself give rise to difficulty on the part of the jury when considering the reliability of his evidence. 17. Mr Burke to whom we have referred, the customer in the shop, did not see enough of what transpired to stand as a witness on whose word alone this conviction could be sustained. And in the light of the matters which have transpired Mr Brown, on behalf of the Crown, has taken the realistic stance that the Crown can no longer invite this Court to regard the conviction as safe. In our judgment, that must be right. Accordingly, this appeal against conviction is allowed. (Submissions made in relation to an application for leave to appeal against sentence) 18. LORD JUSTICE KENNEDY: The applicant applies for leave to appeal against sentence. We grant permission. He therefore becomes an appellant. 19. On 18th June 2001 at the Central Criminal Court this appellant was convicted by a majority of possessing a firearm with intent to endanger life. He was sentenced to life imprisonment pursuant to section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 and the specified period for the purposes of section 28 of the Crime (Sentences) Act 1997 was declared to be four and a half years' imprisonment. 20. That prosecution arose out of what occurred on 12th August 2000. It was apparently on that occasion that the victim, a man named George Edwards, was induced to go to the home of a woman named Jacqueline Foster. He claimed that there he was threatened by the appellant's co-accused, a man named Dennis Stephenson, who had a gun. According to Edwards the appellant had a knife and it was the appellant who was active in robbing Edwards of his possessions. According to Edwards he struggled. Stephenson fired the gun and hit him in the hip. Then the appellant and Stephenson fled. 21. Precisely what happened inside that house on that day was far from clear even at the end of the trial, but it was clear, as a result of the verdict of the jury, that there had been a gun there, that the gun had been discharged, and on the findings of the jury that it had been discharged with intent to endanger life. 22. It was in that setting, and having regard to his previous convictions, that the learned judge sentenced as he did. When dealing with this appellant he said this: "You, Thomas, were acquitted of attempted robbery and wounding with intent but convicted of the very serious crime of possessing a firearm with intent to endanger life. You have a very substantial criminal record of serious crime including previous convictions for robbery when in possession of an imitation firearm, thus I have to sentence you to life imprisonment. It seems to me you are just the type of offender for whom a life sentence is appropriate, determined as you appear to be to lead a life of serious crime endangering the lives of others. In the light of the jury's verdict, however, I would have passed a somewhat shorter sentence upon you were I passing a determinate sentence; that would have been ten years." 23. Of course that indication from the trial judge is, so far as this Court is concerned, a useful starting point when deciding what, in the light of the decision made this morning, the sentence should now be. In the light of the decision made this morning it is obvious that the learned sentencing judge on this occasion was not required to pass a life sentence. So, on the face of it, the sentence would appear to be one of ten years. 24. However Mr Munyard, on behalf of the appellant, submits that such a sentence would not give proper weight to certain matters which we should now consider. First of all, he submits that the co-defendant, who actually discharged the firearm, received a sentence of 12 years' imprisonment and that the sentence indicated by the trial judge as appropriate in relation to this appellant was too close to that imposed in relation to one whose criminality was greater. 25. The difficulty about that argument is that if it had validity it could have been raised in relation to the sentence originally imposed and would have been relevant because the indication of the trial judge was relevant when he was certifying for the purposes of section 28 of the Crime (Sentences) Act what he considered the relevant period to be. Nevertheless, for present purposes we are prepared to look at what has been placed before us. 26. We do not regard the disparity argument as being of any significant weight in this case whatever. We do, however, regard there as being some weight to be attached to a second argument advanced by Mr Munyard, namely, that in sentencing as he did the sentencing judge had regard, and rightly had regard, to the previous record of this appellant as he knew it. In the light of our decision this morning that record would have been significantly less than it was at the time when sentence was imposed in June 2001, in that there would not have appeared as part of the record of this appellant his conviction on 22nd July 1994. That is something which we consider does have to be borne in mind in deciding at this stage whether a sentence of ten years' imprisonment is appropriate. 27. Mr Munyard advanced a further submission, namely that this Court should now give weight to the fact that, pursuant to the conviction in July 1994, the appellant did serve a period of three years and five months' imprisonment and that in the light of today's decision that was a period of imprisonment which he should not have served. Of course it is right to say that it is a period of imprisonment which he should not have served, but we do not accept that time served in custody in respect of an alleged offence which has not in the end resulted in a conviction, or in respect of which the conviction has had to be set aside, can be treated as a credit available for use against a proper sentence imposed subsequently in relation to some quite different criminality. Of course it forms, as Mr Munyard accepted when this matter was put to him, some part of the offender's general background, but there can be no year for year, or day for day credit given in respect of such a period of imprisonment. It would be wholly, in our judgment, wrong and illogical to grant it. 28. However, because of the matter to which we have referred, namely the effect of the offender's record at the time of sentencing in June 2001, and, for what it is worth, the background that he had, had the sentencing judge then known it, he had served a sentence of imprisonment which he in reality should not have served, we consider that it would not be right simply to implement the ten year sentence indicated by the sentencing judge. We reduce it to one of nine years. That will now be the sentence which will remain to be served in respect of the conviction at the Central Criminal Court on 18th June 2001. 29. I should say that we read the two letters placed before us and had regard to them. 30. MR MUNYARD: I have one further application and that is in relation to costs. I would ask this Court to make a defendant's costs order under the Prosecution of Offences Act 1985 , those costs obviously to be assessed by the appropriate officer of the Court in the light of his successful appeal against conviction and the ancillary, but also, at least in part, successful appeal against sentence. 31. LORD JUSTICE KENNEDY: Is he publicly funded? 32. MR MUNYARD: No, he is not. 33. LORD JUSTICE KENNEDY: Yes, you may have your order in the light of that indication. 34. MR MUNYARD: I am very grateful.	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["1994-07-22","2001-06-18"],"ConvictOffence":["Robbery (1994)","Possessing a firearm with intent (1994)","Possessing a firearm with intent to endanger life (2001)"],"AcquitOffence":["Attempted robbery (2001)","Wounding with intent (2001)"],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["5 years' imprisonment (1994)","Life imprisonment (2001), specified period 4.5 years, reduced to 9 years"],"SentServe":[],"WhatAncillary":["Defendant's costs order under the Prosecution of Offences Act 1985"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Police officer testimony","Civilian witness testimony (Mr Burke)"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":[],"AggFactSent":["Previous convictions for robbery with imitation firearm"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction unsafe","Appeal against sentence"],"AppealGround":["Key police witnesses later found to be unreliable/corrupt","Conviction unsafe due to tainted evidence","Sentence should reflect reduced criminal record after quashed conviction"],"SentGuideWhich":["section 109 of the Powers of Criminal Courts (Sentencing) Act 2000","section 28 of the Crime (Sentences) Act 1997"],"AppealOutcome":["Allowed & Conviction Quashed","Sentence reduced to 9 years"],"ReasonQuashConv":["Key police witnesses (Howell, Miller, Smith) found unreliable/corrupt; conviction unsafe"],"ReasonSentExcessNotLenient":["Original sentence based on criminal record including now-quashed conviction; sentence reduced to reflect true record"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
No: 201704626/A3 Neutral Citation Number: [2017] EWCA Crim 2062 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 15 November 2017 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE NICOLA DAVIES DBE RECORDER OF MAIDSTONE (HIS HONOUR JUDGE CAREY DL) (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 SCOTT CARTWRIGHT - - - - - - - - - - - - - - - - Mr P Jarvis appeared on behalf of the Attorney General Mr R Holland (Via Video Link) appeared on behalf of the Offender - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 1. LORD JUSTICE HOLROYDE: On 12th May 2017 in the Crown Court at Manchester Crown Square, Scott Cartwright, then aged 17, pleaded guilty to offences of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861; threatening another with an article with a blade or point, contrary to section 139AA of the Criminal Justice Act 1988; and assault by beating, contrary to section 39 of the Criminal Justice Act 1988. The first of those offences was directed against a youth of similar age, Nathan Meek. The second and third were directed against another youth, Brogan Cunningham. 2. On 20th September 2017, having considered a detailed pre-sentence report and a psychiatric report prepared particularly with a view to the issue of dangerousness, the very experienced judge sentenced Scott Cartwright to a youth rehabilitation order for 24 months on count 1, with no separate penalty on counts 2 and 3. The youth rehabilitation order was accompanied by an intensive supervision and surveillance requirement with extended activity for 180 days, a 6 months curfew requirement and a 3 months exclusion requirement. 3. Her Majesty's Attorney General now applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer that sentence to this court as unduly lenient. We grant leave. 4. We express our gratitude to Mr Jarvis, on behalf of Her Majesty's Attorney General, and to Mr Holland, appearing today as he did in the court below for Mr Cartwright, for their written and oral submissions. We have been greatly assisted by them. 5. The offences were committed on 19th April 2017, when Scott Cartwright was aged about 17 years and 9 months. He had no previous convictions. His one previous encounter with the criminal justice system had been a caution as a 14-year-old for an offence of attempted theft. At about 8.00 pm on 19th April he was standing outside a shop with a group of other youths. By his own account he was then intoxicated, having during the day consumed two pints of lager, a large number of alcopops and a quantity of cocaine. He was wearing a large knife or machete in a sheath which was strapped to his chest over his clothing. The court has been provided with photographs of the knife. It is a frightening looking weapon with a blade some 30 centimetres in length, bearing the inscription "The Hunter". 6. Nathan Meek and Brogan Cunningham walked past the shop. According to Scott Cartwright's account (although Nathan Meek did not accept this) Meek had at some previous time sent unpleasant texts to Cartwright's younger sister. As Meek and Cunningham were passing the shop, Cartwright shouted to Meek something about "messing with his sister". Meek told him to "chill out". He repeated that suggestion when Cartwright shouted to him to accompany Cartwright over to a nearby grassed area. Cartwright then punched Meek in the eye causing him to step back. Meek shouted at him and at that point Cartwright pulled the knife from its sheath and began to swing it at Meek. Meek and Cunningham ran off. Cartwright pursued them, brandishing the knife threateningly. It was this threatening with the knife which, as we understand it, founded counts 2 and 3 in relation to Cunningham. 7. Meek then stopped and turned to face Cartwright, who swung the knife at him about five times before running away. One of the blows struck Meek's upper left arm, causing a long, deep wound which cut down into the muscle. The wound was bleeding profusely and Meek was taken to hospital where the injury was sutured. He is left with a 7 centimetre scar and with a reduction of the strength in his left arm which is expected to be permanent. In his victim impact statement he speaks, unsurprisingly, of having also suffered a loss of confidence and of feeling anxious about going out into public places. 8. Within a short time police officers went to a house where Cartwright was staying. He came to the front door holding the machete but dropped it when the police threatened to Taser him if it became necessary. 9. In interview, he said that he had bought the machete that day from a shop because he wanted to add it to his collection. He said that he was on his way home to do that when he saw Meek and Cunningham. He said that he wanted to "have a go" at Meek about the unpleasant text messages, but not in a way which would have involved use of a knife. He said that he only produced the knife because he thought Meek and Cunningham were together advancing on him with aggressive intent. He said that he had then pursued them as they ran from the scene because he thought they were going to retrieve a weapon which they had concealed nearby. He accepted that there was no basis for these views, and suggested that the cocaine which he had taken had made him paranoid. 10. Cartwright was remanded in custody. In all he remained in custody for almost 5 months from 21st April 2017 until he was sentenced on 20th September 2017. He entered guilty pleas at an early stage of the proceedings, in circumstances which entitled him to full credit. 11. The pre-sentence report was a detailed and careful document. The author assessed Cartwright as being genuinely remorseful. That remorse was also evident in a letter which Cartwright himself had written to the court. 12. The author of the report said this at paragraph 2.10: "Scott informs me that in the three months leading up to the offence he had been associating with a different group of peers, some who were older and known offenders. It was during this period that his behaviour spiralled out of control. He was no longer living at home, instead sofa surfing at various addresses. In addition he was using cocaine and alcohol on a daily basis and had accrued substantial debts as a result of funding this habit." 13. The author went on to record that Scott Cartwright had described a feeling of invincibility whilst under the effects of cocaine but coupled with high levels of paranoia. He told the author of the report that on reflection he could see how his use of that drug had adversely affected both his thinking and his behaviour. 14. The author noted that until a period of about 3 months preceding this offending Scott Cartwright had been living with his parents and had been abiding by their rules of behaviour. His attitude and general behaviour had been law abiding and pro social. Discussion with Cartwright's parents confirmed that account and confirmed the decline in his behaviour once he had begun associating with others who were plainly a bad influence upon him. 15. The author of the pre-sentence report did not regard Cartwright as meeting the statutory definition of dangerousness. She pointed out that this offending appeared to be an isolated incident on the part of a youth who was of generally good character. She proposed that a youth rehabilitation order, with an intensive supervision and surveillance requirement would be the form of disposal which would best protect the public in the long term. 16. The psychiatric report of Dr Mohammad Rahman endorsed that suggestion as to disposal. He gave a detailed account of Scott Cartwright's personal history, which included some early evidence of fighting at school and some dissocial behaviour and a number of examples of relationship breakdown with members of his family. Dr Rahman said that although Cartwright does not have a history of mental disorder, he did display a number of signs and symptoms which would require careful monitoring. He did not however display any clear evidence of a violent attitude. 17. The doctor expressed the view that the risk of violence would be likely to increase if Cartwright were using psycho-active substances. He regarded him as a youth who was influenced by peer suggestions, and said that should be considered in future risk management. He said that from a mental health perspective Cartwright required early intervention in psychosis, a service focusing on young persons who are at risk of developing psychotic illness. Such services, he noted, would unfortunately not be available within any custodial setting. 18. Prosecuting counsel submitted to the learned judge that it was relevant to consider what sentence would be appropriate for an adult offender. Having regard to the Sentencing Council's Definitive Guideline on Sentencing for Offences of Assault, counsel submitted that the offence charged in count 1 would be at the top end of the range for a category 2 offence of wounding with intent. In the case of an adult that would result in a starting point of 6 years' custody and a range of 5 to 9 years after trial. 19. Counsel reminded the judge that count 2, if committed by one aged under 18, carries a mandatory minimum term of 4 months' custody in the form of a detention and training unless the court is of the opinion that it would be unjust to impose such a sentence. He also invited the attention of the learned judge to the Sentencing Council's Definitive Guideline in relation to the sentencing of young offenders. 20. Mr Holland, for his part, urged the judge to follow the recommendations contained in the reports. He reminded the judge that there had been a lengthy remand in custody, which was relevant in a number of ways. In particular, he submitted that it would be unjust now to impose the minimum sentence on count 2. 21. By his advocacy Mr Holland successfully overcame some initial and understandable scepticism on the part of the learned judge as to whether this really had been a chance encounter and the offences really had been unpremeditated. 22. In his sentencing remarks the learned judge commended the reports which had been prepared. He observed that an adult offender, even after a guilty plea, could expect to go to prison for about 5 years. He referred to the need to have close regard to the individual circumstances of a young offender. He accepted that there may have been some unpleasant background as between Meek and Cartwright's sister, though that, of course, did not justify the offences. 23. The judge made no finding of dangerousness. He identified the issue which he had to determine as being whether there should be a determinate custodial sentence or whether the appropriate disposal was the youth rehabilitation order proposed in the reports. At page 22 of the transcript of proceedings he said this: "There are, as I have said, a number of unusual features about this case, firstly, not only the defendant's lack of a significant previous record or the guilty plea but that the defendant was plainly under the influence of drugs at the time and this was not an incident stemming from inherent mental instability but drug fuelled temporary psychosis, as Dr Rahman has so clearly and eloquently made clear. The defendant comes from a caring family who have attended today who are fully supportive of him." The judge then referred to plans sensibly made by Cartwright's family for him to leave the area and live with his grandmother some distance away. At page 23C the judge concluded: "In all of these circumstances I am satisfied that the [interests] of justice are best served by this young man, who has plainly taken a seriously wrong turn in his life, to be the subject of the youth rehabilitation order, which is proposed along with intensive supervision and surveillance." He then spelled out the details of the order to which we have referred. 24. For Her Majesty's Attorney-General Mr Jarvis submits that in reality this was, for an adult offender, a category 1 offence of wounding with intent. It involved not only greater harm, because it was a sustained or repeated assault, but also higher culpability because it involved use of a weapon. Mr Jarvis points out that it is only by good fortune that substantially more serious injury was not suffered by the victim. 25. Mr Jarvis argues that in the account he gave of events Scott Cartwright had tried to minimise the seriousness of his offending. He submits that there are a number of aggravating features. First, the fact that the offence was committed at night. Secondly, the ongoing effect on Meek. Thirdly, the presence of others including in particular Cunningham. Fourthly, the fact that Cartwright was under the influence of drink and drugs. Mr Jarvis submits that in so far as the learned judge may have considered Cartwright's intoxication to be an unusual feature which mitigated the seriousness of the offence, that was an error. He submits that such mitigation as was available to Cartwright was limited to his previous good character and a degree of remorse. 26. Overall Mr Jarvis submits that an adult offender, after trial, would have been likely to receive a sentence which could have been in excess of 10 years' imprisonment. Even giving full weight to the considerations set out in the Definitive Guideline on Sentencing Young Offenders, he submits that this offence, committed by someone approaching the age of 18, was so serious that a non-custodial sentence simply could not be justified. Having regard to Cartwright's age at the time of the offending, he submits that the sentence should have been a custodial one and the length of the custodial term should have been not less than two-thirds of the appropriate sentence for an adult offender. 27. Mr Holland submits that the learned judge carefully and conscientiously addressed a sentencing dilemma: on the one hand this was plainly serious offending; on the other hand, it had to be viewed against the background of previous effective good character. Mr Holland argues that on the basis of the detailed reports the learned judge was correct to conclude that there was here a good prospect of rehabilitation. No doubt the judge could have imposed custody but, submits Mr Holland, he was not unduly lenient in dealing with the case as he did. 28. Mr Holland was unfortunately not able to address the court to the effect that the learned judge's optimism had been borne out. There is before the court an updating report from the Probation Service which shows that, after a less than complete compliance with the requirements of the order, Scott Cartwright has recently fallen entirely out of contact with both his family and with those supervising him. All the indications are that the ending of contact coincides with Cartwright having learned that this appeal was to come before the court. It seems to us that, regrettable though it is that Cartwright is therefore absent from the proceedings, that is no bar to our hearing this Reference today. Both counsel accept that that is so, in particular because it seems clear that Cartwright is aware of this hearing. 29. It also seems to us that for a young man, facing the prospect that what has been a non-custodial sentence may become a significant custodial term, an element of panic is at any rate understandable. Mr Holland is not able to point to successful performance as a factor in Cartwright's favour, but nor do we think it would be proper to regard it as a factor against Cartwright in this hearing that he has, it would seem, lost his nerve and endeavoured to avoid the proceedings. 30. We have therefore reflected on the written and oral submissions of counsel. Looking first at the adult offending guideline for the offence charged in count 1, it does seem to us that there is force in Mr Jarvis' submission that that offence could properly be categorised as a level 1 offence. It involved, in our view, a sustained assault, not simply because of the repeated swinging of the machete but, more importantly, because the initial punch was then followed by a pursuit in order to use the machete. Even if that point may be thought arguable, on any view it was, at the very least, a most serious example of a category 2 offence. It had the aggravating features which Mr Jarvis has identified, and there was little to set in the scales by way of mitigation. Looking at the matter overall, it seems to us that in the case of a mature adult offender convicted after trial, a sentence of 10 years' custody would have been difficult to appeal. To put the matter at its lowest, we cannot think that a sentence after trial of less than 9 years' custody could have been justified. That would result of course in the case of an adult offender in a sentence of 6 years' custody after giving credit for a plea. 31. We turn next to the important principles set out in the Sentencing Council's Definitive Guideline as to Sentencing Children and Young People. We begin by reading the first two paragraphs of that guidelines in the section entitled "Sentencing Principles": "1.1 When sentencing children or young people (those aged under 18 at the date of the finding of guilt) a court must have regard to: • the principal aim of the youth justice system (to prevent offending by children and young people); and • the welfare of the child or young person. 1.2. While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person the sentence should focus on rehabilitation where possible. A court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour." 32. Subsequent paragraphs emphasise that when sentencing a young offender, custody should always be a measure of last resort. At paragraph 1.5 the guideline emphasises the importance of bearing in mind any factors which may diminish the culpability of a young person who is not as fully developed and not as mature as an adult. That immaturity can impact on decision making and risk-taking behaviour. Paragraph 1.5 continues: "It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. Children and young people are also likely to be susceptible to peer pressure and other external influences and changes taking place during adolescence can lead to experimentation, resulting in criminal behaviour. When considering a child or young person’s age their emotional and developmental age is of at least equal importance to their chronological age (if not greater)." 33. Finally, with reference to the Definitive Guideline, we note that at paragraph 4.5 the court is directed to consider the extent to which the offence was planned, the level of force used and the awareness that the young person had of his actions and the possible consequences of those actions. The paragraph goes on to list other pertinent factors which we have had in mind. 34. Emphasising that if a custodial sentence really is unavoidably necessary, it must be for the shortest period commensurate with the seriousness of the offending, the guideline states this at paragraph 6.46: "When considering the relevant adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. In most cases when considering the appropriate reduction from the adult sentence the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age." 35. The learned judge was understandably concerned to apply that guideline. We recognise that the individualised approach which must be taken with young offenders may, in many cases, properly result in a form of disposal which is significantly different from that which would be appropriate in the case of an adult offender. We understand why the learned judge was anxious to take, if he could, a course which would promote the rehabilitation of a young offender who, until a short while before these offences, had been leading a law-abiding life. These are matters requiring anxious consideration. It is abundantly clear that the learned judge gave them anxious consideration. We too have done so. 36. With all respect to the learned judge, that anxious consideration has led us to conclude that he did fall into error in failing to give sufficient weight to the sheer seriousness of this offending. The following features of the offending are, in our judgment, important. 37. First, Scott Cartwright was out and about in darkness or at dusk, with a fearsome weapon strapped to his chest. We are bound to say it seems most unlikely that he had just purchased it at around 8.00 pm, but even if he had, he clearly did not make his way straight home in order to keep it safe within the house. 38. Secondly, although the learned judge was correct to conclude that there was no evidence of premeditation, there is no escape from the fact that Cartwright was very quick to draw the knife when the occasion arose. He cannot have forgotten that he was wearing it on his chest when he first chose, as he put it, to have a go at Meek and when he began the violence by punching Meek in the face. Having started the violence in that way, he then pursued both Meek and Cunningham and used the weapon in the way which we have described. Even on the most favourable interpretation, accepting that Cartwright did not initially intend to use the knife to threaten or to injure, those facts starkly illustrate how quickly circumstances can alter when knives are carried and when those who are carrying them involve themselves in some form of dispute. This, of course, is one of the reasons why the carrying of knives in public places is a matter of substantial public concern. 39. Thirdly, having started violence with a punch, Cartwright then chose to pursue Meek and Cunningham clearly intent on attacking one or both of them with the knife. He swung the knife repeatedly. He caused a serious wound to Meek's upper arm in circumstances where a much more serious injury, or even death, could easily have been caused. Looking at the position on the upper arm of the wound, we observe that had the movement of the machete been only a few inches higher, whether because it was swung at a higher level, or because Meek happened to duck at the wrong moment, it would have missed the shoulder and would instead have struck the neck. 40. Fourthly, Cartwright's intoxication was a significant aggravating feature. He had not only intoxicated himself with alcohol, he had also consumed a Class A controlled drug. 41. Fifthly, we agree with the learned judge that this sadly is a case in which Cartwright had taken a seriously wrong turn in his young life. We do not underestimate the malign effect on someone of his age of peer pressure and the bad influence of others. But we must set against that the clear evidence that Cartwright had a supportive family, to whom he could turn for help. He was not suffering from mental illness and, importantly, there is nothing to suggest that he was any less mature than others of his age. Plainly the offending was out of character. But that factor has to be weighed against the seriousness of what he did. 42. Sixthly, we note that although of course aged under 18, Cartwright was within less than 3 months of becoming in law an adult. 43. Lastly, we agree with Mr Jarvis that only limited mitigation was available to Cartwright. In our judgment, it could carry only limited weight against such serious offending. 44. In those circumstances, we have reached the conclusion that a non-custodial sentence simply could not be justified. Even for a young offender such as Scott Cartwright, the seriousness of the offending required a significant custodial sentence. We are very conscious that our decision will involve, in the particular circumstances of this case, not only an increase in sentence which is a very substantial one from the perspective of a young offender, but also the feature that Scott Cartwright, having been released from custody after some 5 months of pre-trial remand, will now have to return to custody. In the particular circumstances of one as young as Scott Cartwright, it seems to us that that is a matter which we can and should reflect by a reduction from the level of sentence which would otherwise be appropriate. We also take into account that since the order was made in the Crown Court, Scott Cartwright has been subject to, and to a significant extent complying with, the requirements of the non-custodial sentence imposed below. 45. In those circumstances, we quash the youth rehabilitation order imposed in relation to count 1 as being unduly lenient. In its place we impose a sentence of detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for a term of 3 years. Having reflected on the helpful submissions of counsel, we think it best to follow the course taken by the learned judge below and impose no separate penalty on counts 2 and 3. Thus the total term which must be served will be one of 3 years' detention. That sentence will take effect from the date on which Scott Cartwright surrenders or is apprehended pursuant to the warrant which has been issued. We direct that he surrender at Longsight police station by 4.00 pm today. We add for completeness that the time previously spent on remand in custody will of course count towards the sentence which we have now imposed. 46. Mr Jarvis, Mr Holland, thank you both for your assistance. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400	{"ConvCourtName":["Crown Court at Manchester Crown Square"],"ConvictPleaDate":["2017-05-12"],"ConvictOffence":["Wounding with intent (s.18 Offences Against the Person Act 1861)","Threatening another with an article with a blade or point (s.139AA Criminal Justice Act 1988)","Assault by beating (s.39 Criminal Justice Act 1988)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at an early stage of the proceedings"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[152],"SentCourtName":["Crown Court at Manchester Crown Square"],"Sentence":["Youth rehabilitation order for 24 months (quashed on appeal)","Detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for a term of 3 years"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[17],"OffJobOffence":["Other"],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking&drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["All Male"],"VicAgeOffence":[17],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony","Photographs of the knife"],"DefEvidTypeTrial":["Offender account in police interview"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["offence committed at night","ongoing effect on victim","presence of others","offender under the influence of drink and drugs","use of a weapon"],"MitFactSent":["offender showed genuine remorse","offender has no relevant previous convictions","offender was of previous good character","offender was influenced by peer pressure","offender was close to age 18 but still a youth"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General"],"CoDefAccNum":[0],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Sentence was unduly lenient given seriousness and aggravating features"],"SentGuideWhich":["Sentencing Council's Definitive Guideline on Sentencing for Offences of Assault","Sentencing Council's Definitive Guideline as to Sentencing Children and Young People","section 91 of the Powers of Criminal Courts (Sentencing) Act 2000"],"AppealOutcome":["Allowed","Youth rehabilitation order quashed","3 years' detention imposed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["offence involved sustained assault and use of a weapon","offender was intoxicated with alcohol and drugs","serious injury caused to victim","limited mitigation available","non-custodial sentence could not be justified given seriousness"],"ReasonDismiss":[]}
Neutral Citation Number: [2009] EWCA Crim 602 Case No. 2008/6733/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 17 March 2009 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE PENRY DAVEY HIS HONOUR JUDGE RADFORD (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ANDI LEIGH EDWARDS - - - - - - - - - - - - - - - - - - - - - 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 Newell appeared on behalf of the Appellant Miss S Linsley appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. JUDGE RADFORD: On 12th March 2008 at the Southampton Magistrates' Court for offences of possessing an offensive weapon and failure to surrender, the appellant was sentenced to six weeks' imprisonment, that sentence being suspended for a period of nine months. Later the same year, on 5th November at the Crown Court at Southampton, the appellant pleaded guilty on rearraignment on the day of trial to an offence of assault occasioning actual bodily harm and to an offence of theft, an offence which was added to the indictment on the day the matter was listed, as we have specified. It seems that originally the appellant was, as is conceded he properly should have been, charged with an offence of robbery in relation to the events which we will refer to. It is accepted before this court that the failure to include a count of robbery in the indictment that was subsequently drawn was clearly a wrong decision which has, it was clear, led to events which have occasioned this appeal to come before this court. It is conceded by Mr Newell, who appears today on behalf of the appellant, that had his client been charged with robbery and been convicted of that offence, the matters which he seeks to argue before this court would never have been raised. As has been observed in the course of argument by my Lord, Thomas LJ, this court takes an extremely dim view of the failure properly to charge the appropriate offence on indictment and to pursue that in accordance with the evidence that was plainly available. 2. For the offences of assault occasioning actual bodily harm and theft the appellant came to be sentenced on 26th November 2008 by the sentencing judge, His Honour Judge Longbotham. For the offence of assault occasioning actual bodily harm he was sentenced to three years' imprisonment and for the offence of theft he was sentenced to two years' imprisonment consecutive. The six weeks suspended sentence was activated to run consecutively. No complaint is made before this court as to the activation of that sentence or of the direction that it should take effect consecutively. The appellant now appeals against the sentences passed for the two offences on the indictment to which he pleaded guilty by leave of the single judge. 3. The facts of this case are stark and disturbing. The victim of both these offences, Mr Purves, had been diagnosed as dying from emphysema and partly due to his condition was residing at a hostel in Southampton. The appellant was also resident in a different room in the hostel, having moved in some weeks prior to the offences. All of the residents had their own secure rooms. There was a communal bathroom and kitchen areas for the residents to share. 4. Early last year Mr Purves had succeeded in a disability claim before a tribunal which resulted in an increase of his disability allowance. That increase was back-dated in the form of giro cheques which were paid to him. He saved the amounts concerned, hoping to purchase a mobility scooter as walking and cycling on an electrical bicycle had become increasingly difficult due to the deterioration of his health. He stored the giro cheques in a safe at the hostel until he had enough for a mobility scooter. 5. On the day of the offences he took the giros to the post office in order to cash them. He tried to open a savings account at the post office but was unsuccessful and had to return back to the hostel with £1,060 which he had obtained from the cashing of those giro cheques. About 5.30 on that day, 25th June 2008, Mr Purves was in his room when he heard what he thought was a female resident calling through the door asking to borrow something. He opened the door and in fact found it was the appellant. Without more, the appellant entered Mr Purves' room and immediately assaulted him by punching him twice, once to the face and once to the arm. The punches were forceful enough to knock him to the floor. The victim was then kicked once in the leg. Not surprisingly, Mr Purves did not know why this was happening and he did not try to defend himself. In any event, it is to be noted he was a man who weighed only seven stones and he felt, understandably, that he was unable to defend himself from this attack and indeed it might make matters worse if he attempted to. The appellant then picked up Mr Purves' wallet containing the £1,060 in cash from Mr Purves' bed, glanced inside it and then walked out of the room taking the wallet with him. Mr Purves got up off the floor and tried to follow the appellant out into the corridor. He called to him hoping that he would return and give back to him his wallet. The appellant did return, but instead of giving back the wallet he assaulted (by punching) Mr Purves again before then running out of the room. 6. Mr Purves spoke to a worker at the hostel, who in turn contacted the police. There was concern for Mr Purves' health as he was seen to be having difficulty in breathing and was clearly in shock as a result of these events. In a statement made on the same day to the police Mr Purves said he was totally devastated as the money taken had been for his mobility scooter and his children. In a statement taken 18 days later Mr Purves stated that he had been in severe pain and had only just recovered some of his mobility. He said his arm was covered in bruises. Unhappily the Department of Work and Pensions had been unable to replace the stolen money as Mr Purves had cashed the giro cheques that they had provided. He was therefore not able to purchase the mobility scooter that he so badly needed. 7. The appellant was arrested about a week and a half later. When he was interviewed he made no comment to the questions asked of him. It seems from the contents of the pre-sentence report prepared for the Crown Court that in fact some 14 days earlier than this incident Mr Purves had lost £700 to £800 from his room and in the course of interviewing the appellant for the purpose of preparing the report, it is noteworthy that the appellant admitted that he had been responsible for taking that money. However, no charge resulted and it therefore does not feature in the grounds of appeal or the merits thereof which we have to consider. 8. The appellant was born on 7th September 1980 and was therefore aged 27 at the time of the offences. He has 17 previous convictions for 32 offences. They include robbery, theft from the person, three offences of common assault, three offences of battery, two of threatening behaviour, two of possessing offensive weapons and three of burglary (one of a dwelling) and eight offences of theft. In the pre-sentence report dated 25th November 2008 the appellant summarised his feelings in relation to these offences in this way: "I knew he had lots of money and I wanted it." He said he had used about £20 worth of crack cocaine before committing the offence. He explained that this assisted with his violence, as he often became aggressive after using these drugs. The author of the report found it difficult to locate a genuine sense of remorse for the offences. As is clear, the appellant had a long history of drug misuse and a tendency, as the report writer stated, to react violently when under the influence of such substances. It was noted that he had previous convictions for violence and possessing offensive weapons. 9. With some reluctance the report writer stated the appellant conceded he had a previous conviction for robbery which involved him and two other men taking a pregnant female's handbag. For that we note that he received a sentence of four years' imprisonment in October 2002. Reference was made in the report to the difficult childhood background which the appellant had experienced and of his relationships and children. The appellant told the reporting officer how he had started taking illicit substances at an early age and had worked up from taking glue to amphetamine to heroin at the age of 15 and then on to crack cocaine. Unsurprisingly in our view, the probation officer preparing the report concluded that the appellant had a high risk of re-conviction and posed a high risk of harm to the public. The writer of the report was not in possession of the list of previous convictions at the time of writing and therefore left to the learned sentencing judge the assessment of dangerousness raised under the Criminal Justice Act 2003 . 10. In sentencing the appellant, the learned judge referred to the victim as having suffered from an awful condition which had reduced him prior to the offences to a skeletal condition and being about as vulnerable a victim as one could imagine. He referred to the fact that the appellant had known that the victim had money in his room and he had treated the victim with no mercy in the course of committing these offences. The learned judge remarked, as we have done, that the offence had properly been charged as robbery. Someone had taken the view - we now know it was a reviewing lawyer from the Crown Prosecution Service - that the more appropriate charges were those which featured on the indictment. The judge referred to the numerous previous convictions of the appellant and the fact that the offences were committed whilst subject to a suspended sentence. He referred to the worrying features of the pre-sentence report which indicated, as we have recounted, the high risk of harm which the appellant presented to the public through physical harm or threatening behaviour. He made clear in the sentencing observations that as there was no offence of robbery on the indictment he was not sentencing the appellant for such an offence. Nevertheless, as he stated, he observed that the criminality was grave involving an awful assault on the most vulnerable of men and that the assault offence was a despicable act and that the offences totally merited significant sentences of imprisonment. Bearing in mind, the learned judge said, the appellant's extensive criminal record and the fact that he pleaded guilty only on the day of the trial, a sentence approaching six years in his view was justified. Allowing as he did ten per cent discount for the pleas of guilty, the learned judge concluded that the appropriate overall sentence was one of five years' imprisonment, made up, as we have stated, of three years for the assault occasioning actual bodily harm and two years consecutive for the offence of theft, with the suspended sentence activated in addition to that. 11. In the grounds of appeal settled by learned counsel, Mr Newell, who appears today for the appellant, it is contended that it is wrong in principle, as is first submitted, for consecutive sentences to have been passed for the offences of assault occasioning actual bodily harm and theft, and secondly, in any event it is submitted that having regard to the principle of totality requiring a sentencer who imposes consecutive sentences of imprisonment to review the aggregate sentence and make such reduction as may be necessary if the aggregate term does not appear just and appropriate, it is contended that the learned sentencing judge should have reduced the overall sentence of five years it, being submitted that the aggregate sentence is equivalent to that for an offence of a much more serious nature. We note though that in the course of his helpful and succinct submissions to this court that Mr Newell has conceded that had the appellant been charged, as he could and should have been, with the offence of robbery then the submissions he makes to this court on that basis would not have arisen. 12. We consider though the merits of the grounds of appeal given the basis upon which the appellant was convicted. We note that it is conceded in the grounds that the sentences of three years' imprisonment for the offence of assault occasioning actual bodily harm and separately two years' imprisonment for the offence of theft are not said in themselves to be manifestly excessive on the facts of each of those offences, nor is there any contention that the activation of the suspended sentence consecutively was inappropriate. 13. The first issue we address is whether it was, as is submitted, wrong in principle for the separate sentences of three and two years' imprisonment to be ordered to run consecutively. Reliance is placed by Mr Newell on three decisions of this court: R v Jones (1986) 2 Cr.App.R (S) 152 and R v Skinner (1986) 8 Cr.App.R (S) 166, which illustrate the general principle which applies throughout sentencing criminal cases, namely that consecutive sentences should not normally be imposed for offences arising out of the same single incident. However, as Mr Newell concedes, it has been made clear in the course of the more recent decision of this court in R v Noble [2003] 1 Cr.App.R (S) 65 that in the words of the judgment in that case given by Keene LJ that is not an "absolute principle and it may admit of exceptional circumstances." Keene LJ went on later in the judgment to observe: "... where such exceptional circumstances occur, they tend to be the ones where different offences are committed." Reliance is placed on this observation in relation to this case by Miss Linsley, who appears for the respondent. Mr Newell submits that as offence in this case occurred over a short space of time against the same person no such exceptional circumstances were present. Miss Linsley in her helpful skeleton argument has drawn attention to two further decisions of this court: R v Dillon (1983) 5 Cr.App.R (S) 439 and R v Wheatley (1983) 5 Cr.App.R (S) 417 which she submits illustrates the submission that consecutive sentences may be imposed even if the offences arise out of the same incident. We note that indeed those cases bear out the submission which she makes. 14. In the course of argument we drew counsels' attention to two admittedly not recent but in our judgment still applicable decisions of this court appearing in the current edition of Professor Thomas' Encyclopaedia of Current Sentencing Practice: R v Bunch , a decision of this court on November 6th 1971 and R v Jones , December 15th 1975, in which in both cases the passing of consecutive sentences for offences of burglary and assault in the course of the burglary on the victim of both offences during the same incident were approved as appropriate by this court. In the instant case before us clearly the two separate offences were of a different kind and involved separate elements of criminality. Culpability in our judgment for the offences was cumulative and not coincidental. Gratuitous and renewed violence towards a vulnerable victim causing injury is one thing. Stealing a not inconsiderable sum of money much needed by its owner is quite another. 15. In our judgment this situation is analogous to that considered by this court in the cases of burglary and violence to the householder to which we have drawn attention. We conclude that the learned judge was entitled to find and was right to find that there were exceptional circumstances justifying consecutive sentences in this case. A decision to impose consecutive sentences was not in any way wrong in principle on the facts of this case. Of course, as Mr Newell has argued, the totality of those consecutive sentences required review to ensure they were just and appropriate. Mr Newell has submitted that in totality five years was manifestly excessive. He has drawn attention to the learned judge's reference to the appropriate sentence that he would have passed had the appellant been convicted of robbery. Mr Newell contends that had he been so the court would have to have regard, as no doubt it would, to the definitive guidelines for robbery offences issued by the Sentencing Guidelines Council and that the appropriate sentencing bracket he argues for such offence would have a range of two to seven years. We would observe though that this guideline is predicated on the basis that the offender, to whom it would apply, has no previous convictions. Additionally, the instant offences were committed in the victim's own room and involved in the words used by the single judge in her observations for our attention when granting leave: "... two despicable acts of assault and theft of a large sum of money from a frail and vulnerable man." We go on to say by an offender with relevant aggravating convictions including a four year sentence for robbery passed upon him in 2002. The discount for pleas of guilty was in our view rightly limited by the learned judge to 10 per cent. 16. Having regard to all these relevant factors, we do not find that even on the hypothesis postulated by Mr Newell a sentence of five years' imprisonment in total would have been or was manifestly excessive for such an offence, even if it had been charged, as it should have been, as an offence of robbery. In our judgment, the sentences passed in this case were neither wrong in principle nor in any way manifestly excessive in totality. For those reasons the appeals against sentence are dismissed.	{"ConvCourtName":["Crown Court at Southampton"],"ConvictPleaDate":["2008-11-05"],"ConvictOffence":["Assault occasioning actual bodily harm","Theft"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on day of trial","on rearraignment"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Southampton"],"Sentence":["3 years' imprisonment (assault occasioning actual bodily harm)","2 years' imprisonment consecutive (theft)","6 weeks' imprisonment (suspended sentence activated, consecutive)"],"SentServe":["Consecutive"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[27],"OffJobOffence":[],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["No comment interview"],"PreSentReport":["High risk of harm","High risk of reoffending"],"AggFactSent":["offence committed while on bail/suspended sentence","victim was extremely vulnerable","offender has relevant previous convictions","offender used violence against victim"],"MitFactSent":["offender pleaded guilty (late plea)"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["wrong in principle to impose consecutive sentences for offences arising from same incident","total sentence manifestly excessive"],"SentGuideWhich":["Sentencing Guidelines Council (robbery guideline, referenced in argument)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["consecutive sentences justified by exceptional circumstances","total sentence not manifestly excessive","sentences for individual offences not excessive","discount for guilty plea appropriate","offender had relevant aggravating previous convictions"]}
No: 200505645/A7 Neutral Citation Number: [2006] EWCA Crim 510 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 16th February 2006 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MRS JUSTICE RAFFERTY SIR RICHARD CURTIS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 106 OF 2005 (KENNETH CHARLES HUNTER) - - - - - - - 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 HEYWOOD appeared on behalf of the ATTORNEY GENERAL MISS F DAVIES appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988 , to refer a sentence said to be unduly lenient. We grant leave. 2. The offender was born in December 1959 and is therefore now 45. On 19th July 2005, at a plea and case management hearing, he appeared on an indictment which alleged rape on three occasions and alternative counts of sexual activity with a person with a mental disorder impeding choice, contrary to sections 30(1) and (3) of the Sexual Offences Act 2003 . It was indicated that there were likely to be pleas of guilty to the sexual activity counts and, in due course, such pleas, it was indicated by the Crown, would be acceptable. 3. In consequence, on 5th September, the offender pleaded guilty to those three counts and the matter was adjourned for a pre-sentence report. On 30th September he was sentenced by His Honour Judge Dobkin at Leeds Crown Court to a 2 year community rehabilitation order, with a 6 month condition of residence at a probation hostel in Middlesbrough or as otherwise directed. He was also told of his liability to make notification for a period of 5 years under section 80 of the Sexual Offences Act 2003 . 4. The facts were these. The offender lived with his two teenage sons in Leeds. The victim was, at the relevant time, a 17 year old girl with learning difficulties, attending a Special Needs School. She was subject to a care order and the supervision of a social worker. She lived with foster carers during the week and with her mother at the weekends. Her mother lived near the offender. 5. There was evidence that the girl, albeit 17, looked quite young and someone described her as being "like a little girl really". Her full scale IQ was in the region of 65, which is within the mild learning disability range of intellectual functioning. Her vocabulary skills were those of a child slightly in excess of 8 years. 6. The offender knew the girl and her mother well because he had been to her mother's home on many occasions. The mother had a considerable number of problems of her own arising, in part at least, from her relationship with her partner, which deteriorated in the late summer and early August 2004, to such an extent that, on two Saturday nights, she took an overdose and was, in consequence, admitted to hospital. On a third Saturday night, after she had been out drinking, she had a severe asthma attack and was again admitted overnight to hospital. 7. On each of those three occasions, she asked the offender to take care of her daughter. Understandably, she trusted him. On each of those occasions she was discharged from hospital the next day. She saw the girl and, at that time, there was no cause for her to be concerned. 8. On 14th February 2005, when the girl spent the day at home with her mother because she was unfit to go to school, her mother noticed that she was quiet and withdrawn. She told her mother that the offender had had sex with her. Her mother at first did not believe it and further enquiries were made, including of a neighbour to whom the girl had made a similar allegation two days previously. The offender himself also told a neighbour that he had had sexual intercourse with the girl more than once. 9. To start with, after this information, the mother, thought it inappropriate to tell anyone, because the family were about to go on holiday. However, on the night of 26th February, after she had had a good deal to drink, she went round to the offender's to confront him. He declined to open the door. The following morning, in the early hours, he was arrested. 10. The girl, in a video interview, described having had sexual intercourse with the offender on three occasions in his flat. She said that she was going to say "no", but could not, so she had said "yes". She also said that the offender would not have known that she did not want to have intercourse with her. No contraception was used. In relation to the third occasion, she said that she had told the offender she could not do it because it was her time of month but, nonetheless, they had had intercourse. 11. When he was interviewed, the offender said that it was the girl who had instigated sexual activity between the two of them. He admitted mutual oral sex had taken place on each of the three occasions. He said that, after the third occasion, he had concluded that what he was doing was not right and was betraying the mother's trust. He therefore tried to keep away from the girl. He knew that she attended a special school, but he suggested that she was capable of being manipulative. 12. He was charged on 28th February and made no reply. 13. A clinical psychologist instructed by the Crown concluded, in a report on 12th July, that the girl showed a reasonable understanding of sexual matters, although she sometimes struggled to articulate her answers through embarrassment. She was likely to be able to consent to a sexual relationship, but her level of capacity to consent might fluctuate, depending on external factors. 14. While he was awaiting trial, the offender resided at an approved probation hostel and it is apparent from the report prepared for this Court, accompanied by an up-to-date report, that he is continuing to demonstrate a positive response towards supervision. He has engaged, fully, in all the pieces of work which he has been asked to do. He and his older son have moved away from the area where the girl lives and it appears that there is an excellent prospect of him being able to establish a home in that new area. He is likely to be offered a local authority tenancy there, so there is little, if any, prospect of him now coming in contact with the girl. 15. On behalf of the Attorney-General, Mr Heywood draws attention to a number of what, he submits, are aggravating features. The first two of which are undoubtedly well founded: they are that these offences were committed in breach of trust and were, as we have described, repeated. It is further said that it was an aggravating feature that oral sex was engaged in as well as sexual activity. That is conjoined with the considerable disparity of age between the two of them, namely a gap of 28 years, reflecting quite different levels of maturity. 16. Miss Davies, on behalf of the offender, questions whether those third and fourth alleged aggravating features can properly be so characterised. She also and with substance in our judgment, challenges the fifth aggravating feature, which is said to be an absence of true remorse. In our judgment, Miss Davies' submission on that aspect is well-founded. That aspect of the case derives from the first report by a probation officer in relation to the case. The author of that report was ignorant, understandably, of the contents of the subsequent psychological report to which we have referred. In our judgment, there is no basis for regarding the offender as having showed no remorse. On the contrary, it is, in our judgment, significant that he had desisted from this conduct, for the reason to which we have referred, before any complaint was made. 17. Mr Heywood draws attention to the mitigation to be found in the fact that the girl had indicated her consent to this activity, and that she has suffered no apparent physical or psychological injury, although of course the long-term effects, if any, cannot be known. Mr Heywood draws attention to the plea of guilty at an early stage, which is clearly a significant mitigating feature in this case. 18. The offender has a conviction, more than 20 years ago, in relation to which he was fined by magistrates for indecent assault on an adult woman. The judge correctly disregarded that conviction when passing sentence. 19. Mr Heywood submits that one would have expected, having regard to this girl's disability and the circumstances of this offence, a custodial sentence in the court below of the order of at least 12 to 18 months. It may well be that there is substance in that submission. The crucial question which arises, however, is that, granted, as seems to us to be the case, that this sentence was a lenient one, ought it properly to be characterised as unduly lenient in the light of all the circumstances to which we have referred? 20. Miss Davies submits that there were a number of very unusual features about this case, all of which we have already referred to in the course of this judgment. She submits that it would not be appropriate to characterise this sentence as unduly lenient. 21. In our judgment, that submission is well-founded. This sentence it is not of such leniency as can be categorised as unduly so. We add one footnote: Mr Heywood properly draws our attention to sections 26 and 28 of the Criminal Justice and Court Services Act 2000 , which imposed a duty on the judge to consider, which he did not do, whether or not it was appropriate to make an order disqualifying the offender from working with children. There is, where an offence has been committed against a child an obligation to make such an order of disqualification, unless the judge takes the view that it is unlikely that the offender will commit an offence against a child in the future. We mention that matter because it is a statutory provision to which sentencers ought to pay appropriate regard. In the particular circumstances of this case, however, we accept Miss Davies' submission that, the judge, had he considered it, would almost certainly have concluded that it was unlikely that this offender would commit offences against children in the future. We say that having regard to the fact that he had desisted from this conduct in the circumstances to which we have referred, and because there was nothing in his record to suggest that he was in any way a menace to children. Having regard to all the circumstances, we decline to interfere with the sentence passed by the learned judge.	{"ConvCourtName":["Leeds Crown Court"],"ConvictPleaDate":["2005-09-05"],"ConvictOffence":["Sexual activity with a person with a mental disorder impeding choice (three counts)"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at plea and case management hearing"],"RemandDecision":["Conditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Leeds Crown Court"],"Sentence":["2 year community rehabilitation order with 6 month condition of residence at a probation hostel","Notification requirement for 5 years under section 80 Sexual Offences Act 2003"],"SentServe":["Single"],"WhatAncillary":["Notification requirement for 5 years under section 80 Sexual Offences Act 2003"],"OffSex":["All Male"],"OffAgeOffence":[45],"OffJobOffence":["Other"],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["one"],"VicSex":["All Female"],"VicAgeOffence":[17],"VicJobOffence":["Student"],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":["Has learning difficulties"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony","Video interview","Defendant's admission to neighbour","Clinical psychologist report"],"DefEvidTypeTrial":["Offender denies offence","Offender claims victim instigated sexual activity"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Offence committed in breach of trust","Repeated offences","Considerable disparity of age (28 years)"],"MitFactSent":["Offender showed genuine remorse","Offender desisted before complaint was made","Plea of guilty at early stage","Victim indicated consent","No apparent physical or psychological injury to victim"],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Sentence not custodial despite aggravating features"],"SentGuideWhich":["section 36 Criminal Justice Act 1988","sections 30(1) and (3) Sexual Offences Act 2003","section 80 Sexual Offences Act 2003","sections 26 and 28 Criminal Justice and Court Services Act 2000"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":["Unusual features of the case; offender desisted before complaint; no evidence of being a menace to children; low risk of reoffending"],"ReasonDismiss":["Sentence was lenient but not unduly so in all the circumstances; mitigation justified the sentence"]}
Case No: 200303312 Neutral Citation Number: [2005] EWCA Crim 703 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Thursday, 17 March 2005 Before : LORD JUSTICE GAGE MR JUSTICE NELSON and SIR DOUGLAS BROWN Between : R -v- Allsopp & Others - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Moreland and Mr C Gumsley for the Crown Mr Knox for Michael Nevin Allsopp Mr Hadrill for Anthony Joseph Kelly Mr Bloomfield for Karl Christian Wolf Mr Spencer Bernard for Melvin West - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Gage: 1. On 8 April 2003 following a re trial at Newcastle-Upon-Tyne Crown Court the appellants, Michael Nevin Allsopp, Anthony Joseph Kelly, Karl Christian Wolf and Melvin West were all convicted of conspiracy to supply a Class A controlled drug, namely cocaine. They were sentenced as follows: Allsopp to 12 years imprisonment; Kelly 10 years imprisonment; Wolf 10 years imprisonment; and West 8 years imprisonment. A co-accused Michael Hazel, pleaded guilty to the same offence and was sentenced to 5 years and 6 months imprisonment. Another co-accused, Christopher Stuart was acquitted at the end of the first trial. Allsopp, Wolf and West appeal against conviction and sentence, leave having been given to all the appellants by the single judge. Kelly appeals against conviction with leave and seeks an extension of time in which to seek leave to appeal against sentence. We grant an extension and give leave. The prosecution’s case 2. The prosecution alleged that between 1 June 2001 and 27 January 2002 the appellants had been involved in a conspiracy to supply cocaine in the north-east of the country. The cocaine was obtained from the south-east. It was alleged that Allsopp was the man in charge of the operation in the north-east and that his friend Kelly had acted as his lieutenant handling the distribution and organising meetings. It was alleged that Wolf was the London supplier. West was his courier as was Hazel up until his arrest on 22 December 2001. On arrest Hazel was found in possession of over 132 grams of cocaine valued at £8464. 3. The prosecution relied on a number of strands of evidence. First it relied on evidence of surveillance observations of meetings between the alleged conspirators. Secondly it relied on telephone evidence of contact between the conspirators. Thirdly it relied on evidence of a covertly recorded conversation on 16 January 2002 between Allsopp and Kelly which was alleged to relate to a discussion about drugs and Hazel’s arrest. Fourthly the prosecution relied on the seizure of bank notes and a set of weighing scales recovered from Wolf’s home address on his arrest, which were found to show the presence of cocaine. Also found at Wolf’s home address were lists of telephone numbers for the other alleged conspirators. 4. It was the prosecution case that in the period covered by the conspiracy four drugs transactions had taken place. The only drugs actually seized were those found in the possession of Hazel on his arrest. The defence case 5. Allsopp denied that he was involved in any conspiracy to supply cocaine. It was his case that all his activities could be innocently explained; or, at worst, were only activities connected with the distribution of contraband cigarettes. It was accepted that Kelly was a personal friend of his but he denied knowing Wolf or West. He did not know Hazel although he did know a man known as Raffles, said by the prosecution to be Hazel. 6. Kelly and Wolf put the prosecution to proof of its case against them. West denied that he had been involved in drugs in any way. His explanation for his presence in Newcastle on the day of his arrest was that he had been visiting antique shops. However, it was conceded that his denial of meeting Allsopp in Newcastle on the day of his arrest was a lie. 7. None of the appellants gave evidence at trial. Each had served a defence statement before trial. Allsopp denied that he had any dealings in drugs but alleged that he had dealt in contraband cigarettes. Kelly admitted association with Allsopp, Hazel, and Wolf but denied involvement in a conspiracy to supply drugs. Wolf admitted buying a car on sale on Tyneside but denied being involved in a conspiracy to supply drugs. West admitted contact with Wolf but denied being involved in a drugs conspiracy and denied all knowledge of the activities of his co-accused. 8. Before both the trial and the re-trial there were a number of PII hearings. Those hearings occupied 5 days before the judge. In this appeal the judge’s rulings were challenged by the appellants. Accordingly it was necessary for us to conduct the same exercise at a preliminary hearing before the start of the full appeal. Having conducted such a hearing we concluded that the judge’s rulings were correct in every respect. We announced our decision and gave reasons for it at the outset of the full hearing at which all the appellants were present. 9. It is now necessary to set out in a little more detail the case for the prosecution and the evidence called in support of it. The prosecution called evidence of some events which it described as events which provided the framework of the conspiracy. From the evidence of those events it invited the jury to draw the inference that there had been four deliveries of drugs from suppliers in the south to the conspirators in the north-east. The first such delivery was alleged to have taken place on 3 July 2001. There was observation evidence of Allsopp and Kelly travelling in different vehicles on that day to a meeting at a public house in Aston-cum-Aughton in South Yorkshire. Shortly after their arrival at the public house two other men arrived and joined them. After the meeting Allsopp and Kelly left in Allsopp’s car and went north up the M1. One of the other men got into a Rover car brought to the meeting by Kelly and travelled south to Harlow in Essex. The Rover was later recovered from the drive of Wolf’s home in Enfield. It was alleged that the car had been provided as part payment for drugs. 10. There was observation evidence of further occasions between 3 July and 29 November 2001 when Hazel and Kelly visited Allsopp’s home at different times. In addition there was some evidence of a conversation between Allsopp and another man which the defence suggested related to deals about cigarettes. On a yet further occasion Allsopp was observed with a box in the back of his car which the defence submitted related to cigarette transactions. 11. On 29 November 2001 observation evidence showed that Kelly drove to a car park at Wickes in the West Denton area of Newcastle. Shortly after his arrival a Renault car driven by Hazel parked alongside Kelly’s car. Hazel was observed getting into Kelly’s car with a carrier bag in his hand which it was alleged contained drugs and was handed to Kelly. On the same day there were numerous telephone calls between all of the appellants. This incident was alleged by the prosecution to concern the second delivery of drugs. 12. There was evidence of telephone activity between the appellants on several days leading up to intensive contact on 21 December 2001. The prosecution alleged that that telephone contact was in connection with a further delivery to be made on 22 December 2001. It was alleged that on 22 December Hazel was to drive to Newcastle with a delivery of drugs. In fact on that day he was arrested at Ferrybridge service station and found to be in possession of cocaine valued at approximately £9,000. Cell-site analysis of telephone calls demonstrated that West had been in the same area at the same time as Hazel and when the prosecution alleged that the drugs had been supplied to Hazel. This incident was alleged to have been the third delivery of drugs. 13. On 16 January 2002 a conversation between Allsopp and Kelly in Allsopp’s Mitsubishi Charisma motor car was overheard by police officers by means of an intrusive surveillance device placed in the Charisma car. A written log of the recorded conversation in the form of a transcript was provided for the court. The prosecution alleged that the discussion between the two men concerned the quality of drugs they had been supplied with by Wolf. The two men discussed the possibility of cutting cocaine in such a way as to increase their profits. They also discussed a trip by Wolf to Newcastle two days previously. In addition, there was discussion concerning Hazel and his arrest. 14. The admissibility of the evidence in respect of this conversation is one of the central grounds of appeal in this appeal. The evidence of it clearly affected most Allsopp and Kelly. However, it is argued on behalf of all appellants that this conversation was so central to the whole case that if it had been ruled inadmissible the whole complexion of the prosecution case against all of the appellants would have been altered. 15. On 17 January 2002 Kelly was observed travelling to and from HMP Armley in Leeds where he visited Hazel. Later on the same evening he and Allsopp met at Kelly’s home. 16. Finally on 26 January 2002 Allsopp and Kelly travelled to Newcastle Central Station. Allsopp was carrying a package. At the station they met West. An exchange took place which the prosecution alleged was the fourth drugs transaction. Allsopp then returned to his car and reversed out of its parking space. The car was stopped by a police officer who opened the passenger door and shouted “police”. Allsopp did not stop but sped off across one street and into another where the car was abandoned. After this incident all of the appellants were arrested. 17. West got onto a train and was arrested at Doncaster en route to Stevenage. Wolf was arrested at his home in Enfield. From his home police recovered £1380 in £20 notes. On examination the bank notes had traces of cocaine on them. There was also two sets of electronic scales in Wolf’s house; one in the kitchen and one on top of the wardrobe in the main bedroom. They too had traces of cocaine on them. 18. At interview Allsopp said that he had gone to the railway station in order to have a drink with Kelly. When he got into his car the door was yanked open by someone who said he was a police officer. Allsopp said that he panicked because a friend of his had been murdered and he thought that this might have been done by people posing as policemen. For that reason he drove off as fast as he could. He denied having anything to do with supplying cocaine. Neither Kelly nor Wolf was prepared to answer any questions put to them. West provided an explanation of his movements in Newcastle which the prosecution alleged consisted of lies. He said that he did not know any of his co-accused when their names were put to him; and that his only telephone calls on 26 January were to his wife. It was the prosecution’s case that these explanations were also lies. Grounds of Appeal Grounds 1 and 2 19. These two grounds challenge the admissibility of the evidence of the telephone conversation between Allsopp and Kelly on 16 January 2002. The admissibility of that evidence was challenged on two bases. First, the judge was asked to exclude the evidence under section 78 Police and Criminal Evidence Act 1984 ; and secondly, on the ground that the evidence had been obtained by means of an unlawful interception contrary to section 1 of the Regulation of Investigatory Powers Act 2000 ( hereafter RIPA ). The judge ruled against the Appellants on each ground. Her rulings form the basis for grounds 1 and 2 of the appeals of Allsopp, Kelly and Wolf. Although these grounds are not part of the appeal of West, on his behalf, Mr Spencer Bernard submits that the exclusion of this evidence would have had such an effect on the whole case as to make his client’s conviction unsafe. The background facts 20. As a result of the judge’s rulings there was before the jury a transcript of the conversation which had been obtained by means of a device placed in Allsopp’s Charisma motor car. There is no dispute as to what was actually said by Allsopp and Kelly during the course of conversation. There is a dispute as to the interpretation put on the conversation by the prosecution. However, it is conceded on behalf of the appellants, that the conversation is capable of an interpretation which was very damaging to the case of Allsopp and Kelly, and Wolf as well. It is necessary for the purpose of this judgment to set out only a few excerpts from the transcript. They are as follows: At Page 13 of the transcript Kelly: “Hmm. Do you know what I was thinking of doing, Mike? I know people…You know that we was talking about… You know how Carlos ( said to refer to Wolf ) what we’re getting has been chu chu ( alleged to mean cocaine ) the majority of it” Allsopp: “Aye,yeah” Kelly: “We could do that you know” At Page 18-19; Kelly: “He ( allegedly Wolf ) said it was 17 ( cost of cocaine ) at the minute” Allsopp:“Ah-ha” Kelly: “…but I’m talking where you can…double up if you want” Allsopp: “Yeah,yeah” Kelly: “And its still…the best we’ve ever had” Allsopp: “Uh hmmm” Kelly: “And I just think. What I want to do. I want to get this sorted with him, hopefully he’s going to come up with a little bit more and I’ll be able to go to him and give him.” Allsopp: “Yeah” Kelly: “With the car ( as part payment ), say 6 off the 9 ½ ( said to be £9,500 )” Allsopp: “Ah-ha” Kelly: “And then I’ll just gan and knock on his door and say looka” Allsopp: “Aye,right,that’ll be great.” Kelly: “Even if gans to 17, Mike its 8 ½” Allsopp: “Aye, you’re fuckin right.” Kelly: “I’ll pull 8 ½ off.” Allsopp: “Yeah,yeah.” Kelly: “Now why can’t we just fuckin come back, why can’t we just double up.” Allsopp: “Well, we will do.” At page 22; Kelly: “So what’s the odds on Raffle’s ( allegedly Hazel ) story for tomorrow ( visit in prison ), what do you think?” Allsopp: “ It’ll be a right load of shite. Who you going down with, on your own?” Kelly: “No, with the kid that does the bandits run.” Allsopp: “Oh, that’s right,yeah” Kelly “I don’t want to go on me own in case I get nicked, Mike.” At page 39 Kelly: “I says nine weeks he’s waited to get paid you know Carl ( Wolf ) nine weeks. I says you waited an hour and a half.” Allsopp: “Ah-ha.” Kelly: “For your first block you, maybe, what did he wait a week for the rest.” Allsopp: “At most, yeah.” At page 48; Kelly: “I’m going to get that lumper ( said to be used in preparation of cocaine ) in the next three to four months, Mike, fuck it.” Allsopp: “…Well ‘em I like the sound of that, what you were on about.” 21. At the first trial, the prosecution declined to disclose the nature of the device which had been placed in Allsopp’s car. However, for reasons which it is unnecessary to go into, by the start of the re-trial the following information about the device had been given to the appellants. The device was a form of mobile telephone operated through the Orange network. It transmitted messages to the police who recorded those messages. A police officer in a police station could choose when to switch the device on and off. It switched on in a similar way to a telephone connection. The police officer monitoring the device could switch on to listen to any conversation in the car. The officer could also choose whether or not to tape what he was hearing. A number of recordings were made and there was a written log of which the defence had copies showing when entries were made and when they were not made. On 16 January 2002 a police officer inserted two DAT tapes into the machine and recorded the conversation. 22. In respect of this device the police obtained authorisation for its use as intrusive surveillance pursuant to section 26 and section 32 of RIPA . The authorisations for this intrusive surveillance were disclosed to the defence in a redacted form. The authorisations did not disclose in full the information upon which the police relied for their suspicion of the involvement of Allsopp in serious arrestable offences. Each was counter-signed by an Interception of Communications Commissioner. The applications for a continuation of the intrusive surveillance were also before the court in suitably redacted form. The section 78 PACE argument 23. Before the judge it was argued that the appellants had insufficient information upon which to challenge the authorisations under section 78 . Mr Knox, counsel for Allsopp, argued that the prosecution must disclose all the information on which it relied in order to obtain the authorisations. Without this information it was contended that the appellants could not properly challenge the good faith of the police in obtaining the appropriate authorisations. The failure by the prosecution breached the Article 6 rights of the appellants in that they were unable to have fair trial. 24. Mr Knox submitted that the inability of the defence to test the quality of the evidence of the information used to obtain the authorisations made it unfair for the evidence of the conversation to be placed before the jury. 25. The judge in her ruling referred to a number of decisions including a decision of the House of Lords and two of this Court. In ruling that the admission of this evidence would not be unfair she stated: “Whilst it may not be fair to do so in other cases in the context of this case, I have carried out a full review of the material, as I am obliged to do under the provisions of the 1996 Act. I am satisfied that there is no material that undermines the prosecution case or assists the defence. That being so, I can see no unfairness to the defendants in admitting the evidence. Mr Knox can cross examine upon the materials he has, he can ask officers who were listening in questions in order to test the evidence and it’s context…he has sufficient material at his disposal to cross examine as to the weight to be attached to such evidence. Mr Hadrill has the material to conduct a similar exercise if he so wishes.” The judge went on to rule that even if the device had been inserted or remained within the vehicle without lawful authority she would still have admitted the evidence in the exercise of her discretion. 26. Before this court, Mr Knox, supported by counsel for Kelly and Wolf, repeated the submissions, which he made to the judge. He also submitted that the defence sought to challenge the authorisations on the basis that they might have been granted on information concerning Allsopp’s suspected participation in a murder or in suspected money-laundering operations. He relied on the decision of the European Court for Human Rights (Fourth Section) in Lewis –v- The United Kingdom of 22 July 2003 and R –v- H [2004] 2AC 134 . He submitted that the evidence of the conversation was a “determinative” factor in the case. Without it the prosecution case would be very considerably weaker. In the circumstances, this was a case which required the court to direct the prosecution that to disclose evidence of the information which supported the authorisations obtained under Part II of RIPA . In support of this submission Mr Knox relied on passages in the speech of Lord Bingham in R-v-H. In particular Mr Knox relied on Lord Bingham’s observations that the procedure approved by the Court of Appeal in R-v-Smith (Joe) [2001] 1WLR 1031 relied on by the judge in her ruling should no longer be treated as good law. Conclusion on the Section 78 grounds In our judgment the ruling of the judge was correct. The authorisations pursuant to RIPA as redacted stated that they were being granted on the basis that Allsopp and Kelly were suspected of being involved in serious arrestable offences. As counter-signed by the commissioners the serious arrestable offence was suspicion of dealing in controlled drugs. It was, in our judgment, unnecessary for the defence to have been given details of the information relied upon to obtain the authorisations. The procedure adopted by the police precisely followed the statutory procedure set out in Part II of RIPA . The judge reviewed all the PII material and, as we have held, correctly ruled that none of it should be disclosed to the defence. In our judgment the defence were not entitled to any further information. On the face of the documents the authorisations were properly granted. 27. In our view this was not a case analogous to R-v-Smith (Joe). In Smith the defence sought to challenge the use of DNA evidence derived from the non-intimate sample taken from the defendant on arrest. There was no evidence before the jury to show that the police had reasonable grounds for suspecting the defendant of committing a burglary and therefore it was contended that the police were not entitled to arrest him or to take the sample. In ruling that the police had reasonable grounds for suspecting the defendant of committing the burglary the judge relied on PII material not disclosed to the defence. The Court of Appeal held that the procedure did not breach the defendant’s Convention rights. In R-v-H Lord Bingham said that the procedure did not meet the minimum standards required by the Convention and that Smith should no longer be treated as good law. 28. In this case the defence were supplied with the authorisations. The appellants’ Convention rights under Articles 6 and 8 were, in our judgment, protected by the RIPA statutory procedures and by the judge’s review of the PII material. As the judge pointed out the defence could cross-examine the police officers responsible for operating the device. In our judgment the suspicions referred to by Mr Knox (see paragraph 26 above) were highly speculative and would not in any event provide a valid basis for challenging the efficacy of the authorisations. 29. Before we turn to the second and associated ground of appeal, two further matters arise. In Allsopp’s grounds of appeal and in counsel’s skeleton argument two further matters were raised in connection with the PII material. Mr Knox contended that the prosecution had sought to suppress as much as possible about the details of the device. Whatever, might have been the position at the first trial at the outset of the second trial the defence were supplied with the details to which we have referred above. At the second trial Mr Knox sought details of the billing for the device. Initially, this was refused on the ground stated by the judge that there were none. Subsequently it was explained by the judge that the wrong question had been asked. Billing details had been in existence but by that time had been destroyed. In fact, the prosecution supplied the defence with a hand written log made by the police officers on each occasion that the device was activated and the transcripts of the product of each activation were made available to the defence. Mr Knox accepted that this complaint by the appellants was a minor matter. We agree, the provision of the log of the police officers in our judgement overcame any difficulties in this respect. 30. Finally, Mr Knox complained that Allsopp had never been told whether or not there was an intrusive surveillance device in his house. It was submitted that he was, for that reason, unable effectively to prove the negative, namely, that no material damaging to the defence had been unearthed by such a device. At the outset of the appeal after a short PII hearing the prosecution disclosed to the appellants that no intrusive device had ever been placed in Allsopp’s home address. In the circumstances, although we can see no reason why this information was not provided at trial, Allsopp was not in any way prejudiced by the failure of the prosecution to do so. Indeed, in some ways, Allsopp was in a better position than if the information had been provided to him. Mr Knox was able to address the jury on the basis that there might have been a device in Allsopp’s house but nothing adverse to Allsopp was disclosed. Had the information that there was no such device in his house been disclosed that point could not have been made. We regard the failure to disclose this information to Allsopp as not prejudicing the conduct of his case and possibly enabling him to make submissions, which he otherwise would not have been able to do. The unlawful interception argument 31. Allsopp, Kelly and Wolf contend that the evidence of the conversation on 16 January 2002 was obtained by the prosecution by means of an unlawful interception contrary to section 1 of the RIPA . As such the product of the interception cannot be admitted as evidence (see s17 of RIPA) . The prosecution argued that the product was not obtained by means of an unlawful interception but was obtained by means of intrusive surveillance after the proper Authorities had been granted under Part III of the Police Act 1997 and Part II of RIPA . 32. Section 1 of RIPA provides: 1 Unlawful interception 1) It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of – (a) … (b) a public telecommunication system. 2) It shall be an offence for a person- (a) Intentionally and without lawful authority. (b) … to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a private telecommunication system.… 3) … 4) … 5) Conduct has lawful authority for the purposes of this section, if, and only if – (a) It is authorised by or under section 3 or 4 ; (b) … (c) … and conduct (whether or not prohibited by this section) which has lawful authority for the purposes of this section by virtue of paragraph (a) or (b) shall also be taken to be lawful for all other purposes.” Sub-sections (6), (7) and (8) are not material. 2 Meaning of location of “interception” etc 1) … 2) For the purposes of this act but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunications system, if, and only if, he – (a) so modifies or interferes with the system, or interferes with the system, or its operation, (b) so monitors transmission made by means of the system, or (c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system, as to make to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.” Sub-sections (3), (4), (5) and (6) are not material. 7) For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it. 8) For the purposes of this section the cases in which any contents of a communication are to be taken to be made available to a person while being transmitted shall include any case in which any of the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently. Sub-sections (9) and (10) are not material. Lawful interception without an interception warrant 1) Conduct by any person consisting in the interception of a communication is authorised by this section if the communication is one which, or which that person has reasonable grounds for believing, is both - (a) a communication sent by a person who has consented to the interception; and (b) a communication the intended recipient of which has so consented 2) Conduct by any person consisting in the interception of a communication is authorised by this section if- (a) the communication is one sent by, or intended for, a person who has consented to the interception; and (b) surveillance by means of that interception has been authorised under Part II 33. It is not in dispute in this case that if the product, namely the telephone conversation was obtained by means of an unlawful interception the effect of section 17 prohibits its use as evidence. The argument centres on whether or not the product was obtained by means of an unlawful interception. 34. Mr Hadrill, counsel for Kelly, supported by counsel for Allsopp and Wolf, submitted that sub-sections (2), (7) and (8) are of wide effect. He submitted that the recording of the conversation between Allsopp and Kelly by means of this device, involved a public telecommunication system. He submitted that the conversation was a communication within the definition of “communication” in section 81 of RIPA . In the material parts it reads: “ communication” includes- (a) … (b) anything comprising speech, music, sounds, visual images or data of any description; and (c) signals serving either for the impartation of anything between persons, between a person and a thing or between things or for the actuation or control of any apparatus 35. It is submitted that the conversation between Allsopp and Kelly is such a “communication” albeit neither of the two men had any knowledge that their conversation was being intercepted by the device. The essence of the submission is that the device in Allsopp’s car drew the conversation into the mobile telephone thus bringing it into a public telecommunication system and thereby intercepted the communication. Since neither Allsopp or Kelly consented to the interception of their communication the interception was not saved by the provisions of section 3 . Counsel relied on observations of Lord Woolf in R –v- Ipswich Crown Court and the Chief Constable of Suffolk Constabulary ex parte NTL (2002) EWCA 1585 when he observed that sub- sections 2 (7) and 2 (8) are so wide as to have unintended consequences. 36. The judge ruling the conversation was not the product of an unlawful interception, stated; “The communication was between Allsopp and Kelly. It was a face-to-face communication, transmitted orally and not by means of the telecommunication system. The police recorded this communication. Thus it does not fall within the act. So far as the transmission by means of the telecommunications system is concerned, who was the sender/recipient? That was undoubtedly the police thus they could authorise themselves to tape-record that which they overheard. Accordingly, if there was an interception within the meaning of the Act the interception of their own transmission was lawful under the provisions of s3 of the Act.” 37. In the judgment of this court the judge’s ruling was correct and the submissions of the appellants must be rejected. The question of whether a device used by police to intercept conversations amounts to an unlawful interception has been the subject of a number of decisions of this court. The judge in her ruling referred to two of those decisions : R v Smart and Beard [2002] EWCA Crim 272 and R v Hardy and Hardy [2002] EWCA Crim 3012 . In Smart and Beard the court had to deal with the admissibility of tapes of recorded conversations between Beard and a co-accused, Harris. The device was placed in Harris’ car. It is described as a listening device and it recorded Harris’ end of the conversation spoken into his mobile telephone. Beard contended that the conversation overheard by the covert device was an unlawful interception and should be excluded by reason of section 9(1) of the Interception of Communications Act 1985 , the predecessor of RIPA . The court held that the evidence was admissible. Clarke LJ, giving the judgement of the court, said: “We have reached the clear conclusion that … there was no interception of the communication within the meaning of section 1(1) of the 1985 Act . As we understand it, the listening device simply heard and recorded what Harris said into his phone. There was thus no interception of an electrical impulse or signal passing through the public telecommunication system. The situation was in essence the same as it would have been if the conversations had been heard by a policeman, say, hiding in the boot or standing on the pavement. In these circumstances an appeal on this ground could not, in our view succeed. Mr Davies submits that this is too narrow a view of the section and that we should give it a purposive construction having regard to section 3 of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights. However, the conclusion which we have reached does not seem to us to be inconsistent with the policy or purpose of the 1985 Act and, in our judgment, it should be construed in accordance with its terms but having regard to its purpose. Moreover, we can see nothing unfair in permitting the Crown to rely upon what Harris said on the phone. In short, there was no reason to exclude the evidence under section 78 of PACE and no basis for holding that Beard did not receive a fair trial in accordance with Article 6 of the Convention” 38. Mr Hadrill pointed to the difference between the facts of that case where what was said to be intercepted by means of a recording device was the telephone conversation itself. He pointed to the fact that there was no evidence that the recording device was a form of mobile telephone. What was being challenged as an interception was words spoken into a mobile telephone it being contended that that was an interception of the communication through Harris’ mobile telephone. 39. These distinctions on the facts in our judgment are not sufficient to affect the significance of the principle which was, as the court held, that the police were doing no more than listening to a conversation as if a police officer had been present and overheard it. 40. In Hardy and Hardy one of the issues for the court was whether tape recordings of telephone calls between undercover police officers and the appellants were admissible in evidence. It was argued by the appellants that the evidence fell foul of section 1 of RIPA as being unlawful interceptions. 41. It is unnecessary to refer in detail to the judgment in Hardy and Hardy . The court held in that case that the important words in section 1 and 2 of RIPA were in section 1(1) “in the course of its transmission” and in section 2 (2) “while being transmitted”. The court held that nothing in the conversations was intercepted in the course of transmissions. 42. In our judgment the matter is put beyond doubt by the decision of this court in R v E [2004] EWCA Crim 1243 . This decision was not before the judge. The facts are set out shortly in the judgment (see paras 5 and 7): “5. All that is necessary to say about the facts is this. In the course of an investigation into suspected drugs dealing on a substantial scale and as part of quite extensive observation procedures the police obtained permission under the Police Act 1997 and RIPA to place a listening device in the accused’s car .it provided recordings of words spoken in the car over two periods, one of about four weeks and the second about four days. 6… 7.The words spoken and recorded included the following. First, words spoken by the accused to other people who joined him in the car. Second, words spoken by those other people to him. Third, words spoken by the accused when in the car and using a mobile telephone. The device recorded the accused’s end of any such telephone conversations. It did not pick up any speech from whoever it was to whom the accused was speaking. Quite a substantial part of the total speech recorded in the car consisted of the accused speaking into his mobile telephone. It may be that it was approaching or as much as half of the total recorded material. 8. It is the fact that this third category of speech was recorded by the listening device, which gives rise to the argument mounted on behalf of the accused, that all the evidence of the product of the device is inadmissible.” 43. After setting out the provisions of sub- section 2(2) and 2(8) Hughes J giving the judgment of the court, continued: “The critical words are “in the course of transmission”, which, it will be seen, appear also in the offence-creating section, section 1(1) . One should note also the use of the expression “whilst being transmitted” in both section 2(2) and 2(8) . 20. In our view, the natural meaning of the expression “interception” denotes some inference ( interference ) or abstraction of the signal, whether it is passing along wires or by wireless telegraphy, during the process of transmission. The recording of a person’s voice, independently of the fact that at the time he is using a telephone, does not become interception simply because what he says goes not only go ( sic ) into the recorder, but, by separate process, is transmitted by a telecommunications system. That view is consistent with the expressions contained in the Act to which we have drawn attention. 21. Interception, moreover, as section 2(2) closely defines it, is concerned with what happens in the course of transmission by “a telecommunications system”. Section 2(1) defines a telecommunications system in the following terms; “Any system…which exists…for the purpose of facilitating the transmission of communications by any means, involving the use of electrical or electromagnetic energy” Thus, the system begins at point A with the conversion of sound waves from the maker of the call into electrical or electromagnetic energy. 22. What was recorded here was what happened independently of the operation of the telecommunications system. Of course, the recordings were made, questions of milliseconds apart, at the same time as the accused’s words were being transmitted. They were not, however, recordings made in the course of transmission. What was being recorded was not the transmission but the words of the accused taken from the sound waves in the car.” 44. In “ E ” the court concluded that nothing was recorded which had passed through any telecommunications system. It is also worthy of note that there appeared to be no challenge to the admissibility of words spoken by the accused to other people in the car. 45. In our judgment the situation in R v E is almost precisely similar to the facts of the case before us. The conversation between Allsopp and Kelly was not passing through any telecommunications system. It was, as the judge pointed out, a face-to-face conversation between the two men. To argue, as do the appellants, that it was a communication in words between two individuals and so caught by section 81 of RIPA ignores the fact that the conversation was not in the “course of transmission”. We accept the submission made by Miss Moreland on behalf of the prosecution that the plain words of the statute require some interference in the telecommunications system. Mere eavesdropping of a conversation between one person at one end of a mobile telephone or two people face to face cannot constitute a communication in the course of transmission. 46. Two further points remain. Mr Bloomfield sought to rely on Part 4.32 of the Code of Practice issued under RIPA . It reads: “The use of a surveillance device should not be ruled out simply because it may incidentally pick up one or both ends of a telephone conversation, and any such product can be treated as having been lawfully obtained. However, its use would not be appropriate where the sole purpose is to overhear speech, which at the time of monitoring is being transmitted by a telecommunications system” 47. Mr Bloomfield submitted that Part 4.32 is apt to describe what happened in this case. The sole purpose was to overhear speech, which at the time of monitoring had been drawn-in to the telecommunications system. He accepted that in R v E the court held that this Part of the Code went further than the law as enacted required. However, he submitted that the facts in this case are different from that in R v E. 48. In our judgment Part 4.32 does not affect our conclusion above. We have concluded that the conversation between Allsopp and Kelly was not one, which was drawn into the telecommunications system. In the circumstances, the speech which was overheard was not at the time being transmitted by a telecommunications system. Part 4.32 has no application to these facts. 49. Miss Moreland submitted that even if there had been an interception by means of the mobile telephone device it was lawful by virtue of section 3 (1) and/or section 3 (2). The judge accepted this submission. It is unnecessary for us to decide whether or not that submission is correct. Suffice it to say, on the facts of this case, we are doubtful as to whether section 3 could make lawful what was unlawful by virtue of section 1 . If, as the appellants contend, the communication between Allsopp and Kelly was, contrary to our holding, a communication drawn into the telecommunications system it does not seem possible to conclude that it had been “sent by a person who has consented to the interception” ( section 3 (1)(a)). Similarly it is difficult to see how the communication was “one sent by, or intended for, a person who has consented to the interception ( section 3 (2)(a)). In our view the only way in which section 3 becomes applicable is if the communication being transmitted from the device to the police was itself intercepted. This is not what happened in this case. 50. For these reasons ground two of the appeal fails. Ground 3 51. All the appellants are concerned in this ground. It relates to the reception of evidence given by Mr Jonathan Clarke, an expert in telecommunications. The purpose of his evidence was to inform the jury of the radius of a cell-site. At the first trial the prosecution had relied on a witness employed by one of the cell-site service providers. The evidence of that witness was that the radius of a cell-site aerial was 35 kilometres. On this basis the sender and receiver of a mobile telephone call transmitted through the cell-site could be up to 70 kilometres apart from each other. The evidence of Mr Clarke at the re-trial substantially reduced the radius of a cell-site aerial. His evidence was that the radius was only about two kilometres. The appellants contend that, due to the late disclosure of this expert evidence by the prosecution, each of them was substantially prejudiced in the presentation of their cases. It is submitted that the judge ought to have ruled this evidence inadmissible because of its late disclosure. 52. The factual background to this ground of appeal is as follows. After the first trial, which ended, so far as these appellants are concerned, in disagreement the judge directed that any additional evidence to be served by the prosecution should be served by 31 January 2003. This time limit was extended to 14 February 2003. The trial started on 5 March 2003. By the start of the trial the witness who had given evidence in respect of the radius of cell-site aerials by then had left the employment of the service provider. It was agreed between the prosecution and all of the appellants that another witness, Mr Lant, should be substituted for the previous witness. All parties anticipated that his evidence would be similar to the evidence given at the previous trial on the same topics. Meantime, those representing West had commissioned an expert’s report from Mr R Bell. The prosecution learnt that Mr Bell had been asked to produce a report when he contacted a police officer in the case seeking information required by him to prepare his report. On learning that West had commissioned such a report the prosecution sought a report from Mr Clarke so that it could deal with any expert evidence called on behalf of West. When it commissioned its own expert report the prosecution did not know to what area of telecommunications Mr Bell’s report would refer. The report from Mr Clarke, in the form of a letter, informed the prosecution that the radius of cell-site aerials in urban areas were often only one to two kilometres apart and in rural areas typically four/five kilometres apart. His opinion was that it was rare in the United Kingdom to find any site carrying traffic over distances greater than 10 kilometres. On receipt of this evidence Miss Moreland, sensitive to the time limits set by the judge, took the decision to stick to the 35 kilometres radius given in evidence at the first trial. Accordingly, she did not advise that Mr Clarke’s report be disclosed. 53. Mr Lant gave evidence towards the end of the prosecution case. It was apparent during the course of his evidence that he was quite unable to deal with questions relating to the radius of cell-site aerials. There followed discussions between all counsel and the judge, in the absence of the jury, as to what was to be done. Naturally, the judge was anxious that the jury should not be misled in any way. On 19 March 2003 the first discussion on this topic occurred. It was clear that in the discussion reference was made by the prosecution to the report of Mr Clarke. At the same time the judge was informed that Mr Bell had been instructed on behalf of West. Mr Bell’s report had been served on the prosecution some five days earlier. It is clear from the transcript of the discussion on 19 March 2003 that the judge was anxious to ensure the minimum delay of the trial and that she was “not thinking of discharging the jury, or anything of that sort”. She pointed out that it was fortuitous that West had instructed his own expert. She said that it would be perfectly proper expenditure for the defence to use Mr Bell’s expertise in any way they felt appropriate. She directed that Mr Clarke’s report be disclosed by the afternoon of Friday, 21 March 2003. 54. The court did not sit on 21 March but re-assembled on 24 March 2003. It would appear that the whole of that day was taken up with further discussions on the admissibility of Mr Clarke’s evidence. We have seen a transcript of those discussions. It is clear from the transcript that Mr Hadrill on behalf of Kelly and Mr Spencer Bernard on behalf of West, complained to the judge of the difficulty faced by them in dealing with Mr Clarke’s evidence. It was obvious that a reduction of the radius of a cell-site aerial from 35 kilometres to 5 kilometres could have the effect of placing their clients closer to other alleged conspirators at relevant times. Mr Hadrill told this court that he had a recollection of asking for time to deal with the matter but the judge refused.. However, the plain fact is that there is no reference on the transcripts that we have seen to counsel for any of the appellants seeking further time let alone applying for the jury to be discharged. In our judgment, the tenor of the discussion shows the judge was sympathetic to the defence being given such facilities as were necessary to take instructions from Mr Bell. Mr Bell has been described to this court, as has Mr Clarke, as one of the leading experts in the field of telecommunications. On the following day, 25 March 2003, Mr Clarke gave evidence. 55. The appellants submit that they were prejudiced unfairly by the admission of the evidence of Mr Clarke. It is submitted that by reason of the failure of the prosecution to disclose Mr Clarke’s report until the weekend of 22/23 March they were put in the position of being quite unable to deal with that evidence. Accordingly the convictions are thereby rendered unsafe. Conclusions on this ground 56. In our judgment there are a number of reasons for rejecting this ground of appeal. First, we are quite satisfied that Miss Moreland cannot validly be criticised for not disclosing the report of Mr Clarke earlier. As she explained, she had taken the decision to stick to the radius of 35 kilometres given in the evidence at the previous trial. It was only when Mr Lant, in the course of his evidence, was found to be unable to deal with the questions on this topic that Mr Clarke was considered as an alternative witness on this aspect of the case. The judge, as she was entitled to do, insisted that the jury should not be misled and that there must be some evidence on the point. We can understand that at that stage the defence were collectively at some disadvantage. However, in view of the fact, that Mr Bell had already been instructed by solicitors for West it is understandable that the judge should assume that the defence could obtain sufficient evidence from him to rebut any controversial evidence given by Mr Clarke. As she understood the position Mr Bell was, at least, on the end of a telephone capable of giving instructions not only to West’s solicitors but also to solicitors for the other appellants. If this evidence was as important as the appellants suggest we are at a loss to understand why no attempt was made by the legal representatives for any appellant to obtain instructions from Mr Bell. None of the appellants was conducting a cut-throat defence. There could have been no reason why Mr Bell, assuming his evidence was favourable to the defence, could not be called on behalf of one or all of them. We find the failure by any of the legal representatives, and in particular those acting for West, to seek guidance from Mr Bell comprehensible only on the basis that his evidence was unlikely (not) to assist the appellants; and /or that the issue for which this evidence was required was not of any real significance to the defence of any of the appellants. 57. In respect of this last factor, we observe that the question of the radius of a cell-sit aerial was only one factor in evidence showing where and at what time any appellant was in a particular place. In our judgement of greater significance was the observation evidence of police officers as to where any appellant was at a given time. That evidence coupled with the evidence provided by the billing records showing to whom and from whom any appellant was receiving a telephone call or calls from a co-conspirator was of much greater significance. In our judgment this is demonstrated by the fact that Mr Knox on behalf of Allsopp was unable to make any submissions to us as to how his client was specifically prejudiced by the admission of the evidence of Mr Clarke. In his case the telephone evidence adduced by the prosecution was broadly accepted as accurate. For Kelly, Mr Hadrill pointed to only one date, 6 January 2002, when he suggested the evidence of Mr Clarke prejudiced his client. On that date Kelly was observed on the A1 at Wetherby at 12.36pm. There was evidence of telephone contact between him and other co-conspirators on that day connected by means of a cell-site aerial close to the M1. The fact that Mr Clarke’s evidence placed him closer to his co-conspirators than Wetherby is a small and insubstantial part of the prosecution case against him. Mr Bloomfield made no submissions to us specific to prejudice caused to Wolf. 58. Mr Spencer Bernard submitted that his client was prejudiced in respect of evidence relating to his client on 22 December 2001, 28 December 2001 and 6 January 2002. On each of those dates his client was placed in an area, on Mr Clarke’s evidence, closer to a co-conspirator or conspirators than would have been the case if the radius was 35 kilometres. There was no observation evidence of any kind against West. However, on each of these three dates West was some distance from his home area in North London and there was evidence of telephone contact between him and Wolf at or about the relevant times when the prosecution alleged he met co-conspirators from the north of England. There was also evidence of telephone contact between Kelly and Wolf at or about those times. 59. In answer to the question, was Mr Bell contacted by West’s advisors in respect of this matter, Mr Spencer Bernard said that would have been an option. Apart from a suggestion that Mr Bell might have required to see Mr Clarke’s database, no submissions were made to us which in any way suggested that it was impossible for assistance on this topic to have been obtained from Mr Bell. The only conclusion which we can reach in the light of the submissions made by Mr Spencer Bernard is that either Mr Bell was unable to give any helpful assistance or the matters raised by Mr Spencer Bernard as constituting prejudice at the time were not regarded by West or his advisors as sufficiently important for an application to be made to adjourn or discharge the jury. 60. We reject this ground of appeal in respect of all of the appellants. Ground 4 61. Before Mr Clarke gave evidence, Miss Moreland informed the court that Mr Clarke objected to disclosing his database. The grounds of objection were that the database contained material which was sensitive from a commercial point of view to Mr Clarke’s business. The judge refused to direct Mr Clarke to disclose his database. The appellants argued that the refusal by Mr Clarke to disclose his database was unjustified and the judge’s decision refusing to order him to do so wrong. Mr Hadrill submitted that it was wrong in principle to commit an expert witness to conceal relevant information. 62. Miss Moreland submitted that the information relied on by Mr Clarke was collated from information publicly available to any expert witness instructed by an appellant. In her submissions to the judge and to us she stated that the information needed for the maps produced by Mr Clarke was information readily available from public documents and a web-site. Nothing was used which was information special to Mr Clarke. 63. As a matter of principle in our judgment, no witness expert or otherwise, is entitled to keep secret relevant information on the basis that it is confidential to him or his business. If it is relevant to the issues and, in the case of an expert, forms the basis or part of the basis for his opinion in our judgment it must be disclosed. However in this case the information was said to be publicly available and on the facts of this case we conclude that the judge was right to refuse permission for the defence to see Mr Clarke’s database. It would have been better if Mr Clarke had been directed to supply details of the public information upon which he relied. It may be that he did so during the course of his evidence. We have no transcript of his evidence and the summing-up makes no reference to this point. In any event, for the reasons given above in relation to ground 3 we are not persuaded that the evidence given by Mr Clarke in respect of the radius of cell-site aerials was other than a minor piece of evidence in the prosecution case against each appellant. Assuming, for these purposes, that the judge was in error in respect of this matter we are quite satisfied that it does not render the conviction of any of these appellants unsafe. Ground 5 64. This ground of appeal applies to Wolf alone. Mr Bloomfield, on behalf of Wolf, submitted that the judge should have ruled that in so far as references were made to Wolf in the transcript of the conversation between Allsopp and Kelly on 16 January 2002 those references were inadmissible against Wolf. The judge, he submitted, was wrong to rule that these references were admissible against Wolf as statements in furtherance of the conspiracy. 65. The references to Wolf in that conversation are those set out above where the name Carlos or Carl appears. The prosecution alleged that the names Carlos and Carl referred to Wolf. In the reference at page 13 Mr Bloomfield submitted that this should be seen as a discussion for a future conspiracy to supply “uncut” cocaine involving Allsopp and Kelly. This was in contrast to the conspiracy alleged in the indictment, which was to supply “cut” cocaine. So far as the reference at page 39 is concerned the submission is that this was a mere narrative or description of past events. Mr Bloomfield submitted that both excerpts represent hearsay evidence as against Wolf and neither pass the relevant test for acts done in furtherance of a conspiracy. 66. The test of admissibility of such evidence is most conveniently set out in R v Jones & Others [1997] 2 CAR 119. The test is whether the conversation was about the operation of the conspiracy or was simply a narrative of past events or evidence of a future conspiracy not involving Wolf. In argument Mr Bloomfield conceded that it was much a question of impression. 67. We have no hesitation in concluding that the judge correctly ruled the evidence admissible against Wolf. In our judgment, on the assumption that the jury accepted the prosecution interpretation of the conversation, each of the passages relied upon when seen in the context of the whole conversation are clearly discussions about the progress of the conspiracy with which Wolf was charged. The fact that Allsopp and Kelly were considering ways of increasing their own profit by cutting uncut cocaine rather than purchasing cut cocaine does not mean that they were embarking on a new and different conspiracy. That distinction is wholly artificial. In her ruling the judge said that she was quite satisfied that what was being referred to in relation to Wolf was a discussion on the progress of the conspiracy and plans for the future. She ruled that it was capable of being found by the jury to be in furtherance of the conspiracy. She gave the jury what Mr Bloomfield conceded was an entirely proper direction in respect of it in her summing-up. 68. In our judgment this ground also fails and must be rejected. Ground 6 69. This ground is a ground solely put forward on behalf of Wolf. It relates to the evidence of Mr James Hailes, an analyst and statistician employed by Northumbria Police. The purpose of his evidence was to link two disputed mobile telephone numbers to Wolf. The disputed telephone numbers, using the last four digits, were 5964 and 8651. Mr Hailes made a comparison of the pattern of calls between 4886, a known Wolf number, and 8651 a disputed number. He conducted the same exercise in respect of 4886, a known Wolf number and 5964, a disputed Wolf number. The comparison demonstrated a commonality i.e. a shared call destination to the extent of 55% in the case of 8651 and 35% for 5964. Mr Hailes expressed the opinion that such a high percentage of calls to the same person or destination, common to both mobile telephones, indicated not merely different users with the same circle of contacts, but the same user, using the two different telephones. Further, Miss Moreland pointed out that on the diagrams produced by Mr Hailes the disputed telephone numbers showed calls to both Kelly and West. Similar exercises were carried out in respect of other appellants and the prosecution contend that this evidence was relevant and helpful as its effect was to achieve admissions from other appellants as to their use of mobile telephones, which they had initially disputed. 70. The submission made on behalf of Wolf is that Mr Hailes’ evidence as to commonality is not expert evidence and was not admissible as such. Mr Bloomfield argued that by admitting it, it was elevated to a status, which was disproportionate to its importance and gave it specious authenticity cloaked as it was by the description of expert evidence. In short, his submission was that Mr Hailes was giving evidence about an exercise which could have been carried out by any layman. The choice of the top twenty numbers was entirely arbitrary. In cross-examination Mr Bloomfield demonstrated that if the top ten numbers were taken commonality was reduced to 20% for 8651 and 10% for 5964. The arbitrary nature of the exercise carried out by Mr Hailes was, submitted Mr Bloomfield, well outside the parameters of expert evidence. 71. The judge found that Mr Hailes was an expert in the field of statistics. We were informed by Miss Moreland that he was employed by the Northumbria Police for the purpose of carrying out a statistical analysis in a number of different situations. Miss Moreland accepted that it might have been possible for counsel to take the raw data provided by the billing records and make some similar statistical comparisons. However, she pointed out that it required the experience of a statistician to collect and collate the mass of material in order to start to form a judgment on what conclusions might be gleaned from it. Further, producing this information and conclusions through the medium of a witness gave the defence an opportunity to challenge by cross-examination that which could not have been the subject of cross–examination if produced by counsel. She submitted that this was a much fairer way of placing the material before the jury. 72. In our judgment the judge was right to admit the evidence of Mr Hailes on the basis that it was expert evidence. She noted that the hypothesis upon which Mr Hailes worked was one which had been used over a number of years although it had now become his own because of the manner in which he performed it. In her view Mr Hailes was using his expertise as an analyst and statistician when he carried out the task. A jury would need instruction or experience in analysis or statistics before being able to carry out the commonality exercise themselves. 73. Like the judge, we conclude that Mr Hailes’ opinion evidence was admissible as expert evidence in accordance with the principles set out in R v Bonnython 1984 38 FASR 45 (Archbold paragraph 10-65). In our view the substantial criticism to which his evidence was subjected by Mr Bloomfield in argument and in cross-examination went to the weight of the evidence given by Mr Hailes rather than to its admissibility. The question of what weight could be attached to it was one for the jury. 74. We reject this ground of appeal. Ground 7 75. The final ground of appeal concerns West. It relates to lies which the prosecution alleged he told at interview. The first alleged lie was a lie about his encounter with Allsopp in the Centurion Bar at Newcastle Central Station on the day of his arrest. It was admitted by Mr Spencer Bernard on his behalf that this was a lie. No complaint is made about the judge’s direction in respect of this lie. 76. Before speeches and summing-up, in a discussion with counsel about legal directions, the judge indicated to Mr Spencer Bernard that she would give a Lucas direction in respect of that lie. However, when giving the Lucas direction she coupled with it a further alleged lie. The further lie was in connection with West’s knowledge of Wolf. At interview West denied knowledge of Carl Wolf. The prosecution alleged that this was a lie. Although this lie did not feature in the discussion between the judge and counsel, in her summing up the judge posed the question “why did he deny knowing Carl Wolf?” She repeated the Lucas direction. 77. In the next break Mr Spencer Bernard raised this matter with the judge. His complaint was that if he had known she was going to give a Lucas direction in respect of this alleged lie he would have addressed the jury about it. The judge was fulsome in her apology to Mr Spencer Bernard and indicated that she would correct any adverse impression given by her in respect of that matter. Before completing her summing-up she gave the following further direction to the jury in respect of that matter; “ … you may like to take that into account in relation to his lie about Wolf, because he is in custody for 13 hours, he is asked if he knows someone who is his friend. Is it just panic, “well no, I don’t know him”, in order to protect his friend, and remember what I said about that. In any event, I think there is a general point, in relation to whether or not necessarily he would have known Mr Wolf as Carl Wolf or just Carl” 78. The complaint made by Mr Spencer Bernard is that by giving a Lucas direction in respect of this matter the judge elevated it to a position of greater importance and significance than it merited. This was not cured by her subsequent direction. 79. In our judgment there is nothing in this complaint. It is clear from the discussion between the judge and counsel that the judge gave a Lucas direction in respect of this alleged lie to benefit West rather than prejudice him. It was alleged by the prosecution to be a lie and one which supported the case for the prosecution against West. In our opinion the judge was correct to include it in the Lucas direction which she gave in respect of lies told by West. There can be no possible prejudice to him from these directions. 80. This ground of appeal also fails and must be rejected. Result 81. It follows that for the reasons set out above the appeals against conviction of all four appellants must be dismissed. Appeal against sentence 82. The appellants were sentenced as we have set out at the beginning of this judgment. The submission made on behalf of all the appellants is that the sentence of 12 years in respect of Allsopp demonstrates that the judge took too high a starting-point. Mr Knox submitted on behalf of Allsopp that a calculation of the amount of cocaine supplied can properly be based on the amount and quality of the cocaine found in Hazel’s possession on his arrest. Hazel was found to be in possession of 150 grams of cocaine of 50% purity. Taking 75 grams as representing the amount of pure cocaine in his possession and multiplying that by the four occasions on which the prosecution alleged drugs had been supplied Mr Knox submitted that Allsopp should have been sentenced upon the basis that he was concerned in the supply of 300 grams of cocaine. Judged against the Aramah guidelines a sentence of 12 years was too high. Each of the other appellants supported this submission and argued that if Allsopp’s sentence was too high the sentence in respect of their clients should be proportionately reduced. 83. In our judgment these submissions ignore the fact that the offence of supplying cocaine in respect of each of these appellants was one of conspiracy to supply drugs. It was not a single supply of cocaine of less than 500 grams. It was a conspiracy, which lasted approximately 6 months and involved a number of conspirators. In our view it represents a more serious offence than a single supply of drugs. We reject the submission that the starting-point was too high. The appeals of Allsopp, Kelly and Wolf are dismissed. 84. On behalf of West Mr Spencer Bernard submitted that in addition to taking too high a starting-point the judge failed to reflect the lesser part played by West in this conspiracy. He relies on the fact that West was only involved in the conspiracy from about the time of the arrest of Hazel on 29 November 2001. It follows that he was involved for a shorter period of time than his co-conspirators. 85. In our judgment there is some force in this submission. We reject the submission in his case that the starting-point was too high but we accept that his role in the conspiracy for a shorter period of time was not adequately reflected by the judge in sentencing him. For this reason we quash the sentence of 8 years in his case and for it substitute a sentence of 7 years. To that extent his appeal against sentence is allowed.	{"ConvCourtName":["Newcastle-Upon-Tyne Crown Court"],"ConvictPleaDate":["2003-04-08"],"ConvictOffence":["Conspiracy to supply a Class A controlled drug (cocaine)"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Newcastle-Upon-Tyne Crown Court"],"Sentence":["Allsopp: 12 years imprisonment","Kelly: 10 years imprisonment","Wolf: 10 years imprisonment","West: 8 years imprisonment (reduced to 7 years on appeal)"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Surveillance observations","Telephone evidence","Covertly recorded conversation (intrusive surveillance)","Seizure of bank notes and weighing scales with traces of cocaine","Lists of telephone numbers","Cell-site analysis","Expert testimony (telecommunications, statistics)"],"DefEvidTypeTrial":["Defence statements denying involvement","Alternative explanations (contraband cigarettes, visiting antique shops)","Denial of knowledge of co-accused"],"PreSentReport":[],"AggFactSent":["Conspiracy lasted approximately 6 months","Involved a number of conspirators","Multiple deliveries of drugs"],"MitFactSent":["West involved for a shorter period than co-conspirators"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction unsafe","Sentence is excessive"],"AppealGround":["Admissibility of covertly recorded conversation (section 78 PACE and RIPA)","Unlawful interception (RIPA)","Late disclosure of expert evidence (cell-site analysis)","Refusal to disclose expert's database","Admissibility of references to Wolf in conversation","Admissibility of expert statistical evidence","Lucas direction regarding lies at interview","Sentence too high/starting point too high","West's role not adequately reflected in sentence"],"SentGuideWhich":["section 78 Police and Criminal Evidence Act 1984","section 1, 3, 17, 26, 32, 81 of the Regulation of Investigatory Powers Act 2000","Police Act 1997","Aramah guidelines"],"AppealOutcome":["Allsopp: Dismissed","Kelly: Dismissed","Wolf: Dismissed","West: Allowed in part (sentence reduced from 8 to 7 years)"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Offence was a conspiracy lasting 6 months involving multiple conspirators and deliveries, more serious than a single supply"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge's rulings on admissibility of evidence were correct","No unfairness or prejudice to appellants","Proper procedures followed for surveillance authorisations","No unsafe conviction","No substantial prejudice from late disclosure of expert evidence","Expert evidence properly admitted","Lucas direction properly given"]}
Neutral Citation Number: [2020] EWCA Crim 1748 Case No: 2020 01644 A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ST ALBANS His Honour Judge Bright , Q.C. Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/12/2020 Before : LORD JUSTICE STUART-SMITH MR JUSTICE EDIS and HIS HONOUR JUDGE BURBIDGE, Q.C. sitting as a judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - Between : The Queen Respondent - and - Scott Edward Rowlett Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. J. McGuinness, Q.C and Mr. J. Gwatkin (assigned by the Registrar) for the Appellant Mr. J. Price, Q.C. (instructed by CPS Appeal Unit ) for the Crown Hearing dates : 1 st December 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Mr. Justice Edis: 1. This case has come to this court because of the way in which the legislature chose to develop the valuable regime whereby the court can make orders to protect the public from sexual offenders. The scheme became so complex that an experienced and able judge, assisted by two experienced counsel, made an order which, on the face of it, he had no power to make. No-one noticed until it was breached, and new counsel examined what had been done. The Sexual Offences Prevention Order (always known by the acronym SOPO) was the first step in the creation of this labyrinth, implemented by the Sexual Offences Act 2003. It was later felt that it would be better to call these orders Sexual Harm Prevention Orders (always known by the acronym SHPO). Other changes were made to the scheme apart from the change of name, some of which we discuss below. This was achieved by amending the relevant provisions of the Sexual Offences Act 2003 by the insertion of ss.103A-103K and making other consequential amendments by the Anti-Social Behaviour, Crime and Policing Act 2014 with effect from 8 th March 2015. Transitional arrangements were made for dealing with SOPOs which had been made prior to that date. The result was a power under s108 of the 2003 Act to amend such a SOPO. It was not a power to vary such a SOPO so that it became a SHPO. Between March 2015 and March 2020 such orders continued to be SOPOs. By complex provisions of s114 of the AntiSocial Behaviour Crime and Policing Act 2014 all such “existing” SOPOs became SHPOs on 8 March 2020. 2. The issue in this appeal concerns what should be done where a defective application to amend a SOPO has led a judge to issue a “varied” order that was in form and, apparently, in substance a SHPO. The appellant submits that this order was and is a nullity, made without jurisdiction. The Crown submits that this court can and should regularise the position as from the date of the Judge’s order. 3. We are grateful for the skilled assistance of all counsel in this highly technical area both in their written and oral submissions. We understand that it was junior counsel for the appellant, Mr. Gwatkin, who first appreciated the defect in what had been done and we are particularly grateful to him for that. The making of the SOPO 4. On 4 October 2012 the appellant was convicted of the rape of a 13 year old girl. On 12 December 2012 he was sentenced to 10 years imprisonment and made subject to a SOPO until further order. At the time of conviction the appellant was 21 years old. He is now 29. 5. The SOPO prohibited the appellant from: “Being alone or in the company of any female child under the age of 16 without the supervision of an adult with parental responsibility for the said child” 6. The SOPO was made under s.104 of the Sexual Offences Act 2003, which provided 104 Sexual offences prevention orders: applications and grounds (1) A court may make an order under this section in respect of a person (“the defendant”) where any of subsections (2) to (4) applies to the defendant and– (a) …….. (b) in any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant. 7. We have emphasised the word “serious” for reasons which will become apparent. 8. It is not suggested in this appeal that the original order was wrongly made. The appeal is brought with leave of the Single Judge against a decision of HHJ. Bright, Q.C. made on 5 December 2017 in the Crown Court at St Albans on an application by the Chief Constable of Hertfordshire Police to vary the SOPO so that it became a SHPO. As we have said, s108 of the 2003 Act as amended did not permit this. 9. The appellant had been released from custody on 12 May 2017. His supervising officer from the Hertfordshire Constabulary Public Protection Unit had concerns over his behaviour after release, as we describe below. This caused the Chief Constable to apply for a variation of the SOPO. After hearing the application and without objection on behalf of the Appellant, who was represented by counsel, the SOPO was varied to a SHPO until further order in the terms set out below: “1. Not to have any unsupervised contact with any child under the age of 16 without the permission of the child’s parent/guardian and children’s services. (1) Not to communicate via the internet or by mobile phone with any child you do not reasonably believe to be aged 16 or over. (2) Not to use or possess any device with the capability of connecting to the internet unless: i. You obtain written permission from PPU to use/possess device ii. Risk management software is installed by PPU where available iii. You make any device capable of accessing the internet in your possession (within your property) available upon request save and except for within the workplace, with written permission from PPU. (3) Not to delete/block/change any internet history (this includes using ‘private browsing’) on any mobile phone, computer, tablet or games console you use.” The Application Before the Judge 10. The application cited section 103E of the Sexual Offences Act 2003 which had come into force on 8 th March 2015 and which was part of the series of provisions which was intended to replace the SOPO regime with the SHPO regime. It provided that a court can vary, renew, or discharge an SHPO upon application. It does not confer a power to vary a SOPO. By s.103E(5) the Act provided:- 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. Any renewed or varied order may contain only such prohibitions as are necessary for this purpose. 11. It was alleged that “the Defendant had, since the date of release, acted in such a way as to give reasonable cause to believe that a variation to the existing Sexual Offences Prevention Order is necessary under Section 104(1) of the Sexual Offences Act 2003 as amended by Section 114 Anti-social Behaviour, Crime and Policing Act 2014 to protect the public or any particular members of the public from sexual harm”. 12. The application relied upon a witness statement from Vicky Carter. She was employed by Hertfordshire Constabulary as a MOSAVO (management of sexual and violent offenders) officer and worked in the Public Protection Unit. At this time, the Appellant was subject to the SOPO, but there were also, it would appear, terms of his licence which gave her powers to investigate his conduct. She said that on the 8 th of June 2017 she checked the appellant’s phone during a joint probation meeting. She saw that he was communicating with people he did not know in a sexual manner, sending and receiving intimate photos. He said that people would contact him on Facebook and he would talk to them despite not knowing them. She gave him advice. On the 31 st of August 2017 she received a phone call from a probation officer who said she had checked the appellant’s phone during their session and had found concerning messages to and from a 12 year old female. Ms. Carter collected the phone the same day and completed a download. On the 1 st of September she attended the Appellant’s home address to speak with him about what the probation officer had seen. He admitted that he had entered into a conversation with a child but blamed a friend, saying they were trying to get him. She asked why he continued to speak to communicate with people he did not know. He said he had been stupid but he wanted to meet new people. He admitted that he had breached his licence conditions by being in contact with a fellow prisoner. 13. When Ms. Carter reviewed the download she found that the appellant had conducted the following searches in Apple Safari, all on dates after her meeting on 8 th June when she had first inspected the Appellant’s phone: Rape scenes school girls on 26/06/2017 at 06:04:47 Virgin school girls on 26/06/2017 at 06:11:47 Russian schoolgirls in the bath on 18/07/2017 at 00:42:02 Schoolgirls in the bath on 18/07/2017 00:53:04 Japan tiny on 18/07/2017 14:49:30 British virgin schoolgirls nude on 18/07/2017 at 14:59:45 [Name redacted] nude 18/07/2017 at 15:01:52 14. The redacted name in the last search is a teenage female relative of the Appellant. He admitted to most of these searches, and said that he did them because he wanted to go back to prison. He denied searching “[redacted name] nude” and stated that someone must have cloned his phone. There was no internet history on the days the Appellant searched for the above; A stated that he was using “private browsing”. Whether this was true or not, it meant that he had taken steps to avoid his use of the internet being detected. 15. On the 21 st of August 2017 the Appellant had entered in a Facebook Messenger conversation with a 12 year old female. 16. Between the 25 th of July 2017 and the 8 th of August 2017 the Appellant entered into a conversation with a 14 year old via imessage. 17. The ages of these girls were both stated in the conversations, and both conversations were sexual in their nature. 18. We comment at this point that this behaviour by a person who was only recently released from prison and subject to intensive supervision under the terms of a licence is extremely concerning. The licence will expire in two years’ time, leaving only the SHPO in place for the protection of the public. The Judge’s Comments in granting the variation 5/12/17 19. The judge said that the information provided to the Court suggested that the preexisting SOPO did not cover or prohibit some of the activities in which it was believed the appellant had engaged or might engage in the future, with regards to underage girls. It was entirely appropriate for the SOPO to be replaced with a completely new order, a SHPO, to prevent the appellant from doing various things that were not previously covered. It was pleasing that the variation was not opposed but if it had been it was unlikely a new order would not have been made. The Court was satisfied that the new order was necessary for the protection of underage girls as there was a significant risk unless the order was made. Given that he made an order restricting contact with “any child” the order he made was not supported by this reasoning because he made no finding that the Appellant posed any threat to male children. We shall return to this. Grounds of Appeal 20. The Ground of Appeal alleges that the Judge erred in unlawfully and without jurisdiction making a Sexual Harm Prevention Order when there was no power under the relevant legislation to do so. 21. In writing and orally before us today, counsel who now appear for the Appellant have advanced a series of submissions. It is agreed that the technical analysis which they have helpfully and clearly set out is correct. 22. First they submit, correctly, that the change from SOPOS to SHPOs was achieved by s.113 of the Anti-Social Behaviour, Crime and Policing Act 2014 which came into effect in 2015. The threshold for the making or variation of an order was changed. The SOPO threshold, that the order sought be necessary to protect the public from “serious sexual harm”, was replaced with the SHPO requirement that the order be necessary to protect the public from “sexual harm” (s.103A(2)(b) of the Sexual Offences Act 2003 and contrast the repealed s.104(1) of the same Act). 23. s.114 of the Anti-Social Behaviour, Crime and Policing Act 2014 contained transitional provisions in relation to “existing orders” (defined as, amongst other orders, a SOPO of the kind made in this case prior to the commencement date of the 2014 Act). This section retained the power to vary such orders with reference to the higher threshold test set out at s.108 of the Sexual Offences Act 2003 which gave the power to vary a SOPO on application. This is not a power to replace a SOPO with a SHPO, but only a power to amend a SOPO and is only exercisable if the higher threshold is met. 24. Accordingly, the variation of the SOPO in this case could only be made under those transitional provisions and required the court to be satisfied that the variation was necessary to protect the public from serious sexual harm. This point was not brought to the attention of the judge and it is not clear which threshold he considered. This is “the threshold issue”. 25. It is agreed that the application was made under the wrong provisions, and that the only power available to the judge was the power under s108 SOA 2003 to vary the SOPO. The judge did not do this, but purported to make a new order, which he called a SHPO. This is the “jurisdiction issue”. 26. The consequences of these agreed defects in the process before the judge are not agreed. The appellant submits by parity of reasoning with R v Hamer [2017] EWCA Crim 192 that the order must be quashed because it was made without jurisdiction, and that the Court of Appeal under s11(3) of the Criminal Appeal Act 1968 is limited to exercising the powers which were available to the judge. Since he had no jurisdiction, neither does this court. The Crown Response 27. In response, the Crown submits that there was a valid application before the judge to vary the SOPO albeit one which cited the wrong statutory scheme, and that the technical error in framing the order is one which is not fatal to its validity. The court should not quash it, but make an order varying the SOPO in the same terms under s108 of the SOA 2003 being satisfied that it was necessary for the protection of the public from serious sexual harm. 28. By the phased transitional provisions contained in s114 of the Anti-Social Behaviour Crime and Policing Act 2014 all “existing” SOPOs became SHPOs on 8 March 2020. This means that If we accept the prosecution submissions, we would make an amended SOPO which would have been in force as such between 5 December 2017 and 7 March 2020 and has been in force as a SHPO with the same terms since that date. Discussion and Decision 29. First, the difference in thresholds, we are confident, makes no difference to the result in this case, in that the order was clearly required to protect female children from serious sexual harm. This is a non-technical finding on the merits. This Appellant had a conviction for the rape of a 13 year old girl, and, while subject to licence and a SOPO, had behaved in a very worrying and compulsive fashion very soon after his release. Any judge would rapidly conclude that an order of the kind which was made was necessary for the protection of the public from serious sexual harm. Any other conclusion would be perverse, particularly because there was and is no material to contradict this outcome. Accordingly, the fact that the application was made on a false basis may have diverted the judge’s attention from the proper test which had to be applied, but it was amply satisfied, and he would inevitably have so found. We do, however, consider that if he had been invited to consider the correct legal test he would not have found that his order was necessary to protect male children from serious sexual harm. There was no material before him capable of justifying this conclusion. He should also have been presented with a draft which reflected the need to exempt inadvertent contact with children from attracting criminal liability. The “threshold issue” is therefore resolved against the Appellant with this modification to the judge’s order. 30. Therefore, the issue is a technical one, but not one without importance. It is agreed that an application to vary the SOPO could have been made to the Crown Court and, as we have said, it would have inevitably succeeded, subject to the two adjustments to the breadth of the new order which we have identified. 31. The reason the issue is not without importance is that there are proposed proceedings for breach of the order, which include breaches of the provisions added by Judge Bright in December 2017. 32. S108 of the Sexual Offences Act 2003 provided the power to grant variations of SOPOs. As in force at December 2017 this provided:- 108 SOPOs: variations, renewals and discharges (1) A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual offences prevention order. (2) 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, his police area; (d) where the order was made on an application under section 104(5), the chief officer of police who made the application. (3)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. 33. In Hamer, as here, it was agreed that the order made by the Crown Court was defective and had to be quashed, and the second issue was whether the Court of Appeal Criminal Division could make an order in a correct form which corrected the judge’s error. It was held that it could not. Hamer had come before the Crown Court because he had been convicted of breaching the original SOPO, but no application had been made by anyone listed in s108(2) of the SOA 2003. The court explained that the amended order had to be quashed explaining at [15]:- “This is because the offences which entitle the court to impose a SHPO do not include the offence of breaching a SOPO: s.103A(2) and Schs3 and 5 of the 2003 Act as amended.” 34. The Court held that in the absence of an application by a person listed in s108(2) of the 2003 Act there was no power to vary the SOPO. The statutory conditions must be complied with before the power conferred by the statute arises. The Crown Court, and therefore the Court of Appeal Criminal Division, had no jurisdiction. 35. In the present case the statutory conditions were complied with in that there was an application which had been made by the Chief Officer of Police, as required by the 2003 Act. S108(3)(a) gives procedural primacy to the CrimPR. This application had been made in compliance with CrimPR 31.5 so far as procedural matters such as service of notice and evidence are concerned. CrimPR 31.11 provides:- Court’s power to vary requirements under this Part 3.11 Unless other legislation otherwise provides, the court may— (a) shorten a time limit or extend it (even after it has expired); (b) allow a notice or application to be given in a different form, or presented orally. 36. The court would have been acting lawfully if it had treated the defective application for an SHPO as an application under s108 for a variation of the existing SOPO and had granted a variation of it if satisfied (as we have said it would have been) that it was necessary to do so to protect the public from serious sexual harm. It did not do so, because neither counsel was alive to the defect in the application, and they did not invite the judge to express the order in accordance with the correct statutory scheme. 37. Had that happened, the judge would have been acting within his jurisdiction to make a proper order on a defective application. It follows therefore that we have power to do likewise. 38. This approach is in accordance with the decision of this court in Ashford [2020] EWCA Crim 673 , following a full review of the statutory scheme. That court applied R v Ashton [2006] EWCA Crim 794 , and said:- 17.The court [in Ashton ] 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]. 39. For these reasons we intend to allow the appeal, to quash the order but to make an order in similar terms to those used by Judge Bright, which will be drawn up as a variation of the SOPO, exercising the power in s108 SOA 2003 which was in force at the date of his order. By the phased transitional provisions referred to above, that is now a SHPO. The substantive differences between his order and ours are i) that the word “female” will appear in our order before the word “child” wherever it appears; and ii) paragraph 1 of the order will be amended so that it reads “1. Not to have any unsupervised contact with any child under the age of 16, other than a) Such as is inadvertent and not reasonably avoidable in the course of lawful daily life, and b) without the permission of the child’s parent or guardian (who has knowledge of his conviction and this order) and with the express approval of Social Services for the area.” 40. The second amendment brings the order in line with the practice derived from R v. Smith [2011] EWCA Crim 1772 , and explained at Archbold at 20-275, and in the Compendium on Sentencing at S7-13. 41. We now need to turn to the issue of what it was between 5 December 2017 and today. Is our correction of the form of the SOPO of effect from the date it was made in December 2017, or can the order only lawfully be in force from today? This is important because of the allegation of breach. 42. It is common ground in this case that there is an appeal route to this court against the order which was made by Judge Bright. It is, however, necessary to examine the statutory basis for it in order to decide whether the adjusted order we have now made should only take effect from today, or whether there has been a valid and binding order in those terms since 5 December 2017. This is the final issue we have to resolve. A statutory gap in the appeal route has emerged, further complicating an area of the law which could, and should, be simple but which is not. 43. S.110(3) of the Sexual Offences Act 2003 as originally enacted provided an appeal against the granting or refusal of an application to vary a SOPO under s108 of the Act. This provision was repealed with effect from 8 March 2015. S103H of the Act came into force on 8 March 2015 and provided for a similar appeal route and allows for an appeal against the making or refusal of an application under s103E. That section only gives power to vary a SHPO. As at 5 December 2017 the order in this case was a SOPO and not a SHPO. 44. Assuming that Parliament did not intend to remove a right of appeal in respect of applications to amend SOPOs which continued to exist as such pending their conversion into SHPOs by operation of law in 2020, it is necessary to seek that right in the Criminal Appeal Act 1968. s11(3) of the Criminal Appeal Act 1968 governs the extent of the court’s powers on appeal against sentence. Of course, Judge Bright’s order was not made when sentencing the Appellant. However, s50(1) of the 1968 Act defines “sentence” as including “any order made by a court when dealing with an offender.” 45. Therefore, although there is no express right of appeal against an order under s108 any longer to be found in the 2003 Act, such a right would appear to exist at least in the case of “an offender” under the 1968 Act. Mr. Rowlett was “an offender” having been convicted of an offence of rape, and the court was, in December 2017 “dealing with” him. This perhaps explains why we have been addressed by reference to s11(3) of the 1968 Act. This provides (3) On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may— (a)quash any sentence or order which is the subject of the appeal; and (b)in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence; but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below. 46. Mr. McGuinness argues that it should not be “backdated” because there is no statutory warrant for such an order. He relies on s29(4) of the Criminal Appeal Act 1968 which deals with the effect of an appeal against sentence (4)The term of any sentence passed by the Court of Appeal under section 3, 4, 5, 11 or 13(4) of this Act shall, unless the Court otherwise direct, begin to run from the time when it would have begun to run if passed in the proceedings from which the appeal lies. 47. Mr. McGuinness submits that this provision only relates to the “term” of any sentence and not to the terms of any order which do not specify a “term”. We agree. However, we consider that the terms of s11(3) provide the answer. The order we make is made “in place of” the Crown Court order and must be an order which the Crown Court had power to make. The “place” of the Crown Court order includes the time during which it is valid, and our order substitutes itself for the Crown Court order in respect of the time of its validity. Moreover, we doubt if the Crown Court had a power to make a SOPO on 5 December 2017 which would be suspended in its effect until the date of this judgment. 48. This order is therefore a SOPO which came into force on 5 December 2017. This reflects the principle by which an appellate court operates. It makes an order which must have been within the power of the first instance judge, on the basis of the law as it then stood and, in the absence of fresh evidence, on the material which was before that judge. There is no “prejudice” to the Appellant because he knew, at all material times, what the order prevented him from doing and has been deprived only of a technical defence to an allegation of breach of which he was entirely unaware until advised of it by his present legal team. That post-dated the conduct which is alleged to have constituted a breach of Judge Bright’s order. 49. This appeal is therefore allowed to the very limited extent that the order will be drawn up in an amended form which reflects this judgment, but will for all purposes have been in force that amended form since 5 December 2017.	{"ConvCourtName":["Crown Court at St Albans"],"ConvictPleaDate":["2012-10-04"],"ConvictOffence":["Rape of a 13 year old girl"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at St Albans"],"Sentence":["10 years imprisonment","Sexual Offences Prevention Order (SOPO) until further order"],"SentServe":[],"WhatAncillary":["Sexual Offences Prevention Order (SOPO) until further order"],"OffSex":["All Male"],"OffAgeOffence":[21],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[13],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Witness statement from MOSAVO officer","Phone download evidence","Probation officer testimony","Internet search history"],"DefEvidTypeTrial":["Offender denied some searches","Claimed phone was cloned"],"PreSentReport":[],"AggFactSent":["Offence committed against a child","Breach of licence conditions","Sexual communications with underage girls","Internet searches for sexual content involving children"],"MitFactSent":[],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Order made without jurisdiction"],"AppealGround":["Judge erred in unlawfully and without jurisdiction making a Sexual Harm Prevention Order when there was no power under the relevant legislation to do so"],"SentGuideWhich":["Section 104 of the Sexual Offences Act 2003","Section 108 of the Sexual Offences Act 2003","Section 103E of the Sexual Offences Act 2003","Section 113 of the Anti-Social Behaviour, Crime and Policing Act 2014","Section 114 of the Anti-Social Behaviour, Crime and Policing Act 2014","Section 11(3) of the Criminal Appeal Act 1968"],"AppealOutcome":["Allowed to the extent that the order is quashed and replaced with a valid order in amended form, effective from 5 December 2017"],"ReasonQuashConv":["Order was made without jurisdiction under the relevant legislation"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Case No: 201603740 C4 Neutral Citation Number: [2017] EWCA Crim 1168 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM IPSWICH CROWN COURT MR JUSTICE STUART-SMITH T20157159 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2017 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE HADDON-CAVE and HIS HONOUR JUDGE INMAN QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : HONEY MARIA ROSE Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ian Stern QC and Sandesh Singh (instructed by Stokoe Partnership, London) for the Appellant Jonathan Rees QC and Karen Robinson (instructed by Crown Prosecution Service) for the Respondent Hearing date: 13 th June 2017 - - - - - - - - - - - - - - - - - - - - - Judgment Sir Brian Leveson P : 1. The question raised by this case can be simply stated. In assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, is it appropriate to take into account what a reasonable person in the position of the defendant would have known but for his or her breach of duty? 2. On 15th July 2016, Honey Maria Rose (now aged 35) was convicted in the Crown Court at Ipswich before Stuart-Smith J and a jury of manslaughter by gross negligence. She was sentenced, on 26th August 2016, by the same judge to a term of 2 years’ imprisonment, suspended for 2 years, with a supervision order and unpaid work requirement of 200 hours, to be completed by 25th August 2017. 3. Ms Rose now appeals against conviction with leave of the single judge. On her behalf, it is submitted by her trial counsel, Ian Stern Q.C. and Sandesh Singh that the Judge was wrong to reject the defence application that there was no case to answer and, for the same reasons, erred in his directions to the Jury as to the elements of gross negligence manslaughter. The Crown (represented by Jonathan Rees Q.C. and Karen Robinson who also appeared below) support the approach taken in the Crown Court. We are grateful to counsel for their able assistance in this appeal. The Facts 4. Ms Rose is a registered optometrist. She was first registered with the College of Optometrists in the UK on 13th February 2008. She trained abroad and passed her Non-EEA test for optometrists set by the General Optical Council in June 2010. In 2012, she worked part time at Boots Opticians in Upper Brook Street in Ipswich (previously operated by Dolland & Aitchison) as a locum optometrist. 5. On 15th February 2012, Joanne Barker took her two children, Vincent and Amber, to Boots Opticians in Ipswich for routine eye tests and examinations. Vincent (known to his family as “Vinnie”) was aged 7 years 9 months and Amber was aged 4 years 11 months. 6. On that date, Ms Rose was on duty. She carried out the sight test on Vincent after retinal images had first been taken by an optical consultant/assistant. Following Vincent’s examination, Ms Rose recorded no issues of concern and said that Vincent did not need glasses. The clinical record card which she filled out recorded: “ Reasons for visit: routine check / had few H/ache over Xmas 2011, but now all gone ”. She specified the next appointment for Vincent should be in 12 months. Vincent’s mother and sister also had sight tests and eye examinations carried out by Ms Rose. The three appointments lasted from 10:25 a.m. to 12:05 p.m. 7. Five months later, on 13th July 2012 whilst at school, Vincent was taken ill and vomited. The school rang his mother at about 2:50 p.m. and she collected him and took him home. His condition deteriorated during the afternoon. Around 8 p.m. he was discovered to be cold to the touch and plainly very ill indeed. The emergency services were called and paramedics attended. Efforts were made to resuscitate Vincent and he was rushed to Ipswich Hospital. By the time he arrived at Ipswich Hospital, however, Vincent was unfortunately in cardiac arrest. Every effort was made by the ambulance staff, doctors and nurses to resuscitate him, but after 40 minutes there was still no cardiac output. Following consultation with his parents, it was decided that resuscitation would be stopped and Vincent was formally pronounced dead at 9:27 p.m. by the on-call paediatrician, Mr Desai. Vincent had previously been a healthy, thriving and active boy, who had never before attended hospital. 8. When a child dies suddenly and unexpectedly, the SUDIC (Sudden Unexplained Death in Infancy & Child) protocol is implemented. Medical investigation 9. Vincent’s sudden and unexplained death was investigated by a consultant paediatric pathologist, Dr Marian Malone. On 20th July 2012, Dr Malone carried out a post mortem examination on Vincent at Great Ormond Street Hospital. On 9th August 2012, an examination of the brain was carried out by an honorary consultant in neuropathology, Dr Thomas Jacques, in the presence of Dr Malone. Dr Malone’s findings were reviewed by another a consultant paediatric pathologist at Great Ormond Street Hospital. All three experts agreed that the cause of Vincent’s sudden and premature death was acute hydrocephalus (i.e. acute build-up of cerebrospinal fluid within the normal ventricles of the brain because its normal outlet had been blocked); this was secondary to gliosis (a process leading to scarring of the nervous system) which caused gliotic obstruction of the rostral part of the fourth ventricle of the brain. It was agreed that the obstruction in Vincent’s brain had been a longstanding chronic problem; but the case was unusual in that Vincent had not presented with many associated symptoms of hydrocephalus, such as headaches and vomiting. 10. Hydrocephalus requires early surgical intervention to drain the fluid and to prevent the fluid from accumulating, either by creating a bypass or inserting a shunt. Dr Helen Fernandes, a specialist neurosurgeon based in Cambridge and medical advisor to the Association of Spina Bifida and Hydrocephalus, prepared a report on the case. She explained that hydrocephalus was a treatable condition but required surgical intervention. In her opinion, Vincent’s condition was treatable up until the point of his acute deterioration and demise on 13th July 2012. Thus, following his eye examination on 15th February 2016, there was no reason why Vincent’s condition could not have been successfully treated at any time up until the fatal build-up of fluid on 13th July 2012. Her report was not disputed. 11. It was common ground that an optometrist has a statutory duty of care to examine the internal eye structure as part of a routine eye examination (see further below). The purpose of the examination is to detect signs of abnormality or disease, including life threatening problems evident from the optic nerve. An examination of the internal eye structure and back of the eye ( i.e. bio-microscopy) is normally carried out either with the use of an ophthalmoscope or a ‘slit lamp’. An ophthalmoscope creates a 2D image. A ‘slit lamp’ is used in conjunction with a microscope which allows the optometrist to view the internal eye structure in 3D. Both instruments allow the optometrist to obtain a very good view of the optic disc, which is circular in a healthy person. Another means by which the condition of the eye can be checked is to review ‘fundus’ photographs which are in 2D, i.e. images taken by a retinal (fundus) camera. 12. It was agreed between the experts that a competent optometrist would know the significance of papilloedema (swelling of the optic nerve) and would immediately refer the case on to others. If an optometrist was unable to view the back of the eye, it would always be noted. It was the responsibility of the optometrist to view the correct retinal images and, in the absence of a full examination, the patient should also have been asked to return for a further eye examination within a much shorter period. Fundus retinal camera 13. The Boots store in Ipswich had a fundus camera, which allowed retinal images to be captured of the eye. This image is limited to the central 45 degrees of the eye. The taking of retinal images was free for children and images were taken by an optical consultant/assistant prior to a sight test by an optometrist. On the day of his sight test, the records show that retinal images were taken of both Vincent’s eyes using that camera. His right eye was photographed at 10:05:34 a.m. and his left eye at 10:06:01 a.m. The retinal images were stored in the Boots computer system. After the images were taken they are then viewed through software called “Topcon IMAGEnet”. That software does not record when images are accessed. Vincent’s medical history 14. Vincent had had three eye examinations in his young life. The first examination was on 30th January 2010 when he was aged 5. The second was on 5th February 2011 when he was aged 6. The third was the examination on 15th February 2012 when he was nearly 8 years old carried out by Ms Rose. Both the second and third eye examination took place at Boots Opticians in Ipswich. 15. The records for the Boots examination were obtained and sent for review by Dr Vaileios Kostakis, a consultant paediatric ophthalmologist at Ipswich NHS Trust. Dr Kostakis reviewed a disc containing the fundus photographs and the handwritten notes made at the time of the examinations. He said that the 2011 examination of Vincent’s eyes gave no cause for immediate concern and showed Vincent’s eyes were healthy and all parameters were within normal limits. However, Dr Kostakis found that the retinal images taken of the back of Vincent’s eyes in February 2012 were remarkably different from those taken in 2011 and showed significant congestion of the veins and swelling of the optic nerve. In his opinion, the second set of fundus photographs taken in February 2012 were abnormal and would cause concern and have given rise to urgent referral to hospital by any competent optometrist. Dr Kostakis observed that Vincent’s case was very unusual due to the lack of symptoms displayed. In a patient suffering from hydrocephalus, he would expect them to present with many headaches and vomiting. This was not the case for Vincent. Ms Rose’s Interview 16. On 7th March 2013, Honey Rose told the police that most days were always busy at Boots. In relation to Vincent, after checking the records, she confirmed that she had initially used an ophthalmoscope but after Vincent showed signs of photophobia and poor fixation, she then relied on the fundus photograph. She commented that most of the time the retinal cameras were not working and the branch did not pay any attention to her complaints about that. Her findings were normal in relation to Vincent and showed no cause for concern. She said she would have checked Vincent’s fundus photographs. 17. When shown the retinal images for Vincent, she said she had never seen that image before and that even an unqualified person could tell that the optical disc was not normal in Vincent’s case and the optical consultant should have flagged the photographs. She concluded that when she had carried out the eye examination in 2012 she must have been looking at the retinal images from his 2011 examination. The Trial 18. The prosecution case was that Ms Rose was guilty of gross negligence manslaughter by (i) failing, without good reason, properly to examine the back of Vincent’s eyes during his sight test on 15th February 2012 as she was required to do by reason of her statutory duty of care, and (ii) failing to refer him for urgent medical treatment as a result of the significant findings shown on the retinal images which she should have viewed. Had she not breached her statutory duty of care to examine his eyes properly and had she referred him, Vincent could have been successfully treated in hospital and would not have died. She was guilty of gross negligence manslaughter by omission and it was reasonably foreseeable that her breach of duty at the time the eye examination was concluded would have resulted in a serious and obvious risk of death to the reasonably prudent optometrist. It was not alleged the headaches that it was noted that Vincent had previously complained of at Christmas had any bearing on the matter. 19. The defence case was that Ms Rose did not breach her duty of care. She had been unable to examine Vincent’s internal eye structure because Vincent was uncooperative (photophobic) when she tried to use the ophthalmoscope to examine him and that examination required her to be extremely close to the child, which he may have found uncomfortable. She also gave evidence in her own defence that, with regard to the fundus photographs taken just before the examination and viewed by her, it was likely she was shown the fundus photographs of another patient by mistake. There had been problems with the computer system and retrieval of retinal images about which she had repeatedly complained to the store. 20. Anonymous patient records were obtained and showed that, as a matter of medical practice, Ms Rose always used the ophthalmoscope and so there was no reason not to accept that she was telling the truth about the problems with her examination of Vincent, although she recognised she had not formally recorded those problems. 21. Ms Rose relied on her good character, including evidence of her positive character. She also had no findings against her by the General Optical Council. She also relied on the delay in prosecuting the case as being prejudicial to her defence. Factual evidence 22. Ms Cocker, an optical consultant, gave evidence at the trial that she worked at the Boots store and there were sometimes problems with the retinal camera, but that it was easy to use and images were stored under the patient’s name or a unique identification number. They would be viewed by her after the image was taken and then viewed digitally by the optometrist during the eye examination. The written records showed that the witness might not herself have taken the retinal images for Vincent that day. She accepted that she was not an IT expert and she would not have known if the screen in the optometrist’s room had a problem. 23. On the day in question, in Vincent’s case, both the retinal camera and an ophthalmoscope were recorded to have been used for the purposes of his eye examination. No issues were recorded as to any problem with the retinal camera or the computer system at Boots which would have interfered with the retrieval of the images. 24. Vincent’s mother, Mrs Barker, gave evidence that she had made an appointment for Vincent to have an eye test because he had experienced some headaches over the Christmas period and she thought he might need glasses. Amber had also reached the age where she could have an eye test. When they arrived at Boots, the fact that retinal images would be taken was clearly advertised. She was present when both children had the images taken. They had both behaved perfectly. As far as she was concerned, she had thought that Vincent had had a full eye examination and had set a good example to his younger sister Amber, which is why he was examined first. Ms Rose did not mention photophobia or any problem at all with light and Vincent had never reacted to flash photography before. Mrs Barker confirmed that the optometrist had used an ophthalmoscope to examine Vincent’s eyes. Mrs Barker agreed that Vincent would have been uncomfortable with the very short distance, that she would have been away from him during the ophthalmoscopy and that she saw her very close to Vincent during the examination. 25. On her own behalf, Ms Rose gave evidence that she had some slight memory of what had happened during Vincent’s eye examination on 15th February 2012. She could not recall who had put the retinal images on the screen or who she complained to about the equipment. She was not responsible for taking the retinal images and no one flagged up to her that there was a problem showing on Vincent’s images. On the day in question, she could not view the images on her computer in the examination room and so went to the pre-screening room to look at the photographs. 26. In the case of Vincent and Amber, a colleague had put the images on the capture screen in the pre-screening room and they would each show the name of the patient underneath. She would take manual notes and then destroy these once they were written up on the system. 27. Although in police interview she stated that she thought she had been shown the images for Vincent taken in 2011, at trial she said she thought that could not be right and that she had been shown the images for the wrong patient entirely. She explained the stages of the eye examination she carried out on Vincent and the problems she encountered when trying to examine his optical discs. She said she had had to abandon the ophthalmoscopy because of Vincent’s poor fixation and slight photophobia and she relied on the retinal images notes she had already created. She agreed that her notes were misleading, but there were no reported signs or symptoms, and she thought it likely that Vincent may not be photophobic in his next examination. She accepted that a failure to examine the back of the eye without a good reason was a breach of her duty of care to the patient. Expert evidence 28. Mr Richard Booth, an advisor to the NHS on optometric matters and best practice gave expert evidence at the trial for the prosecution that if Ms Rose had chosen not to carry out ophthalmoscopy and if there was no justification for that choice then it would be a “fairly massive failure” of her duty of care. He said that if there was a good reason for Ms Rose not being able to carry out ophthalmoscopy but she then chose not to look at a retinal image for no good reason that would be a “fairly massive breach” of her duty of care. When asked how far below the standard of a reasonably competent optometrist those omissions would fall, he said that they would be “rock bottom”. 29. Professor Bruce Evans gave expert evidence on behalf of the defence. He said that some patients found the ophthalmoscope uncomfortable because of the light intensity and this was particularly true of a child, although he agreed that using retinoscopy in the examination also involved shining a light at the front of the eye and that Ms Rose had experienced no problem doing that. However, a retinoscope had a smaller beam than an ophthalmoscope and many patients could tolerate a retinoscope and not an ophthalmoscope. He had no experience of patients the other way around. He said that he would always make a note though if he was unable to view the back of the eye. He agreed that Vincent’s notes were potentially misleading, as they suggested that Ms Rose had viewed the periphery when she had not. 30. Professor Evans suggested that the Ms Rose’s reliance on the retinal photographs may be acceptable in exceptional circumstances, provided there are no other symptoms. This is because the retinal camera has a limited peripheral field of 45 degrees. However, he said that a failure to examine with an ophthalmoscope should be recorded and the patient should be recalled for a re-test within a much shorter period, a maximum of six months. The Submission 31. At the conclusion of the prosecution case, the defence made a submission that there was no case to answer. Its essence was summarised in writing as follows: (i) In order for a reasonably competent optometrist to view the optic nerve head they would need to carry out opthalmoscopy and/or review the patient’s fundus images. (ii) In the absence of viewing the optic nerve head, a reasonably competent optometrist could not detect the swelling that was present. (iii) The swollen optic nerve head is the only clinical sign that would indicate papilloedema. (iv) Signs of papilloedema would cause a reasonably competent optometrist to urgently refer the patient to a medical practitioner on the basis that it is a life-threatening condition. (v) It follows that in the absence of examining the optic nerve heads, a reasonably prudent person could not appreciate that there was a serious and obvious risk of death at the relevant time."” 32. The prosecution response, summarised in writing, was as follows: The breach of the duty of care alleged in this case is the defendant’s failure to examine Vincent Barker’s optic discs and her consequent failure to make him the subject of an urgent referral to a registered medical practitioner at the conclusion of her examination when she came to decide whether he needed any treatment. These two aspects of the optometrist’s duty of care to a patient go hand-in-hand, that; there is little point in having a duty to conduct an examination of the internal part of the eye for the purpose of detecting signs of injury, disease or abnormality, unless there is a corresponding duty to refer that person to a registered medical practitioner should such signs be detected. 33. The Judge decided that there was a case to answer, setting out his reasons in a clear and detailed ruling. He first observed that the statutory duty set out in the Sight Testing (Examination and Prescription) (No. 2) Regulations 1989 made it clear that the purpose of the internal examination was to detect signs of injury, disease or abnormality in the eye or elsewhere. Second, the evidence of Mr Booth confirmed that optometrists are all trained to recognise papilloedema and any significant sign should result in a competent optometrist immediately referring the patient for urgent medical treatment. Third, the evidence of the photographs taken of Vincent’s eyes showed clear signs of papilloedema. Finally, it was agreed evidence that had Ms Rose referred him for medical attention, his life would have been saved. 34. The Judge found that the risk of death caused by the breach of duty was reasonably foreseeable. He followed R v Adomako [1995] 1 AC 171 and adopted the formulation of the full Court in R v Rudling [2016] EWCA Crim 741 , that it was a necessary element of gross negligence manslaughter that it must be reasonably foreseeable that the breach of duty in question gives rise to “a serious and obvious risk of death”. The Judge rejected the defence submission that the test was subjective in the sense that it depended on the exact knowledge of Ms Rose at the time of the breach. The defence contended that the negligent act was the failure to refer and Ms Rose’s knowledge at the time of that act was based on her not having examined the internal eye. The Judge preferred the prosecution formulation that the breach of the duty of care was her failure to examine the internal eye at all and then her consequent failure to refer Vincent for medical attention. 35. The Judge held that the purpose of the duty was to detect signs of injury, disease or abnormality which should have informed the appreciation of risk. The optometrist that is so negligent that she does not even attempt an internal investigation cannot rely on that breach of duty to escape liability. The test is objective and relies on what is reasonably foreseeable by reference to the reasonably prudent optometrist who would have complied with their statutory duty to examine the internal eye. He held that Rudling was not inconsistent with the concept of reasonable foreseeability and the case should go to the jury. 36. Stuart-Smith J adopted the prosecution’s formulation of the question before him for determination, expressed in these terms: “When determining whether a reasonably prudent person would in all the circumstances conclude that the breach of the duty of care gave rise to a serious and obvious risk of death, is the reasonably prudent person to be imputed with the knowledge of what the Defendant ought to have known if she/he had not breached her duty and had carried out her duty and conducted an internal investigation.” 37. He then observed: “The significance of this point and formulation is that, if what would have been found on an internal investigation or on viewing the images from the retinal camera are left out of account, there was nothing else that should or would have suggested to the Defendant that there was a serious and obvious risk that Vinnie would die. The Crown conceded that the mere fact that there is always a remote possibility that a patient who appears healthy may yet have swollen optic discs does not of itself mean that a failure to conduct an internal investigation or look at retinal images carries an obvious and serious risk of death sufficient to satisfy the foreseeability requirement. For the case to progress past half time, therefore, the Crown needs to rely upon the knowledge of the clear signs of papilloedema that the Defendant would have had if she had conducted an internal investigation or looked at the retinal images.” 38. The Judge then considered the submission made by Mr Stern that “a situation where [a serious and obvious risk of death] would only be apparent if the practitioner were to carry out further investigations is not sufficient to sustain an allegation of gross negligence manslaughter”. The Judge rejected that submission for three reasons which he expressed as follows: “First, recklessness is not a necessary constituent of the offence of gross negligence manslaughter…[and] the circumstances in which charges of gross negligence manslaughter may properly lie do not depend upon indifference by a defendant to known facts or risks. … Second, …there is no principled distinction to be drawn between the case of the optometrist who conducts the internal investigation negligently and the optometrist who is so negligent that he or she does not even attempt an internal investigation. In each case the prudent observer would appreciate the risk of death because the prudent observer would or should have known that it would be shown on the basis of a competent internal investigation. I can see no reason why the criminal law should become irrelevant where the only reason why the serious and obvious risk is not obvious to the Defendant is the Defendant’s breach of duty to the victim. That is to my mind most clear when, as here, the purpose of the duty is to detect signs of injury, disease or abnormality which should have informed the Defendant’s thinking and appreciation of risk. …. Third, as a matter of principle, determining what consequences of a breach of duty are reasonably foreseeable is not a subjective exercise, as Mr Stern QC accepted. …what is reasonably foreseeable for the reasonably prudent observer provides a clear indication that the subjective understanding of the person who has acted in breach of duty is not determinative.” 39. Stuart-Smith J also distinguished Rudling on the basis that, in that case, further investigation was required for the risk to become apparent and it was not contended that, at the time of the relevant breach, the defendant should have carried out that investigation or obtained the information the further investigation would have revealed. Consequently, the Judge held that the question he had decided did not arise in Rudling . 40. The Judge nevertheless stated that the test he was applying was consistent with the test stated by Nicola Davies J in Rudling . He concluded that what was reasonably foreseeable to the reasonable optometrist was “…to be decided by reference to the knowledge that the Defendant either had or would have had but for the breaches of duty that are alleged against her”. Jury Directions 41. The Judge provided the jury with detailed written legal directions. He correctly and succinctly listed the five matters which the Prosecution must prove: (1) Ms Rose owed a duty of care to Vincent Barker; (2) Ms Rose breached that duty of care; (3) It was reasonably foreseeable that her breach of her duty of care gave rise to a serious and obvious risk of death; (4) Ms Rose’s breach of her duty caused the death of Vincent Barker because it was a significant contributory factor; and (5) Having regard to the risk of death, her conduct was so bad in all the circumstances as to amount to a criminal omission. 42. The jury were directed that issues (1) and (4) were not in dispute although it might have been helpful had he spelt out the nature of the duty of care more precisely. 43. As regards issue (2), breach of duty of care, the Judge directed the jury that there were two factual issues for them to decide. The first was whether there was no good reason for Ms Rose failing to conduct a full internal examination of Vincent’s eyes; and the second was whether there was no good reason for her failing to view the correct retinal images taken before the examination. The Jury were reminded about Ms Rose’s evidence regarding Vincent exhibiting signs of photophobia. 44. In relation to issue (3), foreseeability, the judge directed the Jury as follows: “ It was reasonably foreseeable that her breach of her duty of care gave rise to a serious and obvious risk of death. The Jury should consider this question at the moment that Ms Rose concluded her examination of Vinnie and the facts that were known or should have been known to her at that time . If and when the Jury come to consider this question, they can take into account what Mrs Rose would have known if she had conducted the examination properly or had looked at the images. If she had conducted a full eye examination or had viewed Vinnie’s 2012 images then it is common ground that either of those steps would have revealed the swollen discs at the back of the eye and that any competent optometrist would have realised that the swollen discs meant there was an obvious and serious risk to Vinnie’s life if he was not urgently referred to a medical practitioner for diagnosis and, if necessary, treatment. So, although Ms Rose did not appreciate the risk, that is not the question. The Jury have to consider whether the risk would have been obvious to a reasonably competent optometrist with the knowledge that Honey Rose would have had if she had not acted in breach of her duty to investigate the true position in the respects that they have found that she did.” 45. Finally, as to issue (5), the judge directed the jury as follows: “The Courts have used a number of phrases over the years to give juries help in deciding whether a breach of duty is so serious as to be considered criminal. The word “gross” negligence may seem a bit old-fashioned now; but one approach the Jury may find helpful is to ask whether the prosecution has made them sure that the conduct they find to be a breach, in all the circumstances they have heard about and as they find them to be, fell so far below the standard to be expected of a reasonably competent and careful optometrist that it was something, in their assessment, truly exceptionally bad (taking into account the nature of the risk to Vinnie’s life that it involved), and such a departure from the standard to be expected of a competent optometrist, as to amount, in their judgment, to a criminal act or omission, and so to be the very serious crime of manslaughter.” The Appeal 46. Mr Stern submitted on behalf of Ms Rose that the submission of no case to answer was wrongly rejected because the Judge applied the wrong test: (1) The test should be based on the professional’s knowledge at the time the duty of care was said to be breached, i.e. had Ms Rose properly examined the back of the deceased’s eye and failed to act, she could be guilty of gross negligence manslaughter, as she would have seen the signs of papilloedema (a life threatening condition) and would have had the requisite knowledge that there was an obvious and serious risk of death. (2) It was accepted that failing to examine the back of the eye was negligent, since this was an essential part of an eye examination. However, this was not to the criminal standard, since (given the lack of any symptoms) it was not reasonably foreseeable to a reasonably competent optometrist, that that negligent act of not examining the back of the eyes, would carry an obvious and serious risk of death in this case. 47. Mr Stern also argued that the Judge’s legal direction (3) to the jury regarding foreseeability was wrong in law because he directed that the jury should consider whether the risk would have been obvious to a reasonably competent optometrist “…with the knowledge that Honey Rose would have had if she had not acted in breach of her duty to investigate the true position in the respects that they had found that she did”. 48. For the Crown, Mr Rees submitted that the Judge’s ruling was correct and his directions to the Jury were unimpeachable. The negligent acts relied upon by the Prosecution were: (i) Ms Rose’s failure, without reasonable excuse, to examine the deceased’s optical discs with an ophthalmoscope or slit lamp and lens and/or (ii) her failure to examine the correct central retinal images she knew had been taken by the optical consultant. As a result of breaching her statutory duty to carry out the eye examination properly, she failed to identify that the child had swollen optic discs and she failed to refer him to a registered medical practitioner. 49. The legal test relied on by the prosecution was as follows: “Is there evidence upon which a properly directed jury could be sure that at the time of the alleged breach of duty, a reasonably prudent person (optometrist) would have foreseen (concluded) in all the circumstances that the breach of duty by the defendant created an obvious and serious risk of death?” 50. Mr Rees submitted that the knowledge of the professional ( i.e. Ms Rose) should be based on what they would have known at the time of the breach had they not breached their duty of care. The professional should not be able to rely on their own negligent act to avoid criminal liability and this case can be distinguished from Rudling , as Ms Rose’s negligent act was a breach of a statutory duty of care, which is the compelling factor. The Law 51. It is common ground that optometrists owe a statutory duty of care to patients. Section 26(1) of the Opticians Act 1989 provides that the Secretary of State may by regulations provide that when registered optometrists test the sight of another person, it shall be their duty to perform an external and internal examinations of the eye “for the purpose of detecting injury, disease or abnormality in the eye or elsewhere”. The extent of this duty is identified by The Sight Test (Examination and Prescription) (No.2) Regulations 1989, the relevant part of which, at para. 3(1), makes it clear that: “…..when a doctor or optician tests the the sight of another person, it shall be his duty– (a) to perform, for the purpose of detecting signs of injury, disease or abnormality in the eye or elsewhere– (i) an examination of the external surface of the eye and its immediate vicinity, (ii) an intra-ocular examination, either by means of an ophthalmoscope or by such other means as the doctor or optician considers appropriate, (iii) such additional examinations as appear to the doctor or optician to be clinically necessary; and (b) immediately following the test to give to the patient a written statement– (i) that he has carried out the examinations required by sub-paragraph (a) of this paragraph, and (ii) that he is or (as the case may be) is not referring the patient to a doctor.” 52. These legislative provisions are supplemented by professional guidance in the form of the code of Ethics and Guidelines for Professional Conduct issued by the College of Obstetricians in July 2011 in these terms: “B2 The routine eye examination Guideline B2.01 The optometrist has a duty to carry out whatever tests are necessary to determine the patient’s needs for vision care as to both sight and health. The exact format and content will be determined by both the practitioner’s professional judgement and the minimum legal requirements. B2.02 The optometrist has a duty to examine patients at the most appropriate intervals in accordance with clinical needs. Advice General … B2.04 A full examination should include: … (f) An internal and external examination of the eye (note the requirements of a statutory sight test – see s.B2.19 below). As a minimum this will include direct ophthalmoscopy on the undilated eye. Pupil dilation and/or the use of indirect methods will be appropriate in certain circumstances where an inadequate view of the fundus would otherwise be obtained. Slit-lamp biomicroscopy will be appropriate where a detailed view of the anterior eye and adnexa is required.” 53. Against that background, it is necessary to examine the key authorities in relation to gross negligence manslaughter, starting with R v. Adomako [1995] 1 AC 171 and the well-known passage where Lord Mackay of Clashfern LC sets out the essential ingredients of the offence (at p. 187A-E): “In my opinion the law as stated in these two authorities [ Bateman (1925) 19 Cr. App. R. 8 and Andrews v DPP [1937] AC 576 ] is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter. Since the decision in Andrews was a decision of your Lordship’s House, it remains the most authoritative statement of the present law which I have been able to find and… it has not been departed from. On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient , was such that it should be judged criminal. It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that it is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved , the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.” (emphasis added) 54. Lord Mackay went on to state that it was appropriate to use the word “reckless” in cases of involuntary manslaughter but, as Lord Atkin put it, “in the ordinary connotation of the word”. He added that it was quite unnecessary in the context of gross negligence to give detailed directions as to the meaning of the word “reckless” (pp. 117H-188A). 55. Lord Mackay cited the following passage from Lord Hewart CJ’s judgment in R v. Bateman [1925] 19 Cr. App. R. 8: “[T]he facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such a disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.” 56. The facts in Adomako were striking. The appellant was convicted of gross negligence in respect of his conduct as anaesthetist during an eye operation as a result of which the patient died on the operating table. The prosecution alleged that the appellant had failed to notice, or respond appropriately, to the disconnection of an endotracheal tube inserted to enable the patient to breathe. In particular, it was alleged that the appellant had failed to notice at various stages after the disconnection that (i) the patient’s chest was not moving, (ii) the dials on the mechanical ventilating machine were not operating, (iii) the endotracheal tube had in fact disconnected, (iv) the alarm on the ventilator was not switched on, (v) the patient was becoming progressively blue, (vi) the patient’s pulse had dropped and (vii) the patient’s blood pressure had dropped (see pp. 181H-182A). A period of 4½ minutes would have elapsed between the disconnection and the sounding of the alarm and a total period of 9 minutes until cardiac arrest occurred. One expert witnesses for the prosecution described the standard of care as “abysmal”; and another said that a competent anaesthetist should have noticed the disconnection within 15 seconds and described the appellant’s conduct as “a gross dereliction of care” (see p. 182B). 57. It is important to note that the essential or in effect sole function of the anaesthetist at the time was to monitor the patient to ensure that he was breathing during the operation. This is clear from the judgment of Lord Taylor CJ in the Court of Appeal below ( R v. Prentice, Sullman, Holloway and Adomako (1994) 98 Cr. App. R. 262): “The anaesthetist sits at the side of the patient. It is his duty to ensure the safety of the patient. He does this by observing him throughout the operation and by paying careful attention to the different monitoring devices…” (p. 275) “It was in our view open to the jury to conclude that the appellant’s failure to perform his essential and in effect sole duty to see that his was patient was breathing satisfactorily and to cope with the breathing emergency which should have been obvious to him, justified a verdict of guilty. They were entitled to conclude that his failure was more than mere inadvertence and constituted gross negligence of the degree necessary for manslaughter” (p. 279) (emphasis added) 58. This decision was followed by R v. Singh (Gurphal) [1999] Crim L.R. 582 in which the appellant was convicted of failing to ensure that a gas fire in one of the rooms he rented out was properly maintained. The facts again were striking. He had been told (i) by a previous occupant of the room that “she could smell gas and was getting ill”, and (ii) by the tenant of the room next door that the gas fire “was faulty and needed looking at” and caused headaches. The Court of Appeal described the following direction by Judge Hyam as a model of its kind (at p. 4): “The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death. If you find such circumstances in the case of the defendant whom you are considering, you must decide whether what he did or failed to do was so bad that it was criminal. That of course means that the degree of negligence was very high.” 59. In A-G’s Reference (No. 2 of 1999) [2000] 2 Cr. App. R 207, the Court of Appeal held that a defendant can be properly convicted of manslaughter by gross negligence in the absence of evidence as to the defendant’s state of mind. Although there may be cases where the defendant’s state of mind is relevant to the jury’s consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a pre-requisite to a conviction for manslaughter by gross negligence. 60. The court emphasised (at page 211) that the Adomako test is objective but a defendant who is reckless (as defined in Stone and Dobinson [1977] 1 QB 354) may well be the more readily found to be grossly negligent to a criminal degree. As Lane LJ said in Stone and Dobinson at page 353, the test is a high one: “Mere advertence is not enough. The defendant must have proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk, but to have determined, to run it.” 61. Lewin v. Crown Prosecution Service [2002] EWHC 1049 concerned an application for judicial review against the CPS for failing to prosecute for gross negligence manslaughter. Courtney Kayne had driven a drunk friend back to holiday accommodation in Spain and left him comatose in the car and the friend had subsequently died in the car of a combination of postural asphyxia and heat stroke. The Divisional Court dismissed the claim. As regards the driver’s continuing responsibility for the welfare of the passenger once the vehicle was parked in a safe place, Kennedy LJ put the matter in this way (at [24]): “It could only persist in a way which would be relevant to the offence of manslaughter if a reasonable person would have foreseen that by leaving the deceased in the vehicle parked in that position he was being exposed to risk “not merely of injury or even of serious injury but of death” ( R v. Singh (Gurphal) [1999] Crim L.R. 582). In this case at any time when it was decided to prosecute there was, as it seems to me, no realistic possibility of demonstrating beyond reasonable doubt that a reasonable person in the position of Courtney Kayne would have foreseen the risk of death.” 62. Moving to another defective work case, in R v Alan James Mark Nationwide Heating Services Ltd [2004] EWCA Crim 2490 , the Court of Appeal approved a summing-up which contained the following direction on foreseeability : “First there must have been an obvious and serious risk of death. This again must be assessed objectively, regardless of what risk was perceived by the defendants…But was it obvious to a reasonably competent employer professing any skills claimed by the defendants?” 63. In R v. Misra and Srivastava [2005] 1 Cr. App. R 21 , Judge LJ (as he then was) conducted a detailed review of the authorities on gross negligence manslaughter and said (at [48]): “The decision of the House of Lords in Adomako clearly identified the ingredients of manslaughter by gross negligence, confirming Andrews v. Director of Public Prosecutions (1938) 26 Cr. App. R. 34, [1937] A.C. 576 , the offence requires, first, death resulting from a negligent breach of the duty of care owed by the defendant to the deceased; second, that in negligent breach of that duty, the victim was exposed to the risk of death; and third, that the circumstances were so reprehensible as to amount to gross negligence.” 64. Judge LJ highlighted the fact that the Court of Appeal in R v. Singh (Gurphal) ( supra ) had strongly approved the trial judge’s following direction in a case of manslaughter by gross negligence (and the Divisional Court in Lewin v. Crown Prosecution Service [2002] EWHC 1049 Admin had applied the same direction), namely that “… the circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death” (see ibid at [49]). 65. Judge LJ emphasised that the law of gross negligence manslaughter was clear: “The ingredients of the offence have been clearly defined, and the principles decided in the House of Lords in Adomako . They involve no uncertainty. The hypothetical citizen, seeking to know his position, would be advised that, assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that his negligence was gross. A doctor would be told that grossly negligent treatment of a patient which exposed him or her to the risk of death, and caused it, would constitute manslaughter.” 66. The facts of Misra and Srivastava were also striking. A patient became infected with staphylococcus aureus following routine surgery to repair his patella tendon and died of toxic shock four days later. The post-operative condition went untreated by the defendants who were Senior House Officers in charge of his post-operative care, despite the fact that: (i) the patient was showing classic signs of infection, i.e. raised temperature and pulse rate and lowered blood pressure; (ii) these conditions were severe and persistent and “were or should have been obvious, if only from a glance at the relevant charts”; (iii) despite suggestions by other members of the medical team on more than one occasion that further treatment was needed, none was provided; (iv) blood tests were available but never obtained or acted upon; (v) they did not seek help from senior colleagues; and (vi) the mistakes were “elementary” (see generally paragraph 4). 67. Against that background, we now turn to the recent decision in R v. Rudling [2016] EWCA 741 where this court upheld a terminating ruling by the trial judge, Nicola Davies J, in relation to a doctor who had been charged with gross negligence manslaughter of a young patient. 68. The facts in Rudling are important and bear detailed repetition. In the early hours of Saturday 8th December 2012, Ryan Morse, aged 13 years old, died of Addison’s disease, an auto-immune disease which is rare, particularly in children. In its early stages, symptoms of Addison’s disease are non-specific, i.e. fatigue, malaise, weakness, abdominal pain, vomiting and weight loss, all of insidious onset. Its eventual diagnosis is often established only at the time of acute symptoms, or near a terminal status known as adrenal crisis. However, even at a late stage when the patient would be gravely ill, the condition can be stabilised. 69. In the summer of 2012, Ryan began to suffer from tiredness, aching of legs and sickness. He was taken to his GP’s surgery by his mother on 20th July 2012 and diagnosed as having a viral infection. The symptoms persisted and his skin also showed signs of darkening pigmentation. He was seen by Dr Rudling on 7th November 2012, who ordered blood tests. He was seen again by Dr Rudling on 21st November 2012, who concluded that the blood tests suggested a virus and marginally low sodium but were otherwise unremarkable; and she ordered further blood tests and a review in three weeks. 70. On 6th December 2012, Ryan’s mother was called to collect him from school as he complained of feeling ill, shaking and being sick. He had a disturbed night and suffered from dizziness, diarrhoea and headaches. Mrs Morse thought he had a sickness bug that was going round the school. She phoned the GP’s surgery and the receptionist made a note for the doctor to contact here: “please can you ring/advise re vomiting bug and temperature”. The prosecution case was based on two subsequent telephone conversations with Ryan’s mother on Friday 7th December 2012. The first conversation was with Dr Thomas who, having studied Ryan’s notes and being told that the receptionist had asked Mrs Morse to bring the boy in but she was reluctant to bring him out, rang Mrs Morse at 8:45 a.m. After discussing his recent symptoms, Dr Thomas said that it was necessary to get Ryan’s temperature down, recommended soluble paracetamol and said that if Ryan didn’t improve within two hours he should be seen. Ryan’s mother rang the surgery again at 5:45 p.m. and spoke to spoke to Dr Rudling. There was a dispute as to what precisely took place during this conversation but Dr Rudling was told about Ryan’s symptoms of diarrhoea and vomiting and the darkening of the colour of his genitalia. However, the result of the conversation was that Dr Rudling recommended Ryan was brought into the surgery on Monday morning to be examined. Unfortunately, he died in the early hours of the Saturday morning. 71. At the trial, the prosecution had called an expert witness, Dr Leonard Peter, who gave evidence to the effect that, faced with the alarming picture she was being given in that conversation, Dr Rudling ought to have arranged to see Ryan at home that evening. If she had seen him, his condition would have made it apparent that he should go to hospital immediately where he would have received life-saving treatment. The prosecution contended that Dr Rudling’s failure to respond to the concerns expressed by Ryan’s mother was grossly negligent and Dr Rudling should have recognised that Ryan’s mother was describing what could possibly be a very sick child indeed, i.e. a child so sick as to be at risk of death if he did not receive prompt medical treatment. The prosecution alleged that Dr Rudling ought to have arranged for immediate medical intervention, either by visiting the child herself to conduct an examination, or by summoning an ambulance. 72. Submissions of no case to answer were made at the trial on behalf of both Dr Thomas and Dr Rudling. Nicola Davies J acceded to both applications. In relation to Dr Rudling, she regarded as critical the evidence of Dr Peter of the need for a face-to-face assessment of the child in order to fully assess the risk. The Court of Appeal quoted the following answer given by Dr Peter in evidence “I would have to go and assess the child to see whether or not there was a life threatening potential” and commented (at [22]): “It was this answer which, in the Judge’s opinion, illustrated the difficulty at the core of the prosecution case on this aspect of the element of gross negligence. Thus, the thrust of Dr Peter’s evidence was the need for a face to face assessment of Ryan in order fully to assess the risk, as opposed to the obvious nature of the risk, which was present at the time of the telephone call.” It was for this reason that Nicola Davies J held that, at the time of the telephone conversation at 5:45 p.m., there was not an obvious and serious risk of death. 73. In the course of the appeal against the ruling in relation to Dr Rudling, this court provided the following guidance as to the legal test of gross negligence manslaughter (at [18]): “We can summarise the law shortly. The critical ingredients of gross negligence manslaughter can be taken from R v. Prentice, Adomako and Holloway [1994] QB 302 in this court and Adomako [1995] 1 AC 171 , [1994] 99 Crim App R 362 in the House of Lords as well as R v. Misra [2005] 1 Cr App R 21 . They can be summarised as being the breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the "conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission" (see Adamoko [2005] 1 Cr App Rep at 369). The articulation of the last ingredient is expressed in R v. Bateman (1925) 19 Cr App R 8 at 13 as satisfying the jury that: "… the negligence or incompetence went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment."” 74. The prosecution’s appeal against the terminating ruling was dismissed in the following terms: “34. …[W]e are satisfied that the transcript fully supports the judge’s conclusion in relation to what is the first ground of appeal. Dr Peter did not at any stage of his evidence state that, at the time of the phone call with Dr Rudling, there was an obvious and serious risk to Ryan’s life… 37. …Dr Peter declined to say, in response to the direct question, that the situation was obviously life threatening, but rather offered the opinion that an assessment was necessary because “it could be something serious”. 38. The nub of Mr Price’s argument was that if it is necessary to have a face to face assessment in order to manage a patient and assess what might potentially be a life threatening condition, it is necessarily implicit that there is an obvious and serious risk of death at that time. … 39. In our judgment, that proposition simply does not follow, as is apparent when one focuses on each of the three aspects of this ingredient of the offence of gross negligent manslaughter. At the time of the breach of duty, there must be a risk of death, not merely serious illness; the risk must be serious and the risk must be obvious . A GP faced with an unusual presentation which is worrying and undiagnosed may need to ensure a face to face assessment urgently in order to investigate further. That may be in order to assess whether it is something serious…which may or may not be so serious as to be life threatening. A recognisable risk of something serious is not the same as a recognisable risk of death. 40. What does not follow is that if a reasonably competent GP requires an urgent assessment of a worrying and undiagnosed condition, it is necessarily reasonably foreseeable that there is a risk of death. Still less does it demonstrate a serious risk of death, which is not to be equated with an ‘inability to eliminate a possibility’. There may be numerous remote possibilities of very rare conditions which cannot be eliminated but which do not present a serious risk of death. Further, and perhaps most importantly, a mere possibility that an assessment might reveal something life threatening is not the same as an obvious risk of death. An obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.” (emphasis added) 75. The breach of duty alleged in this case was Dr Rudling’s failure to go to see Ryan herself: had she done so, she would have realised the gravity of his condition and taken steps to ensure that he was sent to hospital where that condition could have been diagnosed and treated. It was not suggested (and is implicitly if not explicitly rejected in the reasoning of the judgment) that serious and obvious risk of death had to be determined based on what the doctor would have discovered had she visited Ryan’s home and examined him (which was gravamen of the allegation of negligence that she faced). 76. For the sake of completeness, it is appropriate also to mention the recent decision in R v. Sellu [2016] EWCA Crim 1716 . In that case, a consultant specialising in colorectal medicine and surgery was convicted of gross negligence manslaughter of a patient who suffered post-operative complications following elective total knee replacement and died following subsequent emergency surgery. The prosecution alleged that the defendant had missed opportunities and made serious errors of judgement in his treatment of the patient. The Court of Appeal allowed the appeal on the basis that the trial judge, Nicol J, had failed to direct the jury correctly in two respects. First, the judge failed to direct the jury sufficiently as to the line that separates serious or very serious mistakes or lapses from conduct which was “…truly exceptionally bad and was such a departure from that standard [of a reasonably competent doctor] that it consequently amounted to being criminal” ( ibid , [152]). Second, the judge failed to emphasise to the jury that the question of gross negligence was a matter for them not the expert ( ibid , [155]). 77. In the circumstances, the relevant principles in relation to cases of gross negligence manslaughter can be summarised as follows: (1) The offence of gross negligence manslaughter requires breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation but to amount to a criminal act or omission. (2) There are, therefore, five elements which the prosecution must prove in order for a person to be guilty of an offence of manslaughter by gross negligence: (a) the defendant owed an existing duty of care to the victim; (b) the defendant negligently breached that duty of care; (c) it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death; (d) the breach of that duty caused the death of the victim; (e) the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction. (3) The question of whether there is a serious and obvious risk of death must exist at, and is to be assessed with respect to, knowledge at the time of the breach of duty. (4) A recognisable risk of something serious is not the same as a recognisable risk of death. (5) A mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death: an obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation. 78. A further point emerges from the above analysis of the authorities which is particularly germane to the present case: none of the authorities suggests that, in assessing either the foreseeability of risk or the grossness of the conduct in question, the court is entitled to take into account information which would, could or should have been available to the defendant following the breach of duty in question. The test is objective and prospective. Analysis 79. Turning to the ruling, the Judge correctly adopted the formulation of the legal test in Rudling that it must be reasonably foreseeable that the breach of duty in question gives rise to a serious and obvious risk of death. Stuart-Smith J, however, went on to summarise his conclusions in this way: “I can see no reason in principle or authority why the question of reasonable foreseeability of a serious risk of death in gross negligence manslaughter should be decided by reference only to the actual knowledge of the Defendant at the time of the breach which is alleged to have given rise to the risk and to have caused the death. On the contrary, the inherently objective nature of reasonable foreseeability supports the conclusion that what was reasonably foreseeable to the reasonable person (or, in this case, the reasonable optometrist) is to be decided by reference to the knowledge that the Defendant either had or would have had but for the breaches of duty that are alleged against her. On the facts of this case, that means that the question of reasonable foreseeability is to be decided by reference to the knowledge that the Defendant would have had if she had looked at the back of Vinnie’s eyes as the Prosecution allege she should have done.” 80. With respect, however, these propositions do not follow. The inherently objective nature of the test of reasonable foreseeability does not turn it from a prospective into a retrospective test. The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach. The question of reasonable foreseeability is evident from the words used, i.e. what is reasonably fore -seeable at the time of the breach (a prospective view). It is not what would, could or should have been known but for the breach of the identified duty of care, i.e. if the breach had not been committed (a retrospective view). 81. Although the judge considered that the question he had to decide did not arise in Rudling , in fact, the reasoning in that case is equally applicable to the present and, furthermore, had the approach which he adopted been applied in Rudling , that decision would have been different. Thus, the prosecution contended that Dr Rudling was in breach of her duty of care at the time of the telephone call from Ryan’s mother at 5:45 p.m. in failing then to make immediate arrangements to examine Ryan face-to-face. However, the evidence was that the life-threatening seriousness of Ryan’s condition would not have been apparent to Dr Rudling unless and until she had carried out that face-to-face examination. This was clear from the prosecution’s own expert, Dr Peter, who said that: “…faced with the alarming picture she was being given [on the telephone], Dr Rudling should have arranged to see Ryan within an hour on her way home; and that, if she had , his condition would have made it apparent that he should go to hospital immediately…”. 82. This court approved the approach of Nicola Davies J who accepted that had a doctor seen Ryan by the early evening of Friday 7th December 2012, he or she would have seen a very sick child but that it was not the assessment which would have been made at the visit which goes to the risk envisaged in the legal test but the risk at the time of the telephone call. In other words, the court could not impute to the doctor the knowledge that would have been obtained had there not been a breach of duty (which, in that case, was to see the child at home) although that is precisely what Stuart-Smith J concluded in this case. 83. The prosecution case was that Ms Rose was in breach of her duty of care in failing to carry out a proper examination of the back of Vincent’s eyes during his appointment. However, as in Rudling , the potentially life-threatening seriousness of Vincent’s condition as manifested by visible swelling of the optic nerve (papilloedema) would not have been apparent to Ms Rose unless and until she had carried out a proper examination of the back of Vincent’s eyes with an ophthalmoscope or a ‘slit lamp’ or, at least, carefully checked the right fundus photographs. 84. The Judge appears to have led himself into error by his earlier emphasis on the fact that the question of reasonable foreseeability was an objective, not a subjective, exercise and was not to be decided by reference to “the actual knowledge of the Defendant at the time of the breach”. In so doing, the Judge appears to have confused or elided two separate matters: (a) the actual knowledge of Ms Rose at the time of the breach and (b) the putative knowledge of the reasonably prudent optometrist in the position of Ms Rose at the time. The two are quite different concepts: the former is subjective; the latter is objective. The test of reasonable foreseeability is, of course, resolutely objective and there is no question of it being decided by reference to the subjective knowledge of the person whose conduct is under scrutiny. The test of reasonable foreseeability simply requires the notional objective exercise of putting a reasonably prudent professional in the shoes of the person whose conduct is under scrutiny and asking whether, at the moment of breach of the duty on which the prosecution rely, that person ought reasonably ( i.e. objectively) to have foreseen an obvious and serious risk of death. 85. In that regard, the factual matrix is critical. In this case, the purpose of an examination of the back of a person’s eyes with an ophthalmoscope or a ‘slit lamp’ is to fulfil an optometrist’s statutory duty under s.26(1) of the 1989 Act to detect “…signs of injury, disease or abnormality in the eye or elsewhere”. The fact that an intra-ocular examination might reveal a serious abnormality, or even in some cases serious life-threatening problems, does not mean that there is a “serious and obvious risk of death” if such an examination is not carried out. It might be different if the patient presented with symptoms which themselves either pointed to the risk of a potentially life threatening condition or provided a flag that alerted a competent optometrist to that risk but that was not this case (this being an entirely routine examination with no material pre-existing history). 86. Put at its highest, what a reasonably prudent optometrist would or should have known at the time of the breach was that, if he or she did not carry out a proper examination of the back of Vincent’s eyes, there remained the possibility that signs of potentially life-threatening disease or abnormality might be missed. This is not enough to found a case of gross negligence manslaughter since there must be a “serious and obvious risk of death” at the time of breach. This was conceded by the prosecution at the trial, who recognised that for the matter to proceed beyond half time, the Crown need to rely upon the knowledge of the clear signs of papilloedema which Ms Rose “…would have had if she had conducted an internal investigation or looked at the retinal images”. 87. Consistently with this approach, the factual matrix of the other cases mentioned above reveals the existence of such circumstances. By way of example, in Adomako , the court was concerned with an anaesthetist who, as would have been clear at the time, was required to monitor breathing during the course of an operation: failure to do so created an obvious risk of death. In Singh (Gurpal) , the landlord did not merely fail to maintain or service the gas fire (aware that such failure could create a risk) but failed to do so notwithstanding complaints by the tenants of the smell of gas and resulting illnesses. In Misra , there were obvious post-operative symptoms and information which generated the obvious risk of death. These cases contrast with Rudling , discussed above, in which the court made clear (at [40]): “[A] mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death. An obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.” 88. One other aspect of the approach of Stuart-Smith J also requires analysis. He expressed the view that a defendant should not be able to rely on his own breach to excuse his own lack of knowledge. He said: “I can see no reason why the criminal law should become irrelevant where the only reason why the serious and obvious risk of death is not obvious to the Defendant is the Defendant’s breach of duty to the victim . That is to my mind most clear when, as here, the purpose of the duty is to detect signs of injury, disease or abnormality which should have informed the Defendant’s thinking and appreciation of risk.” (emphasis added) 89. In that regard, he may have placed reliance on a submission advanced by Mr Rees for the prosecution to the effect that Rudling supported the proposition that matters which ought to have been known to Ms Rose but for the breach could be taken into account because of the observation (at [23]): “There was little dispute that, with the benefit of hindsight, had a doctor see Ryan by the early evening of Friday 7 December, he or she would have seen and assessed a very sick boy. The judge then applied that test to the facts as they were or ought to have been known to Dr Rudling at the time of the phone call, together with the evidence of Dr Peter as to when the assessment that Ryan’s illness was obviously life threatening is likely to have been made, coupled with Professor Hughes’ evidence that hyper-pigmentation was not, in itself, indicative of the adrenal crisis phase of Addison’s disease.” (emphasis added) 90. That submission, however, misunderstands what the court was then dealing with. The reference to “…facts as they were or ought to have been known to Dr Rudling at the time of the phone call” was merely a reference to the fact that it was open to a reasonably prudent general practitioner in Dr Rudling’s position to have checked the notes and other background materials regarding Ryan’s medical history at the time of taking Mrs Morse’s telephone call ( e.g. the notes made by Dr Thomas that morning). There is no warrant for the suggestion that knowledge of facts or events subsequent to the telephone call were in any way relevant: indeed, the opposite is the case. Rudling emphasised that the test is objective and prospective and had it been appropriate to take account of what the doctor would have learned had she visited Ryan, the analysis of the case and the result would have been different. 91. So that the matter is not in doubt, the fact that the cause of the defendant’s lack of knowledge of a serious and obvious risk of death to the victim was the defendant’s own breach of duty to carry out a requisite examination or inspection is not to point. This fact may often be the case and, indeed, given that death will always have resulted in cases of gross negligence manslaughter, it is difficult to visualise how a serious risk of death would not have been obvious if the test is premised on what would have been known had there been no breach of duty. In that event, the requirement of serious and obvious risk of death adds nothing. There is no legitimate basis for altering what is a prospective test of foresight into one which judges with hindsight. 92. Further, the fact also that the purpose of the duty in the present case is to detect signs of injury, disease or abnormality is also not to point. As explained above, all a reasonably prudent optometrist would have known is that, if he or she did not carry out a proper examination, signs of potentially life-threatening conditions might be missed. But this is a very different matter from knowledge that such signs in fact existed and that there was a “serious and obvious risk of death”. In some cases, there might be ‘wilful blindness’ to a serious and obvious risk of death, but that is not the present case. The Direction 93. For the same reasons, in our judgment, the Judge’s direction regarding foreseeability suffered from the same error as his ruling on the submission that there was no case to answer. He should not have directed the Jury that, when considering whether there was a “serious and obvious risk of death” they had to consider “whether the risk would have been obvious to a reasonably competent optometrist with the knowledge that [Ms Rose] would have had if she had not acted in breach of her duty”. However, for the reasons which we have explained, the case should have been withdrawn from the jury at the close of the prosecution case. Conclusion 94. Reverting to the question posed at the commencement of this judgment, we conclude that, in assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, it is not appropriate to take into account what the defendant would have known but for his or her breach of duty. Were the answer otherwise, this would fundamentally undermine the established legal test of foreseeability in gross negligence manslaughter which requires proof of a “serious and obvious risk of death” at the time of breach. The implications for medical and other professions would be serious because people would be guilty of gross negligence manslaughter by reason of negligent omissions to carry out routine eye, blood and other tests which in fact would have revealed fatal conditions notwithstanding that the circumstances were such that it was not reasonably foreseeable that failure to carry out such tests would carry an obvious and serious risk of death. For these reasons, this appeal is allowed and the conviction is quashed. 95. We add that this decision does not, in any sense, condone the negligence that the jury must have found to have been established at a high level in relation to the way that Ms Rose examined Vincent and failed to identify the defect which ultimately led to his death. That serious breach of duty is a matter for her regulator; in the context of this case, however, it does not constitute the crime of gross negligence manslaughter.	{"ConvCourtName":["Crown Court at Ipswich"],"ConvictPleaDate":["2016-07-15"],"ConvictOffence":["Manslaughter by gross negligence"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Ipswich"],"Sentence":["2 years’ imprisonment, suspended for 2 years, with a supervision order and unpaid work requirement of 200 hours, to be completed by 25th August 2017"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Female"],"OffAgeOffence":[30],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[7],"VicJobOffence":["Child"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Expert report/testimony","Victim testimony","Medical records"],"DefEvidTypeTrial":["Offender denies offence","Expert report/testimony"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["offender showed genuine remorse","Offender has no relevant previous convictions","delay in prosecuting the case was prejudicial to defence"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge misdirected jury as to the legal test for gross negligence manslaughter","Submission of no case to answer was wrongly rejected"],"SentGuideWhich":["section 26(1) of the Opticians Act 1989","The Sight Test (Examination and Prescription) (No.2) Regulations 1989"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Judge applied the wrong legal test for foreseeability in gross negligence manslaughter; the test is objective and prospective, not based on what would have been known but for the breach"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2010] EWCA Crim 3052 Case No. 2010/05339/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Date: Thursday 9 December 2010 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE GRIFFITH WILLIAMS and MRS JUSTICE SHARP DBE - - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 63 of 2010 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - ZEKEL WATSON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4A Telephone No: 020 404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss S Whitehouse appeared on behalf of the Attorney General Mr S Redmond appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T THE LORD CHIEF JUSTICE: 1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which he considers to be unduly lenient. We grant leave. 2. The offender is Zekel Watson. He is 22 years of age. He has no convictions since the age of 13 (which we treat as irrelevant for present purposes). On 3 December 2009, in the Crown Court at Birmingham, before His Honour Judge Creed, he pleaded guilty to possessing a prohibited firearm. He was jointly charged with two co-defendants. We say nothing about the allegations against them. They are facing trial on a number of different matters. 3. The offender was charged on an indictment containing two counts. The first, to which he pleaded guilty, charged possessing a prohibited firearm. The second, of which he was subsequently acquitted by a jury, charged possessing a firearm with intent to cause fear of violence. 4. In summary, on 8 September 2009 the police stopped a car being driven by the offender. The two co-defendants were passengers in the car. In the boot of the car, tucked away, the police found a sawn-off shotgun which was loaded with a 12 bore cartridge. The boot also contained, among other things, a knife, a pair of rubber gloves and a further live shotgun cartridge. 5. Taking it in more detail, the three co-defendants met up in Perry Bar, a suburb of Birmingham. The offender and one of the other two arrived at the meeting point first in a black BMW Mini, which the offender was driving. The third defendant arrived in his own car. He left his car and joined the offender and the co-defendant in the black BMW car. The trial proceeded on the basis that the Crown alleged that one of the co-defendants was seen to put something into the boot of the offender's car before he joined the other two inside it. The Crown's case was that it was the sawn-off shotgun with which we are concerned that was put into the boot. That evidence was challenged at the trial. The offender gave evidence that he had received the gun two days earlier. Following the jury's verdict, it was decided that he should be sentenced on the basis of his own account of these matters. We must underline that, even if that was so, we are far from certain that this reduced his culpability. 6. The three co-defendants set off on a journey from Perry Bar towards Hertfordshire. After they had driven for almost two hours, the police stopped the car. They found the shotgun wrapped in plastic bags hidden in the spare wheel compartment in the boot. It was a shortened, single-barrelled shotgun. Its serial number had been erased. The offender's fingerprint was on the outside of one of the plastic bags. Police also found a satellite navigation system in the car with a destination post code apparently entered into it. The post code was very close to the place where the offenders had been stopped. A piece of paper containing a name, address, telephone number and the same post code was found on one of the co-defendants. It is plain that the offenders were delivering a lethal, loaded weapon to somebody. 7. When he was interviewed the offender said that the BMW he had been driving was his mother's car. It was driven by her and sometimes his younger sister was a passenger. He had arranged to meet up with the co-defendants that day. During the drive he had noticed the satellite navigation system. He had not inserted the destination post code into it. He had started to follow the directions, but had not asked the other two why they should be driving in that direction or as to the place they intended to go. He denied knowing that there was a firearm in the boot of the car. 8. The co-defendants similarly said that they had no knowledge of the firearm, or the destination, or the purpose of the drive. On one view, nobody in the car knew anything about the gun. 9. At his trial the offender gave evidence. He said that two days before the car was stopped he had been approached by an associate. He knew him by the street name "Inferno", but his first name was Leon. He had asked the offender to keep a gun for him. Although he had wanted to refuse, Leon was very persistent. This was the first mention of Leon that the offender had made. No further information was given. We understand that the information has not been sufficient for the police to be able to investigate further. 10. The judge considered a pre-sentence report. The offender is a bright young man. He lives with his mother and younger sister. He is studying at a university, where he had completed the first year of a degree course. According to the author of the pre-sentence repot, on his release from his anticipated sentence the offender's intention was to return to university. 11. The judge decided that there were exceptional circumstances which justified him in imposing a lower sentence than the prescribed sentence for this offence. In due course he sentenced the offender to a total of three and a half years' imprisonment. In reaching his conclusion that that was appropriate, he took account of his view that the offender had been unwilling to take possession of the weapon, that he had given a full explanation of how this had all come about, and had identified the person who had given the weapon to him. The judge took account of the fact that the weapon was in the family car which, in the context of cases like this, he held was an exceptional circumstance. 12. We find nothing exceptional about the offender's apparent unwillingness to possess the gun. The judge was entitled to make the finding of unwillingness, but it is often the case that young men and women of apparently good character are persuaded, cajoled, encouraged and sometimes pressurised into carrying, or holding, or looking after these lethal weapons. They are chosen for that purpose because it is unlikely that the police will have any interest in them, and so those who own the weapons can keep them safe and secure. The offender knew what he was doing. We find nothing in his evidence to suggest that he was under duress. Nor do we find anything in the evidence to suggest that he provided information on the kind of scale which would have enabled the police to hunt down and identify the men who had provided the weapon. We are also deeply concerned that the fact that the car in which the gun was found was used by the offender's mother and sister was treated as a mitigating factor. On one view it is an aggravating feature, if for no other reason than it might have implicated his mother and sister. 13. The aggravating features of this case need no recitation. The offender was convicted of possession of a loaded, sawn-off shotgun which was on its way to be delivered to someone. The fact that that individual may not for present purposes be identified does not diminish the seriousness of the fact that the gun was to be handed over in a condition where it was capable of being used immediately and certainly capable of being used in the course of gun crime. 14. This offence cried out for the imposition of at least the minimum prescribed statutory sentence. We do not think that the offender could have had any complaint if the sentence had been longer than it was. We have reflected on the situation as it stands before us now, having been before the Crown Court and having been dealt with as it was. We shall quash the sentence imposed by the judge and substitute for it a sentence of five years' imprisonment. _________________________________	{"ConvCourtName":["Crown Court at Birmingham"],"ConvictPleaDate":["2009-12-03"],"ConvictOffence":["Possessing a prohibited firearm"],"AcquitOffence":["Possessing a firearm with intent to cause fear of violence"],"ConfessPleadGuilty":["Yes"],"PleaPoint":["before His Honour Judge Creed"],"RemandDecision":["No"],"RemandCustodyTime":null,"SentCourtName":["Crown Court at Birmingham"],"Sentence":["three and a half years' imprisonment"],"SentServe":["Single"],"WhatAncillary":null,"OffSex":["All Male"],"OffAgeOffence":[22],"OffJobOffence":["Student"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":null,"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":null,"VicSex":null,"VicAgeOffence":null,"VicJobOffence":null,"VicHomeOffence":null,"VicMentalOffence":null,"VicIntoxOffence":null,"ProsEvidTypeTrial":["Fingerprint evidence","Police testimony","Physical evidence (shotgun, knife, gloves, cartridge)"],"DefEvidTypeTrial":["Offender denies knowledge of firearm","Offender's account of events"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Possession of a loaded, sawn-off shotgun","Weapon was to be delivered to someone","Weapon was capable of immediate use"],"MitFactSent":["Offender is a bright young man","No convictions since age 13","Studying at university","Judge found apparent unwillingness to possess the gun"],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Exceptional circumstances wrongly found","Minimum statutory sentence not imposed"],"SentGuideWhich":["Section 36 of the Criminal Justice Act 1988"],"AppealOutcome":["Appeal allowed and sentence increased"],"ReasonQuashConv":null,"ReasonSentExcessNotLenient":null,"ReasonSentLenientNotExcess":["Judge found exceptional circumstances which were not present","Minimum statutory sentence should have been imposed"],"ReasonDismiss":null}
Case No: 201103918 B5 201103991 B5 Neutral Citation Number: [2014] EWCA Crim 421 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Liverpool Crown Court HHJ Swift T20097226 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/03/2014 Before: LORD JUSTICE TREACY MR JUSTICE KING and MR JUSTICE TURNER - - - - - - - - - - - - - - - - - - - - - Between: Regina - and - Abdullah Allad Adam Umerji - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - James Pickup QC & Richard Simons (instructed by Messrs Garstangs Burrows Bussin ) for Abdullah Allad William Clegg QC & Miss Eleanor Sanderson (instructed by The Khan Partnership ) for Adam Umerji Ian Unsworth QC & James Rae (instructed by Crown Prosecution Service ) for the Respondent Hearing dates: 10th, 12th & 13th February 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy: Introduction 1. These are appeals against conviction, focusing largely on the issue of the absence of the two appellants from the trial in the Crown Court. There are, in addition, in the case of Allad, a number of other grounds which have been referred to the court by the Single Judge. 2. On 9 th June 2011 in the Crown Court at Liverpool the appellants were convicted in their absence of (1) conspiracy to cheat the public revenue and (2) conspiracy to transfer criminal property. In each case a sentence of 12 years imprisonment was imposed on Count 1, with 5 years concurrent on Count 2. In addition, each man was disqualified for 10 years under Section 2 of the Company Directors Disqualification Act 1986. 3. There were three other co-conspirators on the indictment. Each of them pleaded guilty prior to trial. Sajid Patel, Umerji’s brother, was sentenced to 2 years imprisonment. Wai Fong Yeung was sentenced to 2½ years imprisonment; and Mohammed Mehtajee was sentenced to 4 years imprisonment. 4. It is not necessary to go into a great deal of detail about the offences. The fraud alleged was that type of VAT fraud known as a carousel fraud or an MTIC fraud. The allegation was that between 1 st September 2005 and 30 th June 2006 mobile phones were imported from the European Union, VAT free, to a UK VAT registered company. Those phones were then purportedly traded within the UK (where VAT should have been charged and paid on the different transactions) through a series of companies on paper only. The telephones were then exported back to the European Union whereupon dishonest claims for VAT refunds were made. The importer in each case disappeared without accounting for the VAT, thereby causing loss to the revenue in the sum of approximately £30 million. 5. The conspiracy itself was, inter alia, evidenced by virtue of the guilty pleas of the co-accused. Most of the evidence called at the trial was documentary. The Crown’s case was that there were 307 transaction chains involving the phones, in each of which there was a number of different missing traders. The Crown concentrated on four businesses as providing a sample of transactions to demonstrate the workings of the conspiracy. 6. Allad was a director of Eurosabre and resigned on 31 st December 2005. Umerji took up a position as director on 1 st January 2006, but was said to have been involved in the running of the company for some time previously. During the year ending April 2006 the company was said falsely to have documented a massive change in turnover, which increased to approximately £293 million. This company was involved in 222 of the 307 transactions concerned. 7. Master Trading was a company owned by Umerji’s brother, Sajid Patel. He and his wife were 50 per cent shareholders. This company was involved in 26 of the transactions, with a six month turnover to June 2006 of £14 million. 8. The co-accused, Yeung and Mehtajee, ran Armada UK, a business with which Allad had a connection. It also enjoyed remarkable growth and turnover during the relevant period, and was involved in 58 transactions. 9. Finally, Vertu Telecoms was a company in which Umerji and his brother had an interest. It was involved in a single transaction. 10. Those four companies were involved as exporters in the specified deal chains over a ten month period where a missing trader failed to account for VAT due. Umerji was arrested in September 2007. He made no comment in interview then or on later occasions. Allad was arrested and interviewed in October 2007 and again in 2008, but declined to comment on each occasion. Summonses were issued in early 2009 and the cases were sent to the Crown Court. The co-accused were joined later. 11. Umerji never attended court proceedings. Until late 2010 this was by arrangement with the court, Umerji spending time in Dubai. Allad had attended court proceedings until autumn 2010. On 10 th December 2010 a warrant was issued for the arrest of Umerji as a result of his failure to attend court. Exactly one week later a warrant was issued in relation to Allad, who had failed to attend. A final trial date of 3 rd May 2011 had been fixed in the early autumn of 2010, representing a postponement from an earlier intended date. That new trial date was undoubtedly known to both appellants. Neither appellant appeared before the court on the trial date, and the judge ruled that the trial should proceed in their absence. 12. Briefly put, the Crown’s case was that the appellants and co-accused were connected to the four companies at the heart of the fraud, being involved in 307 deal chains where there was a missing trader who failed to account for the VAT due. The appellants, as Eurosabre, were participating at the end of the chains of rigged transactions. They were only involved with chains where there were missing traders; they always sold out of the UK. They had no storage facilities and no distribution network. The phones simply went from missing traders to other businesses who were apparently selling them on, eventually arriving at Eurosabre, who never came into physical possession of the phones, and simply sold them straight out of the country again. The telephones were traded at great speed, often making the paper transaction circuit in this country within a matter of hours before being re-exported. On occasions it is clear that the same telephones were then re-imported and re-exported on additional occasions. 13. The Crown’s case relied upon the pattern of trading and circulation of funds to show that all parties were conspiring. The money used to fund the rigged market came from a company called Touchstone, and was then returned to Touchstone, together with the VAT that had been reclaimed. Banking documentation showed the movement of funds between companies. That showed that the internet provider (IP) addresses used by Eurosabre were used by Touchstone Investments and other companies based overseas. 14. All the companies used the banking facilities of the First Curacao International Bank (FCIB); many were using the same computer access point in the UK. 15. The Crown was able to trace monies deposited in Touchstone’s account at FCIB to the appellants via further companies registered in Dubai with accounts at FCIB. Those companies were run by Umerji and Allad. The Crown was thus able to show the withdrawal of funds generated by the fraud. 16. The issue for the jury was whether they were sure that the appellant whose case they were considering knowingly participated in the conspiracy. 17. As already stated neither appellant had commented in interview. The Crown had certified compliance or purported compliance with primary disclosure under Section 3 of the Criminal Procedure and Investigations Act 1996 (CPIA) in April 2010. By reason of Section 5(5) each appellant was obliged to give a defence statement to the court and the prosecutor. The judge had given ample notice of this, setting a date of 10 th September 2010. Neither appellant ever filed any defence statement. 18. That failure did not prevent a series of applications being made to the court on behalf of Allad, raising questions of the admissibility of documents or evidence, the disclosure of evidence, and applications for a stay in the period between September 2010 and May 2011 when the trial was due to take place. 19. It is necessary next to say something about legal representation. Until September 2010 both men had the benefit of legal teams consisting of leading and junior counsel and solicitors. Up to September 2010 Umerji had the benefit of public funding. In that month his public funding was discharged so that he might continue to engage the counsel of his choice on a private basis. On 6 th December 2010 that legal team notified the court that it was withdrawing from representing Umerji. The reasons for withdrawal are not entirely clear, but there is nothing to suggest that the withdrawal was due to any action or fault of Umerji. From that point onwards therefore Umerji was not represented before the court. That includes the period in May 2011 when the judge decided to proceed with the case in Umerji’s absence, although as will become apparent, a firm of solicitors, the Khan Partnership (Khan’s), made certain representations to the court on Umerji’s behalf, putting itself forward as amicus curiae. 20. Allad had the benefit of a full legal team up to the point at which the judge decided that the trial would proceed in the absence of the appellants. Once that decision had been made Allad’s legal team withdrew, thus leaving him unrepresented before the court as the trial proceeded in his absence. We would add that those representing Allad had had no contact with or instructions from him after 30 th November 2010. The Issuing of Warrants 21. On 26 th August 2009 the judge had circulated an email to the parties prior to the first Crown Court hearing stating: “All defendants must appreciate, of course, that matters will progress in their absence if at any time they are not present in Court leaving aside any other sanction that may follow.” 22. This was intended as a warning to the appellants of what would happen if they failed to appear when required at a future court hearing. 23. Arraignment was initially fixed for 15 th November 2010. That date was put back to 23 rd November as the original date coincided with Eid. The new date was then postponed as both appellants claimed that they were unfit to attend. Arraignment was then re-fixed for 10 th December 2010 since the evidence before the court on 23 rd November indicated that both men would then be fit to attend. 24. On 10 th December neither appellant appeared for arraignment. In the light of further information concerning Mr Allad’s health, arraignment in his case was adjourned to 17 th December. As to Mr Umerji, the court had by then received his solicitor’s letter of 6 th December indicating their withdrawal from the case with the result that nobody attended court on 10 th December to represent Mr Umerji’s interests. 25. In addition, the court had by then received a letter dated 8 th December 2010 from Mr Umerji himself. In that letter Mr Umerji expressed shock at the withdrawal of his legal team and stated that his health was deteriorating as a direct result. He stated that as soon as his health was better he intended to take urgent steps to return to the UK in order to seek new legal representation. He asked for the court to adjourn his case until that occurred. That letter was sent as if from an address in Preston at which Mr Umerji was not living; he was in fact in Dubai. 26. On 10 th December the judge considered medical evidence which had been provided. On Mr Umerji’s behalf there was a letter from a Dr Ismail of the American Hospital, Dubai, reporting an examination on 25 th October 2010. It described an MRI scan of his lumbar spine showing a herniated disc. It said: “I would advice [sic] to avoid any long distance travelling at least for the next four weeks.” 27. That would have taken Mr Umerji up to the third week in November and explained the adjournment on 23 rd November. 28. The MRI scan was provided to the Crown and by 10 th December a report from Mr J Williamson, Consultant in spinal surgery at a Manchester hospital, was provided to the court. Mr Williamson confirmed the finding of the disc problem with resultant sciatica. A reasonably prompt resolution in symptoms could normally be expected from this type of slipped disc. The report concluded: “With respect to the issue of Mr Umerji flying, there is no reason at present why he should not fly back to the UK save for the fact that he would be uncomfortable whilst doing so. Most people would advise against flying for the first week after an epidural injection, or for three or four weeks after spinal surgery.” 29. That letter was dated 6 th December 2010. It was placed before the judge alongside Dr Ismail’s letter. The judge concluded that there was no evidence to suggest that Mr Umerji’s condition was such that he could not attend on that day. According to Mr Williamson’s report he was fit to travel. There was no address in Dubai at which Mr Umerji could be contacted. Accordingly, the judge felt that there was no alternative but to issue a warrant. 30. On 17 th December 2010 Mr Allad failed to appear. His counsel acknowledged that they had not heard from him since the end of November, and there was no explanation to put before the court. Although the court was aware that Mr Allad was in Dubai, no address for him was known to the court. The judge decided to issue a warrant. 31. Those warrants were never executed, and, as stated, neither man subsequently appeared before the court. Events between issue of warrants and start of trial 32. As far as Allad is concerned, a number of applications were made to the court during this period raising matters of the type we described earlier. 33. As to Umerji, he was of, course, unrepresented. Thus in his absence no applications were made to the court. There was in fact a complete period of silence from him until just before the date fixed for trial. On 3 rd May the judge received a letter from Umerji, bearing no address, stating that he would not be attending court that day. It stated his wish to be present at his trial and to participate fully in the trial process and to defend the allegations made against him. It claimed that he was prevented from attending court or indeed leaving Dubai “by matters outside my control including legal requirements imposed on me by the Dubai courts”. 34. It provided documentation to show that civil proceedings had been commenced against him in Dubai on 15 th February 2011, which had resulted in a travel ban preventing him from leaving Dubai. It stated, with supporting documentation, that Umerji had attempted to leave Dubai by air on 11 th April 2011, but was detained by Dubai police. He had to surrender his passport. 35. We interpose to say that the Crown in due course verified the existence of the civil proceedings and the travel ban, and accepted the evidence showing the confiscation at the airport of a passport belonging to Umerji. 36. Umerji’s letter continued by saying that he had recently identified new solicitors in London, Khan’s, whom he wished to instruct to represent him at trial. He sought an adjournment of the trial of at least three months until such time as he could attend court and be properly represented. 37. The following day the judge received a letter from Khan’s indicating that they were contacted in Dubai by Mr Umerji on 27 th April. They were prepared to act as amicus curiae so as to inform the court of his current position. They referred to the travel ban, the civil proceedings in Dubai, and the detention at Dubai airport. They attached some copy documentation in support. They sought an adjournment of the proceedings. 38. The Crown’s case was that the Dubai civil proceedings were a contrivance. It called evidence before the judge seeking to show this. 39. After hearing that evidence the judge ruled that the trial should proceed in the absence of both men. As to Umerji, the judge noted that Umerji was aware of the trial date and recited the history leading to the issue of the warrant in December 2010. He noted the absence of any information as to Umerji’s whereabouts, save that he was in Dubai. By May 2011 Umerji was not saying that he was unfit to travel, but that he was now prevented from doing so by travel restrictions consequent upon the Dubai civil proceedings. He noted certain unsatisfactory features relating to that, including the absence of any information about the nature of the proceedings, the timescale, or how long a travel ban might last. He also noted particular issues relating to the passport said to have been seized, which he said raised many questions. 40. However, in relation to the Crown’s suggestion that the Dubai proceedings were a contrived means of avoiding a return to face these proceedings, the judge stated that he did not find it necessary to find whether they were contrived or not. This was notwithstanding the fact that the Crown had laid before him evidence showing that others involved in fraud offences in this country had not returned for their trial, citing a travel ban in Dubai. There was evidence to show that one of those individuals was connected to Umerji. 41. Having come to that conclusion, the judge said, however, that it was clear that Umerji had been fit to travel in December 2010 at a time when he knew that he was obliged to attend court. On any view he had made a decision not to attend court prior to the issue of any proceedings in Dubai. Accordingly, whether those proceedings were genuine or not, Umerji’s actions and conduct demonstrated that he did not intend to return. The judge concluded that in the circumstances Umerji had waived his right to attend trial, and said that he had no evidence to suggest that an adjournment would resolve the matter in the sense that Umerji might voluntarily return at some unspecified date in the future. The judge recognised that a decision to proceed in absence is to be made with “great caution and close regard to the overall fairness of the proceedings”. 42. It was a step which ought normally to be taken only if unavoidable. He as the judge had to exercise his discretion, having regard to all of the circumstances. Having considered certain other matters, the judge concluded that Umerji’s trial should proceed. 43. In Allad’s case the judge came to a similar conclusion. Allad’s case was somewhat different from Umerji’s. He had not been in contact with his solicitors since 30 th November 2010. His precise whereabouts were unknown. He had failed to attend court in December 2010 after a clear warning that serious action would be taken if he failed to attend. He was aware of the trial date, and there was no explanation for his non-attendance and no reason for his absence. There was no basis for thinking that he would return to the UK in the foreseeable future. 44. After consideration of the type of issues mandated by the decision of the House of Lords in R v Jones (Anthony William) [2002] UKHL 5 , the judge concluded that in his case too the trial should proceed in his absence. It was after this point that Allad’s legal representatives withdrew from the case. Allad’s Grounds 45. Mr Pickup QC, who had represented Allad below, began by challenging the judge’s decision to proceed to trial in the absence of Mr Allad. He took us to the checklist of factors set out by Rose LJ at paragraph 18 of Haywood & Others [2001] 2 Cr App R 11 . Those factors were, with one exception, approved and adopted in Jones , which was the appeal from that case heard in the House of Lords. 46. Emphasising that it would be a rare and exceptional case to proceed with the trial when a defendant was unrepresented, Mr Pickup acknowledged that his client was to be taken to have deliberately and voluntarily absented himself. He submitted, correctly, that that in itself was not sufficient and raised the question of whether in reality his client should be taken to have waived the right to representation in circumstances where the email cited earlier had not specifically referred to that. He also drew attention to the judge’s obligation to ensure as fair a trial as circumstances permit, including the making of points on behalf of the absent defendant. 47. This aspect of his submissions was later developed into what was effectively a freestanding ground of appeal. Even if the judge’s initial decision as to proceeding in absence could not be faulted, Mr Pickup submitted that the judge had in fact, as matters turned out, failed to secure a fair trial for his client. We will return to that later. 48. Our attention was also drawn to R v Amrouchi [2007] EWCA Crim 3019 where the court gave particular consideration to the impact of the absence of a defendant upon the potential for a meaningful defence to be advanced. 49. Returning to the factors identified in Haywood , it was submitted that there was no compelling reason for the court to proceed in May 2011 and an adjournment should have been considered and implemented. Umerji had recently consulted solicitors and sought an adjournment. A third party had provided information to the prosecution suggesting Allad could be returned to the UK within a month. Since the prosecution could prove the existence of a conspiracy by the pleas of the co-accused, and since the case essentially depended upon documentation, there was no good reason to refuse an adjournment. 50. Mr Pickup was also critical of the absence of evidence that the Crown had taken steps, for example, to trace and extradite his client, submitting that they had a duty to take all reasonable steps to secure his attendance. It could not be said that an adjournment might not result in Mr Allad being found and caught. 51. He urged the court to consider the effects of proceeding in absence upon the extent to which Allad could present a defence based upon an absence of knowing participation in the conspiracy. He pointed out that since Mr Allad had last been in contact (30 th November 2010), there had been judicial rulings on applications, and further materials had been served or disclosed. Thus, the judge should have taken account of the significant disadvantage at which Allad was placed. 52. Finally, he argued that there was a real risk of the jury simply coming to an improper conclusion and of being diverted by the absence of the appellants from paying proper heed to the material and issues in front of them. He noted that the transcript showed that the jury had delivered a verdict 15 minutes after retirement. 53. Mr Pickup’s next point was couched within his first ground, but in reality was a freestanding ground. His submission was, that having proceeded with the trial, the judge failed to take reasonable steps to ensure that there was a fair trial. In his oral submissions Mr Pickup focused on matters relating to the evidence of two witnesses in particular. 54. Firstly, the evidence of Mr Stone. His evidence was not advanced as that of an expert, but he gave an overview of how MTIC frauds operate. He had had very great experience of investigating such frauds in his working life. In the early part of his evidence he gave general evidence about the workings of such frauds, describing to the jury the different stages and participants, and their role in the transaction chain. Mr Pickup accepted that this was legitimate, but argued that the witness had overstepped the mark and given inadmissible opinion evidence, for example, when he described buffer traders as separating the missing trader from the exporter in order to disguise the involvement of the exporter. 55. In addition, Mr Pickup took us to what occurred after Mr Stone had concluded his evidence in chief. The judge asked: “Is it possible for somebody to be in one of these chains without realising that he is part of the fraud?” Answer: “Not in my view, no”. Mr Stone then continued “Bearing in mind that the money has to go back from whence it came, so that when you pass the money on you have to know that its going to be passed onto somebody else that can be trusted to pass it back onto the third – another person that’s trusted, so it arrives back with the original financier.” The judge followed this by asking: “Might you become involved in that innocently?” Answer: “No, that’s not my view”. 56. Mr Menary QC, for the Crown, followed up, asking: “Someone involved in a fraud and who has to generate an invoice for an onward sale in a fraud, does that person, say an intermediary, literally or in truth have a free choice about who to sell onto?” Answer: “In these frauds they don’t. In a genuine transaction they’ve got a free choice on who to sell onto. In these transactions they don’t, they have to sell onto somebody who is part of the fraud.” 57. Mr Pickup was highly critical of these questions. He submitted that they represented inadmissible opinion evidence which in effect answered the ultimate and sole question which the jury had to decide in the case of these appellants. It was the clearest evidence that it was not possible to be involved in a chain without being part of the fraud. The judge had wholly failed to protect the interests of the defendants; indeed he was responsible for improperly adducing the evidence we have referred to. 58. When the judge came to sum up Mr Stone’s evidence, he repeated the essence of the passages we have just recited uncritically and without comment or warning. This had been done when the sole issue before the jury was whether they could be sure that the individual appellants had knowingly participated in the fraud. 59. Next Mr Pickup turned to the evidence of Mr Saxon, a VAT compliance officer, who dealt with Eurosabre. He began by reminding us of the fact that Allad ceased to be a director of Eurosabre partway through the fraud, at the end of December 2005. The Crown had acknowledged that there was no evidence that Allad was involved in the fraud after his resignation as a director. His position was in contrast to that of Umerji, who had been active in Eurosabre throughout the period of the fraud and became a director in January 2006. 60. Mr Saxon gave evidence about the increase in Eurosabre’s turnover in the period between June 2005 and April 2006. This evidence was given in a way which demonstrated a very significant increase, but failed to bring out the point that much the greater part of the increase occurred under Umerji’s stewardship, rather than in the period during which Allad was involved. Similarly, evidence about the ability to scan IMEI numbers on the phones had only become available in February 2006, i.e. in the post Allad period, but Mr Saxon had failed to indicate that that was the case. This evidence enabled the Crown to show that the same phones were repeatedly imported and exported. 61. There were other features which provided evidence against Umerji, but not against Allad. Firstly, the commonality of the usage of IP addresses was only evidenced from February 2006 onwards. Secondly, a system of contra-trading, designed to conceal even further what was going on, only began in March 2006, and only after Umerji had been told by Mr Saxon that there were tax defaulters in the trading chains leading to Eurosabre. Allad had never been privy to such information. In terms of the profits derived, Umerji was shown to have received £34 million in profits, whereas Allad had received £5.3 million. 62. Mr Pickup pointed out from the transcripts that at no stage during the course of the evidence had the judge made any point or intervention seeking to differentiate between the positions of Allad and Umerji, which could be important on the issue of knowing participation. 63. When the judge came to sum up, he had again failed to protect Allad’s position in that he recited the points made through Mr Saxon without anywhere differentiating between the two appellants and in particular drawing attention to points potentially favourable to Allad. At one point in the summing-up, the judge had asked the jury a series of questions, dealing with both defendants together clearly designed to raise the issue of whether they were aware of what was going on. However, those questions were general in nature, did not differentiate between the appellants, and did not point to any evidence which might support the lack of awareness of either appellant, and Mr Allad in particular. This short general passage, contended Mr Pickup, was wholly inadequate to secure fairness, particularly in the light of the way in which the evidence of Messrs Stone and Saxon had been dealt with, both in evidence and in summing-up. 64. Under this argument as to fairness, Mr Pickup also raised a number of points which he recognised were of a subsidiary nature and which appear to us to be related to later grounds relating to disclosure. We do not think these matters materially add to the strength of this particular ground and do not propose to deal with them further. 65. Grounds two and three are a complaint that on 10 th February 2011 when the judge was considering an application for disclosure with a view to challenging the admissibility of evidence in relation to FCIB, he refused to accept a proffer from Mr Pickup of a defence statement described at the time as a “three line defence statement” designed for the purposes of satisfying the necessary conditions for a defence application for disclosure pursuant to Section 8 CPIA. The argument is that the judge’s refusal to countenance this offer as constituting a defence statement prevented a disclosure request being made under Section 8 and thus prevented a meaningful application to exclude the FCIB evidence. The judge, it was said, had wrongly refused to countenance any such document and had unfairly hampered the ability of Allad to mount a disclosure enquiry on an important part of the case. 66. Ground four related to the judge’s decision as to the admissibility of documents relating to FCIB transactions pursuant to Section 117 of the Criminal Justice Act 2003. Those documents were an important part of the financial trail in the chains of transactions. This ground was not pursued. 67. Mr Pickup’s fifth and sixth grounds relate to exhibits. In particular the judge, it is contended, was wrong on 5 th May 2011 to refuse an application to stay the trial for an abuse of process or non-compliance with the provisions of Section 9 of the Criminal Justice Act 1967. Section 9 provides: “(1) In any criminal proceedings…a written statement by any person shall, if such of the conditions mentioned in the next following subsection as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person. (2) The said conditions are - … (c) before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; (3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section, that is to say - … (c) if it refers to any other document as an exhibit, the copy served on any other party to the proceedings under paragraph (c) of the last foregoing subsection shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party on whom it is served to inspect that document or a copy thereof.” 68. This matter comes about because the Crown, in serving its voluminous documentation, had by December 2010 only served documents as exhibits accompanying statements where they related to tax defaulters in the transaction chains. The defence applied for exhibits referred to in the witness statements pertaining to all persons in the chain. The Crown agreed to make copies of these documents available, although it asserted that they took the case no further. The judge directed service, and in accordance with the judge’s order, some 6,000 pages of exhibits were served on 16 th December 2010. 69. In March 2011 the defence asserted that there were large numbers of other documents referred to in the witness statements as exhibits which had not been served. The Crown’s position was that although these documents had been referred to by the maker of the witness statement as exhibits, they were not truly exhibits in the sense that they contained materials being relied on by the Crown in support of its case. They represented documents which officers had seized and simply referred to as exhibits in the course of their witness statements. Other officers had not referred to similar documents as exhibits, but had merely given them reference numbers. According to the Crown the process of describing the contested documents as exhibits had no real meaning since the witness would have had no idea as to whether or not what had been seized was truly material to any case which might be mounted. 70. The problem from the Crown’s point of view was that in preparing the witness statements for service on the defence, nobody in the prosecuting team had followed what should be the correct practice of lining out those parts of witness statements which are not intended to be relied on at trial. If that process had been adopted, this issue would never have arisen. 71. By March 2011 the Crown had in fact already considered the substantial additional materials which we are told amounted to fifty boxes of documents. It had in late 2010 served a disclosure schedule referring to them and indicating that they were to be regarded as unused material. In March 2011 when the defence pursued the issue, the Crown indicated that it did not intend to serve or copy these additional documents, but would provide to the defence the facility to inspect. We are told that up to 3 rd May 2011 Allad’s solicitors visited the premises where the documents were held on some seven occasions, but, we are told they had difficulties in copying documents because of the cost involved. 72. Mr Pickup alleged that the judge was wrong to refuse the application for a stay and that he had not followed the mandatory requirements of Section 9. He had confused the Crown’s duty of disclosure under the CPIA with the Section 9 requirement for service of the documents described in the witness statements as exhibits. Had there been service, there was potential for some of the documents to have benefited the defence. One example was given of spreadsheets, which might have been used to demonstrate that there had been due diligence carried out by Eurosabre into those with whom they had dealings. Umerji’s Grounds 73. Mr Clegg QC, who did not appear below, raised two matters. The first concerns the judge’s decision to proceed in the absence of Umerji; the second relates to the judge’s response to a query from the jury concerning Umerji’s absence from the trial. 74. Before the judge heard the evidence called by the Crown with a view to demonstrating that the Dubai civil proceedings were a contrivance, the judge had heard an ex parte PII application by the Crown relating to that. Mr Clegg first urged that there should never have been such a PII hearing. There had been disclosure made openly on 4 th May that the Crown had received information suggesting that the Dubai civil proceedings were being used by Umerji as a sham or a smokescreen to justify his absence from the trial. Mr Clegg argued that in the circumstances there was no need for any PII hearing because that information was adverse to Umerji and could not therefore undermine the Crown’s case or support his. 75. The mischief therefore was that the judge had heard information relating to the crucial issue of absence from trial privately when he was shortly to have to make a ruling on that very issue. The judge therefore should never have held the PII hearing, and having done so, should have recused himself lest he be unconsciously biased or lest, on an objective basis, the appearance of bias would be given to others. 76. In support of this he drew attention to the observations of Lord Judge CJ in R v Twomey & Others (2) [2011] 1 Cr App R 29 at paragraph 57 where his Lordship approved the decision of the trial judge not to review PII material relating to jury tampering in a case where the trial judge was to be the primary judge of fact in a trial conducted without a jury pursuant to Section 44 of the Criminal Justice Act 2003. 77. In addition, he submitted that the judge was wrong to hold the PII hearing on 5 th May 2011: he should have been prepared to adjourn the matter until 6 th May as requested by the solicitors who had contacted the court on behalf of Umerji, and who should have had the opportunity to make representations. Not to adjourn was unreasonable. 78. The consequence of this, urged Mr Clegg, was either to render the trial which took place unfair per se, alternatively it had an adverse effect upon the fairness of the judge’s ruling to proceed in the absence of Umerji. 79. Turning then to the issue of absence, Mr Clegg submitted that the appellant had engaged fully with these proceedings from the time when they were begun early in 2009 up to the point of his non-appearance in December 2010. He contended that the basis upon which the judge concluded that Umerji was deliberately absenting himself from court on 10 th December 2010 was flawed. In particular, Dr Ismail had said that Umerji was unfit, and Mr Williamson had neither examined Umerji, nor had he contacted Dr Ismail to discuss the case. Mr Williamson had not given evidence in court. There had been no enquiry into Umerji’s current condition and Umerji had written to the judge, expressing dismay at the loss of his legal team, and indicating to the judge that when his health was better he would come to the UK and instruct fresh lawyers. 80. This challenge to what happened in December was significant because when the judge made his decision to proceed with the trial in May, his findings in this respect informed that decision, particularly in the light of his failure to find that the travel ban resulting from the Dubai proceedings was a ruse or device. 81. Mr Clegg then made the submission that the judge should not have heard or admitted evidence tendered by the Crown on 11 th May 2011 calling into question the bona fides of the Dubai proceedings explanation for absence. Having heard it, as the primary decision-maker on the issue of absence, he should have recused himself. The judge was, he urged, in reality in the same position as a jury which is discharged after having heard significant inadmissible evidence. 82. In the light of the judge’s decision to make no finding that the Dubai proceedings were a contrivance, the judge’s conclusion underlying his decision to proceed in the absence of the appellant on the basis of a settled intention formed prior to the commencement of the Dubai proceedings not to return to stand trial could not properly be sustained. There was insufficient admissible evidence to support the conclusion that Umerji would not return to take his trial. 83. The judge had failed to address the issue of Umerji’s attempt to return on the 11 th April: he had certainly not said that that was a contrivance simply to add colour to his reasons for not returning. If Umerji had been prevented by the authorities from leaving Dubai, that would, Mr Clegg conceded, not necessarily be conclusive. It would simply go to weight on the issue of voluntariness. The essential test for the judge to be decided as at 12 th May 2011, the date of the judge’s ruling, was whether Umerji’s absence was voluntary or not. 84. Mr Clegg accepted that if the appellant had no intention of returning to the UK for trial, for example in December 2010, then subject to change of mind, a Dubai travel ban would not necessarily be of any effect. In other words, in those circumstances it would not amount to a “get out of jail card”. 85. Mr Clegg’s second ground is a much shorter one. Mr Clegg abandoned the original grounds which complained of the judge’s directions to the jury on absence in the summing-up. He now concedes that that direction was unimpeachable, as were directions the judge gave at the start of the trial as to how the jury should view the appellant’s absence. However, he maintained a complaint made in the original grounds about something that happened during the trial. 86. Part way through the trial the jury asked a question about whether the appellants knew about the trial proceeding. The judge answered the question by saying that both were fully aware of the allegations they faced. He pointed out that each had been interviewed, during the course of which the allegations were outlined to them and their legal advisers. He also said that copies of the prosecution witness statements and documentary evidence had been supplied to them. He continued: “In addition, for a substantial period of time following their initial arrest, they had the benefit of being represented by solicitors and barristers; and as you were told when the case started, during the course of this trial Mr Allad’s interests have been protected by the presence of Mr Broadfield, who is sitting over there.” Mr Broadfield was a non-participating note-taker present at the trial. 87. The judge went on: “In relation to this trial I am satisfied that both Mr Umerji…and Mr Allad are aware that they were due to stand trial here before you, but it is very important that you do not speculate as to any reasons there may be for their absence.” 88. He said that in due course when summing-up he would give the jury specific directions as to how they should approach the fact that the appellants were not present. 89. Mr Clegg makes two complaints about the latter part of the judge’s remarks. He says that the reference to legal representation for a substantial period after arrest does not tell the whole story. In particular, it did not explain that it was not Mr Umerji’s fault that he no longer had legal representation. It left the unfair impression that the appellant’s lack of representation was his choice, his co-defendant who was also absent, having Mr Broadfield present. 90. Secondly, the judge’s comment that he was satisfied that Mr Umerji was aware that he was due to stand trial was a prohibited comment. The Crown Court Bench Book states: “If the trial is to proceed in the defendant’s absence, that fact should be explained to the jury, as soon as possible, in appropriate terms. When the judge has ruled that the defendant has voluntarily absented himself, he will not inform the jury of that fact and will need to warn the jury against: (1) Speculating upon the reason for the defendant’s absence; (2) Treating the defendant’s absence as any support for the prosecution case.” 91. The judge’s comment was one he should not have made, and in addition was misleading in the light of his own finding that the appellant was subject of a travel ban from the Dubai court in proceedings which he had concluded were not contrived. In the circumstances there was the obvious possibility of prejudice to the appellant. 92. Having heard Mr Pickup’s submissions for Allad, Mr Clegg applied to us, without opposition from the Crown, to amend Umerji’s grounds by adopting Mr Pickup’s submissions about the judge’s failure to secure a fair trial for his client, and also in relation to the grounds concerning Section 9 of the Criminal Justice Act 1967. The Crown’s Submissions 93. We do not intend to recite the Crown’s submissions in the same detail as which we have set out those for the appellants. We can deal with them in a more general way and can reflect them where necessary in our own conclusions. 94. As to trial in absence, it was submitted that the judge’s decision in each case was correct. He had been aware of, considered and applied the Haywood checklist to each appellant separately. He had properly concluded that it was fair to proceed to absence in each case, and that each appellant could receive a fair trial. 95. In Umerji’s case the judge had been entitled to conclude that Umerji had a settled intention not to attend the trial prior to the Dubai travel ban, and in that context was entitled to have regard to all of Umerji’s conduct until May 2011. The judge’s failure to find that the travel ban was contrived did not undermine his finding as to Umerji’s settled position prior to that date, nor did the episode of the journey to the airport and seizure of the passport on 11 th April 2011. 96. On the separate point about the PII application and the putting of prejudicial information before the judge, there was no procedural impropriety, and the judge had not used the information as a basis for making any finding adverse to Mr Umerji. 97. In each case it was contented that in reality any adjournment would be for an indeterminate period because the position of the appellants was entirely uncertain. There would have been no purpose in an adjournment. 98. In Allad’s case the judge had properly considered the material factors before coming to a conclusion to proceed. 99. Dealing next with Allad’s complaint of an unfair trial, Mr Unsworth submitted that Mr Stone had been entitled to give the jury assistance as to how this type of fraud was perpetrated. In relation to his evidence to the judge and then to Mr Menary, it was acknowledged that Mr Stone had slipped into impermissible opinion evidence, but Mr Unsworth drew our attention to a passage in the summing-up where the judge had said that Mr Stone had not been involved in the investigation of this case so that the jury should look at the specific evidence of other witnesses who had been. 100. Turning to the evidence of Mr Saxon, he argued that since the judge had mentioned that Allad had resigned his directorship in late December 2010, his position must have been clear to the jury. However, he acknowledged that the summing-up did not point to the separate position of Allad. He relied on the fact that the judge had, prior to the trial starting, shown that he was mindful of the need to be fair to the appellants and submitted that the summing-up could be regarded as objective and neutral. He relied on the passage already referred to where the judge invited the jury to consider whether the appellants were aware of what was going on. 101. As to Allad’s grounds two and three, it was submitted that Allad had made a fully informed decision not to serve a defence statement and that Mr Pickup’s desire to serve “a three line defence statement” could not comply with Section 6(A) of the CPIA. The judge was entitled to take the view that Mr Pickup’s offer would not satisfy the Act. Such a brief statement would not go beyond what the Crown was doing anyway by way of review in accordance with its CPIA obligations. The Crown had been fully aware of the issue to which this point went, namely the admissibility of FCIB material, and had had a dedicated team, including Queen’s Counsel, separate from the trial team dealing with disclosure. 102. As to the files made available in March 2011, the Crown had properly complied with its disclosure obligations in December 2010 as ordered by the judge. However, as a result of defence pressure in March 2011, although not strictly necessary under its disclosure obligations, the Crown decided to make the additional material available for inspection. The Crown had previously considered that material and was not disclosing it as undermining the Crown case or assisting the defence, merely out of pragmatism. It was speculative to say that it might have assisted the defence. 103. Turning to grounds five and six, it was conceded that there had been a failure to comply with Part 27 of the Criminal Procedure Rules in failing to line out of the witness statements those parts which were not to be relied on. However, all that material had been reviewed. It did not need to be disclosed and no prejudice had been caused. No material had been put before the jury which had not been provided to the defence. 104. The appellants’ grounds of appeal related to the judge’s ruling as to whether there had been any unfairness. The judge had properly ruled that there was none since the defence had had served upon it all the material upon which the Crown proposed to rely. Section 9 should be read as relating to the point in time when the Crown put the evidence before the court at the trial. By that stage the Crown had complied with its statutory obligations. 105. Finally, in relation to Mr Umerji’s second ground, namely the judge’s response to the jury’s question, it was submitted that there was nothing objectionable in what the judge had said. Discussion 106. We will deal first with the decision as to trial in absence. In Allad’s case we are satisfied that the judge was entitled to conclude that Allad had waived his right to attendance and representation at his trial. The judge had to assess the position as at the 11 th May 2011. He was entitled to have regard to Allad’s failure to contact his legal team after the end of November 2010, particularly when they had made significant attempts to contact him by email and other means without success. Allad had failed to attend court when he was due to be arraigned without excuse or explanation. Thereafter, he had made no contact with the court whatsoever to explain or justify his absence. 107. The judge was fully aware of the need to proceed with caution in such circumstances, and considered the question of adjournment. Allad’s prolonged withdrawal from the court proceedings and from previous channels of communication entitled the judge to conclude that no purpose would be served by an adjournment in circumstances where there were no known means of contact with Mr Allad. Whilst there are grounds for criticism of the Crown on the basis that it provided little evidence to the court to show significant efforts on its part to bring Mr Allad before the court, that was simply a factor to be considered as part of the assessment of the position as a whole. We are not persuaded that the judge was in error. 108. Plainly there would be potential disadvantages to a defendant who did not attend trial in the presentation of his defence. The judge was fully aware of that. Allad’s absence was of his own choice. He had, although legally represented, chosen to make no comment in interviews. He had clearly made a conscious decision not to serve a defence statement. He had not put forward at any stage a positive case, but up to the time of his disappearance had chosen to proceed by a series of motions to the court attacking the architecture of the Crown case. 109. The judge was alive to the fact that the essential issue in his case would be his knowing participation in the proven conspiracy. Beyond that no positive case had been advanced. Indeed in submissions to the judge Mr Pickup had gone as far as to assert that the judge did not know Mr Allad’s defence. That was entirely due to the way in which Allad had proceeded thus far. 110. Whilst the question of potential disadvantage to a defendant is a material consideration, the circumstances in which a defendant has contributed to that by his conduct is itself a relevant factor. At the time the judge made his decision Mr Allad was still represented, albeit he knew that further consideration was to be given to the position of counsel. 111. Insofar as further evidence had been served since Allad’s disappearance, he had deliberately made himself unavailable to give instructions about such material which in any event did not materially alter the case as known against Allad prior to his disappearance. The new evidence was largely transactional in nature and the key additional materials had in fact been served on the day before Allad should have attended court for his arraignment. 112. In the circumstances we conclude that at the time of his decision the judge was justified in finding that Allad knew of and was indifferent to the consequences of being tried in his absence with or without legal representation. His overall conclusion was that notwithstanding some disadvantage, the court could deal appropriately with the matter and could properly warn the jury against the risk of reaching an improper conclusion drawn from the absence of a defendant. 113. In the circumstances we are not persuaded that in Allad’s case the judge’s decision can be impugned, the matter having been fully argued before him, all relevant considerations raised, and the judge having in mind the key authority on the point. 114. We turn next to Umerji’s absence. His position was somewhat different in that there was no concession of voluntary absence, and reliance was placed upon the Dubai travel ban, together with the seizure of Umerji’s passport at the airport in April 2011. 115. Before we deal with the judge’s actual decision, we need to deal with the procedural criticisms raised by Mr Clegg. We see nothing objectionable arising from the PII hearing on 5 th May 2011, shortly before the argument as to whether the trial should proceed. The purpose of that PII hearing was for the judge to make a decision as to whether the Crown could protect the source of information disclosed openly that Umerji’s reliance on the Dubai travel ban was a contrivance. The judge received no information at the PII hearing adverse to Umerji which had not been disclosed in open court. 116. Consequently, the objection that the judge made his decision in relation to proceeding in absence on the basis of material adverse to Umerji disclosed in a private hearing is not sustainable. Moreover, it is clear that the judge’s decision to proceed with the trial was not in fact based on the adverse information at all. Firstly, the judge specifically stated that that material which led to the PII application as to source took the matter no further, and played no part in his decision. Secondly, the judge specifically stated that he did not find it necessary to find whether the proceedings involving Mr Umerji in Dubai were contrived or not. He made his decision as to trial in absence on a different basis. 117. Accordingly, there were no grounds for the judge to recuse himself; there was no procedural irregularity; and no fair-minded and informed observer would consider that there was a real danger of bias. We are also unimpressed by the assertion of the possibility of unconscious bias on the part of the judge. 118. Criticism was also made of the fact that the judge proceeded to the PII hearing on 5 th May rather than acceding to the request of the Khan Partnership by letter to hold the hearing on the following day. Whilst we cannot discern any particular reason for not acceding to that request, it seems to us that there was nothing useful that could have been advanced or which would have made any material difference to the outcome since the judge held that the content of the adverse disclosed material was not admissible in evidence. 119. Mr Clegg was also critical of the judge having heard evidence from prosecution witnesses in the course of the hearing on 11 th May 2011 to decide whether the trial should proceed in absence. That evidence was called by the Crown with a view to seeking to persuade the judge that the Dubai court proceedings and ensuing travel ban were a contrivance. Evidence was adduced to show a similar pattern of behaviour involving others accused of fraud in this country, including one example of an individual with links to Umerji, and through whom Umerji had been put in contact with Khan’s. 120. Mr Clegg said that there was no admissible basis for this evidence, that the judge had been wrongly exposed to it, and should have recused himself. We reject those submissions. We consider that the evidence was properly admissible on the issue of whether the Dubai court proceedings were a sham. There was no basis for the judge to recuse himself. Even had the evidence been inadmissible, Mr Clegg conceded that this was a matter of fact and degree. A professional judge can be expected to distinguish between that which is admissible and inadmissible, and to proceed accordingly. In our judgment, there is nothing in this point and, as we have pointed out, ultimately the judge made no finding adverse to this appellant in relation to the Dubai proceedings. 121. We then turn to the substance of the trial in absence point. We have carefully considered the materials available to the judge on 10 th December 2010. There was nothing in the medical evidence to show that Mr Umerji was unfit to attend court as at that date. Moreover, his own letter to the court of 8 th December gave an address at which he was not living, and did not in fact state that he was unfit to attend on 10 th December. It claimed that Mr Umerji’s health was deteriorating because of the stress of the prosecution as opposed to the sciatica and slipped disc problems referred to in the medical reports considered by the judge, but provided no medical evidence in support. Significantly the letter spoke of intending to take urgent steps to return to the UK in order to instruct new legal representatives. 122. We see no proper basis for criticism of the judge’s finding in December 2010 that Mr Umerji’s absence was deliberate. 123. By May 2011 when the judge had to decide whether to proceed to trial, there had been no contact at all from Mr Umerji until the day when the trial had been due to start. That communication provided no address or other means of contacting Mr Umerji, plainly a deliberate ploy on his part. He had not, as he had previously indicated, taken urgent steps to instruct solicitors or prepare for trial, his first contact with Khan’s being at the end of April 2011, less than a week prior to the fixed trial date. 124. Although the Dubai court proceedings and travel ban dated from 15 th February, there had been until the letter of 2 nd May, no notification of this to the court. Nor was any information provided as to the nature of the proceedings or the length of the ban. 125. We were invited to approach the matter on the basis that if the appellant had by 15 th February already formed a settled intention not to attend and take his trial, then any ensuing travel ban could not avail him. However, in the light of the judge’s failure to make a positive finding as to whether the Dubai court proceedings were contrived or not, we were urged that the judge was wrong to find against the appellant. 126. Particular reliance was made on the appellant’s visit to Dubai airport on 11 th April when his passport was seized. This was relied on as showing no firm and continuing intention not to return. In this respect, although the judge noted that there were significant unanswered questions and concerns, he made no finding. Instead he based his decision on a clear finding that the appellant had prior to 15 th February 2011 made a firm decision not to return to the UK, whether or not those proceedings were genuine, and had demonstrated by actions and conduct that he did not intend to return. 127. We have been taken to the material before the judge in relation to the trip to the airport. That which was provided to him was equivocal. In our judgment, it falls short of anything showing that Umerji was at the airport intending to travel to the UK for the purpose of instructing lawyers and/or taking his trial. 128. Having considered the argument and the materials before the judge, we conclude that the judge was entitled to find that as at May 2011, this appellant had deliberately absented himself from the proceedings notwithstanding the Dubai travel ban. 129. Mr Clegg advanced no discrete arguments based on Jones . However, we record that the judge applied the Jones considerations to Umerji’s case, as he had in the case of Allad. In our judgment, he took account of the relevant principles and considerations, and came to a conclusion to which he was entitled to come. 130. It is convenient at this point to deal with Umerji’s second ground relating to the judge’s handling of the jury question. We have cited the relevant passages earlier. 131. As to criticism of the judge’s reference to the appellants having previously had the benefit of legal representation, we are not persuaded that that was objectionable. To have gone on to say that it was not Mr Umerji’s fault that he no longer had legal representation would, in our view, have been misleading. The sequence of events between December 2010 and Mr Umerji’s letter received on the day fixed for trial revealing very recent contact with solicitors who were not on the record and in the context of the judge’s ruling that Umerji’s absence was deliberate, would have painted a rather different picture. 132. Mr Clegg’s principal focus however was on the judge’s comment that he was satisfied that both men were aware that they were due to stand trial. That did not in fact contravene the Crown Court Bench Book’s indication that the judge should not inform the jury that a defendant has voluntarily absented himself. It was an accurate and necessary answer to the question posed by the jury, to which good case management required a response. The judge’s statement was accompanied by a warning that it was very important that the jury did not speculate as to any reasons there might be for the appellants’ absence from the trial. In addition, the judge said he would return to the point in summing-up. 133. It is conceded that in summing-up he gave the jury appropriate and specific directions as to how to approach the absence of the appellants. It is also conceded that he had given appropriate directions at the outset of the trial. In those circumstances we are not persuaded that there is any arguable point arising from the judge’s answer to the jury question. 134. We next turn to the issue of the fairness of the proceedings; a point argued in full on behalf of Allad, and adopted on behalf of Umerji, with our leave. Insofar as Mr Stone gave evidence as to the mechanics of an MTIC fraud, we consider that he was entitled to do so. The contrary is not suggested as plainly the jury would need assistance on the point. Having reviewed the transcript, we are not persuaded that Mr Stone, in dealing with this aspect of the matter, overstepped the mark and trespassed into the area of forbidden opinion evidence. No criticism therefore in this respect can be made of the judge’s failure to intervene. 135. We are, however, much concerned by what transpired towards the end of Mr Stone’s evidence. It seems to us that the judge, and then prosecuting counsel, invited Mr Stone to enter forbidden territory. He had not been put forward as an expert; nor was he ever treated as such, for example by way of any direction in the summing-up. He was invited to and did opine on the single issue presented to the jury in the case of these appellants, namely whether they had knowingly participated in the fraud. 136. He gave clear answers positively adverse to the defence, and the effect of what he said was repeated in the summing-up without qualification or warning. The questions posed and the impermissible answers given went to the very heart of the case. In our judgment, Mr Stone had moved from the primary facts of the case, into prohibited, secondary inference. We did not understand Mr Unsworth to demur from this conclusion. 137. Mr Unsworth sought to persuade us that a short passage in the summing-up explaining that Mr Stone’s evidence was intended to give an overview of aspects common to frauds of this type, coupled with the observation that he was not involved in the investigation of this case, so that the jury would need to consider the evidence of other witnesses in deciding what was proved to have happened was sufficient to cure any mischief. 138. We are unpersuaded that that passage has that effect. Firstly, Mr Stone’s comments were presented in a way which was as applicable to this case as any other fraud. Secondly, the judge shortly afterwards, told the jury of Stone’s evidence that he did not believe a trader could be innocently caught up in this sort of contrived chain. The effect of this episode was unfairly to undermine the single strand of defence available to these appellants. 139. In Allad’s case the position is compounded by what occurred when Mr Saxon gave evidence. It is clear that Mr Saxon in making a series of points, failed to differentiate between the positions of the two appellants in matters which were relevant to the issue of knowing participation. Neither the judge nor prosecuting counsel took any step to bring out the relevant features. Mr Pickup accurately identified them in the course of his argument, and we find that nowhere in the summing-up did the judge redress the balance. Instead he summarised Mr Saxon’s evidence as presented. 140. The only specific matter to which the Crown could point was that the judge had indeed told the jury that Mr Allad had resigned as a director on 1 st January 2006. However, he failed to tie this point to any of the specific matters dealt with by Mr Saxon, so that what were legitimate defence points to be made on behalf of Allad, were never made or brought into focus. At no stage did the judge put forward what were tenable points to be made in favour of Mr Allad. Instead the approach appears to have been to treat both appellants as indistinguishable in the summing-up. 141. This approach was replicated in the sentencing process when the Crown in terms invited the judge to treat both appellants in the same way, and when the judge sentenced them both to the same sentence. There were, in our judgment, valid points to be made as to Allad’s involvement in the fraud which should have resulted in a lesser sentence for him. 142. Although at the outset of the summing-up the judge had told the jury that they should consider each defendant’s case separately when opportunity arose, as it did in relation to Mr Saxon’s evidence, the judge did not provide the jury with the wherewithall to do so. 143. He did at one point pose a series of questions of which the first three are: “Could either of them, both of them, have been trading in the way about which you have heard but unaware of the wider conspiracy? Could they have been engaged in legitimate business without involvement at all in any fraud? Might they have been misled or used by someone else?” 144. In that passage there are further questions in similar vein couched in those general terms. That was, in our judgment, insufficient to deal with the situation. The effect of this was that the judge was unable to redeem his intention to give Mr Allad a fair trial. 145. Paragraph 18(6) in Haywood is in these terms: “If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits…” 146. We consider that in Allad’s case this important principle was not satisfied by reason of the matters identified above. 147. Mr Clegg, for Umerji, allied himself with those submissions. In his case, however, the points available to Allad relating to Mr Saxon’s evidence, could not be made. On any view Umerji was involved with Eurosabre throughout the period of the fraud, unlike Allad. In essence therefore Umerji’s argument on this ground must be confined to the impermissible answers of Mr Stone, repeated in the summing-up. 148. The evidence against these appellants was undoubtedly very compelling. That is particularly so in Umerji’s case because he did not have the benefit of having departed from the fraud before it escalated in scale, and before a time when evidence of certain significant aspects of it was available. However, the Crown, rightly in our view, has not sought to rely on the strength of the case against either appellant. That is not a factor of relevance which could overcome the fact that a trial was unfair. 149. The question therefore for us is whether what occurred in relation to Mr Stone’s evidence rendered Umerji’s trial unfair. We have come to the conclusion that it did. As we have already pointed out, the evidence adduced was not properly admissible. It went to the very heart of the only live issue before the jury concerning Umerji, and it resolved that issue, unchallenged and unqualified, adversely to him. Additionally, insofar as the jury were allowed to consider the case against Allad on an unfair basis, there would be an added risk of that impacting upon their approach to Umerji’s case. 150. We note that no more than 15 minutes elapsed between the jury’s retirement and its delivery of verdicts in a trial which had lasted between three and four weeks. Whilst it is a matter for the jury as to how it goes about its work, and no enquiry can be made into the processes of the jury room, we are left with the clear feeling that the brevity of the jury’s retirement may well owe something to the failure we have identified, including the unfair undermining of the only live issue before the jury, through Mr Stone’s evidence. In our judgment, therefore, the judge failed to secure a fair trial in Umerji’s case as well. 151. Many may consider these appellants fortunate. It is clear from the judge’s rulings that they had failed to advance any positive case at interview or by case summary, and had deliberately absented themselves from their trial. They could have no legitimate complaint about the trial proceeding in their absence or about the detriments which flow from that. However, it is crystal clear that even if a judge has made the necessary careful and anxious determination correctly to go ahead with the trial, his obligation, together with that of the Crown, is to secure as fair a trial as possible for the absent defendants. Regrettably that did not occur in this case. Whilst the appellants undoubtedly contributed materially to the situation by their actions, that cannot absolve the court of its duties. 152. In the light of those conclusions it is not necessary for us to deal in detail with Mr Pickup’s remaining grounds on behalf of Allad. Grounds two and three are related to the admissibility of documentary evidence from FCIB. The judge’s ruling as to the admissibility of such evidence was the subject matter of ground four, which has been abandoned. These grounds relate to a step in the proceedings prior to that abandoned point. In our judgment, the judge was entitled to regard the proposed document as a device to trigger a Section 8 CPIA application. Mr Pickup had made plain that the so-called defence statement would say no more than: “I am not guilty of the offences charged. I put the prosecution to strict proof. I challenge the admissibility of the FCIB evidence. I apply for disclosure. Please see the skeleton argument served in support.” 153. In our view the judge was entitled to regard this as a circumvention of the necessary requirements of Section 6A in an attempt to trigger a Section 8 application. In any event the court had seen the skeleton argument referred to, as had the Crown. All this was in the context of the appellant having made a positive decision prior to his disappearance not to put in a defence statement, and not having given any instructions to his legal advisers since the end of November 2010. The making of a defence statement is not a mere formality, but can later have consequences for a defendant in the trial. We regard those as relevant factors to the judge’s approach to this issue. 154. There was a skeleton argument before the court relating to the disclosure issue to be raised, and the judge satisfied himself that the Crown had complied with its obligations under CPIA in relation to it. In all the circumstances we do not consider that any properly arguable point arises and we refuse leave on these grounds. 155. In relation to grounds five and six, we remind ourselves that the decision for the judge to which this matter relates was whether to grant a stay for abuse of process on the grounds of non-compliance with Section 9 of the Criminal Justice Act 1967 based on an alleged failure by the Crown to serve all documents referred to as exhibits in witness statements. The judge held on 5 th May 2011 that the Crown had not failed to supply material upon which it relied to support its case, nor was he satisfied that the Crown had failed in relation to its duties under CPIA. There was no evidence of bad faith or manipulation of the court process, and the defence had failed in its submission that on these grounds a fair trial was not possible and that the proceedings should be stayed. 156. As we have observed, the Crown had brought about this situation by its failure to mark its witness statements in a way which indicated that only part of the statement was to be relied on. It is, however, right to emphasise that these grounds are not advanced on the basis that the evidence adduced at trial was inadmissible by reason of non-compliance with Section 9. No material was put forward capable of sustaining such an argument. The application instead is premised on the argument that there should have been a stay. 157. The judge has been criticised for his ruling in which he adopted what he called a common sense approach and, rather than construing Section 9 in detail, proceeded by a more pragmatic method of analysis. His approach was to have regard to the fact that seizing officers who referred to documents variously as exhibits or by other description should not be taken to bind the Crown in what were to be considered as exhibits for the purposes of a trial. The Crown had indicated and served those documentary exhibits upon which it proposed to rely in presenting its case, albeit it had not deleted references to other documents in the witness statements. Insofar as those other documents were concerned, the Crown had a continuing obligation of review pursuant to the CPIA and the judge was satisfied that the Crown had discharged its obligations. 158. In those circumstances there was no unfairness caused or improper manipulation of the process. We understand why the judge took such an approach in the context of an application for a stay on the grounds of abuse of process where the focus of the court will be on the fairness of what has occurred. Had the judge focused more closely on the requirements of Section 9 as Mr Pickup submits he should, we are not persuaded that he would have come to any different conclusion. 159. Section 9 is a provision which lays down the conditions for enabling a written statement to be admitted in evidence to the same extent as oral evidence would be. The requirement to serve or make available for inspection any document referred to as an exhibit arises in relation to “any written statement tendered in evidence”. In our judgment, the language of the section is consistent with the tendering in evidence occurring at the hearing before the court when the evidence is to be adduced. That stage had in fact not been reached at the point when the judge was invited to stay the proceedings. By then the Crown had served all the statements and documents upon which it was to rely at trial. This had been done in December 2010. The remaining documents had been itemised in a schedule of unused material supplied to the defence in December 2010 and thus disclosed in that way. The Crown then had second thoughts in relation to those documents, and in March 2011 made them available for inspection for pragmatic reasons. 160. It would seem to us, therefore, that by the date of the hearing, the Crown had complied with its obligation under Section 9, not by serving the documents referred to as exhibits (upon which it did not intend to rely), but rather by enabling inspection, thus satisfying the alternative limb of Section 9(3)(c). Accordingly, we are not persuaded that had the judge approached his decision by reference to Section 9 he would have reached any different conclusion than that which he did. 161. Mr Pickup’s ancillary point was that the material made available in March 2011 might have raised points which could have been made on behalf of the absent Mr Allad as undermining the Crown case or assisting his defence. This, in our view, is far too speculative an approach. We are not persuaded that the judge’s ruling in respect of these grounds in refusing a stay was arguably in error. We therefore refuse leave on these two grounds. Conclusion 162. In the light of our assessment set out above that in the cases of both appellants the judge failed to ensure a fair trial as far as was reasonably practicable, we quash the convictions recorded against these appellants on each of the two counts. We invite written submissions as to retrial. We require confirmation that each legal team appearing before us has the means of communicating with their client. 163. As a final word, the length of this judgment is to be regretted. However, it is the product of a full three day hearing in which matters of detail in a complex case were closely argued. We record our gratitude to the advocates and those assisting them for the careful and efficient preparation of this appeal. Order 1. The appeals against conviction are allowed in each case. 2. The convictions of Allad and Umerji on Counts 1 and 2 are quashed. 3. Both appellants are to be re-tried on a fresh indictment containing Counts 1 and 2. 4. The fresh indictment is to be served within 28 days upon the solicitors acting for each appellant in accordance with Part 4 of the Criminal Procedure Rules 2013 together with notice of the place, time and date for re-arraignment of the appellants on the fresh indictment. 5. Re-arraignment of both appellants is to take place within 2 months. 6. The venue for retrial is to be determined by a Presiding Judge for the Northern Circuit; his direction to be without prejudice to any subsequent application for a change of venue as may be made to the Circuit Judge at the re-arraignment hearing. Any such application to be made in writing and served upon the Crown Prosecution Service and the Crown Court at least 7 days prior to the date fixed for re-arraignment. 7. The appellant Umerji’s application for a Defendant’s Costs Order is refused. 8. It is noted that both appellants are unlawfully at large and that in each case a Bench Warrant remains outstanding. 18 th March 2014	{"ConvCourtName":["Crown Court at Liverpool"],"ConvictPleaDate":["2011-06-09"],"ConvictOffence":["conspiracy to cheat the public revenue","conspiracy to transfer criminal property"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Liverpool"],"Sentence":["12 years imprisonment (Count 1)","5 years imprisonment concurrent (Count 2)","10 years disqualification under Section 2 of the Company Directors Disqualification Act 1986"],"SentServe":["Concurrent"],"WhatAncillary":["10 years disqualification under Section 2 of the Company Directors Disqualification Act 1986"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Documentary evidence","Banking documentation","Pattern of trading","Evidence of movement of funds","Expert overview (Mr Stone)","Witness testimony (Mr Saxon)"],"DefEvidTypeTrial":["No comment in interview","No defence statement filed"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Trial proceeded in absence of appellants","Unfair trial due to judge's handling of evidence and summing up","Improper admission of opinion evidence by prosecution witness (Mr Stone)","Failure to differentiate between defendants in summing up (esp. Allad)","Failure to ensure fairness for unrepresented absent defendants"],"SentGuideWhich":["Section 2 of the Company Directors Disqualification Act 1986"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Judge failed to ensure a fair trial for absent and unrepresented defendants","Improper admission of opinion evidence on the ultimate issue by prosecution witness","Failure to differentiate between defendants' roles and evidence in summing up"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Case No. 2004/0198/D3 Neutral Citation Number: [2004] EWCA Crim 3387 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 23 November 2004 B E F O R E: LORD JUSTICE LAWS MR JUSTICE DAVIS THE RECORDER OF CARDIFF (His Honour Judge Griffith Williams QC) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A -v- RUEL MARCUS - - - - - - - - - - - - - - - - - - - - - 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 HAYES appeared on behalf of the APPELLANT MR M BURROWS appeared on behalf of the CROWN - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LAWS: On 11th December 2003 before His Honour Judge McCreath at the Birmingham Crown Court, this appellant was convicted by the jury on seven counts of robbery and one of false imprisonment. He was sentenced to a total custodial term of 10 years. There had originally been eighteen counts on the indictment. The judge withdrew some seven counts from the jury and the appellant was acquitted by the jury on three further counts. The counts were renumbered upon the indictment being amended, but the judge referred to the original numbering in his summing-up and we shall do the same in this judgment. 2. The seven counts of robbery on which the appellant was convicted were counts 4, 8, 10, 12, 14, 16 and 17. Count 15 charged the offence of false imprisonment. The victim of the false imprisonment count was also the victim of the robbery charged in count 14. The appellant now appeals against his convictions with leave of the single judge. 3. Apart from counts 10, 14 and 15, the essence of the offences was that they were knifepoint robberies at cash machines in the Birmingham area. The robbery charged at count 14 involved the imprisonment of the victim, hence count 15, in his own car. 4. There is only one point in the appeal. It concerns the nature of the video identification procedure, evidence of which was placed before the jury in relation to counts 4, 12, 14, 15, 16 and 17. The procedure had been conducted relating to all these counts on 15th November 2002. The offences had variously been committed between August and November 2002 and the appellant had been arrested on 13th November 2002. The procedure is said to have been in violation of Code D promulgated by the Secretary of State under the Police and Criminal Evidence Act 1984 , and to have been highly prejudicial to the appellant. We shall describe it shortly. These defects are said to render the convictions in question unsafe. It was initially contended also that the other convictions, that is to say counts 8 and 10, were contaminated by the faults relating to the others so that they too were unsafe. Before confronting the arguments we should give a thumbnail sketch of the facts. 5. As the appellant's counsel Mr Hayes acknowledges in his advice, there was a common thread to the case, namely that the complainants broadly described their attacker (there were some variations in the descriptions) as a black man in his late thirties or forties with greying hair and a greying beard. It is clear also that at the time of his arrest in November 2002 the appellant was of somewhat unusual appearance. He had black hair, was grey around the temples and had a grey goatee beard. He is now a man of 49 years of age. 6. The appellant's counsel's advice contains a very useful and succinct account of the facts of the cases in which the relevant identification procedure was used and we can do no better than replicate it with some adaptation. 7. Count 4. At 7.40 pm on 5th August 2002, Mr Henry Sowden walked to the Lloyds TSB cashpoint on the Birchfield Road in Birmingham. A black man aged approximately 55 or over, he was to say, five foot nine tall and of lean build with white facial stubble on his cheeks, robbed him using the words "move away or I'll cut you". 8. Count 12. At 8.55 am on the morning on 12th September 2002, Mr William Clutterbuck was robbed at the same cashpoint. He described the robber as a black man aged 30 to 35 years, five foot ten, slim build with a rough grey beard. 9. Counts 14 and 15 we take together. On 28th October 2002 Mr Ali was driving home when he was stopped by a black man between 42 and 45 years old with a stubbly beard. He had a knife which he placed to Mr Ali's throat. Mr Ali was robbed, stabbed and unlawfully kept in his car. 10. Count 16. On 8th November 2002 at 12.05 pm Mr Jhitta was robbed at the Birchfield Road cashpoint. He described the robber as about 50, medium build, full face beard which was short and contained flecks of grey. He said the man spoke with a West Indian accent. 11. Lastly, count 17. On 12th November 2002 at 9.15 in the evening at the same cashpoint, Mr Terence Brown was robbed at knifepoint. He described his robber as a light-skinned black man, 35 to 45 years old with short grey hair, a beard and moustache. He said the moustache was fairly bushy and greying. 12. The appellant gave evidence at trial in his own defence and denied any involvement with any of these robberies. 13. There are some points to add to this bare summary. First as regards count 12, the robbery of Mr Clutterbuck, we should notice that there was another witness, Miss Lisa Breakwell, who for five to 10 minutes had watched two men loitering near a bus stop. She said that one was in his late thirties, had facial stubble and was wearing a cap. The men went towards the cashpoint where Mr Clutterbuck had gone. Miss Breakwell did not see any robbery but saw the two men leave the cashpoint area. We shall refer to her participation in the video identification in due course. 14. Next in relation to count 16, the robbery of Mr Jhitta on 8th November 2002, there was also the evidence of a police officer, DC Vinall. He knew the appellant well from previous encounters. He looked at pictures taken on the occasion in question by the bank's CCTV camera and he confidently and readily identified the appellant as shown on them. 15. Now we should mention counts 8 and 10, which are not affected, certainly not directly affected, by the impugned identification procedure. Here there was powerful evidence supporting the Crown case. The relevance of any discussion of these counts is only to the suggestion that any defect in the convictions on the other counts contaminate the convictions on these. Count 8. A cap bearing the appellant's DNA was admitted to belong to him and in the struggle which took place between the female victim of the crime and her attacker (this was another robbery at the Birchfield Road cashpoint) the assailant's hat had fallen off. There was plainly a continuity of evidence between the hat lost in the struggle and the hat bearing the appellant's DNA. On count 10, a street robbery in which the female victim was assaulted in the street and robbed of her jewellery, the victim identified the appellant at an entirely different video identification on 8th May 2003 of which no complaint is or could be made. 16. Now we may turn to the procedure which is said to have rendered the convictions unsafe. On 14th November 2002, Inspector Hunt met with the appellant and his legal representative. It was agreed that a video identification procedure was appropriate, but it was not practically possible to assemble a sufficient number of volunteers of similar appearance to the appellant so as to hold a parade. If a video procedure was to be adopted, paragraph D:2 of Annex A to Code D required that the set of images to be used must include the suspect and at least eight other people who so far as possible resembled the suspect in age, height, general appearance and position in life. To try and find similar images Inspector Hunt searched two databases which contained some 19,000 pictures. They did not however include eight persons who sufficiently resembled the appellant in age and general appearance. Inspector Hunt selected what he thought were the best eight out of these collections. Because, as we understand it, these eight did not sufficiently resemble the appellant, Inspector Hunt arranged for the images, together with the image of the appellant that was to be used in the procedure, to be masked -- that is to say marks were superimposed on the area of the temples and lower face as to obscure any facial hair or grey hair in those areas. So much was done with the knowledge and consent of the appellant and his adviser. But Inspector Hunt undertook another initiative unknown to the appellant or his legal representative. He caused two parallel compilations to be created of the same images in the same order but this time with no masking. We may at this stage take up the narrative as it was given by the learned trial judge in the course of his ruling made on 2nd December 2003 to the effect that the video identification should be admitted: (Transcript 1, page 4 at A): "The decision had been made that, in the event of a witness being unable to make an identification from the masked images, he or she would then be shown one of the unmasked compilations. Inspector Handley, the officer who conducted the procedure, informed Mr Marcus' representative of that intention. She objected, both then and at the end of the procedure, arguing that it was in breach of Code D and was tantamount to a confrontation. Inspector Handley overruled the objection. The decision to proceed in this way had, it seems, been taken after discussion with the CPS, there having been some disquiet amongst operational police officers about the inadequacies of video procedures where the witnesses had found it impossible to make identifications from obscured images. The discussion had not arisen in the present case but was of a general nature. The police decided, having received that advice, to proceed in this way in this case and to leave it to the trial judge to determine whether the evidence should be admitted." We find it wholly extraordinary, quite aside from anything else, that it was decided not to inform the defence of this remarkable procedure until immediately before it was actually undertaken. 17. The video identification procedure was implemented, as we have said, on 15th November 2002. The results are summarised in a table contained in the skeleton argument prepared by Mr Burrows from the Crown and we may adapt it for the purposes of this narrative as follows. First count 4 and Mr Sowden. At the masked procedure the defendant stood at position 7. Mr Sowden made no identification. At the unmasked procedure the defendant was also placed at position 7 and Mr Sowden said: "I want to look more closely at number 7. I think so, number 7." Count 12. In the masked procedure the defendant was at position 5. Mr Clutterbuck, asked if he could make an identification from the masked images, said: "Yes number 2." Miss Breakwell was asked about the masked procedure also. She asked to see number 5 again. She said: "The blobs put you off but number 5." Counts 14 and 15. In the masked procedure the defendant was in position 5. Mr Ali said: "It is very difficult. Number 5 or number 8 are the closest. I can't be certain because of the absence of the beard." In the unmasked procedure, the defendant was again at position 5. Mr Ali said: "Can I see number 5 again. I think it's number 5." Count 16. At the masked procedure the defendant was at position 7. Mr Jhitta could make no identification. At the unmasked procedure the defendant was again at position 7. Mr Jhitta said: "I cannot say 100 per cent but it could be number 7." Lastly count 17. The defendant was at position 7 in the masked procedure. Mr Brown said: "Could I look at number 7 again. Number 7 is the closest. Until I see the features I cannot be 100 per cent." At the unmasked procedure the defendant was again at number 7 and Mr Brown said: "At the time of the incident he had more beard. Yes, number 7." 18. It is not without some importance, as we understand the facts, that all the volunteers or persons whose images had been selected were persons in their twenties and only two had any sort of facial hair. By contrast the appellant was in his forties with a greying beard. 19. Inspector Hunt was cross-examined upon a voire dire before the learned trial judge, conducted in the context of the defence application to exclude the video identification evidence pursuant to section 78 of the Police and Criminal Evidence Act. We do not have a transcript of this evidence but the summary given in the appellant's counsel's advice is, as we understand it, accepted as accurate. We may quote from that: "In cross-examination Inspector Hunt admitted that Mr Marcus's features were unusual and could not find similar volunteers on the database. He admitted that the unmasked procedure came about by operational officers claiming that masking led to poor results and as a result the CPS had advised acting Detective Styles to implement a new procedure of showing an unmasked tape to volunteers where no identification had been made. He accepted that the new procedure was not envisaged by Code D and that because of the appearance of the other volunteers Mr Marcus would, 'blatantly stand out'. He also was of the view that this procedure was 'blatantly unfair' to Mr Marcus. He was also of the view that this was the first attempt at unmasking and that the force would be waiting to see whether the judge concluded if it was lawful. Finally, he accepted that Mr Marcus had been denied his opportunity to choose whether to pull out of the procedure altogether." As the judge said, it was common ground that the use of the unmasked images contravened Code D. Indeed that must be so. It was only necessary to resort to the device of the masked images for the very reason that otherwise there would not be images of at least eight other people resembling the suspect in age, height, general appearance and position in life. The unmasked images by definition failed to meet that criterion. 20. In his ruling, by which he allowed in the identification evidence based on the unmasked images, the judge said this at 6E: "The police were left with a choice between three options: First to hold no identification procedure of any kind. To have taken that option was unthinkable and it is not argued that it should have been taken. Secondly, to hold a video procedure, however flawed it might have been. Thirdly, to move to a confrontation. In reality, the choice lay between these two latter options. It does not take a moment's thought to see which of the two was preferable. Confrontation is a clumsy device, lacking in transparency and almost always likely to lead to a risk of unfairness to the accused." Then at 7D: "Whatever its flaws, the procedure adopted in this case had the virtue of transparency. It was conducted in the presence of the defendant's representative and, above all, it was recorded so that there is available an unimpeachable record of the procedure. A jury would thus be able to see exactly what was done and to hear, with a little difficulty, I accept, but to hear, nonetheless, exactly what was said." Then at 9C: "To the extent that the identification procedures in this case were imperfect, the trial process is fully equipped to expose those imperfections to the jury, not least because of the existence of the unimpeachable record to which I have referred. Ultimately, the task of assessing the weight to be given to this evidence is preeminently one for the jury and I am confident that they can be entrusted to perform that task conscientiously and fairly. In those circumstances and for the reasons which I have sought to give, I rule that this evidence ought to be admitted. To rule otherwise would have an effect on the proceedings which section 78 is designed to avoid. I perhaps should add this, that I have reached this decision on the particular facts of this case and, insofar as anybody has regarded this case as what is described to me as 'a test case', then they are wrong to do so. I understand this is the first time that a judge has had to rule on a matter of this kind and rule I have but I have ruled in respect of this case and in the particular circumstances and in the particular context of this case and I am not to be taken to, by giving this ruling, to have given some sort of blanket approval to this sort of procedure in all cases. The admissibility of the evidence of whatever kind in any case will depend on the peculiar and particular circumstances of that case and for it to be thought that I had ruled that this sort of parallel viewing, if I can so describe it, is always appropriate evidence, to think that would be to make a great error." 21. We should notice in passing that the judge gave an impeccable general direction on the dangers relating to identification evidence when he came to sum the case up to the jury -- see page 8E and following in the transcript of the summing-up. 22. As we have just indicated, the learned judge disavowed any general implications arising from his decision to admit this identification evidence. He said he arrived at the decision on the particular facts of the case. But that with respect is very difficult to reconcile with his observations, no doubt entirely accurate, to be found at transcript volume 1 page 4C to D, that the police had decided to use the unmasked images following discussions with the CPS of a general nature as to the difficulties arising when masked images did not yield identifications. 23. In our judgment, what has happened here is that a procedure, the use of masked images, did not yield sufficient identification evidence for effective use in court, and so the police, prompted it seems by the CPS, adopted a further and very different procedure: the use of unmasked images which was avowedly and necessarily in violation of Code D. A procedure, moreover, which the senior police officer who set it up himself accepted was blatantly unfair to the appellant. And it was imposed in the appellant's case with no sensible notice being given of it to him or his advisers. 24. If this appeal is dismissed that position might be replicated in other cases. The court would have validated in principle, or might be taken to have done so, the use of a procedure which violated the Code. That in our judgment would be quite wrong. The course taken by the police here was a deliberate device to evade the provisions of the Code. That falls to be condemned by this court. In these circumstances, the judge should have excluded the evidence. It is not for us to say, but it may be possible (as my Lord Davis J suggested in the course of argument) that given modern technology video images might be edited so for example as to add the appearance of facial hair or the like, and that might be preferable to the somewhat crude procedure involving the masking that was done here. Plainly the consent of the defence would be required. But that obviously is for consideration elsewhere. 25. There was some other evidence against the appellant on the relevant counts, but it is very doubtful whether he could reasonably have been convicted without the identification evidence and on most of these counts he plainly could not. The convictions are accordingly unsafe and the appeal will be allowed on the counts which depended on the evidence which we have criticised, that is to say counts 4, 12, 14, 15, 16 and 17. That said, we see no reason whatever to upset the convictions on counts 8 and 10. We do not accept that either of them was contaminated by the flawed procedure which we have condemned. There was powerful freestanding evidence to support the Crown case on each. Mr Hayes for the appellant effectively conceded as much, and rightly so. 26. For all the reasons we have given, the appeal against conviction is allowed to the extent indicated.	{"ConvCourtName":["Birmingham Crown Court"],"ConvictPleaDate":["2003-12-11"],"ConvictOffence":["Robbery","False imprisonment"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Birmingham Crown Court"],"Sentence":["10 years imprisonment (total custodial term)"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[49],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Video identification","CCTV","DNA match","Victim testimony","Police officer identification"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["High risk of harm"],"AggFactSent":["use of a weapon to frighten or injure victim"],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Video identification procedure in violation of Code D; procedure was unfair and prejudicial; police deliberately evaded Code D; identification evidence should have been excluded"],"SentGuideWhich":["section 78 of the Police and Criminal Evidence Act 1984"],"AppealOutcome":["Allowed & Conviction Quashed (on counts 4, 12, 14, 15, 16, 17); Dismissed (on counts 8 and 10)"],"ReasonQuashConv":["Convictions unsafe due to use of identification evidence obtained in violation of Code D; procedure was unfair and prejudicial; police deliberately evaded Code D; could not have been convicted without the identification evidence"],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Powerful freestanding evidence supported convictions on counts 8 and 10; no contamination from flawed identification procedure"]}
No: 2002/3944/W5 Neutral Citation Number: [2003] EWCA Crim 419 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday 10 February 2003 B E F O R E MR JUSTICE JACK MR JUSTICE HEDLEY - - - - - - - R E G I N A -v- RICHARD TH0MAS MCGUINESS - - - - - - - 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) - - - - - - - Non-Counsel Application - - - - - - - J U D G M E N T 1. MR JUSTICE JACK: This renewed application for leave to appeal concerns the powers of the Crown Court when sentencing for offences committed to it for sentence by the magistrates, which include both offences triable either way and offences triable summarily. In particular it raises the question whether the Crown Court can order that a sentence for an offence triable summarily shall be served consecutively to a sentence for an offence triable either way, even though the total exceeds the limit on the sentencing powers imposed on magistrates by section 133 of the Magistrates' Courts Act 1980 . 2. The facts which give rise to the issue are as follows. 3. On 2nd April 2002 the appellant drove a car when disqualified from driving. The car was stolen and he was prosecuted for handling stolen goods in addition to driving when disqualified. He pleaded guilty to both in the Magistrates Court and was committed for sentence to the Reading Crown Court. On 7th June 2002 he was sentenced by His Honour Judge Playford QC to 15 months' imprisonment on the handling charge and six months for driving while disqualified, consecutive to the 15 months, making a total of 21 months. It was then submitted that the sentence was not permitted by law. On 14th June 2002 Judge Playford heard further argument and confirmed his sentence. 4. Handling stolen goods is triable either way. Driving while disqualified is triable summarily. The committal for sentence in respect of the handling was ordered under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 . The committal in respect of the driving while disqualified was effected under section 6 of that Act. 5. The relevant statutory provisions may be summarised as follows. 6. The primary power of magistrates to commit a person convicted of an offence triable either way to the Crown Court for sentence is now provided by section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 . The power arises where, inter alia, the court is of opinion that the offence was so serious that greater punishment should be inflicted than the Magistrates' Court has power to impose. (There is also power to commit for sentence an offence triable either way arising under section 4(2). This was not the power exercised here and the court is not today concerned with the operation of the complex provisions of that section). 7. When a committal for sentence is effected under section 3 , by section 5(1) the Crown Court may then deal with the offender as if he had been convicted on indictment. 8. Section 6 concerns provisions empowering magistrates to commit other offences for sentence where, inter alia, they commit an offence for sentence under section 3 (the first offence). Section 6(2) applies where the first offence is an indictable offence. An offence triable either way is an indictable offence: Interpretation Act 1978, Schedule 1 . Under section 6(2) the magistrates may commit for sentence to the Crown Court any other offence in respect of which they have power to deal with the offender and of which he has been convicted. 9. Section 7(1) provides that where a person is committed under section 6 for sentence in respect of an offence, the Crown Court may deal with him in respect of that offence in any way in which the Magistrates' Court could deal with him. Section 31 of the Magistrates' Courts Act 1980 provides that, without prejudice to section 133 of the Act, a magistrates' court shall not impose a sentence of imprisonment for more than six months in respect of any one offence. Section 133 of that Act relates to consecutive sentences. Section 133(1) empowers a magistrates' court to impose consecutive sentences but with an aggregate not exceeding six months. Section 133(2) provides that, subject to further provisions, where two or more terms of imprisonment are imposed in respect of offences triable either way, the aggregate may exceed six months but not 12 months. That does not apply here. 10. The submission is that, as the magistrates could not have made the sentence of six months for disqualified driving consecutive to the sentence for handling, the Crown court could not do so. That, it is said, is the effect of section 7(1) of the Act of 2000 taken with section 133 of the Magistrates' Courts Act. 11. In our judgment section 7(1) is not to be construed as limiting the power of the Crown Court to make consecutive a sentence passed on an either way offence committed for sentence under section 3 and a sentence passed on a summary offence committed for sentence under section 6. The sentence passed by the Crown Court on the either way offence will almost inevitably exceed six months, the limit of the magistrates' powers. For the magistrates may only commit for sentence under section 3 if they are of opinion that greater punishment should be inflicted than they can impose. So, if the submission is right, the Crown Court could very seldom impose any additional penalty, that is a consecutive sentence for the summary offence. We conclude that the effect of section 7(1) is to limit the Crown Court to a total of six months in respect of any summary offences committed to it for sentence under section 6. But section 7(1) has no application where the court is considering whether those sentences and the sentence passed on the either way offence committed for sentence under section 3 should be consecutive or concurrent. 12. Authority supports this conclusion. In Cattell (1986) 8 Cr.App.R (S) 268 this court held that under the previous statutory provisions the Crown Court was limited in respect of summary offences committed for sentence to a total of six months and adjusted four sentences passed on summary offences accordingly. It left consecutive a sentence passed for breach of a Crown Court suspended sentence which had also been committed for sentence by the magistrates. The court did not question its power in that respect. Section 56(5) of the Criminal Justice Act 1967 was the applicable section providing that the Crown Court should deal with the summary offences in any way in which the magistrates court might have dealt with them. 13. In Whitlock (1992) 13 Cr.App.R (S) 157 this court had to consider sentences passed on an offender following committal for sentence in respect of a number of either way offences, a number of summary offences committed for sentence under section 56 of the Criminal Justice Act 1967 , and also breaches of probation. The court adjusted the sentences so that the Crown Court sentences on the either way offences stood but were consecutive instead of concurrent, total 13 months. The four month sentences on the summary offences were all made concurrent, but consecutive to the 13 months, and sentences of four months for breach of the probation order were also made consecutive, total 21 months. The court did not question its power to make the sentences on the summary offences consecutive to those on the either way offences, but it did consider that position in respect of the breaches of the probation order. Mr Justice Jowitt stated at page 159: "We have also had in the course of this appeal to consider the power which the Crown Court has in respect of the original offences in a case for which a probation order has been made, when further offences put a defendant in breach of that order. The powers of the Crown Court are dealt with by the Powers of Criminal Courts Act 1973, section 8(8) . The court has power to deal with an offender in any way in which the magistrates' court could deal with him if he had just convicted him of that offence. We do not read that subsection as meaning that the court has to deal with him as though it had just convicted him of the probation offence, along with any other offences, so that the defendant would have the benefit in respect of all his offences of section 133(1) of the 1980 Act . Indeed that would be an absurd result, because it would mean that an offender who had committed a series of offences for which he was liable to be sentenced to six months' imprisonment would in effect, if he was also in breach of a probation order made for summary offences, receive no extra penalty in respect of those extra matters." 14. We conclude that the judge was entitled to pass the sentences which he did. The renewed application is dismissed.	{"ConvCourtName":["Magistrates Court"],"ConvictPleaDate":["2002-04-02"],"ConvictOffence":["Handling stolen goods","Driving while disqualified"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Reading Crown Court"],"Sentence":["15 months' imprisonment (handling stolen goods)","6 months' imprisonment (driving while disqualified)"],"SentServe":["Consecutive"],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Crown Court had no power to make the sentence for the summary offence consecutive to the either way offence, as the total exceeded the magistrates' powers under section 133 of the Magistrates' Courts Act 1980"],"SentGuideWhich":["section 133 of the Magistrates' Courts Act 1980","section 3 of the Powers of Criminal Courts (Sentencing) Act 2000","section 6 of the Powers of Criminal Courts (Sentencing) Act 2000","section 7(1) of the Powers of Criminal Courts (Sentencing) Act 2000"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Crown Court was entitled to pass consecutive sentences for the either way and summary offences; section 7(1) does not limit the Crown Court's power in this respect."]}
Case No: 201406107 B5 Neutral Citation Number: [2015] EWCA Crim 1308 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BLACKFRIARS CROWN COURT HIS HONOUR JUDGE CLARKE QC T21047237 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/07/2015 Before: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE SIMON and MRS JUSTICE PATTERSON DBE - - - - - - - - - - - - - - - - - - - - - Between: REGINA - and - GEOFFREY LEDERMAN - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Tom Kark QC appeared for the Crown Christopher Donnellan QC appeared for Mr Lederman Hearing date: 9 July 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Mrs Justice Patterson: 1. On 10 December 2014 at Blackfriars Crown Court the appellant was found guilty, in his absence, of Causing Death by Dangerous Driving. On 22 of December he was sentenced by HH Judge Clarke QC to a term of imprisonment of 18 months, which was reduced on appeal to a term of 12 months imprisonment. 2. The appellant appeals against his conviction with limited leave of the single judge on one ground, namely, that the trial judge’s ruling on 2 December 2014 that the appellant was fit to plead but unfit to attend his trial was wrong. 3. Before us the appellant has renewed his application to appeal his conviction on one other ground which we will deal with at the end of this judgment. 4. At the hearing on 9 July 2015 we announced that the appeal was dismissed and that we refused the appellant permission to appeal on his renewed application. We said that we would give our reasons later. These are those reasons. Factual background 5. The appellant is now aged 85. He was 83 at the time of the events which gave rise to the hearing before us. 6. On 10 November, 2012 at about 8.30pm the appellant was returning home in his Mercedes motor car, having played for some seven hours in a bridge tournament in Barnet. The tournament finished at about 7pm. The appellant had had something to eat and a coffee. He had had no alcohol to drink. A bridge partner drove the appellant to where he had parked his car and the appellant drove off. 7. His journey was largely uneventful until he reached West Hampstead. There, he paused outside West Hampstead Underground Station. The appellant’s car was seen stationary for about ten seconds. Witnesses observed that the engine was running, was being heavily ‘revved’ and the vehicle was emitting exhaust smoke. The car then took off at speed along West End Lane. Within the next twenty seconds the car accelerated to a speed of 55 miles per hour in an area where the speed limit is 20 miles per hour. The car failed to negotiate a left hand bend and veered onto the north bound lane which it crossed and mounted a kerb. There were some nine pedestrians on the pavement. The car clipped Mr Mairat, narrowly missed Mr Brooks-Dutton who was pushing his two year old son in his pushchair but hit his wife, Desreen Brooks, with full impact. She died almost immediately. She was aged 33. The car continued along the pavement and struck Amy Werner, aged 23, who had recently come to this country to study. She suffered life threatening injuries. The car then crashed into a garden wall. 8. The incident has been tragic for all concerned. The effect on Mr Brooks-Dutton and his young son was set out in his written victim impact statement to the Court of Appeal when it considered the appeal against sentence. The victim impact statement said that their grief and loss were palpable. 9. Ms Werner has lost the sight of her right eye. She sustained haematoma to her brain from which she recovered but which has left long lasting and permanent injury. She does not underestimate the difficulties in pursuing a fulfilling career. 10. There was some delay in charging the appellant due to, amongst other matters, medical issues as to what caused him to drive in this way. The Appellant finally appeared at Highbury Magistrates Court in May 2014 when the case was sent to Blackfriars Crown Court. The appellant made his first appearance there on 6 June 2014. 11. In August 2014 the appellant attempted to commit suicide and was admitted to a private psychiatric hospital as a voluntary patient. He was an inpatient for some three weeks. 12. Meanwhile, at Blackfriars Crown Court, a listing date was fixed for the case on 5 September which the appellant was excused from attending due to his ill health. A date was set for a hearing to dismiss the charges on 17 November 2014. 13. On 17 of November the Appellant attended court. The application to dismiss was rejected and a trial date fixed for 1 December. We deal with the hearings of 17 November and 1 December in greater detail later in this judgment. 14. On 1 December the appellant did not attend court. He was represented then, as he was before us, by Mr Donnellan QC. He made an application that the proceedings should be stayed because the appellant was unfit to plead and unfit to stand trial. That application was rejected and full reasons given for its rejection the following day. 15. On 2 December the case was opened to the jury in the absence of the appellant. The prosecution case was that the appellant was an elderly driver who became confused with tragic consequences. For some reason the car had slipped into neutral and out of gear. Without realising what had happened the appellant pressed right down on the accelerator so that when he put the car into gear the car shot forward. The prosecution case was that a competent driver would not mistake a brake and an accelerator. When the car was examined the accelerator pedal was seen to be fully depressed. It was the view of the police accident investigator, not disputed by the defence at trial, that the appellant had been pressing the accelerator when he thought it was the brake; he had suffered from pedal confusion. 16. In his police interview the appellant said that he seemed to be on the wrong side of the road going at racing speed. He realised that the speed was uncontrollable. He had tugged on the handbrake with no effect and he thought that he had to crash the car to bring it to a halt. He did not see any pedestrians. 17. The defence case was that the incident occurred because, at the relevant time, the appellant was in a state of automatism relating to a medical episode. Medical evidence was called by the defence and prosecution at trial on that issue. 18. The judge directed the jury that the issue for them was whether the Crown had shown that this was not a case of automatism. 19. The jury convicted the appellant on 10 December. 20. The appellant then attended court for his sentencing hearing on 22 December 2014. Fitness to Plead and Unfitness to Attend Trial 21. Mr Donnellan QC submits that the appellant was medically unfit to attend court and unfit to be tried. The court should not have proceeded to a trial in his absence. 22. Medical experts were instructed by the appellant to appear on 1 December when the appellant was due to answer to his bail. They were Dr Beckett, a consultant psychiatrist who had been treating the Appellant since August 2013, and Professor Yorston, a forensic consultant neuropyschiatrist. Professor Yorston had been instructed after the suicide attempt in August 2014. 23. On 1 December the Appellant did not attend court. The medical experts gave evidence. Dr Beckett diagnosed the appellant as suffering from depressive illness and post traumatic stress disorder. He saw the appellant generally every two weeks. He found that the appellant had a tendency to replay the accident frequently and was suffering from intrusive thoughts and memories. He said: “My conclusion is that he is unfit to stand trial essentially, and that is in the most part because of potential impact on him, the potential impact on his mental state and his risk of suicide, completed suicide, of him being required to attend court and stand trial.” [27D-E] 24. He was asked about fitness to plead and replied: “Yes, that is a difficult judgment. I mean based upon my review – my assessment on Thursday that was my feeling, that he would be broadly speaking able to follow proceedings and you know, answer questions et cetera. But there is some debate about that I suppose inasmuch as he is changeable and also that he does – he is prone to occasional periods of dissociation and there does seem to be evidence of a deterioration in his mood and to a certain extent in his cognitive abilities over recent weeks. So I’d say as of last Thursday it’s a difficult judgment to make but on balance I’d say that he was just about able to follow court proceedings but that may change. … As of Thursday I’ve said at this point that on balance I’d say that he’s cognitively intact enough to be able to follow things but that could change depending upon how things go on the day in court.” [36B-E & 38E] 25. In re-examination he was questioned again about the appellant’s understanding of the nature of the proceedings. He was asked “Can he plead guilty or not guilty? Can he give instructions? Over a period of time, in the circumstances of each of those your answer is in the circumstances, as you see them, he can in fact do each of those?” Dr Beckett’s answer, as recorded on the transcript, is “Uh-huh” [48D]. 26. Professor Yorston saw the appellant on 11 September, 5 October and 27 November. In his reports he set out the appellant’s account of the accident. When he gave evidence he referred to his report of 15 October and said: “I think my conclusion was at the time that he was --- he was just above the threshold for fit to plead but I thought it highly likely that as the trial date approached his mental state would deteriorate and that would put him below the threshold” [58D] 27. Professor Yorston’s report of 27 November was to offer an opinion about the appellant’s fitness to plead and to stand trial. In his report he said that the appellant: “…simply cannot get past the terror of appearing in court and potentially being deemed a liar. The cerebrovascular disease that has caused the impairment in his executive functioning will not improve and is likely to get progressively worse over time. In my opinion therefore it is highly unlikely that Mr Lederman will regain the mental capacity to stand trial.” 28. When he was asked about fitness to plead on 1 December, he said: “My view is that he is not currently fit to plead and stand trial. Because he simply wouldn’t be able to follow proceedings in court. He may be able to understand some questions and respond intelligently to some questions but other questions would totally throw him. When I say “questions” again, I mean discussion going on in court, questions between other people, not necessarily towards him. But some issues will – he will be totally thrown and unable to follow even get a vague gist of what is being discussed.” [88C-E] 29. Attendance at court of the appellant, in Professor Yorston’s view, “might be just enough to tip him over.” [85B] 30. Neither medical expert thought it necessary to section the appellant so as to require his admittance to a psychiatric hospital. 31. Mr Donnellan QC said that the decision on whether to call the appellant to give evidence as part of the defence was to be taken at the end of the prosecution case. It had been thought that if appellant was at court his memory might be triggered. They had anticipated that the appellant would want to give evidence. The appellant had read, and signed a defence statement on 26 November. The defence statement was filed with the court and served on the prosecution. 32. Despite at one time contending to the contrary, Mr Donnellan QC accepted that the appellant did not have to attend at the hearing for the determination of his fitness to plead as it was not a determination to which Article 6 of the European Convention on Human Rights (ECHR) applied. The judge was entitled to make a ruling on the issue of unfitness in the absence of the accused. 33. The appellant’s submission was that the judge should have made a finding that the appellant was not fit to plead and that there should then be a trial of the issue. 34. It was not a case where the appellant was voluntarily absent. 35. The prosecution submitted that the appellant’s absence was entirely voluntary. If he was adjudged fit to plead then the obligation upon the appellant was to attend court. If he was not fit to plead then there had to be a trial of the issue. 36. The psychiatrists called to give evidence by the defence did not agree with each other. Dr Beckett thought that the appellant was fit to plead. References to suicide risk were not part of the Pritchard test, see R v Pritchard [1836] 7 C&P 305. 37. Professor Yorston went the other way. The judge had, therefore, to make a choice between the two psychiatrists and evaluate their evidence against the Pritchard criteria. 38. Without two medical practitioners in agreement it was impossible for the judge to find that the appellant was not fit to plead: see Section 4(6) of the Criminal Procedure (Insanity) Act 1964 . 39. The appellant had attended court on 17 November for the dismissal proceedings and had entered pleas of not guilty to the indictment after the dismissal application was rejected. He had watched the CCTV footage of the driving of his vehicle and he had signed a full defence statement on 26 November, days before the opening of the trial. The fluctuations in his mental state were evident. He was able to attend his sentencing hearing by which time it was remarked that his mood had lightened. 40. It was the defence application that, if the application failed, the proceedings should not be delayed and the appellant should not have to attend court: “Our submission is that he is not deliberately refusing to come to court in the context in which we’ve heard that evidence and he should not attend court for a trial if a trial is to continue. [110G] … An alternative is that he is excused attendance and the trial proceeds in his absence. [112C] … If your Honour is against us then he is not fit to attend and that is a matter for the court whether the trial should – if you find him fit to stand trial, first can you excuse his attendance on medical evidence and the trial will proceed in his absence.” [140C] 41. The prosecution submitted that the reality was that: i) the appellant could have attended court; and ii) there was no application for evidence to be adduced from the appellant in any other form, whether by video link or to have a statement from the appellant read. In fact, the defence was fully set out in the police interview and in accounts that he had given to his medical advisers, in particular, to Professor Yorston who had seen him as recently as 27 November. All of that content was before the jury. There was nothing further which could have been said on the appellant’s behalf. 42. Once the decision was made on whether the appellant was fit to plead the next decision was whether he was to attend his trial. 43. The judge was loathe to adjourn to enable the prosecution to obtain their own medical report, which could not be obtained before the following Friday. He said: “…as the medical men have all said, the sooner the better. And the sooner his trial starts and he can go home, the trial having started, it seems to me the better.” 44. It was clearly a case where there was a strong public interest in the trial taking place. It could not be said that the trial was unfair. 45. The judge found and announced on 1 December that the Appellant was not unfit to plead. He was entirely satisfied that there had to be trial; his concern related to fragile mental state of the appellant. He said: “My concerns are encapsulated by Professor Yorston’s description that bringing him to court would tip him over. In other words, to use his term, and adopted as a lay man, he hasn’t tipped yet. That I find troubling in that, as you say, it is slightly – and all these terms sound pejorative and they are not meant to, it is holding a gun at the court’s head saying: don’t you dare tip him over the edge.” [132E-G] 46. The judge gave his reasons for his decision that the appellant was fit to plead the following day. He summarised the evidence of the medical experts and said: “I should say for all those involved in this case, particularly those emotionally involved, that though the defendant attended at dismissal proceedings, it was quite obvious to me that his mental condition was I think in layman’s terms best described as not normal. He was listening. He was paying attention but it was quite apparent to me that the attention paid to him was something that caused him to quail. Having said that, after the dismissal was rejected he did enter pleas of not guilty to the indictment and I am entirely satisfied that Geoffrey Lederman was fit to plead and fit to give instructions not only to medical examiners but also, given the way it was argued very ably by Mr Donnellan QC, that he had given extensive instructions to his lawyers which will be used in this forthcoming trial.” [10G-11D] 47. He continued: “Matters that are common ground, although touched on by Mr Donnellan quite rightly, are that it is really not arguable that this is a state of affairs which should cause a stay of the prosecution. In circumstances such as this I always disapprove of the term ‘abuse’. Mental conditions such as the defendant is suffering from might be examined to see whether a stay of prosecution should take place but it seems to me that, given the case in the state that it is, a stay of prosecution is not applicable. There is no question either of insanity. Neither doctor regards this defendant as being what is referred to as sectionable, so it is not a question of a jury having to decide merely whether he did the act after a judicial finding that he was not fit to be tried. The finding that I make is not that he is not fit to be tried but that he is not in a state to attend his trial which is a different finding and a narrow one and very unusual and should be adopted by the court in very, very exceptional circumstances.” [12G-13F] 48. He then proceeded to consider whether the trial should proceed in the absence of the appellant. 49. Before dealing with that issue we need to deal with whether the learned judge was right in his determination that the appellant was fit to plead. In our view he clearly was. 50. First, as the prosecution submitted a finding of unfitness can only be made if there is written or oral evidence to that effect from two or more registered medical practitioners, at least one of whom has special experience in the field of mental disorder. The only medical evidence before the court was from Dr Beckett and Professor Yortson. As set out above the experts took divergent views on whether the appellant was unfit to plead. On their evidence the statutory requirement to make such a finding was not met. 51. Second, there was the possibility that the trial be adjourned to enable the prosecution to instruct its own psychiatrist. The Crown had undertaken enquiries and a report from an expert could not be available until the end of the week. But, in the circumstances, no party was asking for an adjournment to enable that to happen. The overriding consensus was that the hearing should proceed. The judge considered the prospect of adjourning but concluded that the mental pressure that would impose upon the appellant would exacerbate his mental condition which meant that was not a course worth pursuing. 52. Third, the Pritchard criteria – to understand the charges, to understand the plea, to challenge jurors, to instruct counsel and his solicitor, to understand the course of the trial and to give evidence if a defendant chooses to do so, the judge concluded, were all met very clearly on the evidence of Dr Beckett which it was open to the judge to prefer. Concerns about suicidal ideation and mental fragility are not part of the Pritchard criteria for consideration of unfitness to plead. It would, therefore, have been wholly wrong for the judge to have made a determination in any way other than he did and to have gone on to consider a trial of the issue. 53. Once the question of unfitness to plead had been determined the appellant was then under a duty to answer to his bail and attend court for his trial. 54. There was no incapacity on the part of the appellant that made attendance at court impossible. The concerns expressed by the medical experts were as to his mental health yet that was not of such a degree for the appellant to require certification under the Mental Health Act 1983 . In short, the appellant’s mental state provided no justification for his absence from court. 55. It follows that the absence of the appellant from the court was entirely voluntary. That was also the conclusion of the trial judge. The issue of suicide risk was one to be managed by the appellant’s medical team or, failing that, if a warrant had to be issued for the appellant’s arrest, the prison authorities. 56. As the appellant decided voluntarily to absent himself from a trial where he was represented by counsel, the judge was entirely right to continue. None of the issues that arose in R v Anthony Jones [2002] UKHL 5 , R v Hayward & Others [2001] EWCA Crim 168 and R v Kaur [2013] EWCA Crim 590 arise in this case. 57. It follows therefore that the judge was right in the decision that he took and there was no procedural unfairness or irregularity in this case. In any event the conviction was entirely safe. The evidence against the appellant was strong. His case was fully put before the jury by experienced and able counsel. At the trial there had been full cross examination of all witnesses, medical evidence was called on behalf of the appellant and there was no complaint about the summing up. Renewed Application for Leave to Appeal 58. On 17 November, 2014, prior to the trial proceeding the Judge heard two applications. The first, and the one upon which a renewed application is made for permission to appeal, was an application to dismiss the charges against the appellant. 59. The application was focused upon the appellant’s lack of recollection of his actions. It was submitted that in his view the car had a mind of its own. His first awareness was of a speeding car which he had to stop. He aimed it at the wall to stop it; his state of mind was to avoid causing further damage. His acts were involuntary. 60. The prosecution submitted that the applicant must have put the car into gear for it to take off at such speed. The car went through an s-bend and the applicant took a deliberate decision to crash the car. There was substantial evidence as to what occurred, supported by what the applicant said in his police interview. 61. In his ruling on 17 November the judge said: “Mr Donnellan, quite understandably, concentrates on the complete lack of recollection of that action by the defendant and asserts that the Crown’s inability to fill that gap as far as the defendant’s knowledge and intentions were concerned is and should be fatal to the ability of any jury properly to convict. The difficulty is that in my view as far as dismissal is concerned which is insurmountable is the defendant’s acknowledgement that the driving into the wall was deliberate and was effectively a safety manoeuvre. The particular matter that is relied on by the Crown in page 3 of the first interview is, ‘I thought to myself, “This is madly out of control. I’ve got to crash the car, otherwise I’m going to do some damage” and I think I visualised the wall the other side and the clear patch of road and I thought, “You’ve got to crash it”, and that’s what I did.’ It means two things. Firstly, there is evidence, even if he did lose some mental stability outside West Hampstead station, that within the 300 yards of the station and the crash he not only regained full mental control, but made a positive decision to plough his car across the road into front garden walls on that pavement which was actually highly populated at the time. In my view, it is the decision to cross that road and the consequences of that crossing that is the actus reus and, for that matter, the mens rea of the offences with which Mr Lederman is charged.” [3C-4F] 62. We entirely agree with the learned judge and for the reasons that he gave. There was ample evidence for the count to go before the jury and for the jury to decide whether to convict the applicant. The ground is not arguable.	{"ConvCourtName":["Blackfriars Crown Court"],"ConvictPleaDate":["2014-12-10"],"ConvictOffence":["Causing Death by Dangerous Driving"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":["after the dismissal application was rejected"],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Blackfriars Crown Court"],"Sentence":["18 months imprisonment (reduced on appeal to 12 months imprisonment)"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[83],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["All Female"],"VicAgeOffence":[33,23],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["CCTV","Police accident investigator report","Victim testimony","Medical evidence","Defendant's police interview"],"DefEvidTypeTrial":["Medical evidence","Defence statement","Defendant's account in police interview"],"PreSentReport":[],"AggFactSent":["Driving at 55 mph in a 20 mph zone","Mounted pavement with pedestrians","Caused death and serious injury"],"MitFactSent":["Elderly defendant","Mental health problems","No alcohol involved","No evidence of intent to harm"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction"],"AppealGround":["Trial judge’s ruling that the appellant was fit to plead but unfit to attend his trial was wrong"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No procedural unfairness or irregularity","Statutory requirement for finding unfitness to plead not met","Judge entitled to prefer evidence of Dr Beckett","Appellant voluntarily absent from trial","Conviction was entirely safe","Ample evidence for the count to go before the jury"]}
Neutral Citation Number: [2008] EWCA Crim 5 Case No: 200701306/B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM PORTSMOUTH CROWN COURT HIS HONOUR JUDGE PEARSON Insert Lower Court NC Number Here Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/01/2008 Before : LORD JUSTICE RIX MRS JUSTICE SWIFT DBE and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : ROGER GEORGE DONCASTER Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Germain & Mr L Selby (instructed by Messrs Rowe Sparks Partnership, Portsmouth, Hants ) for the Appellant Mr T Bradbury (instructed by HM Revenue & Customs ) for the Respondent Hearing dates : 02 November 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Rix: 1. On 7 February 2007 at the Crown Court at Portsmouth before HH Judge Pearson and a jury the appellant, Roger George Doncaster, was convicted of cheating the public revenue (count 1) and two counts of false accounting (counts 2 and 3). He was sentenced to a total of two years imprisonment. He now appeals against conviction with the limited leave of the single judge. He also renews his application for leave to appeal against conviction in respect of two grounds on which the single judge refused leave. 2. Count 1 (cheating the public revenue) related to the appellant’s tax affairs in the ten years between April 1992 and April 2002. During this time he had been making tax returns in respect of his trading as a used car dealer, but the Revenue complained that he had cheated in respect of his income tax, national insurance contributions and VAT liabilities in four ways: by failing to disclose the full extent of his turnover, thereby understating his taxable profit; by falsifying sales invoices to support the false turnover and profit figures submitted; by falsely stating his turnover as being below the limit (£50,000) for compulsory VAT registration for the purpose of evading liability to account for VAT; and by deliberately failing to register for VAT knowing that his turnover exceeded the limits for compulsory VAT registration. 3. Counts 2 and 3 (false accounting) related to statements of assets which he had signed during earlier tax investigations on 13 September 1992 and 13 June 2001 respectively. It was charged that he had dishonestly falsified those statements, being documents required for an accounting purpose, by omitting from them the full extent of his then assets, namely bank and building society balances totalling £37,216.71 in the case of the earlier statement and £125,210 in respect of the latter. 4. The full extent of the evidence deployed against him, which so far as necessary we will briefly describe below, on the Crown’s case allegedly showed that for much of his life, from 1983 onwards when he was 33, the appellant had failed to account for his income tax (and later VAT) liabilities, had failed to disclose his assets, and had lied to the tax authorities. In particular he had falsely failed to disclose his full assets in September 1992 and June 2001. In July 2002 his case was referred by tax inspectors to the Revenue’s Special Compliance Office (SCO) and a year later in July 2003 he was arrested. Further investigations and searches before and after his arrest revealed the extent of his trading and cash assets. 5. The appellant’s defence at trial was that, although he had done much of which complaint was made over the years in terms of failing to render tax returns or make full disclosure of his assets, and had done so consciously, and had lied in support of his non-disclosures: nevertheless he had done so honestly, always intending to pay any tax due, and that he had made full and proper disclosure of his motor trading and its profits; that his non-disclosed assets and his life-style had been respectively accumulated and supported by income from property dealings or gifts from his father; and that any non-disclosure of his full assets had been in the honest belief that, if he had made such disclosure, the Revenue would have wrongly but maliciously insisted that he justify those further assets as not having been derived from his motor trading. 6. The appellant had traded as a second hand car dealer in Croydon from 1978 to 1986 and thereafter on the Isle of Wight from 1987. 7. There had been in all three separate tax enquiries, in 1983, 1990 and 2000. The first enquiry was started in 1983 by the Croydon tax office for failure to notify the Revenue of chargeability for income tax in relation to the years 1978/79 through to 1982/83. In other words the Revenue was concerned that he had been trading and in receipt of income but had not notified the Revenue that he was doing so and had not filed any tax returns. At the conclusion of that investigation the appellant completed a statement of assets and (save that he disputed that it had ever been signed) a certificate of full disclosure. His tax and national insurance liabilities for the relevant years were assessed at £6,617.93 plus interest, of which the appellant paid only £2,100 on account. 8. In 1987 the appellant moved to the Isle of Wight and again failed to notify the Revenue of his chargeability to income tax in respect of his motor trading. As a result the second enquiry was started in 1990. This enquiry went back to cover the whole period from 1978 through to 1989, because of the appellant’s failure to discharge the whole of his assessed liabilities arising out of the first enquiry. On 13 September 1992 the appellant signed a second statement of assets as at 30 June 1992 (that is the statement which is the subject matter of count 2) and a second certificate of full disclosure. The second statement of assets referred to very modest cash credits in a small number of accounts, of which the only building society account was held at the Woolwich. On the basis of this second statement of assets, as the Revenue alleged, they were willing to proceed with a proposed settlement of tax liabilities up to 5 April 1989 in the sum of £45,000. That included an interest and penalty loading of 60%. 9. The second enquiry was conducted in the main by a local tax inspector by the name of Barry Davies. In the course of the second enquiry it emerged that: (i) At an interview on 17 July 1990 the appellant had been told by Mr Davies that he was concerned at the way the previous enquiry at Croydon had gone: he had promised co-operation but had not kept his side of the bargain and had moved to the Isle of Wight without informing the Revenue; full co-operation and disclosure would be expected and a further statement of assets would be required; the Revenue took a serious view of forms subsequently found to be false. (ii) At a further interview on 26 July 1990, the appellant disclosed, but only after being seen to visit a local branch of the Abbey National building society, that he had been there to close an account and withdraw £10,000; and then also disclosed the recent closure of three other building society accounts and withdrawals totalling approximately £20,500. He said he had now disclosed all such accounts. The appellant paid the Revenue £25,000 on account. (iii) In a telephone conversation of 4 March 1991 the appellant revealed that over a decade before he had sold a property in Thornton Heath. In a further telephone conversation on 26 April 1991 the appellant’s accountant, Mr Hutchinson, told Mr Davies that that sale occurred in 1980 in the sum of £21,000. Mr Davies said that this had not figured in the first certificate of full disclosure, and he again spoke of the serious view that the Revenue took of false statements of assets and certificates of disclosure. (iv) As a result of this latest disclosure Mr Davies referred the enquiry to the Enquiry Branch (as the SCO was then called) for possible transfer to it of further investigations as a case of serious fraud (which under standing order Guidance was the exclusive responsibility of the Enquiry Branch), but the Enquiry Branch declined transfer. When the appellant and Mr Davies next met on 28 January 1992, Mr Davies spoke to the appellant again of how he had promised co-operation but had told lies and was regarded as still being un-co-operative in not disclosing where he was holding the balance of the funds which he had withdrawn from closed building society accounts in the previous summer. Following the conclusion of the second enquiry the appellant started filing annual tax returns for the first time. 10. The third enquiry commenced in August 2000 when the appellant’s 1998/99 self assessment form was selected for further enquiry. It had calculated his turnover at £48,784 and his net profit at £5,201. The turnover figure was only just below the limit of £50,000 at which registration for VAT was compulsory, and this, together with a profit figure considered as too low to live on, alerted the Revenue. The third enquiry was conducted by other local tax inspectors, by the name of Robert Paton and Robert Morton. On 14 June 2001 the appellant signed a third statement of assets, this being as at 5 April 1999 (the subject matter of count 3). This statement disclosed two bank accounts (at NatWest) and modest amounts of cash, but no building society accounts. The third enquiry was never concluded, for in July 2002 it was transferred to the SCO as a possible case of serious fraud. The transfer took place after it had been discovered that a number of other accounts had been in operation as at 5 April 1999 and that the activity of these accounts demonstrated that the appellant had been banking and spending sums of money well in excess of the profits declared in his tax returns. Following transfer it was confirmed that as of 5 April 1999 the appellant had operated in addition to the two NatWest accounts disclosed a further 10 bank and building society accounts containing £125,210 which had not been disclosed. Analysis of these newly discovered accounts also revealed that a substantial part of those funds dated back some years and following further investigations it was revealed that the second statement of assets (as of 30 June 1992) was also incomplete in omitting 4 building society accounts with a credit total as of that date of £37,216, opened on 6 May 1992 (only six weeks before the reference date of that statement). These were the subject-matter of agreed admissions and schedules at trial. 11. Moreover at trial the Crown relied on inter alia the following further matters which had come to light in the course of the third enquiry or after the transfer to the SCO: (i) In November 1999 the appellant had delivered to the Revenue what he said were his business records for the 1998/99 year. Sales invoices of only 36 cars totalling £50,286 were included. They were only in photocopy, however, and the invoices were unnumbered. Subsequent investigation revealed an invoice book recovered from the appellant’s home (when it was searched on 22 July 2003) showing the genuine sales; enquiries with other traders on the Isle of Wight also revealed that the appellant had sold other cars beyond the 36 disclosed by him; enquiries from customers showed that the invoices disclosed were false and had been specifically created to mislead; a further set of the photocopied invoices was discovered at the appellant’s home marked “One’s shown to the Revenue”. (ii) Some nine invoice books for the five tax years to April 2002 were discovered at the appellant’s home. Customers contacted as a result confirmed that the invoiced sales were genuine, but they significantly exceeded the turnovers declared in the appellant’s tax returns. A forensic accountant, Ian Barber, gave evidence at trial that for those five years total income tax, national insurance, interest and VAT payable would have been in excess of £30,000. A further witness, Kevin Sullivan, performed a similar exercise for the previous five years . (iii) The appellant’s own accountant, Colin Haffenden, over a number of years beginning in 1994 gave evidence for the Crown. He had never met the appellant. He drew up the appellant’s tax returns on the basis of figures supplied by the appellant. He had never seen any original documentation. In respect of the 1998/99 tax return he had adjusted the turnover, on the appellant’s instructions, from above to below the VAT threshold. The appellant signed the returns in blank. He knew the appellant wished to avoid paying tax and had one year made a fuss when he had incurred a tax liability of £100. 12. In his defence the appellant accepted much of the Crown’s case including his non-disclosures and lies, but maintained that his returns concerning his motor trading were essentially correct, even if he might have missed the odd car. His assets derived from property deals or gifts and so on, none of which was taxable income. He had not disclosed his hidden assets, none of which had come from his motor trading, because the Revenue was conducting a witch-hunt against him. Even the agreement in 1992 whereby he had paid the Revenue £45,000 was unfair. Thus he accepted that he had lied in 1983 in failing to declare the proceeds of the sale of his property or the existence of building society accounts, but he said that he had come clean in the end about that. He agreed he also lied in the 1990 enquiry, both in the course of it and also in respect of his non-disclosure of building society accounts in his second statement of assets. He said that he knew this was wrong. He made similar admissions in respect of the third statement of assets. He also accepted that he had been trading for some seven to eight years prior to the 1983 enquiry without notifying the Revenue, and had done the same after his move to the Isle of Wight. He knew he was meant to notify the tax authorities. The grounds of appeal 13. In these circumstances the grounds of appeal we have heard are somewhat technical. The first is that the judge wrongly admitted evidence of the appellant’s bad character in the first two enquiries under section 101 of the Criminal Justice Act 2003 (the “2003 Act”). The second is that the judge erred in failing to exclude that evidence under section 76 and/or section 78 of the Police and Criminal Evidence Act 1984 (PACE). The third is that the judge erred in failing to give the appellant a good character direction. 14. The fourth and fifth grounds of appeal were renewed as an application for leave to appeal. The fourth ground is that the judge erred in refusing an application of no case to answer on counts 2 and 3: because he was wrong to hold that the statements of assets could be accounting documents within the offence charged. The fifth ground is that the judge erred in allowing the appellant to be cross-examined on material which, although served on the Crown by the appellant himself, had not already been put in evidence by the Crown. 15. At the conclusion of the hearing we rejected the first three grounds of appeal and dismissed the appeal. We also refused leave to appeal on grounds four and five. These are now the reasons for our decisions. The first ground of appeal: section 101 of the 2003 Act 16. In October 2006, a few months before the commencement of the trial in January 2007, the judge was asked by the Crown to admit evidence of the first two enquiries under gateways (c) and/or (d) of section 101 . The 2003 Act provides as follows: “98. References in this Chapter to evidence of a person’s “bad character” are to evidence of, or a disposition towards, misconduct on his part, other than evidence which (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence… 101. (1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if – … (c) it is important explanatory evidence (d) it is relevant to an important matter in issue between the defendant and the prosecution… (3) The court must not admit evidence under subsection 1(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it… 102. For the purposes of section 101(1) (c) evidence is important explanatory evidence if – (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial. 103. For the purposes of section 101(1) (d) the matters in issue between the defendant and the prosecution include – (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; (b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect. 112. (1) In this Chapter – “bad character” is to be read in accordance with section 98; … “important matter” means a matter of substantial importance in the context of the case as a whole; “misconduct” means the commission of an offence or other reprehensible behaviour…” 17. There appears to have been some discussion before the judge as to whether the facts of either of the first two enquiries fell outside the definition of bad character as being evidence which “has to do with the alleged facts of the offence” within section 98(a). The Crown’s position appears to have been that the second enquiry was directly part of the facts of the offences charged, but the judge preferred what seems to have been the defence’s position which was that the second enquiry was merely potentially bad character which fell within the limitations and safeguards of the statute. On this basis the judge ruled that the facts of the first enquiry were, but the facts of the second enquiry were not, within gateway (c). We are puzzled by the second aspect of this ruling, and it is to be observed that when the judge came to direct the jury he told them that they had heard about both the first and second enquiries in part because “it may help you to understand other evidence in the case”, treating each as background to the third enquiry. 18. On behalf of the appellant, Mr Richard Germain submits that the judge was manifestly wrong to admit anything about the first (or second) enquiries under gateway (c). He submits that the first two enquiries were unrelated to each other and to the third enquiry. We find it difficult to understand this submission. We see that count 1 on the indictment was only directly concerned with matters after the appellant had commenced to account to the Revenue for his motor trading in respect of the 1992/93 year and following. But count 2 was directly concerned with the second statement of assets made during the second enquiry in 1992. And we agree with the judge that the second enquiry could not be properly understood without knowing about the first enquiry and that the value of the first enquiry for understanding the case as a whole was substantial. We would also agree that the same can be said for the second enquiry in relation to the third enquiry, to the extent to which those facts may not have been part and parcel of the offences charged. In this connection it needs to be borne in mind that the second enquiry returned to the period covered by the first enquiry. 19. The judge also admitted evidence in relation to the first two enquiries under gateway (d) on the basis that such evidence was of bad character in the two respects mentioned in section 103(1)(a) and (b), namely the question whether the appellant had a propensity to deal with the revenue in a dishonest manner and to be untruthful. Although there were no relevant previous convictions, his misconduct (or other reprehensible behaviour) established a propensity to commit offences of the kind charged, which made it more likely that he had committed the offences charged, and it was not unjust to rely on that bad behaviour and the proceedings would not be unfair if evidence of it were admitted (cf the three questions of the Vice-President, Lord Justice Rose in R v. Hanson [2005] EWCA Crim 824 , [2005] 2 Cr App R 21 (299) at para 7). 20. On the appeal Mr Germain again submitted that the judge had erred in so ruling. He said that the appellant had not committed any offences in the past, and submitted that trading without registering or notifying the Revenue was not the same as presenting false accounts. However, bad character misconduct can be in any relevant form and does not need to be proved by way of convictions or criminal offending. He next submitted that the judge had not considered whether the bad character in question was relevant to an “important” matter in issue. It is true that he had not expressly adverted to that language. But he did agree with the Crown’s submission that the second enquiry was “highly relevant” to one or more counts on the indictment, and in any event the critical issue in the trial was the appellant’s honesty and there is no escaping the fact that throughout the history of the enquiries the appellant had displayed an attitude to the Revenue which was capable of being viewed by the jury as dishonest. Mr Germain next submitted that dishonesty was not in issue because the appellant had admitted lying throughout the enquiries. It is true that in his evidence the appellant did concede having told many lies; and that at times during the enquiries he had come clean about what he had previously failed to disclose. However, the submission was hopeless. Despite his admissions the appellant maintained that his second and third statements of assets had not been dishonestly signed and that his tax returns had honestly declared his trading turnover and profits. 21. Mr Germain submitted that in any event the history of the enquiries was too old, unfairly affected the proceedings and should have been excluded under section 101(3) of the 2003 Act and/or section 78 of PACE by reason of the length of time that had elapsed between the conclusion of the earlier enquiries and trial. This submission was supported by reference to an issue as to whether the appellant had signed the first certificate of full disclosure at the end of the 1983 enquiry. The files of this enquiry had been lost, but they still existed at the time of the second enquiry during which Mr Davies referred to a signed certificate, and this reference was supported by the contemporaneous notes of that second enquiry. It was in any event common ground that the first statement of assets had been signed, and an unsigned certificate was present among the appellant’s own papers. 22. However, the judge did consider the position under section 101(3) and expressly (by analogy with section 103(4)) by reference to the time factor and concluded that there was no unfairness in the admission of the evidence. We agree. It is true that the first enquiry was in 1983 and went back to the 1978/79 year and the second enquiry started in 1990 and again went back to the 1978/79 year: but the third enquiry and the trial itself concerned not only the whole of the appellant’s tax returns from 1992/93 onwards, that start-time being more or less contemporaneous with the end of the second enquiry, but also concerned the second statement of assets which had been made in 1992. In truth, the history of the appellant’s dealings with the Revenue made up a single book of many parts, but with a consistent theme, which the Crown was entitled to put before the jury as one of dishonesty. We do not regard the narrow issue relating to the certificate of full disclosure of the first enquiry as rendering the admission of evidence concerning the first and second enquiries unfair. 23. So far as there is any uncertainty about the width of the judge’s admission of evidence under gateway (c), we have in mind that once evidence of bad character has been admitted under any gateway it is open to the jury to attach significance to it in any respect in which it is relevant: see R v. Campbell [2007] EWCA Crim 1472 , [2007] 2 Cr App R 28 (361) at para 26, citing R v. Highton [2005] EWCA Crim 1985 , [2006] 1 Cr App R 7 (125). 24. There are other aspects of the appellant’s case on section 78 , and therefore section 101(3) , which are best dealt with under the next ground of appeal. 25. Subject to those further considerations dealt with below, we therefore provisionally reject this first ground of appeal. The second ground of appeal: sections 67(9), 76 and 78 of PACE 26. This ground focuses in particular on aspects of the second and third enquiries in which the appellant, under pressure from the tax inspectors (by reference to the possibility of civil penalties in the settlement of his tax liabilities in the absence of proper co-operation) to tell the truth about any further cash assets he may have and any further accounts in which he may hold or have held them, made partial admissions (such as to building society accounts he had just closed) while at the same time, as subsequent investigations were to show, continuing to lie about such disclosure. The judge described such aspects of his interviews as “hybrid”, consisting as they did of elements of truth and lies. There was never any admission, however, of any of the substantive offences for which he was subsequently charged. 27. Mr Germain submitted that the tax inspectors who conducted such interviews, Messrs Davies and Paton, were within section 67(9) of PACE which provides – “(9) Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of…a code.” It is said that Messrs Davies and Paton had failed to do this, in particular by failing to caution the appellant and advise him as to the taking of legal advice, and that this was a substantial and significant breach of Code C. Moreover, the appellant’s admissions about previously concealed assets amounted to a confession within section 76 which had been obtained by oppression and should have been excluded as such. In any event, such admissions should have been excluded under section 78 on the ground that, as it provides – “having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” Reliance was also placed on article 6 of the European Convention on Human Rights and Fundamental Freedoms, but it was not submitted that this took the argument beyond domestic protection. 28. The judge was asked to rule on similar submissions and for these purposes held a voire dire in which Messrs Davies and Paton and the appellant gave evidence. The tax inspectors explained that they were trained to investigate tax liabilities, but that if their enquiries threw up serious fraud, they were required to refer the matter to what is now called the SCO. This they had done. The judge accepted their evidence that they had acted in good faith, and had complied with their own internal codes of practice. They had not been trained for criminal investigations, and therefore not trained as to when and how to administer any caution. They were concerned with administrative, not criminal, sanctions. The appellant for his part said that if he had been cautioned he would not have answered the questions in the way that he did; he did not appreciate the significance or seriousness of the forms he was asked to complete; he would not simply have relied upon the accountant who accompanied him to most of the interviews, but would have consulted a solicitor. 29. The judge, while accepting the inspectors’ evidence, rejected that of the appellant. He did not consider that he would have acted differently if he had been cautioned and taken legal advice. He knew that it was in his own interest, in order to satisfy the inspectors in his appeals against their assessments, to provide them with information, but he had his own ideas of what information he was prepared to give. It was clear from his own evidence that he conceded lying consistently and persistently over a long period of time about both his assets and his income. 30. The judge concluded: (1) that the tax inspectors were not “Persons…charged with the duty of investigating offences” within the meaning of section 67(9) and that therefore the PACE Codes did not apply, albeit he referred to this as a “borderline decision” because some aspects of investigations may “touch on criminal proceedings”; (2) that there had been no confession within the meaning of section 76 , because nothing the appellant said was as a result of threats or inducement; (3) that there was in any event nothing in the circumstances which made the admission of this evidence unfair for the purposes of section 78; (4) that even if Code C had applied, his decision on section 78 would have been the same, for the breach would not have been serious, substantial or significant: the appellant would have acted in the same way if he had been cautioned, he had volunteered what he wished, in any event conscious of procedures to protect his own interest, in accordance with his own discretion; (5) as for article 6, the position was the same: any breach did not make the investigatory procedures or the trial unfair. The judge ended thus – “It seems to me that this was a man who was exercising his own powers of judgment with the advice in the main of accountants and as I say, choosing to behave in such a way that has eventually brought him on for trial. It seems to me that he is not a man, therefore, who could claim that the trial would be unfair, because it has breached the rights against self-incrimination under provisions of article 6.” 31. Under this second ground of appeal, Mr Germain has put these matters all again in issue. He submits that the judge was in error in his rulings, in particular because he mistook the evidence of the two tax inspectors. Each had in the voire dire admitted that their duties did involve the investigation of criminal offences. Reliance was placed on the following passages in the cross-examination of each: where Mr Davies said “Yes” in answer to the successive questions “Part of your duties therefore involved investigating possible tax evasion?” and “Tax evasion is a criminal offence, is it not?”; and Mr Paton was questioned as follows: “Q. Right. Your investigation involves, does it not, an investigation into whether a criminal offence has been committed? A. Ultimately at the beginning one is looking to see whether the figures returned are correct. Q. But if they are not correct, if they have been deliberately reduced, then that amounts to a criminal offence, does it not? A. Yes, you know depending on the magnitude as to whether one would… Q. Depending on what? A. The magnitude of the offence. Q. Well, it is a criminal offence. Whether a prosecution is brought may depend on the amount but any tax evasion is a criminal offence, is it not. A. Yes.” 32. We do not accept, however, these answers as characterising the inspectors’ evidence as a whole, which made it quite clear that they both regarded their role as limited to the investigation of civil tax liabilities, not criminal matters with a view to prosecution, which required referral to what used to be called the Enquiry Branch and is now called the SCO. As Mr Davies said when asked if he considered it to be his role to carry out a criminal investigation: “No, not a criminal investigation with a view to prosecution, no…[That] was certainly the role of the head office Enquiry Branch.” Similarly Mr Paton answered “No, no” when asked if the investigation of criminal offences was his role. This evidence is confirmed by reference to the internal guidance issued to tax inspectors at the time of the second and third enquiries, to which those witnesses made, albeit superficial, reference. That internal guidance demonstrates that serious fraud (defined to include a potential understatement of profit of £50,000 overall or £25,000 in any three year period or a significantly false or incomplete disclosure which had purported to be complete) had to be referred to what is now the SCO. In this respect, therefore, an enquiry by a local tax inspector is a civil procedure designed to identify and settle a taxpayer’s proper tax liabilities, in the course of which penalties and interest may be imposed but not by way of criminal as distinct from civil sanction. It became important therefore for a local inspector to refer an enquiry to the SCO, for the very purpose that that Office could administer a caution and give warnings about legal advice before carrying the investigation any further. Section 67(9) does apply to officers of the SCO: see in this context R v. Gill [2003] EWCA Crim 2256 , [2004] 1 Cr App R 20 , where there was a breach of the Code by the SCO because of failure to administer a caution, but the evidence was nevertheless admitted because (as the judge also found in the present case) there was no likelihood that the defendants there would have given different answers if the caution had been administered, and the prosecution wanted to adduce the answers as evidence of deliberate lies rather than as confessions. 33. A similar distinction between enquiries for the purpose of settling civil liabilities on the one hand and criminal investigations with a view to prosecution on the other hand has been operated by HM Customs & Excise, save that in the case of the Customs the procedure appears to have been somewhat different, in part because there was no separate SCO which retained exclusive control over criminal investigation. It therefore appears to have been the practice of the Customs to assure a taxpayer under civil enquiry that nothing said by him at that stage would be used as part of any criminal prosecution: see Han v. Commissioners of Customs and Excise [2001] EWCA Civ 1040 , [2001] 4 All ER 687 and Khan v. HM Revenue and Customs [2006] EWCA Civ 89 (23 February 2006) especially at paras 24/31 and 91/92. 34. We therefore agree with the judge that Messrs Davies and Paton were not persons charged with the duty of investigating offences who were required to have regard to the PACE Codes. We accept, however, that in certain circumstances, for instance where an enquiry is close to the point where it is referred to the SCO, or even past the point where it ought to have been referred, there may well be the possibility of unfairness if evidence then obtained were to be admitted at a future trial. It is perhaps in this sense that the judge spoke or intended to speak of a “borderline”. It seems to us, however, that that would not turn the local tax inspectors into persons charged with a duty of investigating offences, but might nevertheless require evidence to be excluded under section 76 or section 78 in appropriate circumstances; sections which remain available in any event to deal with particular problems of possible unfairness. 35. In the present case, however, there was never any admission of any offence charged. At most the admissions referred to by the appellant are part of a general admission of past non-disclosure, and even then they are in truth to be regarded as part and parcel of further lies. Even if, contrary to the judge’s view, which we have no reason to doubt since he had the advantage, denied to us, of hearing the voire dire , it could be said that the appellant’s admissions might otherwise have constituted a confession obtained by threats or inducement amounting to oppression, the significance of the admissions was that they were part and parcel of a continuing process of lies and deception whereby the appellant only conceded what he thought the inspectors knew or would inevitably discover, and continued falsely to assert that he was being entirely co-operative in relation to full disclosure. It was only for this purpose that this part of the evidence of the earlier enquiries was used. It is well established that section 76 does not protect lies as though they were confessions: R v. Allen [2001] UKHL 45 , reported together with R v. Dimsey [2001] UKHL 46 , [2002] 1 AC 509 at para 35, R v. Gill at para 42. We therefore think that the judge was right to rule that section 76 was not in play. 36. That leaves section 78 , but in our judgment that does not assist the appellant either. There was no breach of any Code, but even if there had been the appellant would have acted no differently. He was given the opportunity of dealing frankly and honestly with the Revenue, but he pursued his lifelong course of deceit. There was no abuse of process. There had never been any promise of immunity for what was said during the enquiries. On the contrary, the importance of proper disclosure, and the significance attached to the statements of assets was made completely clear to the appellant. The inspectors had acted in good faith and in accordance with their internal guidance. The judge, who heard the appellant give evidence in the voire dire , was fully entitled to take the view he did of him. As for the three offences on which he was ultimately charged, count 1 derives out of entirely new matters, his post 1992 tax returns, and so does count 3; and both counts 2 and 3 really turn on the discovery as late as 2002 of the hidden 10 accounts with their £125,000 which could then be traced back to the earlier hidden 4 building society accounts with their £37,000 in 1992. We agree with the judge that there was no unfairness in the admission of the evidence whose admissibility was in dispute. On the contrary, we think that the jury would have been wrongly deprived of the whole picture if the judge had ruled otherwise. Ground three: the judge’s failure to give a good character direction 37. The appellant had only one previous conviction, for a trading standards offence, which was more than 30 years old at the time of trial and which the judge agreed was irrelevant for the purposes of deciding whether he was a man of previous good character. However, the judge declined, although asked by Mr Germain at trial, to give him a good character direction. This was because of the bad character evidence admitted, beginning with the appellant’s failures both before and after the first enquiry to notify the Revenue of his chargeability to tax. In the light of the bad character admitted under section 101 of the 2003 Act and the obligation to explain the role and significance of this, the judge gave a modern bad character direction in his summing-up. So far as that is concerned, there is some additional but limited complaint, to which we will refer below. 38. In the main, however, Mr Germain complains of the absence of a full good character direction. He submits that the appellant’s case is similar to that of Messrs Yorganzi and Tosun in R v. Aziz [1996] 1 AC 41 . That involved a serious tax fraud: it was said that the loss to the public was some £12 million in income tax and a further £2 million in VAT (at 46B). Both Mr Yorganzi and Mr Tosun were men of previous good character. However, Mr Yorganzi accepted that he had knowingly made a false mortgage application and had lied to the Customs officers in interview. Mr Tosun accepted that he had not declared his full earnings for income tax purposes and had allowed his employees to do the same (at 46F/G). Even so, as Mr Germain points out, the House of Lords dismissed the Crown’s appeal against this court’s holding that in the cases of Messrs Yorganci and Tosun a full direction covering propensity as well as credibility should have been given; thus the judge at trial had erred in given a direction only in respect of credibility (at 54B/C). Mr Germain submits that the same should apply here. 39. Aziz is the leading modern authority on good character. Lord Steyn explains the general need for a defendant of good character to receive a direction which explains its relevance to both propensity and credibility. He goes on to examine, however, the limits of good character where, despite the absence of any previous convictions, it emerges in the course of a trial, perhaps in cross-examination by a co-defendant, that a defendant has been shown to have behaved dishonestly. He said it is a complex problem where generalisations are hazardous (at 52G). He continued (at 53B/E): “A good starting point is that a judge should never be compelled to give meaningless or absurd directions. And cases occur from time to time where a defendant, who has no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment. A sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with Vye in a case where the defendant’s claim to good character is spurious. I would therefore hold that a trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous directions where the judge considers it an insult to common sense to give directions in accordance with Vye … That brings me to the nature of the discretion. Discretions range from the open-textured discretionary powers to narrowly circumscribed discretionary powers. The residual discretion of a trial judge to dispense with character directions in respect of a defendant of good character is of the more limited variety. Prima facie the directions must be given. And the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with Vye [1993] 1 W.L.R. 471 and then adding words of qualification concerning other proved or possible criminal conduct of the defendant which emerged during the trial. On the other hand, if it would make no sense to give character directions in accordance with Vye , the judge may in his discretion dispense with them.” 40. Mr Germain relies on the actual decision in the cases of Yorganci and Tosun, that a full Vye direction on propensity and credibility should have been given. The judge’s bad character direction in this case, however, went in the opposite direction, for he directed the jury that they could use the bad character they had heard about both as to propensity and credibility against the appellant, if they thought fit. He did not direct them that they should consider that the absence of previous convictions counted in his favour on the questions of propensity and credibility. 41. Moreover, Mr Germain complains about the credibility branch of the judge’s bad character direction in itself, referring us to what Lord Phillips CJ said in R v. Campbell at paras 30 and 41. However, we do not agree with that criticism, because in this case the appellant’s propensity for untruthfulness was relevant to an important issue, the critical question of his honesty or dishonesty in his tax affairs: see Campbell at para 31. Mr Germain also criticised the judge’s direction on the ground that it assumed and asserted the appellant’s bad character. We reject that criticism too, however. The judge repeatedly used language which left all relevant decisions to the jury: thus he referred to the matters of the first and second enquiries as “ potential blemishes upon his character”; he asked the jury whether “this previous misbehaviour if that is what it was means that [the] defendant has a propensity…to be dishonest as to his tax affairs with the Revenue[?]”; he twice more used the phrase “the defendant’s bad character if that is what it is ”; he said, as to credibility, “ You must decide to what extent, if at all, his character helps you in judging his evidence ” and similarly as to propensity, “ You must decide to what extent, if at all, his character helps you when you are considering whether or not he is guilty ”; and he continued “ Whether that previous behaviour does show a propensity is for you to decide and you must take into account what the defendant has said about his previous behaviour ” (emphasis added). 42. In our judgment, we would by and large respect the judge’s exercise of his discretion, even allowing for the fact that it has been described as a residual and narrowly circumscribed discretion. It is not as though the terms of his direction had not been discussed with counsel before his summing-up: it was therefore properly informed by that discussion and his decision in the light of it. Moreover, where bad character is admitted under the 2003 Act on the grounds that it is relevant both to propensity and credibility, it would make no sense for the judge to give a standard good character direction, stating its relevance to propensity and credibility in precisely the opposite direction. As for Mr Germain’s reliance on Aziz , we would comment as follows. First, this precedes the 2003 Act with its abolition of the common law in relation to bad character and its replacement in terms of its own provisions as to bad character. Although there is no similar abolition of the common law rules as to good character, it is difficult to think that the new law (as to bad character) has no impact for the old law (as to good character). In any event Lord Steyn was not contemplating the case where the bad character evidence is part of the prosecution case. Secondly, the misconduct which was here in question in terms of the appellant’s bad character was persistent and serious and closely similar and relevant to the offences for which he was charged: in this respect it was analogous to the situation contemplated by Lord Steyn in Aziz at 53B. Thirdly, in Aziz the misconduct in question (at 46F/G) was trivial compared to the huge tax conspiracy which was the subject-matter of trial. 43. Having said that, we nevertheless consider that the judge should at least have reminded the jury in this context that the appellant was a man without previous convictions (although we recognise that the jury would have been aware of this). We also consider that one way to deal with the difficulties presented in the aftermath of the 2003 Act by a defendant without previous convictions but with evidence of bad character admitted under section 101 is by modifying the bad character direction. In the past, it became recognised as possible to modify a good character direction to take account of the exceptional case where there was evidence before the jury that a defendant of no previous convictions was nevertheless potentially of bad character, or even actually so (as where there was a plea of guilty to a lesser offence but the trial continued on the graver offence charged): see R v. Vye (1993) 97 Cr App R 134 at 139, R v. Teasdale (1994) 99 Cr App R 80 at 82, R v. Durbin [1995] 2 Cr App R at 91/92. In suitable cases there was the discretion to give no good character direction at all ( Aziz, R v. Shaw [2002] 1 Cr App R 77 ). We consider that in the post 2003 Act world, where bad character directions as to propensity have more frequently become necessary, even in the absence of previous convictions, it may be possible similarly to tailor a modified bad character direction, along the following lines. Thus when a judge is directing the jury about the relevance of bad character to propensity or propensities, he could remind them that the defendant had no previous convictions and say that, in the ordinary case, where there was no evidence of bad character, a defendant of no previous convictions would have been entitled to a direction that the jury should consider that that counted in his favour on the questions of both propensity and credibility; as it was, it was for the jury to consider which counted with them more – the absence of previous convictions or the evidence of bad character; and if the former, then they should take that into account in favour of the defendant, and if the latter, then they would be entitled to take that into account against him. 44. A direction such as that would hold the balance, for the jury to decide, between the previous absence of any conviction, which at least would be a given, and the current evidence of previous misconduct, which depending on the circumstances may or may not amount to a criminal offence and may or may not be admitted by the defendant. Of course, in the case of which Lord Steyn spoke, one where any direction on good character would be a charade or spurious, no good character direction need be given at all. 45. We are inclined to think that the judge was entitled to conclude that this was such a case. If, however, we are wrong about that, and a modified direction such as we have diffidently suggested would have been more appropriate, we nevertheless consider that the judge’s error could have had no effect on the safety of these convictions. In sum, the appellant had to concede, as he did, that he had been persistently dishonest with the Revenue: and this was so in circumstances where his continued denials that he had been dishonest in the substantive offences charged did not hold water. The renewed grounds 46. We briefly refer to the renewed grounds. The first of them was that the judge had erred in rejecting a submission of no case to answer in respect of counts 2 and 3. The basis of this submission had been that the second and third statements of assets could not have been documents “required for an accounting purpose”, a necessary ingredient of the offence on those counts. The judge considered that that was a question for the jury. They had heard that these statements had been required by the Revenue as the basis for any settlement of the second and third enquiries, so that the Revenue could know the appellant’s exact financial position. It was for the jury to say whether those documents had therefore been required for an accounting purpose. In our judgment the judge was entitled to come to that decision and we do not think it is arguable otherwise. This is despite Mr Germain’s reliance on R v. Okanta [1997] Crim LR 451 which he submitted was indistinguishable: but that concerned a case, in any event on different facts, which was merely being considered by this court as a possible substituted verdict and was rejected by this court on the evidence. 47. The second renewed ground related to documentary evidence formally introduced by the Crown, with the permission of the judge and against the opposition of Mr Germain, in the course of the appellant’s cross-examination. The appellant had been giving evidence that his life-style had been supported, not by undisclosed motor trading profits, but by the rental income from properties owned by companies by the name of R & S Lettings and Florida Sun Properties. The financial statements of these companies had been submitted to the Revenue by the appellant. However, they were irrelevant to the Crown’s case, for they were not said by the Crown to be false and the appellant had never said before his cross-examination that the profits of these companies had enabled him to lead the comfortable life he did. In fact, the financial statements of these two companies indicated very modest profits and sometimes losses: they contradicted the appellant’s new assertion. The Crown therefore applied to introduce them into evidence in order to cross-examine the appellant further. Mr Germain submitted that the judge was wrong to permit them to do so, since there was a long-established principle against introducing new prosecution evidence during cross-examination of a defendant and it ought to be strictly adhered to. 48. However, there is an exception where evidence is given by a defendant ex improviso , ie which the Crown could not have foreseen or, in the discretion of a judge, where even if not strictly ex improviso the evidence is only marginally or minimally relevant: see Archbold 2008 at paras 4-340/341, citing R v. Anderson 87 Cr App R 349 and R v. Levy 50 Cr App R 198. In our judgment the judge was entitled to admit the documentary evidence, which, since it derived from the appellant himself, could have caused him no surprise. We do not consider that the contrary is arguable. Conclusion 49. It was for these reasons that we dismissed this appeal at the conclusion of its hearing and refused the renewed application to extend the appeal’s grounds.	{"ConvCourtName":["Crown Court at Portsmouth"],"ConvictPleaDate":["2007-02-07"],"ConvictOffence":["Cheating the public revenue","False accounting"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Portsmouth"],"Sentence":["2 years imprisonment"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Documentary evidence (tax returns, statements of assets, invoices, bank/building society accounts)","Expert report/testimony (forensic accountant)","Testimony of tax inspectors","Testimony of appellant's accountant"],"DefEvidTypeTrial":["Offender admits non-disclosure and lying but claims honest intent","Offender claims assets from property/gifts, not trading","Offender claims Revenue was unfair/malicious"],"PreSentReport":[],"AggFactSent":["Persistent dishonesty with Revenue","Offending over a long period (10+ years)","Falsification of documents"],"MitFactSent":["No relevant previous convictions (only one 30+ year old unrelated conviction)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction"],"AppealGround":["Wrongful admission of bad character evidence under s.101 Criminal Justice Act 2003","Failure to exclude evidence under s.76 and/or s.78 PACE","Failure to give good character direction","Refusal of no case to answer on counts 2 and 3","Allowing cross-examination on material not in Crown's case"],"SentGuideWhich":["section 101 of the Criminal Justice Act 2003","section 76 of the Police and Criminal Evidence Act 1984","section 78 of the Police and Criminal Evidence Act 1984"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge correctly admitted bad character evidence as relevant and not unfair","Tax inspectors not investigating criminal offences for PACE purposes; no breach of Code C","No confession/admission of offence; evidence not unfairly obtained","Judge entitled to refuse good character direction due to persistent relevant misconduct","Judge entitled to leave accounting purpose question to jury","Judge entitled to allow cross-examination on new material raised by appellant"]}
Case No: 200702991 C2 Neutral Citation Number: [2014] EWCA Crim 836 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING (His Honour Judge Risius) Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/05/2014 Before : LORD JUSTICE PITCHFORD MR JUSTICE SWEENEY and RECORDER OF MIDDLEBROUGH HIS HONOUR JUDGE BOURNE-ARTON QC - - - - - - - - - - - - - - - - - - - - - Between : ANDREW THOMPSON Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms S Forshaw QC and Mr D Reid (instructed by Edward Hayes - Solicitors ) for the Appellant Mr JA Price QC (instructed by CPS Special Crimes Division Appeals Unit ) for the Respondent Hearing date: 15 April 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : Introduction 1. On 30 October 2013 the full court gave leave to the appellant to appeal against his conviction at Reading Crown Court on 11 May 2007 for sexual offences committed against male children (see [2013] EWCA Crim 2264 ). 2. The appellant faced an indictment containing 14 counts, alleging sexual assaults upon nine boys under the age of 16 years, committed during the years 2004, 2005 and 2006. He appeared for trial before His Honour Judge Risius at Reading Crown Court. On 11 May 2007 the appellant was convicted upon four counts charging him with offences contrary to section 7 of the Sexual Offences Act 2003 , namely: Count 3: Sexual assault of SF Count 4: Sexual assault of SF Count 11: Sexual assault of ZB Count 12: Sexual assault of ZB, as an alternative verdict to sexual assault by penetration contrary to section 6 of the Sexual Offences Act 2003 . The appellant was found not guilty upon the remaining 10 counts relating to seven other boys. Each of the complainants is entitled to his anonymity under the Sexual Offences (Amendment) Act 1992 and we shall refer to them and some of their relatives by using initials. 3. Counsel instructed at the time of trial, Ms Chan, drafted grounds of appeal against conviction and sentence. The application for leave to appeal against conviction was refused by the single judge on 14 August 2007. Only the appeal against sentence proceeded at that time. On 27 May 2010 this court, differently constituted, quashed the sentence imposed by the judge of imprisonment for public protection and substituted a determinate sentence of 3 years imprisonment. It confirmed the making of a Sexual Offences Prevention Order but amended its terms. 4. The possibility that the appellant was suffering from Asperger’s syndrome was first raised by a prison counsellor in August 2008 during preparation for a parole board hearing. The formal diagnosis was made by a clinical psychologist, Mr Nicholas Keene, on 17 September 2008. 5. On 8 November 2011, following his release from prison, the appellant was arrested on suspicion of committing offences against other boys during the late 1990s and 2000. He was subsequently charged in a 17 count indictment. On 14 September 2012, following his trial before the Honorary Recorder of Aylesbury, His Honour Judge Sheridan, the jury returned verdicts of not guilty upon all counts. During the course of the trial Judge Sheridan had permitted the defence to adduce evidence from two experts, Mr Nicholas Keene and Mrs Pamela Yates. They expressed the opinion that the appellant suffered from Asperger’s syndrome. One of the features of the appellant’s condition was that he might behave in a socially inappropriate but innocent manner towards children, without having the comprehension that his actions could be misconstrued. This was relevant, the judge found, to the question whether actions by the appellant, admitted or proved, were or were not motivated by a desire for sexual gratification. At the Aylesbury trial, while calling no expert evidence of its own, the prosecution challenged the diagnosis, the existence or extent of relevant symptoms, and the relevance of those features of the syndrome that the jury found existed to the issues the jury had to determine. The grounds of appeal 6. On 14 December 2012 Ms Forshaw QC, who represented the appellant at his Aylesbury trial, prepared substituted grounds of appeal against the conviction at Reading Crown Court and sought leave for an extension of time within which to renew the application for leave. The full court subsequently granted leave. The appellant now relies upon the fresh evidence of Mr Keene and Mrs Yates, admitted under section 23 of the Criminal Appeal Act 1968 , as a ground upon which to challenge the safety of his convictions in 2007. It is the appellant’s case that had the jury been aware in 2007 of the diagnosis subsequently made, and of the evidence later given by the experts to the jury in 2012, they may have formed a different view both of the appellant himself and of his actions. Mr Price QC represented the prosecution in the 2007 trial but not in the 2012 trial. We have been much assisted by his presence at this appeal. Having considered the fresh evidence, the respondent has not sought to challenge it, and the evidence has been admitted in the form of reports from the experts and transcripts of their evidence in the Aylesbury trial. The respondent’s case is that, notwithstanding the fresh evidence, the verdicts of the Reading jury were safe. The appellant’s previous convictions 7. The appellant’s bad character was admitted in evidence in both trials. The appellant was born on 29 April 1964 and is now aged 49 years. On 2 April 1982, when he was aged 19, he appeared before Wakefield Magistrates Court and was placed on probation for three years for an offence of gross indecency with a child, contrary to section 1 of the Indecency with Children Act 1960 . The appellant went to a churchyard where he encouraged a boy aged 6 or 7 years to masturbate him. On 4 July 1985 at Woodbridge Magistrates Court, when he was aged 21 years, the appellant was placed on probation for two years for an offence of indecent assault of a male. The appellant was running a mobile shop. He lifted up a 9 year old boy to enable him to view goods on a shelf and, as he did so, he laid his hand across the boy’s genitals outside his trousers. Following the appellant’s arrest in 2006 there was found on his computer evidence of an internet search carried out by the appellant on 25 December 2003, when he looked for material relating to under-age rent boys in Sri Lanka. In evidence, both in 2007 and 2012, the appellant claimed that he was planning a holiday to Sri Lanka alone, was aware of the adverse publicity given to a television personality after a similar trip, and, for that reason, wished to avoid any destination associated with the sex trade in Sri Lanka. The trial at Reading Crown Court Background 8. During the period August 2004 to June 2006 the appellant lived in the Reading area and worked as a transport manager. He lived alone. He suffered from a medical condition known as Klinefelter’s Syndrome, a consequence of which was to render the appellant sterile. Although he could not have children of his own his ability to perform the sexual act was unaffected. He had occasional relationships with women but said in evidence that he had a low sex drive. He was particularly saddened by his inability to father children and, as a “paternal” and charitable gesture, befriended boys and girls and their parents. During the period of the indictment the appellant would take children on trips to adventure parks or other attractions. He sponsored a local football team and took boys to football matches. He took a group of boys to swimming baths and coached them. He consulted and was trusted by the children’s parents, some of whom allowed their children to stay overnight at the appellant’s home. The nature of the prosecution case 9. The parents of one of the boys, JT aged 9, expressed concern about the appellant’s behaviour to social services on 19 May 2006 (see further paragraph 13 below). The investigation led to complaints by nine boys in all. There was a common theme that the appellant would, following sessions at the swimming baths, in the communal area of the changing rooms, dry the boys with a towel. Having returned from trips and/or while the boys were staying overnight at his home, the appellant would give the boys baths or showers. The prosecution asserted that while drying the boys at the swimming baths and, at home, during the course of soaping the boys’ bodies and drying them afterwards he would by that means touch them sexually. In view of the circumstances, Judge Risius directed the jury upon the necessity for proof that the touching was sexual. The judge suggested that, with the exception of count 4 and count 12 (paragraph 11 below), none of the counts involved touching that was inherently sexual. The judge explained, at page 12H of the transcript of his summing up: “After all, washing and drying children’s boys all over is something which is done routinely every day, for example, by parents and nurses, and nobody would suggest that there was a sexual element in those circumstances. Likewise, playing games with children in a swimming pool.” 10. The judge then directed the jury how touching that was not inherently sexual may, nevertheless, be sexual depending upon the jury’s conclusions as to the circumstances in which the touching occurred and the appellant’s purpose. He posed questions for the jury as follows, at page 14F: “First, ask yourselves this question: Disregarding what may have happened before and after the particular touching, and ignoring also Mr Thompson’s purpose in touching the children on that occasion, could that touching because of its nature possibly be sexual? If the answer is, “No”, that is the end of that particular count, and you must find Mr Thompson not guilty on it. If, however, the answer is, “Yes”, you must then go on to ask yourselves, secondly, whether, taking into account the surrounding circumstances, and Mr Thompson’s purpose in touching the child, the touching was in fact sexual. If you are sure the answer is, “Yes”, then you must find him guilty on that count. If you are not sure it was sexual, then your verdict must be one of not guilty.” The indictment 11. Count 1 was a specimen count that between 1 February and 25 May 2006 the appellant sexually touched JT. JT described the appellant making fun of his wish to use a cubicle after swimming, calling him “Shy, Shy” and “Dickhead”. The appellant would dry JT and in doing so would touch the boy’s private parts through the towel. The appellant admitted drying JT but said there was no sexual gratification involved. He would dry the boys who were wasting time. Count 2 was a specimen count in which the appellant was charged, between 1 April and 30 May 2006, with sexually touching a 12 year old boy, LS. LS complained that during games in the pool the appellant kicked him in the genital area and would then allow his foot to linger against his bottom and beneath his genitals. The appellant accepted that during horseplay there might be some contact but there was no kicking and no sexual intention. Count 3 charged the appellant with a specimen offence that, between 20 August 2004 and 25 May 2006, he sexually touched SF, a boy aged 11 or 12. SF complained that when he stayed overnight with the appellant, the appellant would rub shower gel all over his body. The appellant agreed that he would gel SF’s body when he was taking a bath. He lingered only when washing SF’s feet. The appellant said that he, himself, took showers three or four times a day and his concern was only to ensure that the boys were clean. Count 4 was a specimen allegation that during the same period the appellant sexually touched SF by smacking the boy’s penis with his hand. The defence to count 4 was denial that any such incident had occurred. Count 5 alleged sexual touching of MO’B between 1 February and 31 December 2005, when MO’B was aged 10 or 11, by repeatedly and unnecessarily washing his body, including his genitals, while MO’B was standing in the bath at the appellant’s home. The appellant admitted one occasion of applying gel to MO’B’s body. He denied there was anything sexual about the touching. Count 6 also concerned MO’B, who said that when he came out of the pool the appellant would dry him all over. The appellant denied that he would do this. Count 7 charged the appellant with sexually touching BF, brother of SF, during the period 1 January to 25 May 2006, when BF was aged 6 or 7 years. BF said that the appellant would dry him all over. The appellant admitted the activity but denied that it was sexual. Count 8 concerned occasions during the same period when the appellant, at his home, washed BF all over his body, including his genitals. The appellant admitted the activity but said that it was not sexual. The complainant in count 9 was CC. On a single occasion between 1 January 2005 and 26 May 2006, when CC was aged between 4 and 6 years, the appellant, at his home washed CC’s body, including his genitals and bottom. The appellant said he was getting the boy ready for bed; there was no sexual motivation. In count 10 the appellant was charged that, at his home, between 1 January 2005 and 1 June 2006, he sexually touched LC, CC’s brother, aged between 10 and 12 years, by drying his body including his genitals. The appellant accepted that he had dried the boy but denied a sexual intention. In count 11 the appellant was charged that on a single occasion, between 1 January and 2 June 2006, when ZB was aged 11, he touched the complainant’s private parts, holding his hand there for ages, while drying ZB after a shower at the appellant’s home. The appellant denied that his hand lingered and maintained that his drying of the boy was quite proper. Count 12 also concerned ZB. It was alleged that during the same period, contrary to section 6 of the Sexual Offences Act 2003 , the appellant penetrated ZB’s anus with his fingers. The judge directed the jury as to an available alternative verdict of sexual assault, if the jury were sure that there was touching of the anus with the finger but not sure that the finger had been inserted into the anus. The appellant denied the act. In count 13 the appellant was charged that, between 1 January 2005 and 1 June 2006, he sexually touched RL by drying him all over with a towel despite RL’s protest that he could do it himself. Count 14 also involved RL, who complained that at the appellant’s home, he was soaked from his head to his tummy button, and from his knees to his toes. The prosecution alleged that the touching was sexual. The appellant said it was not. Bad character 12. The appellant’s previous convictions and his exploration of the Sri Lankan website (paragraph 7 above) were admitted in evidence. The judge explained (transcript page 26A) that the evidence had been received, not for the purpose of demonstrating that the appellant was likely to commit offences against boys, but as relevant to the question whether the acts of the appellant towards the boys had a sexual motivation. The judge pointed out to the jury (transcript page 26G) that in the case of almost all the counts the appellant admitted the touching on which the prosecution relied. The obvious exceptions were Counts 4 and 12. Complaints 13. JT’s mother gave evidence that on one occasion her son had told her that the appellant would rub his chin on his back and shoulders, and he would do the same to the other boys. Later, JT’s cousin, LS, joined the swimming group. One day in the garden LS said that the appellant rubbed his leg near LS’s private parts. JT added that the appellant had called him “Shy, Shy”. As a result, both mothers stopped their boys going swimming and a report was made to social services. It was this information that led to the police investigation. As a result, all nine boys were interviewed. MO’B’s mother and the mother of SF and BF were sisters. SF had complained to his mother on one occasion of the appellant washing and drying his private parts. SF’s mother spoke to the appellant who said that they had been in a hurry. He agreed not to do it again. SF made no further complaint. CC and LC lived with their mother in Wokingham. Her sons started to go swimming when her neighbours, the mothers’ of SF, BF and MO’B introduced her to the appellant. Neither of her sons had made any complaint before he was interviewed by the police. ZB’s brother played for a football team sponsored by the appellant and ZB was a spectator. ZB was invited to go swimming and on trips with the appellant. ZB made no complaint to his mother before the appellant was arrested. RL made no complaint to his mother before he was interviewed by the police. The mothers all said in evidence that their sons were able to wash and dry themselves. They would not have been happy to learn that the appellant was bathing them. Defence evidence 14. The appellant said in evidence that he had on one occasion dried JT’s body. That was because he was the last to get changed. He agreed that he had used his leg to throw LS in the swimming pool. That was just horseplay. He agreed that he had washed SF in the bath. That had taken a minute or so. There was no sexual intention. He had never smacked SF’s penis. He recalled however that on one occasion when he was drying SF, SF had an erection. He agreed that he had told the police the same thing had happened on a second occasion, but in evidence he claimed that had been a mistake induced by the police. He had at the time of interview been tired and under stress. He insisted that such an incident had only occurred on one occasion. The appellant said that he had applied shower gel to MO’B’s body on one occasion, but not to his genitals. He had towel-dried BF but only to get him dressed. The same thing had happened at the appellant’s home. He had washed and dried CC ready for bed. On one occasion he had dried LC. He had washed ZB all over but had never inserted his fingers into ZB’s anus. That was not true. The appellant denied that he had ever dried RL’s body all over. The appellant said that his feelings towards the children were entirely paternal. 15. During the course of the defence case, four male witnesses, who had also been taken swimming and had stayed at the appellant’s home when they were younger, gave evidence that nothing untoward had occurred. They all said that they had, when necessary, washed and dried themselves. Other witnesses spoke of the appellant’s paternal regard for children and his reputation for a generous nature and charitable works. The expert evidence 16. Mr Nicholas Keene is a consultant clinical psychologist based at the Oxford Clinic, Littlemore Hospital in Oxford. Mr Keene carried out an assessment of the appellant during the period 12-17 September 2008. In his report of 17 September 2008 Mr Keene described Asperger’s Syndrome, as “a life long development disorder akin to autism in people without other cognitive impairments”. The diagnostic manual, DSM – IV, required two separate “domains of impairment to be present across the life span”: “(1) a qualitative impairment of social interaction, and (2) restricted, repetitive or stereotyped patterns of behaviour, interests and activities.” Mr Keene concluded, having applied the Cambridge Lifespan Asperger’s Syndrome Service (“CLASS”), which employed more stringent diagnostic criteria than DSM - IV, that the appellant met these criteria. He identified the features of the appellant’s condition that caused him most difficulty as: (i) a failure to develop peer relationships; (ii) lack of social and emotional reciprocity; (iii) inability to understand social situations and the thoughts and feelings of others; (iii) preoccupation with “parts of objects or systems”; (iv) impairment of ability to make or sustain conversation; (v) rule-bound behaviour of his own making. 17. At paragraph 9.3 of his “Conclusion and Opinion”, Mr Keene identified a central trait of people with Asperger’s, present in the appellant, as particular difficulty in deciphering what others are thinking. Mr Keene called this “poor theory of mind”. Thus, while the appellant is an intelligent and literate man, he is socially naïve. In the context of the trial at Reading Crown Court, it would not have occurred to the appellant that suspicions would be raised in other people’s minds about the appellant’s continued association with children or his conduct of bathing and drying them. 18. Mrs Pamela Yates has a combined degree in social work and psychology from Witwatersrand University in Johannesburg. In 1984 she worked for the South East London and Maudsley NHS Trust. She had a particular interest in learning difficulties and related challenging behaviour in children. Between 1986 and 2000 Mrs Yates worked for the Institute of Psychiatry at King’s College, London as a researcher and co-ordinator for a programme developed by Professor Sir Michael Rutter and Professor Patricia Howlin to diagnose and assist children with autism. She has subsequently undertaken projects with the Department of Health and the National Autistic Society. In 2000 she became a member of the advisory panel to North Hill House specialist school (now owned by the Priory Group) and became an independent consultant in autism and Asperger’s syndrome. As we understand it, Mrs Yates has no medical qualification but has acquired expertise and reputation in the field in which she specialises. 19. Mrs Yates assessed the appellant on 23 May 2012. She used Module 4 of the Autism Diagnostic Observation Schedule (“ADOS”). Mrs Yates agreed with Mr Keene that “the most useful way of describing” the appellant’s “profile of difficulties” was Asperger’s syndrome. His most significant impairment appeared to be in the reading of emotions expressed by others. The appellant had had lifelong difficulties in developing social relationships, especially with his peer group. His ability to organise and plan “helped to order his life sufficiently to survive, seemingly without the need for further support”. At the same time he would appear “rigid, very ordered and mechanical in social relationships and anxious to maintain the order he has imposed on his life”. His lack of emotional understanding would make him seem, at times, callous or selfish because he would be unaware of the impact of his behaviour on others. 20. It was a feature of the appellant’s personality that he did not readily make eye contact. Mr Keene described the appellant as “prompt, well presented and attentive”, but there was limited eye contact at the beginning of his interview. The appellant was a fluent and reasonably relaxed informant. Mrs Yates described the appellant’s “rather pragmatic style of answering, lack of facial expression and monotone intonation”. There was during her interview a lack of eye contact. The trial at Aylesbury Crown Court Intermediary 21. At the appellant’s trial before Aylesbury Crown Court, Judge Sheridan approved the use of an intermediary. We have, however, read a transcript of cross-examination of the appellant by Mr Price at Reading Crown Court, which was not available to the expert witnesses. We have detected no sign that the appellant laboured under any defect of thought or verbal reasoning. There are, however, indications either that the appellant was being evasive in some of his answers or that, having regard to the expert opinion subsequently obtained, he was inappropriately focused on inconsequential detail and, therefore, giving a misleading impression of evasiveness. The prosecution case 22. The indictment tried at Aylesbury concerned complaints of serious sexual offences committed against the children of one family whose father was known to the appellant through his work. It was alleged that the offences took place during the later 1990s and the year 2000 and, therefore, preceded the allegations made at the 2007 trial. The appellant was charged with offences of gross indecency and sexual assault comprising mutual masturbation, including oral masturbation, upon a child, DM, aged between 11 and 15 years. In count 9 the appellant was charged with the anal rape of DM, then aged 16 years. The appellant was charged with offences comprising masturbation of WM, then aged 10 – 16 years. On one occasion when WM was aged 17 years it was alleged that the appellant held the boy’s hand over his own penis. In count 13 the appellant was charged with attempted rape of WM. Finally, the appellant was charged with offences of sexual assault of SM, then aged 13 years, and of causing SM to sit on the appellant’s penis while both of them were in the bath, SM then being aged 13 years. The bad character evidence 23. The prosecution adduced in evidence all of the appellant’s previous convictions, including his convictions at Reading Crown Court in 2007. Mr Price QC pointed in argument to a subtle change in the appellant’s evidence between the 2007 trial and the 2012 trial. In the course of cross-examination before Reading Crown Court the appellant accepted that in 1981 he had led a boy aged 6 or 7 years to a churchyard where he encouraged the boy to masturbate him. In the 2012 trial, by which time he was aware of the late diagnosis of Asperger’s, the appellant claimed that he was masturbating in some disused toilets in the churchyard when a young boy happened to come past. He said that the boy told him that he was “doing it wrong”. The boy told him, “That’s not the way I do it with my cousin”. The appellant was explaining to the jury that he did not understand embarrassment and asked the boy if he would show him how to do it properly. The boy placed his hand on the appellant’s penis and masturbated him. The appellant claimed that he did not know at the time that what he was doing was wrong. This evidence was in contradiction of the evidence given by the appellant in 2007 and the opinion of Mr Keene that, although the appellant would have had a delayed emotional development and would not have been able to comprehend the emotions of a 6 or 7 year old boy, he would still have known that it was wrong to ask a child of 6 or 7 to masturbate him. 24. As to the conviction in 1985, during his trial in 2012 the appellant said he was not guilty. He pleaded guilty merely because his stepfather told him to do so. As to his searching of the internet, the appellant provided to the jury the same explanation that he had given in 2007. It was pointed out by this court during the course of argument that the appellant’s expressed anxiety to avoid social disapproval for staying at a hotel near sex spots in Sri Lanka seemed to contradict the expert evidence to the effect that he would not understand social disapproval. Ms Forshaw QC submitted that the appellant’s conduct should be seen as an example of his rule-bound behaviour. The appellant told both juries that a television celebrity, Matthew Kelly, had at about that time attracted media disapproval for his association with Sri Lankan resorts by reason of the availability of under-age rent boys. The appellant resolved that he should not expose himself to the same disapproval, whatever the level of his understanding of the reasons for that disapproval. In assessing the truth of this explanation the jury would have been assisted by knowledge of the appellant’s condition. 25. The defendant denied that he was guilty of the offences of which he had been convicted at Reading Crown Court in 2007. To the extent that they were relevant, section 74(3) of the Police and Criminal Evidence Act 1984 placed upon the appellant the burden of proving, on a balance of probability, that he had not committed the offences. The defence case was that the appellant’s previous convictions were of no assistance to the prosecution since he had not committed the offences. Ms Forshaw QC contended in argument that if, contrary to the defence case, the Aylesbury jury had concluded that the appellant was guilty of counts 3, 4, 11 and 12 in the 2007 indictment, they would have attached considerable weight to those convictions when assessing the strength of the prosecution case in 2012. Judge Sheridan directed the Aylesbury jury that they should consider the expert evidence that the appellant suffered from Asperger’s syndrome and reach their own conclusion. He advised the jury that in the absence of contrary evidence they should proceed on the basis that the appellant did suffer from Asperger’s syndrome, a life-long condition. If so, they should judge its effect upon their consideration of the appellant’s conduct both as alleged in the indictment and in 1981, 1985, 2003 and 2006. Ms Forshaw submits that it is more probable than not that the Aylesbury jury concluded, in the appellant’s favour, that his touching of the children during the period 2004 - 2006 was non-sexual. The defence case 26. The appellant had been a friend of the complainants’ family. He had helped to carry out building modifications to their home. The appellant admitted an innocent association with the children. The defence case presented to the Aylesbury jury was that two of the complainants were suspected of viewing child pornography on a computer in their home and that, when interviewed by the police, first one and then the other attempted to blame this appellant for introducing them to the material. The police had examined the appellant’s computer and no such material was found. The accusations became more serious. The appellant’s case was that they were entirely false. It was submitted that, despite their denial, the children were aware of the appellant’s arrest in 2006 and at least of the generality of the rumours circulating and the allegations made against him. They had used the appellant as a soft target at which to deflect blame. Some lies told by the complainants were exposed in evidence. Judge Sheridan gave to the jury a firm direction that if they considered there was evidence of conspiracy between the complainants to deflect blame from themselves to the appellant by telling lies about him, they should conclude that it would be unsafe to convict the appellant of any offence. As we have observed, the charges faced by the appellant at Aylesbury concerned, in the case of two of the complainants, explicit acts of masturbation, rape and attempted rape, and, in the case of the third, sexual assault in the context of bathing. As to the third complainant also, the defence case was that no such event occurred. There had been no occasion during the complainant’s 13 th year when he took a bath the appellant’s home. The case for the respondent 27. In this appeal the respondent did not challenge the diagnosis of Asperger’s syndrome; nor did Mr Price QC challenge the features of the syndrome which the experts attributed to the appellant. He submitted that the nature of the issue between the prosecution and the defence upon the counts in respect of which the appellant was convicted in 2007 demonstrated the reason why the jury had distinguished between those counts and the majority. The issue in count 3 was purely one of fact, namely whether the appellant had “for ages” soaped and dried SF’s private parts. The appellant volunteered in interview that SF had an erection while he was being dried. That was not something of which the boy had complained. There was an undeniable circumstantial link between the allegation made by the boy and the appellant’s admission in interview. The fact that the appellant admitted that there had been a similar, second, occasion must have drawn to the jury’s attention the obvious connection between the appellant’s activity and the boy’s erection, and the improbability of coincidence. The appellant’s denial in evidence of any second occasion betrayed his awareness of the significance of his admission. As to count 4, there was a straightforward issue whether the appellant had smacked the boy’s penis. If he had, sexual motivation was a straightforward conclusion for the jury to reach. As to count 12 the complainant ZB, when first interviewed, had mentioned only the drying activity. When interviewed on a second occasion he claimed that the appellant’s finger had been inserted into his anus and moved. Mr Price QC acknowledged that the jury may not have been prepared to construe the word “inside” as signifying that the boy was complaining of insertion of the appellant’s finger into his anus rather than movement between the boy’s buttocks. They were, however, satisfied that there had been an action of sufficient significance to demonstrate a sexual assault involving the touching of the anus. The jury’s conclusion in this respect would have assisted them upon their interpretation of the appellant’s purpose in drying ZB (count 11). 28. Mr Price QC argued that nothing in the diagnosis made by Mr Keene and Mrs Yates in 2008 and 2012 could have had any material bearing on the Reading jury’s analysis of the evidence relevant to the counts on which he had been convicted in the 2007 trial. The issue for the jury was whether the incidents, as described by the complainants, had taken place. If they took place as the boys described none of the “difficulties” under which the appellant laboured in his ordinary life could place an innocent construction upon his actions. Discussion 29. We do not accept Ms Forshaw QC’s argument that the jury’s verdicts at Aylesbury in 2012 can alone resolve the issue as to whether the verdicts returned by the jury at Reading in 2007 were unsafe. Upon Judge Sheridan’s directions to the jury there is a real prospect that the jury was not satisfied that the complainants were honest witnesses of events. If they were not, they may have acquitted upon all 17 counts because they were unsure that the complainants had not conspired to make false allegations against the appellant. If that was the jury’s conclusion, they may never have had occasion to examine the effect of the expert evidence upon the question how the appellant’s actions should be interpreted. 30. The appellant explained to the jury in 2007 that he regarded his actions as paternal, motivated solely by a need to ensure that the boys were properly cleaned and dried. We commence our analysis with an acknowledgement that the 2007 jury was not prepared to conclude that the act of washing or drying any one of the children would necessarily imply a sexual motive. The jury could not conclude so that they were sure that in the case of seven of the complainants the touching was sexually motivated. In his cross-examination of the appellant, and during his final speech to the jury, Mr Price QC, for understandable reasons, suggested that the appellant must have been aware that he was taking an extreme risk by behaving in the manner he admitted. For that reason there must have been a sexual motive for the appellant’s behaviour. The expert evidence was centrally relevant to this issue because, in the opinion of Mr Keene and Mrs Yates, the appellant would not have been aware of the social risk. However, this was a prosecution argument that Mr Price concedes and asserts the jury rejected in any event, without the need for assistance from the experts. We see the force of Mr Price’s submission but it is not a complete answer to the fresh evidence. The issue that confronts this court is whether, had they been aware that the appellant was suffering from Asperger’s syndrome, the jury may have reached a different conclusion upon both issues of fact and issues of interpretation of the appellant’s conduct relevant to counts 3, 4, 11 and 12 specifically. 31. There are three respects in which, we are satisfied, the jury may have been assisted by the evidence of Mr Keene and Ms Yates. First, in the case of SF, the complainant protested that it was unnecessary for the appellant to wash and dry him so thoroughly. A person like the appellant who was rule-bound and somewhat obsessive about personal hygiene might not be sensitive to any expression of the boy’s resistance. Furthermore, he might not, at the time , have attached any significance to the fact that the boy had an erection. As to the allegation that the appellant smacked the boy’s penis, while there was undoubtedly an issue of fact to be resolved, even if the smacking occurred it did not automatically follow that it took place as an expression of sexual excitement rather than boyish stupidity or inappropriate discipline. These, in our view, are issues to which the expert evidence could, depending upon the jury’s view, have been significant. We agree with the direction given by Judge Sheridan to the Aylesbury jury that the diagnosis of Asperger’s syndrome was relevant to the questions: (1) what the appellant did and (2) with what intention he did it. 32. Secondly, as to count 12, the fact that the appellant’s finger rubbed against ZB’s anus, which is the conclusion the jury must have reached, was not outside the range of activity of which the appellant was accused in respect of other complainants. It is not possible to determine what it was, if anything, in ZB’s or the appellant’s evidence, that may have convinced the jury that the touching in ZB’s case was sexually motivated. For this reason, we cannot exclude the possibility that, had the jury been aware of the admitted features of the appellant’s Asperger’s, they would have reached a different conclusion, either as to the nature of the act or as to its purpose. Further, there was, in our view, no marked distinction between the allegation made in count 11 and those made in respect of other boys subjected to the same treatment. We accept that the jury’s conclusion upon count 12, however reached, probably educated their view of sexual motivation relevant to count 11. 33. Thirdly, we have noted the tendency of the appellant, during his evidence before the Reading jury, to pick arguments with the prosecutor over comparatively trivial detail, while failing, unless re-directed, to confront the underlying and critical question (paragraph 21 above). In our opinion, the expert evidence would have been of value to the jury in determining whether, on the one hand, the appellant was evading the question or, on the other, that he was, as a result of his unusual traits, reluctant to be deflected from his pre-occupation with matters of detail. We have noted also (at paragraph 24) the questionable explanation given by the appellant for his internet search. Both in assessing the content of his evidence and the manner in which it was delivered, it seems to us that the expert evidence would have been informative. We have given full consideration to Mr Price’s argument that during the Aylesbury trial the appellant demonstrated himself to be a calculating witness, quite capable of trimming his evidence to suit the case then being presented to the jury. However, even if Mr Price is right, and we are not sure that he is, we cannot conclude that his criticisms of the appellant’s evidence establish that he was undoubtedly lying to the Reading jury about the lack of sexual motivation for his actions towards the complainants SF and ZB. Conclusion 34. Notwithstanding that we are un-persuaded that the acquittal of the appellant in 2012 alone renders his convictions in 2007 unsafe, we have concluded that the expert evidence upon which the appellant relied in 2012 was both relevant and of some probative importance to the issues considered by the jury in Reading in 2007. The jury in the 2007 trial was very much concerned with the issue of interpretation of the appellant’s alleged conduct, partly admitted and partly denied. It was to that issue that the expert evidence was primarily, although not exclusively, relevant. We cannot conclude that the decisions made by the jury in 2007 would undoubtedly have survived their consideration of the new evidence admitted in the appeal under section 23 of the Criminal Appeal Act 1968 . For this reason we take the view that the verdicts were unsafe and must be quashed. Mr Price QC informed the court that the respondent had given consideration to the question whether, in the event of a successful appeal, it was in the public interest for a re-trial to take place, and we were informed that no application for re-trial would be made to the court.	{"ConvCourtName":["Reading Crown Court"],"ConvictPleaDate":["2007-05-11"],"ConvictOffence":["Sexual assault of SF (Count 3)","Sexual assault of SF (Count 4)","Sexual assault of ZB (Count 11)","Sexual assault of ZB (Count 12, as alternative to sexual assault by penetration)"],"AcquitOffence":["Sexual assault (10 counts relating to seven other boys)"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Reading Crown Court"],"Sentence":["Imprisonment for public protection (quashed in 2010 and replaced with 3 years imprisonment)"],"SentServe":["Single"],"WhatAncillary":["Sexual Offences Prevention Order"],"OffSex":["All Male"],"OffAgeOffence":[40,41,42],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["nine boys under the age of 16 years (four counts convicted, seven acquitted)"],"VicSex":["All Male"],"VicAgeOffence":[4,6,7,9,10,11,12],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Complainant testimony","Bad character evidence","Internet search evidence"],"DefEvidTypeTrial":["Defendant testimony","Character witnesses","Expert evidence (Asperger's syndrome, admitted on appeal)"],"PreSentReport":["High risk of harm"],"AggFactSent":["Pattern of behaviour involving multiple children"],"MitFactSent":["Offender has Asperger's syndrome (diagnosed after conviction)"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Fresh evidence of Asperger's syndrome diagnosis under section 23 of the Criminal Appeal Act 1968"],"SentGuideWhich":["section 7 of the Sexual Offences Act 2003","section 6 of the Sexual Offences Act 2003"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Fresh expert evidence on Asperger's syndrome was relevant and of probative importance; jury may have reached a different conclusion if aware of this evidence; verdicts unsafe"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2019] EWCA Crim 2280 Case No: 201903114/B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Crown Court at Snaresbrook HHJ Pounder T20187809 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/12/2019 Before : LORD JUSTICE GREEN MR JUSTICE SOOLE and HER HONOUR JUDGE WALDEN-SMITH - - - - - - - - - - - - - - - - - - - - - Between : REGINA - and - N (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) Mr William Chipperfield (instructed by Caveat Solicitors ) for the Applicant Mr Timothy Hunter (instructed by Crown Prosecution Service ) for the Crown Hearing date: Friday 13th December 2019 Judgment As Approved by the Court Crown copyright © Lord Justice Green: Introduction: Joint enterprise directions/the need for directions in writing 1. The appellant appeals with leave of the single judge against his conviction for wounding with intent contrary to Section 18 Offences Against the Person Act 1861. He was convicted at the Crown Court at Snaresbrook on 24 th July 2019. He has, as of the date of this appeal, yet to be sentenced. The provisions of Sections 45 and 45A Youth Justice and Criminal Evidence Act 1999 apply in this case because of the ages of the victims and the appellant. Reporting restrictions therefore apply. The issue arising concerns the directions given to the jury about joint enterprise. It also concerns the need for written directions to be given to juries and the risk that oral directions in complex cases might create a risk of confusion as to material issues. Facts 2. The facts of the case may be summarised briefly. The appellant was convicted of being party to an assault upon two boys, T and A. On the evening of 13 th February 2018, they were walking along Densham Road in Newham. A white Ford pulled up beside them. Two masked males got out of the car. The driver stayed inside the car. The complainants were uncertain as to whether other individuals also remained in the vehicle. The two males approached and stabbed T and A repeatedly before getting back into the vehicle. T sustained injuries to his thigh and chest and A sustained injuries to his thigh, groin and arm. Both boys were found by police just before 11pm. They were bleeding heavily. They were transferred to the Royal London Hospital where they received emergency life-saving treatment. 3. The prosecution case was that the appellant was a member of the “Anyone Can Go” gang operating out of London, E6. It was alleged that on the evening in question the appellant was part of a “ ride-out ” whereby members of one gang would go into a rival area with the intention of seeking out individuals whom they could then attack. The prosecution case was that the appellant was either one of the two attackers or that he was in the vehicle to encourage or assist the attackers if the need arose. 4. In order to establish the offences, the Prosecution relied upon evidence from the complainants. Neither were able to recognise the males as they had their faces covered. However, T said that the attacker was a little bit taller than him. A said that one of the males was a black male, very dark skin, taller than him and was neither skinny nor fat and that the other male was a light skinned black male not much taller than him and very skinny. 5. The police also relied upon evidence of a subsequent search of the appellant’s bedroom. On the top of his wardrobe was found a key to a BMW X5 vehicle, a black puffer jacket inside a holdall, a large knife and a gold mask. Evidence was also tendered to the jury in relation to the gangs that operated in the London Borough of Newham. As part of that evidence, a drill video was produced which featured the appellant and included notes of lyrics from the appellant’s phone which appeared to describe him boasting about the attack upon T and A. CCTV and cell site evidence showed the vehicle driving to and from the scene of the attack and the movement of the telephone numbers attributable to the appellant and co-accused. In interview the appellant gave no comment to all questions posed. There was further agreed evidence in relation to the appellant’s previous convictions from July 2018 for possession of a bladed article and of an offensive weapon. 6. At trial the appellant accepted that he had been present in the vehicle on the evening in question. He denied having taken part in the attack. He denied knowledge of any plan to attack anyone in the area. The Anyone Can Go group was not really a gang but a mere association of friends. He had remained in the car throughout but had done nothing to assist or encourage the attackers. He had appeared in the drill video, but he had not written the lyrics. He denied that he was referring to the attack in the song. He accepted that the puffer jacket and the holdall that were found in his bedroom belonged to him, but the knife and gold mask belonged to his brother. He was trying to disassociate himself from the gang and he carried weapons purely for protection. He had no propensity to the carrying of weapons. When he was interviewed by police he had been scared of potential repercussions from the individuals involved and this explained why he gave “no comment” to the questions asked. The Grounds of Appeal: Directions on joint enterprise post-Jogee 7. The appellant contends that the judge misdirected the jury in law in relation to the ingredients of joint enterprise. The prosecution case had initially been that the appellant was one of the attackers. However, by the close of the case the prosecution alleged an alternative based upon joint enterprise. This change by the prosecution was unfair. The judge erred in his directions to the jury in relation to joint enterprise. He failed to direct the jury that they could not convict the appellant solely upon the basis of contributing to the “ force of numbers ”. His presence in the vehicle had to amount to deliberate help or encouragement to one or both of the attackers to commit the offences. The judge failed to make this clear. It is also argued that the failure by the judge to provide written directions created a significant risk that the jury were confused. As a result of these matters the convictions are unsafe. The oral jury directions on joint enterprise 8. In order to determine this appeal, it is necessary to consider the directions given by the judge to the jury about joint enterprise. 9. In his oral summing up to the jury, the judge stated as follows: “…in essence there are two ways in which the defendant can be guilty: first, he could be guilty if he is one of the two who went out and attacked the two together, and if you were sure that he was and deliberately stabbed and injured either one of those two then he would be guilty of this matter; or, in the alternative he would be guilty if he deliberately attended with a view to helping or encouraging the people who actually stabbed the two to do so, so he is there as part and parcel of this ride-out. The prosecution say to you that obviously the defendant is guilty either because he joined in the attack on both of the two and must therefore have either intentionally stabbed or injured either of the two persons or because he deliberately helped or encouraged either or both of the others to do so. The defence case is that although he was present at the scene of the attack on both of those two he played no part in it and that when they were being assaulted he was in the car because he was not part of it. And, and as a matter of law, mere presence at the scene of a crime is not enough to make a defendant guilty of the crime, but if a defendant is there and intends by his presence to help or encourage another defendant to commit that crime by giving moral support or by contributing simply to the force of numbers then he is guilty.” 10. The judge did not address the jury on the position that would arise if the appellant had been present in the vehicle, had known what the two assailants had intended, but had not agreed with or supported or encouraged that attack. In the course of their deliberations the jury prepared a note which they sent to the judge. It focused upon the position of a person who was present at the scene of an attack, was aware that it was going to happen, but who did not participate in it. The note addressed the gap in the oral directions of the judge. The note was in the following terms: “If the defendant was aware that the attack was going to happen but did not get out of the car is he guilty of the same charge or a lesser charge . ” 11. The judge discussed the note with counsel. In the course of discussions, the judge referred to the issue raised as one of “ non-accidental presence ”. He articulated to counsel the answer that he intended to give to the jury. The oral direction l given later to the jury by the judge was in the following terms: “[The appellant] accepts that he was there when T and A were stabbed. He said that although he was present at the scene he took no part in the assault and remained in the car throughout. His evidence to you was that he had no idea that what took place was planned in advance or even contemplated. Although the prosecution are not able to prove who it was who injured T or A, there are two ways in which you can find [the appellant] guilty on the counts he faces. First, [the appellant] would be guilty if he was one of the ones who deliberately stabbed and injured T and/or A, so he was the person doing the stabbing. Secondly, [the appellant] would be guilty if he deliberately helped or encouraged either of the others [to stab] either T or A. The prosecution say that [the appellant] is guilty because either he was involved in the attack on T and/or A and must have either intentionally stabbed and injured T or A personally, or at least he deliberately helped or encouraged the people who did do these stabbings. [The appellant], however, says that although he was present at the scene of the attack on T and/or A he played no part in it and that they were effectively assaults by the others. As a matter of law, and this is why I am going to answer your question, merely being present at the scene of a crime is not enough to make a defendant guilty of the crime. But the question that you would ask is: what if you are sure that [the appellant] knew that act was going to happen and chose to be present, would that make him guilty? Well, that by itself would not make him guilty. What you would have to do is look at his intention and if you come to the conclusion that he knew the attack was going to happen and chose to be present, he has to intend by his presence to help or encourage the others to commit the crime by either giving moral support to another or by contributing simply to the force of numbers involved. In those circumstances then he would be guilty. So in order for [the appellant] to be guilty in those circumstances he has to intend by his presence to help or encourage another to commit the crime by either giving moral support to another or by contributing to the force of numbers. If you are sure that was the case then he would be guilty.” Conclusions 12. We turn to our conclusions. We do not in the circumstances of this case consider that the conviction is unsafe. There are four main points we would make. 13. First , when the judge initially summed up to the jury he did not clearly distinguish between, on the one hand, mere presence and knowledge that an attack might be planned by others, and, on the other hand, presence coupled to knowledge that an attach might be planned coupled further to an intention to participate in an appropriate way in the attack. On the facts this should have been explained to the jury because if the jury were of the view that the appellant was not one of the physical assailants and had remained in the vehicle but was aware of the planned attack, they needed to have a clear understanding as to the circumstances in which he could then be guilty upon a joint enterprise basis. Given that this was an analysis of the facts that was alive at the culmination of the evidence it needed to be addressed and the omission of a clear direction on this had, so it seems, led to confusion in the jury’s mind which then led them to raise the issue in a note. 14. Second , when addressing the note of the jury the judge did make clear: (i) that mere presence was not enough; (ii) that mere presence together with knowledge that others were planning an attack was also not enough; but (iii), that presence plus knowledge of what others intended to do coupled to an intention to assist in an appropriate way in the attacks to be perpetrated by those others could suffice to found joint enterprise. The answer to the jury cured the lack of clarity about this in the initial direction. 15. Third , it is said that the reference in the direction to “ contributing simply to the force of numbers involved ” was misleading and incorrect. That criticism takes the direction given by the judge out of its proper context. As is apparent from the transcript, the judge made clear that the appellant had not only to be present but had to intend by his presence to help or encourage the others to commit the crime by either giving moral support to them or by contributing to the force of numbers involved. In the judgment of the Supreme Court in R v Jogee [2016] UKSC 8 at paragraph [89] the Court made clear that the act of assisting or encouraging “ may take many forms ” and “ may include providing support by contributing to the force of numbers in a hostile confrontation ”. In paragraph [98] the Court stated that for a defendant to be guilty, he need not encourage or assist “ a particular way of committing ” the offence. Nor is a person’s intention to assist in a crime of violence determined by whether he knew what sort of weapon a co-accused possessed. It is relevant that the Crown Court Compendium Part I (2019) also uses the expression “… by contributing to the force of numbers ” in Example No 2 on joint enterprise and offers a specimen route to verdict to cover the situation. It is hence a recognised and accepted form of words to use. 16. In the present case the nub of the issue for the jury was whether the appellant assisted, for example, by being the driver whose role it was to assist in hunting down opposing gang members so that they could be attacked (by others) and/or in assisting in a quick getaway after an attack, or by being a passenger in the car ready and willing to join the fray if that should become necessary by way of back-up to the two actual assailants. These were all relevant possibilities on the facts falling within the scope of the direction given by the judge and which, in law, were capable of amounting to the sorts of assistance that could engage joint enterprise. They were factual matters for the jury and, having heard the evidence, they convicted the appellant. If and insofar as the appellant was therefore convicted on a joint enterprise basis no error of law arose 17. Fourth , the judge did not give a written direction to the jury. This is surprising. The defendants were charged with very serious offences capable of leading to substantial sentences if convicted. The law on joint enterprise is far from straightforward and clarity of expression was required. The Crown Court Compendium Part I (2019) Section 7.4 emphasises the complexity of the law of joint enterprise and the need for care. The Compendium (Section 1.9) also emphasises more generally the real utility of written directions and it cites from the Report of Sir Brian Leveson where it is said that judges “ should ” prepare written directions (Sir Brian Leveson: “ Review of Efficiency in Criminal Proceedings ”, paragraphs [307] and [308]). The Compendium says also that written directions “ must ” be discussed and preferably agreed with counsel. 18. We have not in this judgment cited the entirety of the judge’s direction in relation to joint enterprise. Some of it, including parts of the critical language under challenge in this case, is characterised by quite informal language. With respect it would have been far preferable for the judge to have devoted time to the preparation of the initial written directions and a route to verdict which should then have been shared with counsel for their due consideration and observations. Indeed, as the Compendium strongly indicates counsel should, if necessary, invite the judge to provide written directions and to assist if needs be. We note that the Court of Appeal is increasingly emphasising that the norm should be the provision of written directions: see e.g. R v Atta-Dankwa [2018] EWCA Crim 320 , and R v PP [2018] EWCA Crim 1300 . We anticipate that if that had occurred the judge would have used greater precision and clarity in his initial directions, the jury would have had valuable written guidance which they could have referred to as they worked their way through the various factual permutations which arose, there would have been no need for the jury to send a note, and this appeal might well not have arisen. 19. Fifth , counsel argues that the failure in and of itself on the part of the judge to give written directions to the jury renders the verdict unsafe in a case such as this. In circumstances in which an oral direction only is provided a conviction will, in normal circumstances, be quashed because that oral direction was wrong or materially confusing, etc. It will not be because of the mere omission of written directions. It might be that the exercise of crafting written directions would have led to the errors being avoided but the errors remain those embedded in the oral directions and not in the mere fact that no written equivalent was given. We do not however rule out the possibility that, exceptionally, a direction might be so complex that absent an exposition in writing a jury would be at a high risk of being confused and misled in a material manner. And nor do we address the situation that occasionally occurs where the judge gives an oral direction which differs in a material respect from the written direction which is also provided. 20. Sixth , on the facts of this case we do not consider that the absence of written directions renders the conviction unsafe. It is clear from their note that the jury clearly understood the significance of the various permutations arising, hence the very specific factual situation described in the note. It is evident that the judge squarely addressed the situation which concerned the jury, albeit that he did this orally. He made clear to them that upon the hypothesis set out in the note the appellant would not be guilty. In one sense the judge was generous to the appellant and he received the benefit of the doubt. He did not refer to foresight. This is not an ingredient of joint enterprise but, as the Supreme Court made clear in Jogee (ibid paragraph [94]), it is capable of being one relevant piece of factual evidence which can go to whether the defendant had the requisite intention. As such a foresight direction is likely to be adverse to the interests of a defendant, and its absence from the judge’s direction in this case is hence a factor which reduces the risk that any injustice occurred. The jury did not come back and seek additional clarification. We have carefully reviewed the transcript as a whole and conclude that on the facts there was no risk of the exclusively oral procedure having been unfair. 21. For the reasons that we have given, this appeal is dismissed.	{"ConvCourtName":["Crown Court at Snaresbrook"],"ConvictPleaDate":["2019-07-24"],"ConvictOffence":["Wounding with intent contrary to Section 18 Offences Against the Person Act 1861"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Individuals"],"VicNum":["two"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","CCTV","Cell site evidence","Drill video","Lyrics from phone","Physical evidence (knife, mask, jacket)","Evidence of previous convictions"],"DefEvidTypeTrial":["Offender denies offence","No comment interview","Denial of knowledge or participation","Denial of authorship of lyrics","Claimed items belonged to brother"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge misdirected jury in law in relation to joint enterprise","Failure to provide written directions created risk of confusion"],"SentGuideWhich":["Section 18 Offences Against the Person Act 1861","R v Jogee [2016] UKSC 8","Crown Court Compendium Part I (2019)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge's oral direction, as clarified, was legally correct","Jury's note was addressed and confusion cured","Absence of written directions did not render conviction unsafe","No risk of unfairness from oral directions in this case"]}
No: 200700727/A3 Neutral Citation Number: [2007] EWCA Crim 1873 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Monday, 25th June 2007 B E F O R E: MR JUSTICE TUGENDHAT HIS HONOUR JUDGE CHAPMAN (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - R E G I N A -v- KEITH ALAN SMITH - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - MISS J OLDFIELD appeared on behalf of the APPELLANT - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE TUGENDHAT: On 27th November 2006 in the Crown Court at Basildon, before His Honour Judge Worsley, the appellant made a late change of plea and pleaded to two counts of exposure, (they are counts 1 and 2) and one count of engaging in sexual activity in the presence of a child (that is count 11). On 11th January 2007, also before His Honour Judge Worsley, the appellant was sentenced on count 11 to 32 months' imprisonment; on count 2 to 12 months' imprisonment concurrent and count 1 to no separate penalty. So the total sentence was 2 years and 8 months' imprisonment. A Sexual Offences Prevention Order, pursuant to sections 105 and 106 of the Sexual Offences Act 2003 was imposed for a period of 10 years. The appellant was disqualified from working with children, and required to comply with the provisions of Part 2 of the 2003 Act indefinitely. 2. He appeals against sentence by leave of the Single Judge. The facts, briefly, are these. The appellant became friendly with a number of single mothers in his area. He spent a lot of time with them and their families. He often looked after the children and took them on outings. The complainant in both the offences in counts 1 and 2 was a 9 year old girl, K. On two occasions between 1st January 2005 and 31st July 2005 she was in a car with the appellant, driving. K was in the back seat and the appellant told her to lean forward as he had something to show her. She leaned forward and saw that the appellant had exposed his penis. It was concluded by the court that the first occasion, that is count 1, occurred before the 4th April, the second, that is count 2, after 4th April 2005. 3. In count 11 the complainant was a 12-year old girl, C. Once again the appellant had befriended her mother and he was trusted to be in the company of C. The offence occurred after 4th April 2005, as the court found. 4. C was in her mother's bedroom, fixing her hair in front of a mirror. She noticed the appellant standing behind her and saw he was masturbating. He then ejaculated onto the mirror. C ran from the room and the appellant called after her, saying he was sorry and he thought that she wanted him to show her. 5. The offences came to light when K became unhappy about the appellant being allowed to look after her younger sister. 6. In interview the appellant denied the offences. 7. There are victim personal statements from the complainant's mothers, which we have read. They demonstrate the serious effect on the two children but, as the judge noticed, there were other charges ordered to lie on the file which were still pending at the time the statements were made. The statements have to be read in that light. 8. In his sentencing remarks the judge said the appellant had committed abhorrent sexual offences against children, having worked his way into a position of trust with the children's families. The victims had been affected emotionally and he bore in mind the statement by the mothers. It was noted that at the age of 50 the appellant had never done anything like this before and had no convictions more recent than 20 years. But these were serious offences, and the judge considered the question of risk. He was of the opinion that there was a risk of further sexual offences but no evidence of serious personal injury. He said: "In all these circumstances, for you, this first time you come before the court for this sort of offending. I do not judge that I am bound to pass the equivalent of a life sentence..." But he said a substantial prison term was needed. He gave credit for the plea of guilty, but not the credit that he would have given had the plea been at the first opportunity. He said that, had the appellant been convicted after a trial, the sentence would have been 36 months. Accordingly he gave a discount of about 10 per cent. 9. The appellant's previous convictions, as long ago as the 1970s and early 80s, are for dishonesty and public order matters which are not material to the sentence to be imposed in this case. 10. The writer of the pre-sentence report noted that the appellant, at first, had difficulty accepting that he had committed the offences although he later acknowledged his guilt. He gave a vague explanation of feeling low at the time, but denied that he had sexual interest in children. He demonstrated difficulty in accepting responsibility. The writer considered that the risk of reconviction was medium and noted that social services had said that he was not allowed to have any unsupervised or face-to-face contact with his own daughter. 11. The appellant used amphetamines on a regular basis which may have been relevant to the offending. He showed poor consequential thinking but was able to recognise the breach of trust. He was reluctant to acknowledge the grooming of families of the victims. He was assessed as posing a high risk of significant harm to children. A specific Sex Offender Treatment Programme was needed to reduce the risk. We have seen the report from the prison which is a good report but, again, is not of significance in sentencing for these types of offences, in these circumstances. 12. The grounds of appeal advanced by Miss Oldfield are that the sentence imposed was manifestly excessive given the seriousness of the offence. She referred us to the definitive guideline of the Sentencing Guidelines Council for sexual offences, under the 2003 Act and noted of course that the guidelines apply to those who are sentenced on or after 14th May 2007. Accordingly they do not apply in terms to this appellant albeit they are helpful to us. 13. The most serious offence, of course, is count 11, the masturbation in the presence of a child. In our judgment, the starting point for this offence, after a trial, and given the aggravating features in particular, the element of breach of trust and persistence, in the light of the other counts, would have been some 21 months' imprisonment. 14. We have not invited submissions on what would have been the appropriate starting point in relation to counts 1 and 2 because, in the circumstances, the sentencing on those counts does not affect the outcome of the appeal. The appellant is entitled to the reduction of one-tenth for his late plea, which the judge accorded him. Applied to this starting point, that leads to a sentence of 18 months. 15. In our judgment, that is the appropriate sentence that should have been imposed in this case and the sentence imposed by the judge was overall too long. Accordingly, we reduce the sentence on count 11, to a sentence of 18 months' imprisonment and we do not disturb the concurrent sentence on count 2, or there being no separate penalty on count 1. 16. In the light of that conclusion, the appropriate period for notification is 10 years. To that extent, we allow the appeal.	{"ConvCourtName":["Crown Court at Basildon"],"ConvictPleaDate":["2006-11-27"],"ConvictOffence":["Exposure (count 1)","Exposure (count 2)","Engaging in sexual activity in the presence of a child (count 11)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["late change of plea"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Basildon"],"Sentence":["32 months' imprisonment (count 11)","12 months' imprisonment concurrent (count 2)","no separate penalty (count 1)","Sexual Offences Prevention Order for 10 years","Disqualified from working with children","Comply with Part 2 of Sexual Offences Act 2003 indefinitely"],"SentServe":["Concurrent"],"WhatAncillary":["Sexual Offences Prevention Order for 10 years","Disqualified from working with children","Comply with Part 2 of Sexual Offences Act 2003 indefinitely"],"OffSex":["All Male"],"OffAgeOffence":[50],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["2"],"VicSex":["All Female"],"VicAgeOffence":[9,12],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["Medium risk of reoffending","High risk of harm"],"AggFactSent":["breach of trust","persistence"],"MitFactSent":["offender has no convictions more recent than 20 years","offender pleaded guilty (late)"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["sentence manifestly excessive"],"SentGuideWhich":["Sentencing Guidelines Council for sexual offences under the 2003 Act"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["sentence imposed by the judge was overall too long"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2014] EWCA Crim 1555 Case No: 2013 03235-B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MANCHESTEER His Honour Judge Mansell Q.C. T20127444 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/07/2014 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MRS JUSTICE PATTERSON D.B.E. and SIR RICHARD HENRIQUES (sitting as a Judge of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - Between : H Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Tania Griffiths Q.C. for the Appellant Miss Louise Blackwell Q.C. for the Crown Hearing date : 11 June 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Sir Brian Leveson P: 1. On 22nd May 2013 in the Crown Court sitting at Manchester before His Honour Judge Mansell QC and a jury, the applicant was convicted unanimously of cruelty by neglect to a person under 16. On the following day, he was also convicted (in each case by majority verdict) of three specimen counts of cruelty to a person under 16, six specimen counts of rape of a child under 13 and three specimen counts of sexual assault of a child under 13. A count of administering a noxious substance had been withdrawn at the close of the prosecution case. 2. On 20 June 2013, the applicant was sentenced to concurrent terms of 5 years imprisonment for the cruelty offences, 18 years imprisonment for the rape offences and 12 years imprisonment for the sexual assault offences, making 18 years imprisonment in all. Appropriate notification and safeguarding consequences flowed from the sentence. His application for leave to appeal against conviction and sentence has been referred to the full court by the Registrar. The sole child concerned has the protection of the Sexual Offences (Amendment) Act 1992 and s. 39 of the Children and Young Persons Act 1933 and her identity must be anonymised accordingly. The Facts 3. The facts may be summarised in this way. The complainant (‘X’) is the applicant’s daughter. On 7 November 2011, when she was 15 years of age, she made a complaint that her father had sexually abused her over a period of 2-2½ years, from when she was 10 until aged 12/13 years. She was twice interviewed and recorded following the process of achieving best evidence. She said the abuse “happened a lot, it was almost a daily thing for a while” and happened more in the winter months. It took place at the family home in Manchester. Sometimes it happened when she was off school, poorly. Sometimes her mother and her sister would be in the house. It happened either in the evening after her father, a General Practitioner, returned from work or whilst he was off work ill (he was off work with stress and depression for some time). 4. X described how he would take her clothes off and lie on top of her. He would take his clothes off and would feel different parts of her body. He would use his hands and run them down her neck and her chest. His head would follow his hands and he would bite her chest. He would take his penis out and put it inside her (represented by six specimen counts). At times he would also put his hands around her neck and tighten them whilst he was still inside her. He would say “You deserve to fucking die” (three specimen counts). Sometimes, she thought that she would pass out for a few seconds. There was, she said, often an element of strangulation during the intercourse, although it did not happen as often as the rapes. 5. There would also be occasions, whilst having a shower or a bath, when he would come in and put his hand on her forehead and put her head back. He would keep one hand on her head whilst using the other to digitally penetrate her vagina. He would then leave as if nothing had happened (a further three specimen counts). The abuse ended shortly before her father moved out in February 2009, her parents divorcing during the following month. He told her, she said, that if ever she told anyone he would prove she was mentally ill. 6. At the trial X’s mother and sister gave evidence. Her mother said that her husband and X had an odd relationship. One minute he would be very loving, another he would be crying, another angry. They would have intellectual debates but he would have to win them. Her husband would goad the complainant into fighting him. They would fight and this would continue upstairs. She would stay with her other daughter. She heard a lot of banging from the bedroom and then silence. The arguments seemed horrendous. Her husband was violent to X and would goad her saying “Hit me… Hit me …”. He would slap her and hold her off and hurt her in a sort of self-defence way. The sister said that her father and X were very clever people. The arguments would start with shouting and then become quite physical. X (who had an eating disorder and would often be ill) would often barricade herself in her room. 7. The defence case was simple. The applicant gave evidence and said all the allegations were totally untrue: no physical or sexual abuse happened at all. He accepted that on occasions he had restrained his daughter when she was attacking him or trashing her bedroom, as indeed the mother had restrained her on occasions. He, as the father, had intervened to stop her hurting her mother. After he left the house, X did on occasions attack her mother. The allegations, the defence said, were likely to be the product of her mental illness, pre-trial therapy and suggestion i.e. that her mental illness was the cause of the allegations, rather than the defendant’s alleged actions being the cause of the mental illness. Effectively, it was the defence case that the X’s mental illness was such that her evidence could not properly be relied upon. However the possibility of malicious allegations could not be excluded especially given their emergence in the midst of matrimonial breakdown. We will return to other aspects of the defence later but should add that the applicant called character witnesses who all spoke as to his good qualities: these were the practice manager at the Medical Centre, an old school friend, a patient of his and Dorothy the spouse of a patient. 8. In the circumstances, the issues for the jury were whether the complainant was telling the truth or whether she was making up malicious allegations against her father; and whether she gave a reliable, accurate account of alleged physical and sexual abuse. In that context her mental health was a significant issue in the trial; that background needs shortly to be summarised. 9. It was in the autumn of 2007 that X started to show signs of illness; it is worthy of note that the first counts of the indictment covered the latter part of that year. The applicant took her to the doctors and a paediatric specialist, Dr Sankar, to conduct a variety of tests to rule out a physical cause for her symptoms. The applicant also showed an apparent enthusiasm to take her for Child and Adolescent Mental Health Service (“CAMHS”) appointments so that a psychiatrist, Dr Eminson, could assess her. In the event, she did not attend. Later, when she was due to attend hospital as an in-patient for tests to exclude a physical cause, the doctors there recommended a referral to CAMHS. 10. However on each of the three occasions the applicant cancelled the appointments citing unwillingness or refusal to attend on the part of his daughter and/or her mother. The prosecution said the applicant’s reasons for cancelling the appointments were to prevent X from reporting the sexual abuse identified in the early part of the indictment. The applicant treated his daughter with anti-depressants including citalopram. 11. Although the drug citalopram was at all times unlicensed for use by children under 18, at trial the weight of the evidence suggested that citalopram was appropriate to use for children and, indeed, became the treatment of choice for the complainant whilst she was an in-patient at hospital. Further, whilst there, the prescription of citalopram to the complainant far exceeded the modest amounts that the applicant had arranged for her to have and exceeded the recommended safe dose for children. No criticism was made of that fact, it being accepted that the “recommended usage” was effectively set by the drug companies to avoid litigation rather than accepted medical practice. 12. The applicant said that he started giving his daughter escitlopram, his wife’s tablets, with his wife’s knowledge, in February/March 2008. X’s evidence, not accepted by her mother, was that her mother had sometimes given her the medication crushed up in milk. In any event, provision of this medication was continued for some months without the applicant informing any other doctor who had seen her and without recording anything on her medical records (until after returning from a holiday in Egypt in July 2008). This treatment of X was the subject of the count alleging administration of a noxious substance in respect of which Judge Mansell acceded to a submission of no case to answer. 13. As for the counselling, in evidence, the mother said she did not know who Dr Sankar was, knew nothing about a psychological or psychiatric assessment and knew nothing of the CAMHS appointments. The applicant, she said, took charge of X’s health. On the other hand, he said that his wife was aware of the various appointments but she did not want to engage with CAMHS. Her unwillingness to engage with CAMHSs was one of the main reasons he prescribed his daughter antidepressants. The issue of the applicant’s cruelty by neglect in failing to obtain appropriate medical treatment (in respect of which the judge had rejected a submission of no case to answer) was represented by the only count upon which the jury returned a unanimous guilty verdict. 14. Moving on in time, X spent a lengthy period in hospital between October 2010 and October 2011 including the intensive care unit from where she was discharged home on weekend leave on one occasion and was returned by the police after she threatened her mother and sister with several knives. During that period she was subject to compulsory admission to hospital pursuant to s. 3 of the Mental Health Act 1983. Whilst in hospital she often heard voices in her head, experienced hallucinations including visual and tactile hallucinations and was violent, delusional and self-harmed on many occasions. She also tried to strangle herself and others, including staff. She was also subject to physical restraint by medical staff and would sometimes hide under her bed and in her wardrobe. Sometimes her visual hallucinations “held her down against her will”. 15. During her treatment, X also received psychological counselling. In the period October 2010 to January 2011, under the supervision of Dr Kirsty Smedley, a consultant clinical psychologist, she was seen by a trainee, Dr Lauren McKeown, and was, in fact, her first patient. The purpose of the counselling was an attempt to reduce the risk of self-harm by discussing strategies with her to help her deal with the voices and on occasions to explore the root causes of her illness. At the first appointment, X was encouraged to draw a “timeline” of her life. She did so. There was no suggestion then of any abuse at all. During therapy, she began to allege that the applicant had physically abused her from the age of 3 up to at least 11 years. This included manual strangulation. X made it clear that there were other aspects of the applicant’s conduct that she did not want to talk about and she did not disclose any allegation of sexual abuse; indeed, she denied that she had been sexually abused when she was asked directly. 16. X made her first disclosure of sexual abuse on 7 November 2011 to a friend at school who had, herself, confided that she had been the victim of sexual assault. This was a few weeks after her discharge from in-patient treatment and at a time when, on the evidence, there was confusion as to who was responsible for administering her medication. As a result, X was persuaded to inform a teacher; the school thus became involved and police were contacted. 17. As for the medical evidence, Dr Louise Atkin, X’s treating consultant child and adolescent psychiatrist gave evidence as to what hallucinations and delusions etc were but, in circumstances to which we will refer, was not permitted to give evidence as to the complainant’s diagnosis. The Admissibility of Medical Evidence 18. The first challenge mounted by Miss Tania Griffiths Q.C. on behalf of the applicant concerns the ruling by the judge concerning the admissibility of the evidence of Dr Janet Boakes, a retired psychiatrist and psychotherapist who had prepared three reports based upon the statements, the psychiatric evidence and the medical and other notes. The first report by Dr Boakes (prepared before disclosure of a number of statements, reports and records) was used to argue that to prosecute the applicant was an abuse of process: this argument was rejected and is not the subject of challenge by way of appeal. It was agreed by Dr Boakes that there was nothing to suggest that X was responding to abnormal experiences during the initial interview and when the question of admissibility of Dr Boakes’ evidence at the trial was raised, the judge decided that he would consider the question only after X and her mother had given evidence. That is what he did and, in our judgment, this was an entirely appropriate approach to the problem: it was critical that the judge approached the matter having regard to the issues in the case. 19. We shall return to his analysis of the issues later. When he ruled, however, Judge Mansell did so in an extremely comprehensive and detailed judgment some 23 closely typed pages in length. He considered a number of authorities including R v. Turner [1974] 60 Cr.App.R. (S) 80, R v. Snell and Wilson [2006] EWCA Crim 1404 , R v. Nigel Clark [2006] EWCA Crim 231 , R v. Richard W [2003] EWCA Crim 3490 and R v. Bernard V [2003] EWCA Crim 3917 . He noted that Dr Boakes was involved in the cases of Richard W and Bernard V and in both cases her evidence was not admitted, Judge LJ in the former case observing (at para. 23) that the evidence would usurp the function of the jury in deciding the credibility of the witnesses and no more”. In the latter case, Kay LJ made a similar point (at para. 29-31). 20. Having reviewed the authorities, the judge concluded that the principles which emerged were: “[1] The defence were not permitted to call an expert to examine the detail of a complainant’s statement/evidence, and other relevant evidence such as medical or counselling notes, and then pass judgement or adverse comment on whether the witness was a credible or reliable witness. To do so would be to usurp the jury’s function. [2] The defence were entitled, in an appropriate case, to call expert evidence on a specific subject which would be outside the knowledge and experience of the jury and which might assist them in their task of assessing the credibility and reliability of allegations of historic sexual abuse. [3] False Memory Syndrome, or Recovered Memory Syndrome, was just such a subject where defence expert evidence was potentially admissible. [4] There had to be a sound factual foundation for such expert opinion which had to be established in evidence prior to such expert evidence becoming admissible. It was for the trial judge to decide whether such foundation had been laid.” 21. Turning to the evidence which the defence wished to adduce, the judge expressed the view that the reports from Dr Boakes were littered with wholly inappropriate, adverse comments on the credibility and reliability of X. He believed that Dr Boakes had also advanced her opinion in a wholly inappropriate way for an expert witness, and had assumed the role of the advocate arguing the case for the defence forcefully carrying out what amounted to a deconstruction, if not demolition, of the reliability of this 16 year old girl. The judge noted that Miss Griffiths conceded that much of the expert’s evidence insofar as it amounted to no more than a comment on the complainant’s credibility and reliability would be inadmissible although Miss Griffiths does not accept that her concession went as far as dealing with the issue of reliability but only credibility. 22. In short, Dr Boakes argued that the complainant may have “recovered” her memory during counselling or psychotherapy sessions in which case the reliability of her allegations might be affected. The judge considered whether there was any sound evidential basis for such conclusions and, based on his analysis, said that nowhere in the extensive medical records had any doctor, nurse or psychologist recorded a claim by X or given an opinion that she had recovered or retrieved memories of the abuse during her illness or during counselling or psychology sessions. On the contrary, on numerous occasions during her hospital admission, X related a clear, and at times detailed, memory of incidents of physical abuse at the hands of the applicant. 23. The judge concluded that this demonstrated quite clearly that, despite being very ill, X had a continuous memory throughout this period of certain aspects of the way her father treated her during childhood. At no stage did she ever claim not to have a memory of this part of her life. She had on earlier occasions between 2008 and 2010 made disclosures in respect of this aspect of her childhood. She had also indicated that there was more that she could say about the applicant but was unwilling to do so. Dr Boakes, who the judge observed was not present during X’s evidence, had constructed her opinion around a number of entries in the complainant’s medical records which she had interpreted as indicating that the complainant had ‘recovered’ memories. The judge went through each in turn. 24. The judge said that the complainant’s evidence was and always had been that the abuse was present as a memory but that she was unable or unwilling to report the matter to anyone prior to November 2011. She decided to report it then because at that time she was out of hospital, back at school, was on the road to recovery and was able to refute an allegation by the applicant. There was, the judge said, no basis for Dr Boakes’s conclusion that the complainant had either claimed, or described, at any stage in her illness and recovery that she had recovered or retrieved memories. She had never been subjected to hypnotherapy or serious psychological counselling during which any revelation of abuse emerged. 25. Miss Griffiths argues that the jury had to reach their decisions without the assistance of any expert evidence as to how the mental illness affected the reliability of the complainant’s allegations and that this was not a case of recovered memory because the allegations were false: the so called memories were false. She submits that Dr Boakes was relevant to the issue of reliability. As for the judge’s analysis of the law, she submits that the cases to which he refers concern those without mental illness. She reverts to the observations of Lord Pearce in R v. Toohey [1965] AC 595 at page 608 who, using the analogy of physical disease (that it would be permissible to call a surgeon who had subsequently removed a cataract from a witness to say that the extent of his suffering loss of vision would have prevented him from seeing what he thought he saw) went on to the effect that it: “must be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise. ” 26. The analogy with physical disease is not, however, either appropriate or apt although it might be that the approach to mental illness in 1965 was rather less well informed than it is today. The cataract would prevent the witness seeing that which he or she purported to see. The fact of mental ill health, however, does not mean that the witness (in this case X) cannot accurately be describing what has happened to her or that it would prevent her from (or make her incapable of) being reliable in her account. These issues of fact are not for resolution by doctors but are to be determined by the jury: as Kay LJ put it in R. v Bernard V , ( supra at para. 29), evidence is admissible when it is necessary: “to inform the jury of experience of a scientific and medical kind of which they might be unaware, which they ought to take into account when they assess the evidence in the case in order to decide whether they can be sure about the reliability of a particular witness.” 27. It is for this reason that the introduction of diagnosis can create issues in cases of this nature. A diagnosis, whether from a treating psychiatrist or a psychiatrist instructed in a criminal case either by the prosecution or the defence inevitably involves a value judgment as to nature and reliability of the underlying explanations provided by the patient. It is not difficult to conclude that a patient who complains that he is being followed by green aliens 10 cm in height, with two heads, is delusional because human experience simply does not permit of such a possibility. If, however, a patient complains that he is being constantly followed by the police, although it may be that he is equally delusional, the alternative may be that he is, indeed, being followed by the police and that his reporting is entirely accurate. That judgment is for the jury to make and not the doctor and it must be based on all the evidence. 28. Reinforcing that point, in many cases, the diagnosis of a psychiatric condition may be entirely distinct and free standing from any fact in issue in a criminal case; it may impact on mental responsibility (such as might be the case advanced for reducing murder to manslaughter by reason of diminished responsibility). In those circumstances, it is obviously admissible for the jury to be given the benefit of the doctor’s opinion on that subject. On the other hand, where the diagnosis depends crucially on the assessment made of the complaint of crime (such as whether the allegation of rape is to be believed), the assessment of that credibility must be made by the jury with such assistance as may be necessary in the circumstances of the case. 29. Miss Louise Blackwell Q.C., for the Crown, argues that the entirety of Dr Boakes’ report goes no further than to provide commentary (not dependent on the doctor’s expertise) and personal opinion of the type which is, quite specifically, not admissible. The doctor’s commentary on the diagnosis which followed the complaint of sexual abuse (and which was different from the diagnosis prior to that complaint) was irrelevant because, flowing from defence objection, that diagnosis was not provided to the jury. 30. Further it is argued that the way in which the case was put to X was to challenge her credibility by suggesting that she was knowingly telling lies; the challenge was not merely to her reliability (that is to say, involving an acceptance that she truly believed or might truly have believed that which she was saying but that her evidence came from delusion rather than reality). On the basis that this had become a potentially important issue in the case, we deferred concluding our deliberations until a transcript of the first part of the cross examination was available and we have received further written submissions from Miss Griffiths thereafter. 31. Reading the cross examination, it is clear that the case was put in the alternative. At the beginning, Miss Griffiths put to X that “the whole account … is pure fantasy…” and that “you either know that and you are lying or you think that happened”: X repeated that what she had said was the truth. It was then suggested that she had paused when being interviewed “so that you can think of the answer”. It was put that, even when distressed, she was “effectively able to tell … a lie”. Intermingled with cross examination around the voluminous medical records, what she had seen and what she had written, Miss Griffiths said (in relation to her having read the book To Kill a Mocking Bird) either that she was telling outright lies or that she thought it happened and it had not. Later on, in the context of an explanation of a diary entry, it was put in terms that she was telling lies and that she did not always tell the truth. 32. We go back to a consideration of the three reports provided by Dr Boakes. Her fundamental thesis was that the complainant was suffering from false memory syndrome in that she had a delusional belief as a result of “recovered memories” and had filled in gaps in her memory to make a coherent narrative. The doctor’s premise was that such recovered memories could not be relied upon in the absence of independent confirmatory information. The complainant’s account was thus apparently credible but entirely false. She based her conclusion on the police video recorded interviews, the medical records and the other evidence although she did not attend the trial to watch her being cross examined (notwithstanding that the judge had deferred considering the admissibility of her evidence until after X and her mother had given evidence). 33. In the opinion set out in her first report, she baldly asserted her opinion that the allegations of abuse could not be relied upon. She said: “[The allegations] are a late addition to her history; she describes ‘recovered memories’ not a continuous memory and talks of having blocked things out. She then starts to display so called symptoms of PTSD which are clearly in response to new memories as had she had a continuous memory it is likely that she would have demonstrated symptoms earlier.” The first of the two subsequent reports said that the records Dr Boakes had then seen contained “little of substance that is new”. In her last report, she is critical of those who had treated X believing that the therapy she had received “may have suggested and influenced her allegations”. These suggestions were tested with X and doubtless put to the relevant professionals (who gave evidence). 34. Going back to her main report, Dr Boakes has a section headed theoretical considerations in which she sets out publications and research on false memories and false memory syndrome as she acknowledges that it is not an officially recognised diagnosis in either DSM IV or ICD 10 diagnostic manuals. She did not herself examine X (and there is no suggestion that there was a request so to do) and the bulk of her reports then consist of her personal commentary and opinions on X and her family situation: at the very least in large part, if not almost entirely, this was not her function and, however valuable it might be to assist a cross examiner, the material should not be contained in a report served as expert evidence for the court. 35. The court (and the jury) had a compendious 49 page chronology which comprehensively outlined the recorded medical and other records; they also had extracts from X’s writings. In relation to continuous (as opposed to recovered) memory, the judge analysed the records with great care noting that X’s evidence “is and always has been that the abuse was present as a memory but that she was unable or unwilling to report the matter to anyone prior to November 2011 not least because of what her father had threatened to do if she did so”. He went on to record that X had never been subjected to hypnotherapy or serious psychological counselling during which any revelation of abuse first emerged. 36. Judge Mansell concluded (at para. 53) that there was “simply no evidence, or that it is of such a tenuous nature that this jury could not make a sound finding that [X] has ‘recovered’ or ‘retrieved’ her memories during her treatment for mental ill health” and there was thus “no basis whatsoever” for admitting Dr Boakes evidence of false memory syndrome. As for ‘blocking out’ the judge found that the use of the phrase was “no more consistent with Dr Boakes’ theory of repression” or “traumatic amnesia” as it is with someone simply getting on with her life and putting it to the back of her mind”. He noted that the same phrase had been used in Bernard V in which it was ruled that there was no evidence of false memory syndrome. 37. As regards the evidence of the treating doctors, there was no application to adduce their diagnosis of X and the judge recognised, first, that it would seek, wrongly, to prove an illness likely to have been brought on by sexual abuse so as to prove that such abuse took place and the defence would have to be able to call evidence to contradict it. He said: “Were the jury to hear evidence from both sets of experts, the central issues would be side-tracked by a ‘trial within the trial’ to determine firstly what is the precise diagnosis of [X’s] mental illness and secondly what has caused it. … The jury would be presented with directly contradictory expert opinion in support of each case … Far from helping the jury in their task, it would be liable to cause confusion and detract them from their task.” 38. How should the medical evidence be addressed? The judge recognised that the defence case (or, we would add, at least a significant part of it) was that the illness and treatment of X may have brought about a false belief that she had suffered physical and sexual abuse: ‘fantasy”, ‘delusion’, the voices she had heard and the external influences of television, literature and counselling were all addressed. He concluded that Dr Atkin (who had had overall clinical supervision of X since 2009) could deal with the matter. He said: “She may give evidence about some of the symptoms which [X] has experienced – visual and audio hallucinations, physical or somatic hallucinations, deluded thought processes, paranoid thoughts and the like – all of which require some expert opinion to assist the jury to understand the nature of her illness and also to properly evaluate the defence suggestions. These are unlikely to be remotely contentious and do not call for defence expert evidence in rebuttal. Equally, she should be allowed to provide a history of [X’s] illness, treatment and recovery to bring the chronological summary of the medical records – yet to be finalized – to life and easier to understand for the jury.” 39. The critical issue which the jury had to resolve in the light of all the evidence was not only the credibility of X but also her reliability. It was, however, the responsibility of the jurors to undertake that task and not that either of the treating doctors or the defence expert. The different diagnoses which were expressed were the result of their evaluation of the complaint and, equally, it was for the jury to determine, first, whether X was deliberately lying in her account (which was never an issue for the doctors at all) and, secondly, whether what she was saying was reliable: to that end, it was necessary for the jury properly to understand the nature of her illness and treatment along with the symptoms which she exhibited over the years. This decision, again, was not for the doctors to make. 40. In our judgment the judge approached the task of evaluating the admissible evidence with consummate care and with an entirely appropriate eye on the authorities. Although not specifically citing Toohey , his summary of the principles includes defence entitlement in appropriate cases to call expert evidence on a specific subject outside the knowledge and experience of the jury and which might assist them in the task of assessing credibility and reliability. The difficulty in the case was that the way in which Dr Boakes had formulated her opinion required the judge to untangle what was of assistance to the jury and what was confusing and inadmissible comment. To admit this evidence would only have had the effect of focussing the jury away from assessing X (in the light of all the evidence received about her mental ill health), her mother, the applicant and all the evidence; rather, it would have been towards resolving conflicting evidence of diagnosis which itself depended on what the doctors believed represented an accurate history of X’s relationship with her father. The judge did not err in refusing to admit it. 41. Miss Griffiths rightly complains about late disclosure and the enormous amount of material that both she and Dr Boakes had had to evaluate very late in the day. The last of the three reports was dated only four days before the cross examination of X commenced (which, as we have said, Dr Boakes did not hear). The first report, however, was over two months before the trial and nowhere does Dr Boakes ever address or recognise that her approach had the inevitable effect of usurping the function of the jury. That fact should have been recognised. 42. In that context, it is worth repeating that the reports of Dr Boakes have been considered by this court on two occasions (in R v Richard W and R v Bernard V supra ). In both, it was concluded that her evidence had been rightly excluded (although each concerned what was said to be false memory syndrome without underlying mental health issues). In the former, Judge LJ said that much of her report amounted to “no more than common sense comment on the facts” and agreed with the judge’s assessment that it would “usurp the function of the jury in deciding the credibility of the witnesses and no more” (para 23). In the following paragraph, he set out the principles which were subsequently adopted by in R v Bernard V . In that regard, it is a matter of real concern that this is exactly the criticism that is made by the judge (and which we endorse) about the reports provided by Dr Boakes in this case, some ten years later. Miss Griffiths tells us that Dr Boakes was never informed about the views of the court in the earlier cases. We accept that explanation but Dr Boakes speaks of having received over 200 instructions since 1998: it is a matter of real concern that the impact of these decisions has never been brought to her attention. 43. Before leaving an examination of the principles governing admissibility of this type of evidence, it is appropriate to note the general concern about expert witnesses. Whilst legislative reform has not been taken forward, following the Law Commission Report on Expert Evidence in Criminal Proceedings, there is real concern about the use of unreliable or inappropriate expert evidence. As a result, Part 33 of the Criminal Procedure Rules has been revised (with effect from 1 October 2014) and a new Practice Direction is to be published which will incorporate the reliability factors recommended by the Law Commission for the admission of expert evidence. The Advocacy Training Council, also, is in the course of preparing a “tool kit” for advocates to use when considering expert evidence and its admissibility, itself based upon the recommendations in the Law Commission Report. 44. When these changes occur, a new and more rigorous approach on the part of advocates and the courts to the handling of expert evidence must be adopted. That should avoid misunderstandings about what is (and what is not) appropriately included in an expert’s report and so either avoid, or at least render far more straightforward, submissions on admissibility such as those made in this case. In particular, as we have emphasised, comment based only on analysis of the evidence which effectively usurps the task of the jury is to be avoided: the task of the expert is only to provide assistance of the kind which Kay LJ articulated set out in para. 26 above. The Medical Evidence before the jury 45. It is next appropriate to consider the complaint made by Miss Griffiths that Dr Atkins and Dr Laura McEwen gave evidence which crossed the boundary of fact into opinion, thereby contravening the judge’s ruling and generating prejudice which the applicant was given no opportunity to rebut. As we have explained, the judge upheld the defence objection to the diagnosis offered by Dr Atkins and, as we understand it, no formal evidence of any diagnosis was presented to the jury. What Miss Griffiths complained of (in the reply to the Crown’s submissions) was that the evidence crossed the boundary of fact into opinion ‘implicit in the complex PTSD diagnosis … presumptive (of the veracity of the allegations)’. 46. Suffice to say that there is no suggestion that the summing up provided any basis for concluding that the evidence had gone beyond the judge’s ruling or made reference to a diagnosis which either expressly or implicitly did so: having read exchanges between Miss Griffiths and the judge in relation to other parts of the case, we have no doubt that had Dr Atkin given such evidence in such a way as offended the ruling, she would have objected and a ruling would have been forthcoming. 47. When summing up, the judge identified how Dr Atkin had given evidence explaining the symptoms from which X was suffering including auditory and tactile hallucinations, psychosis and delusions. She was taken through some of the medical notes and she gave evidence to the effect that she did not ask leading questions. The judge summarised the cross examination. There was no suggestion at the time of the trial that the summing up did not reflect the evidence. 48. Miss Griffiths similarly complains that Dr Laura McEwen, the psychologist, also exceeded or went beyond the limits of the judge’s ruling. Miss Griffiths cross examined about her belief that the complainant may have blocked memories of the alleged abuse and it is said that the judge appeared to support the contention about ‘blocking out’ when he directed the jury in these terms: “You have really got to ask yourself this question, having looked at all those various entries [in the detailed chronology]. Did Dr [McEwan] possibly or may she have, or did she or may she have, to use the coin of phrase used by the defence, sown a seed which then grew in [X’s] mind that she had been sexually abused, by seeking to find this narrative or an explanation for the illness, the voices and linking it with her father? Was a seed sown in her mind that she had not got a memory of this but it may have been repressed or blocked out which then led [X] to create a wholly false narrative in her mind that she had been sexually abused, or did she and [a key session worker] simply gain X’s trust at that time to start to reveal abuse? Physical and emotional first. What were the references [X] was making at times that there were other horrible things her father had done to her that she was not prepared to talk about? Was that allegations which she was later to make? These are matters all to weigh in the balance for you, to decide whether you regard [X] as an accurate and honest witness in terms of the physical and sexual abuse.” 49. Miss Griffiths argues that by depriving the defence of the opportunity of adducing expert evidence, the jury were ill equipped properly to weigh such competing theories. But once the jury understand the symptoms that X had exhibited (including the delusions, hallucinations and the like) along with the extent to which she had suffered mental ill health, all the doctors could have added was their opinion as to which of the two scenarios was accurate and reliable – false narrative or truth. Further, the reference to blocking out is not to suggest that this supported the Crown’s case; rather it supported the argument advanced by the defence. 50. Putting the judge’s observations in different language, our reading of what he said was that the jury had to consider the possibility that Dr McEwan had sown a seed in X’s mind that she had been sexually abused and similarly sown a seed that it had been blocked out so that now she had created a ‘wholly false narrative’ of sexual abuse. Far from being a misdirection, this way of putting the case to the jury accurately reflected the defence case to the jury. It is not supporting a possibility that ‘blocking out’ might occur in fact but that Dr McEwan might have planted the seed in X that this is what had happened. 51. Dr Atkin had said (and the jury were reminded) that staff needed to be clear about messages sent to X (that is to say ‘seeds sown’) “that staff do not reinforce things and allow her to work it out in her own mind”. Miss Griffiths complains that the defence were not able properly to develop the argument that her memory could have been affected by pre-trial therapy. On the contrary, however, this suggestion was made and explored; the risk was recognised. Whether it affected the reliability of X’s evidence was for the jury to determine. In any event, had Miss Griffiths believed that any of the witnesses went beyond the judge’s ruling, it was open to her to object and to renew her application if only for limited evidence from Dr Boakes. She did not do so. Wilful neglect 52. The next ground of appeal concerns the judge’s rejection of a submission of no case to answer in relation to the allegation of cruelty reflected by the failure of the applicant to take X for CAMHS appointments. The case advanced by Miss Griffiths was that it was the applicant who had been requesting an early referral and that he (as a doctor) was entitled to conclude that it was appropriate to defer that type of treatment. Indeed, it was contended that X’s health improved as the applicant treated her with his wife’s anti-depressants (which the judge ruled did not disclose the alleged offence of administering a noxious substance because of the absence of evidence of intention to injure); further, it was argued that there was no evidence that X’s physical or mental health had been or was likely to have been compromised by the delay. 53. Miss Blackwell pointed to the evidence of Dr Sankar (which was read) and Dr Eminson, a consultant child psychologist, that the proper treatment for X in 2008 was referral to CAMHS as had been recommended: nevertheless, on a number of occasions, these appointments were deferred by the applicant. It was contended that it was open to the jury to conclude that this was a deliberate decision, not because of a genuine consideration of the welfare of his daughter but made on the basis of the risk that if she attended, she might reveal the true nature of her unhappiness and illness, namely the abuse she was suffering. In that event, deliberate neglect was established. 54. The judge concluded that this inference was permissible on the evidence not least because the applicant had taken her to all hospital and medical appointments and, furthermore, that if the jury accepted the mother’s evidence, excluded her from the decision making process. On the basis of that material (in which regard we endorse the view that the evidence of providing non-prescribed medication was relevant), we agree that there was, indeed, a case to answer. 55. During the course of argument, although not raised by the notice of appeal, the court raised a question about the way in which the jury were directed in relation to this count. Having explained that the counts must be considered separately and that all the counts (save for that of cruelty by neglect) turned “to a very large extent” on the jury’s assessment of X, the judge went on: “[T]he allegation of cruelty to a child by neglect … that falls into a very different category and does not rely to any real degree on [X’s] evidence.” 56. He described the competing contentions. The prosecution alleged that the applicant deliberately failed to take her to these appointments “the motivation to prevent her from reporting the offences in the early part of the indictment”, the antidepressants being provided “to reduce the risk of her needing a further CAHMS referral”. The defence contended that he did not go through with the CAHMS appointments “due to unwillingness on the part of either X or his wife and although his use of antidepressants might have been misguided, it was only to make her better and not to ensure her silence”. The judge then went on that if the jury drew the inference for which the prosecution contended: “… then you may use it as some support for the honesty and accuracy of [X’s] allegations, but it would only be one piece of evidence to put in the balance.” 57. Further, when defining the offence, the fourth ingredient was the requirement that the failure of the defendant had to be wilful, meaning deliberate. The judge elaborated that if the jury were sure that his motivation for deliberately cancelling the appointments and treating X at home was his concern that X might disclose abuse that was on going, the jury could decide that his conduct was wilful and deliberate. 58. The concern which we raised is that this crucial ingredient turns substantially on the jury’s assessment of the reliability of X (supported by the assessment of her mother’s evidence in relation to her reaction to the illness). In that event, it is difficult to see how that finding (a) does not rely “to any real degree” on X’s evidence and (b) could be used as some support for the honesty and accuracy of X’s allegations, that honesty and reliability being the premise of the finding as to motivation in the first place. The arguments become circular. 59. In that context, it is worth while bearing in mind that, in defining ‘wilful’ as he did, the Judge was requiring the prosecution to prove that the applicant's motive for cancelling the appointments was to ensure her silence. The criminal law, on the other hand, has always resisted requiring proof of motive and the word ‘wilfully’ does not import any element of motive into the crime of child cruelty. In R v Sheppard [1981] A.C. 394 the House of Lords held that a man wilfully failed to provide adequate medical attention for a child if he either (a) deliberately does so, knowing that there is some risk that the child's health may suffer unless (s)he receives such attention or (b) does so because he does not care whether the child may be in need of medical treatment or not. 60. Whilst the applicant was a general practitioner, he was not a psychiatrist or a child psychologist. Having accepted advice and seen fit to make the appointments, the jury must have concluded that he well knew that X required such treatment and, as a doctor, must have realised that her health may suffer unless she received such treatment: he was not simply making a different professional decision. On that basis, his conduct in cancelling the several appointments could be classified as wilful, irrespective of any abuse of X. The instruction to the Jury requiring proof of motive was over and beyond the statutory elements of the crime. 61. The issue, however, must be determined on the basis that the judge articulated. In that regard, to say that the case did not rely on X “to any real degree” mischaracterises the position as described (even if rather less so in law) although it is important that the allegation of cruelty by neglect did not depend entirely on X. Her mother gives highly relevant evidence as to the extent of her involvement in the decisions being made which themselves were challenged by the applicant and created a conflict for the jury to resolve. If the judge had said that the case did not wholly rely on X, there could be no issue save as to circularity. In the circumstances, therefore, we conclude that there was a misdirection although whether it impacts on the safety of the conviction is another matter. We shall return to this question having considered the remaining grounds of appeal. Judicial Intervention 62. The final original ground of appeal against conviction is founded on the submission that the judge intervened on a number of topics, the cumulative effect of which was to make the trial unfair. In particular, Miss Griffiths contends that the judge asked questions that constituted oath helping, that he elicited prejudicial material and inadmissible bad character evidence in relation to the applicant and that he devalued defence questions. We shall shortly deal with each of these allegations in turn but before we do, it is appropriate to emphasise the vital role that the judge plays in trials of any sexual crime in the pursuit of the interests of justice. He or she must balance, on the one hand, the needs and welfare of the complainant and, on the other, the legitimate interests of the defendant. That is particularly difficult in cases involving children as witnesses, and even more so when considering the evidence of those who are or have been mentally impaired whether as a result of intellectual deficit or by reason of having suffered mental illness. Having read with care the various transcripts in this case, we believe that the judge undertook these responsibilities with care and skill. 63. The allegation of oath helping relates to a question by the judge whether X would describe herself as moral, immoral or amoral. The context, however, is that reference had been made to a note that X had written to the effect that she wished she could be amoral. She was cross examined about it. Remembering her age, the judge asked her what her understanding of morality and amorality was and, having obtained her explanation for the terms, asked the question. In our judgment, that did not constitute a question designed to bolster X’s credibility; rather, it gave her the chance to deal with the implication in the cross examination. 64. As for eliciting prejudicial material, Miss Griffiths complains that the judge started his summing up by contrasting a happy photograph taken of X in June 2007 (at the start of the period of alleged abuse) and the picture she presented 4½ years later. Although he specifically warned the jury not to try to link the illness to the alleged abuse, Miss Griffiths contends that this juxtaposition made that linkage inevitable. We reject that submission not least because it ignores the way in which the summing up continues: “To do so [i.e. to link illness to the alleged abuse], would be dangerous and speculative, because as you have heard from Dr Atkin in particular… mental illness may have many causes, some organic, that means comes from within. Some people are susceptible to it, some people just develop it, some external caused by experiences, sometimes a mixture of the two…” 65. This, she argues, compounded the problem of the sympathy elicited for X when the judge asked, knowing that she had had a difficult night after the first day of cross examination, how she felt about the suggestion that she had lied about her father. She replied: “It really upset me and part of why I was struggling last night is because I couldn’t get the fact that someone was calling me a liar out of my head, and it made me want to kill myself.” 66. Miss Griffiths points to the widely known fact that some three months earlier, in the same court centre, a complainant in a high profile allegation of sexual abuse did commit suicide following cross examination. In our judgment, given what he knew, it would have been better had the judge not asked this question other than for welfare purposes in the absence of the jury: it is difficult to see how the answer can assist the jury in its task. Having said that, however, in the context of this case, it is simply unarguable to say that it was so prejudicial as even to start to undermine the verdicts of the jury. 67. The next complaint concerns evidence elicited by the judge about the relationship between the applicant and X’s mother. He was clear that the questions were the consequence of the way in which Miss Griffiths had cross examined her, described by Miss Blackwell as combative and based on the allegation that she was a disgruntled ex-wife acting out of spite. She contends that the judge properly allowed the mother to give such evidence as “a full picture of the state of the marriage and the family circumstances”. This is always a matter of balance for the judge: we reject this challenge. 68. Miss Griffiths next complains that the judge devalued a number of her questions by indicating that they were either irrelevant or of little value. It is said that his interventions on a variety of issues along with his failure to deal with a number of points made the trial unfair. She argues that the interventions went beyond those identified in R v Khokar [2007] EWCA Crim 1756 (in which Hooper LJ made the point that the judge went further than they would have done in probing evidence but did not consider the verdicts unsafe). We do not find the decision of any real value: rather, we have evaluated the criticisms and the approach of the judge in the summing up. 69. Miss Blackwell responds to this ground of appeal by identifying Miss Griffiths’ cross examination of X and her mother as “robust and combative”: in the case of X, this was notwithstanding her obvious vulnerability and fragility and as for her mother, it was based on the assertion at the start that she was a disgruntled ex-wife, acting out of spite. She submits (accurately) that a trial judge is not only entitled but under a duty to ensure that no improper advantage is taken of a complainant’s vulnerability and that, in this case, the judge did no more than was necessary pursuant to his duty of fairness. 70. We have now seen the entirety of the cross examination of X and, without characterising it as improper, we certainly endorse the description of it as robust and combative; neither do we find it surprising that the judge considered that its main focus was credibility. We reject the submission that, in the context of this case, to such extent as the judge intervened, he went outside the bounds of that which was appropriate. As for the summing up, the judge was not bound to repeat every defence point: read as a whole, it gave the jury an entirely appropriate summary of the facts of the case. 71. In that regard, the judge dealt with the proper approach to any view he might have signalled by providing the standard direction that any view of his that the jury might have detected should be ignored unless it coincided with their view reached independently. As for the nature of his interaction with Miss Griffiths he made the position very clear when he explained: “And one of my duties has been to try and ensure that the trial is fair, and by that I mean fair to the defendant on the one part and fair to the complainant and other prosecution witnesses on the other…. Now that is not always an easy task … Nor is it an easy task for counsel and particularly defence counsel, to challenge evidence of witnesses and do so in a way which is both sensitive and appropriate to the witness whose evidence is the subject of challenge and I have from time to time as you have seen … had to intervene to prevent certain lines of questioning by Miss Griffiths, or I have questioned the relevance, sometimes the tone and content of certain questions. Now such decisions to intervene have to be made by me in effectively the heat of the moment, before the question has been answered; otherwise there is not much point intervening … this is why I have had to exclude you … What I want you to understand in so far as what you have seen, is that there is nothing personal in this, not between me and Miss Griffiths, and there is certainly nothing personal between me and the defendant and I must stress this: that you should not think that by making any interventions or observations about whether questioning is appropriate that I was at the time expressing any view either about the defendant’s case that was being put to witnesses or about the honesty or reliability of the witness to whom the case was being put and you should certainly not think that I have a view adverse to the defence case. I was simply doing my job at the time, as best I saw it, to prevent a witness being subjected to any unnecessary or inappropriate question. So I direct you specifically not to hold any of that, which is part of the adversarial court process really, against the defendant.” 72. These words provide the jury with the context of what must have been a difficult trial for all. In our judgment, it is inconceivable that the jury failed to approach the task set for them other than in the spirit identified by the judge. In the circumstances, this complaint is also rejected. Direction as to Good Character 73. Miss Griffiths has sought leave to pursue a further ground of appeal concerned with the judge’s direction as to good character. She argues that the judge did not make it clear that this was a direction in law (although said specifically that it was a direction). Of greater significance, it is submitted that having reminded the jury that he was of previous good character (without previous convictions and, according to witnesses of positive good character); having said that it did not constitute a defence, he went on to say that the jury were “entitled to take it into account” on the basis that it was less likely that a man of his age of good character would commit such offences and was “a matter which makes it more likely that you can accept the evidence he has given to you. In other words it supports his credibility”. He explained that the weight attached to good character was “entirely” for the jury. 74. Miss Griffiths has no criticism of the direction as to the two limb value of good character but challenges the use of the word “entitled” saying that the judge should have told the jury positively that they “should” take his good character into account. She points to the quashing of the conviction in R v Moustakim [2008] EWCA Crim 3096 where the appropriate words were not uttered although, in that case, the vice was that the judge only said that the defendant “was entitled to say” that she was as worthy of belief as anyone and “entitled to have it argued on her behalf” that she is less likely to have committed this offence: in other words, the direction in law was represented as a submission from the defence. 75. That is not this case. Whereas the word “entitled” may not carry the same weight as “should”, the instruction was characterised as a direction and the consequences were accurately described (“it is less likely” that he would commit such offences and it is “more likely that you can accept” his evidence). It was also made clear that the weight attached to good character was for the jury. We reject the suggestion that the direction was, in truth, diluted. Safety 76. Reviewing all the criticisms of the conduct of this trial both individually and collectively, the height of concern about the safety of these convictions surrounds the impact of the misdirection and circularity of the judge’s direction as to cruelty: there is nothing in the other challenges that supports it. Against that is to be considered the fundamental thrust of the entire trial and, in particular, in the context of all the evidence, the view the jury took of X. That, in truth, was what the trial was about. 77. The judge said that the resolution of the indictment depended “to a very large extent” on the jury’s assessment of X’s credibility. He went on to explain: “… that is, whether she is honest, and reliability, whether she is accurate. In so far as the allegations of sexual abuse are concerned and physical abuse, for that matter, in terms of strangulation, the only two people who know what happened in [X’s] bedroom on the occasion the defendant entered in the course of arguments are [X] and the defendant. Mrs H and [X’s sister] cannot really assist in this regard, although they do provide some support for the context in which this abuse is said by [X] to take place. … Now [X] was cross examined thoroughly by Miss Griffiths Queen’s Counsel over a day and a half of court time with breaks obviously and she explored with her whether she might be lying, what her possible motives to lie might have been, whether her mental illness might have caused her to create a false narrative that her father had abused her, so as to make sense of her illness, whether external influences such as health care professionals, fellow patients, friends like [the girl to whom she complained] television, radio and books might have sowed the seed of this idea or reinforced false beliefs in her mind and you should conduct a thorough full and dispassionate analysis of [X]’s evidence and the following is a list of some of the matters you may like to consider. Whether she did have any possible motive to make a malicious allegation against her father, such as hatred of him. How she gave her evidence to the police in the two witness interviews … and to you when she was cross examined for those hours over the live link. In other words, what impression did she make upon you? Consider what she said. In other words, the content and detail of her evidence and her allegations. What she said about her father, their relationship, the arguments, the physical and sexual abuse. Why she failed to complain earlier and so on, and consider how she responded and what she said in response to the challenges in cross examination, and consider carefully the nature and degree of her mental illness, how it might impact on her reliability as a witness. The issues, which I shall remind you of in greater detail about the voices, the thought insertion and withdrawal, the paranoia, the delusions and the effect of her illness on memory. It is very important that you exercise considerable caution when assessing [X’s] evidence, for the following reasons: firstly, the importance of her evidence to the case as a whole. Secondly, the nature and degree of her mental illness and thirdly, the lack of any independent evidence to support what she alleges, such as evidence of internal injuries from an internal medical examination supportive of penetrative sexual abuse, or any recorded evidence such as photographs or medical evidence of physical injuries occurring at the time of any alleged assault.” 78. This direction was given just before a weekend and aspects were reinforced during the summary of her evidence and the mental health issues that were canvassed in evidence. The circular misdirection in relation to the cruelty count was sufficiently masked that experienced leading counsel did not see the point, even when reviewing the case (with the result that it has never been a ground of appeal although now relied upon by Miss Griffiths) and it must be borne in mind that the direction was delivered orally to the jury. It is also relevant to note that the jury unanimously convicted of this count; the remainder of the convictions were by majority of 10:2 which means that at least two jurors must have been sure that the applicant deliberately kept X away from CAHMS in deliberate neglect of her welfare without being satisfied of the allegations of abuse: that must have been because of the evidence of the applicant’s wife. 79. We have anxiously considered these verdicts, conscious of the enormous impact on all parties of the verdicts in this case and, in particular, on the applicant. Having done so, however, we have come to the conclusion that the misdirection in itself is not sufficient to render these verdicts unsafe and that nothing in the original or amended grounds of appeal either individually or collectively does so either. Although we grant the application for leave to appeal, the appeal against conviction is dismissed. Sentence 80. The applicant who is 47 years of age (born on 13 th February 1967) and of prior good character was described by the judge as a very good GP who had dedicated himself to his work and cared for his patients. The judge concluded that he had hidden another side exhibiting character traits of arrogance, manipulation, bullying and dishonesty, using physical violence (usually smacks) and excessive restraints (which included grabbing X by her wrists and on at least one occasion putting his hands around her neck) whenever she complained. He went on that as X was approaching her 11th birthday, the applicant began to rape and sexually abuse her. 81. The sexual abuse, the judge said, was less about the applicant gratifying his sexual urges and more about him exercising control over her although the judge was satisfied that he derived some sexual arousal from controlling her in this way. This went on unchecked for two and a half years. Less frequently he would go into the bathroom when the complainant was having a bath, push her head roughly back against the bath and insert his finger into her vagina. 82. On four occasions he had cancelled the appointments citing a variety of reasons. He was aware that his daughter might disclose the abuse to a professionally trained psychiatrist. He had abused his position as a doctor by obtaining and administering to her anti-depressants including Citalopram which was unlicensed for children under 18 years. He did so without informing any other doctor who had seen her and without recording anything on her medical records. He did so for many months. 83. The judge expressed himself satisfied that the combination of him avoiding a psychiatric assessment and medicating her himself, with the continuing sexual and emotional abuse, had significantly contributed X’s mental ill-health which first materialised properly in early 2009. Thereafter her health deteriorated rapidly culminating in acute admissions to hospital in October 2010 and January 2011. 84. The judge concluded that there were a number of aggravating features which placed the offending in the most serious category: the repeated nature over a period of two and a half years; the age of his daughter; the gross breach of trust; the deliberate and cynical decision not to treat her for her developing eating disorder for purely selfish reasons of stopping her from disclosing the abuse; the very serious psychological harm; and the threats he made that he would use her mental ill-health against her to discredit her. At no time had he shown any remorse. It was in those circumstances that he passed a total sentence would be one of 18 years imprisonment. 85. Miss Griffiths accepts that the rape counts were correctly placed into the most serious category with a starting point of 15 years, but she argues that the judge was wrong to increase the sentence above this starting point. We do not agree. In our judgment, the judge was fully entitled to increase the starting point for the reasons that he gave and, having had the conduct of the trial and been able to assess both X and the applicant, he was in by far the best position to make the appropriate assessment. The same is so in relation to the sexual assaults notwithstanding that they occurred less frequently. 86. Miss Griffiths also argues that the sentence of 5 years imprisonment for the count of cruelty by neglect failed to reflect the fact that no injury or suffering was in fact caused and was based solely on his failure to take her to three appointments, so as to prevent her reporting what he had done. We consider there to be greater force in this submission and, in the circumstances are prepared to reduce this concurrent term to 3 years imprisonment. To that extent, we grant leave to appeal against sentence although save for varying that single sentence (which does not impact in any way on the overall term), the appeal against sentence is dismissed.	{"ConvCourtName":["Crown Court at Manchester"],"ConvictPleaDate":["2013-05-22","2013-05-23"],"ConvictOffence":["cruelty by neglect to a person under 16","cruelty to a person under 16","rape of a child under 13","sexual assault of a child under 13"],"AcquitOffence":["administering a noxious substance"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Manchester"],"Sentence":["5 years imprisonment (cruelty offences, concurrent)","18 years imprisonment (rape offences, concurrent)","12 years imprisonment (sexual assault offences, concurrent)","Total: 18 years imprisonment"],"SentServe":["Concurrent"],"WhatAncillary":["Appropriate notification and safeguarding consequences"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[10,11,12,13],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Mother's testimony","Sister's testimony","Medical records","Expert report/testimony"],"DefEvidTypeTrial":["Offender denies offence","Character witnesses","Argument of victim's mental illness affecting reliability","Medical expert report (excluded)","Cross-examination of victim and mother"],"PreSentReport":[],"AggFactSent":["repeated nature over a period of two and a half years","age of his daughter","gross breach of trust","deliberate and cynical decision not to treat her for her developing eating disorder for purely selfish reasons of stopping her from disclosing the abuse","very serious psychological harm","threats he made that he would use her mental ill-health against her to discredit her","no remorse"],"MitFactSent":["offender of prior good character","dedicated himself to his work and cared for his patients"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["admissibility of defence expert evidence","judge's summing up and directions","judicial intervention","direction as to good character","sentence excessive for cruelty by neglect"],"SentGuideWhich":[],"AppealOutcome":["Appeal against conviction dismissed","Leave to appeal sentence granted and sentence for cruelty by neglect reduced to 3 years imprisonment (concurrent)","Appeal against sentence otherwise dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["sentence for cruelty by neglect failed to reflect that no injury or suffering was in fact caused and was based solely on failure to take her to three appointments"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["judge approached admissibility of evidence with care and in accordance with authorities","no error in excluding defence expert evidence","no unfairness in judicial interventions","no misdirection in good character direction","misdirection on cruelty by neglect not sufficient to render verdict unsafe","sentence for rape and sexual assault offences justified by aggravating features"]}
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IN THE COURT OF APPEAL CRIMINAL DIVISION [2024] EWCA Crim 88 No. 202302673 B2 Royal Courts of Justice Tuesday, 23 January 2024 Before: LORD JUSTICE POPPLEWELL MR JUSTICE CHOUDHURY HIS HONOUR JUDGE ANDREW LEES REX V DAMIEN DANIEL HEAVEN __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MS L. DEUXBERRY appeared on behalf of the Appellant. MR E. DIVARIS appeared on behalf of the Respondent. ________ JUDGMENT LORD JUSTICE POPPLEWELL: 1 The appellant was charged with three offences arising out of an incident involving Ms Cosson on 22 September 2022. Count 1 charged intimidation by threatening and assaulting her, intending to interfere with an investigation in which she had assisted the police in relation to an assault by the appellant on someone else the previous May. Count 2 charged assault by battery on Ms Cosson. Count 3 charged criminal damage by damaging her mobile phone. 2 The appellant pleaded guilty to the criminal damage charge. He was convicted of the intimidation and assault charges after a trial in the Crown Court at Bournemouth before Mr Recorder Dow and a jury, by a majority. He appeals against his conviction on the intimidation charge with leave of the single judge. 3 The sole ground of appeal is that the Recorder was wrong to reject a submission of no case to answer, which was advanced on the ground that there was no evidence from which a jury, properly directed, could be sure of the necessary ingredient of the intimidation offence that the appellant knew or believed that Ms Cosson was assisting the police in the investigation of the May 2022 offence. 4 The appellant and Ms Cosson were near neighbours in a block of residences at Drummond Court. They had not had a good relationship for several years, and she had made a number of complaints about him to the landlord. As she accepted in cross-examination, these complaints had resulted in him being evicted by the landlord a few weeks before 22 September 2022. 5 The prosecution case, supported by the evidence given by Ms Cosson and other evidence, was that what happened on that day was as follows. She was in her car and looking for a parking space when she noticed the appellant sitting in his car at the bottom of the road. She parked her car and went to get her shopping out of the boot. The appellant drove up the street and pulled up next to where she was standing. The appellant verbally abused her and spat at her. She had her phone in her hand and began to record the appellant. The footage ended abruptly when the appellant pushed her backwards and she fell to the ground. She believed that the appellant was trying to take her phone and so she held onto it tightly. The appellant did not at that stage succeed in getting her phone and he appeared to have left. The appellant then ran up towards her from behind, grabbed her neck and jaw and pushed her to the floor. He shouted "I am going to get you" and "You're a snitch". He then took her mobile phone and threw it onto a nearby bin store, from where it was later recovered. When recovered it was damaged. 6 Ms Cosson had previously assisted the police by providing footage of the appellant assaulting another person in May 2022. The prosecution had no positive case or evidence as to when or how the appellant came to discover her involvement. She had made it clear to the police that she did not want to be identified, and the evidence of the officer involved, PS White, in a statement made later, dated 31 July, confirmed that arrangements had been made for Ms Cosson to provide the footage at a location away from her home, so that the appellant would not be aware of the police visiting her; and any communications with her were via phone or email for the same reason. The footage was exhibited to PS White's statement using PS White's initials so as to avoid revealing its source. That footage had been provided shortly after the event in May and the appellant had been charged in May. 7 It was not suggested that he had reacted by doing anything towards the appellant in the period between May and September, nor was it suggested that the appellant knew or believed that she had assisted an investigation by reason of the nature of the footage. Rather, the prosecution's case was that the jury could infer such knowledge or belief from his use of the word "snitch", which it was said had a recognised meaning as a police informant. 8 In the defence case statement the appellant accepted that he called her "a snitch", but said that this was in relation to her repeated attempts to get him convicted. 9 At the close of the crown's case, Ms Deuxberry, who has appeared before us, made a submission of no case to answer on the intimidation count. The submission was framed by reference to the absence of evidence on which the jury could be sure that the appellant's conduct, if proved, took place in the knowledge and belief that Ms Cosson had assisted the investigation of the appellant for the May offence. It was on the basis of such knowledge and belief that the prosecution contended that there was an intention, by way of intimidation, to obstruct, interfere with or pervert the course of that investigation. 10 The Recorder, in dismissing the application, said that he found it finely balanced, but that his decision was guided by the fact that the appellant had not in interview given an explanation for the use of the word "snitch" which was different from its sense as a police informant. In interview he had denied the assault, but answered no comment to other questions, including questions as to whether he was aware that Ms Cosson had supplied footage in relation to the May incident or that it had been seized from her; he gave the same no comment response to the questions "Why would you call her a snitch?" and "What does snitch mean to you?" 11 When the appellant came to give evidence after the ruling, he denied that he had used the word "snitch", or that he had assaulted Ms Cosson as alleged or at all. Denial of the use of the word "snitch" was inconsistent with his defence statement, which was unsigned. In his evidence he said that he had not signed or approved it and that he did not agree with it. In summing-up the Recorder directed the jury about drawing any adverse inference from this inconsistency. No criticism is made of that direction. 12 Before us Ms Deuxberry repeats the submissions made to the Recorder. The use of the word "snitch" was, she submits, consistent with it referring to complaints to the landlord resulting in the appellant's eviction. The prosecution had accepted that there was no direct or positive evidence that he knew or believed Ms Cosson had been involved in the investigation of the May offence. On the contrary, the positive evidence pointed towards the appellant not knowing of her involvement. In this context Ms Deuxberry emphasised the following: (1) The evidence of PS White which indicated that steps had been taken to prevent the appellant knowing about Ms Cosson's involvement; (2) Ms Cosson's acceptance in cross-examination that on 22 September the appellant had not said anything to her about an investigation into the May assault or that he knew or suspected she had provided footage; (3) Ms Cosson's acceptance in cross-examination that she had been responsible for his eviction due to making complaints about him; and that when asked if the use of the word "snitch" related to that instead, she had responded that she "didn't know"; and (4) The unused body-worn camera footage which was played to the Recorder from when police attended Ms Cosson's house around 30 minutes after the incident on 22 September. In that footage Ms Cosson tells officers that she had recently sought reassurance from the police about whether there had been any recent change, or reason, for the appellant to have found out that she had assisted the police, and she had been reassured that there was not any such reason. 13 On behalf of the Crown Mr Divaris, who like Ms Deuxberry also appeared at trial, submitted that the Recorder was right to reject the submission of no case to answer because "snitch" had an accepted meaning as a police informant and the appellant had not offered any alternative explanation for use of the word when questioned in interview. He also relied on the fact that in his evidence he had denied using the word at all, rather than giving an explanation for its use in accordance with his defence case statement. 14 We consider that the prosecution evidence, taken at its highest, was not capable of making a jury sure of the appellant’s knowledge or suspicion that Ms Cosson had assisted the police in relation to an investigation into the May incident, which was an essential ingredient of the intimidation offence. The use of the word "snitch" was equivocal and equally consistent with it being a reference to the steps taken to get the landlord to evict the appellant, a possibility which Ms Cosson's answer in cross-examination recognised when it was put to her. The other evidence positively pointed away from his knowing or suspecting her involvement. His lack of explanation in interview was not a sufficient reason to leave the issue to the jury. In referring to that feature as tipping the balance, the Recorder no doubt envisaged that if he gave evidence in accordance with his defence statement, the prosecution would be entitled to invite the jury to draw an adverse inference from silence at interview pursuant to s.34 of the Criminal Justice and Public Order Act 1994 . But a jury cannot convict wholly or mainly on the basis of such an inference and that would have been the effect of treating that silence as sufficient to justify leaving the issue to the jury. 15 As to Mr Divaris' submission relying on the evidence subsequently given by the appellant that he did not use the word "snitch", that subsequent development is not capable of affecting the question of whether the Recorder should have accepted or rejected the submission of no case to answer at the time that he ruled upon it. It is, however, pertinent to the question which we must ask ourselves whether the conviction is nevertheless safe, the jury obviously having been satisfied that that he did use the word: that necessarily follows from their verdict. 16 His denial that he used it does not alter the fact that the jury cannot properly have been sure, on the evidence, that his use of the word referred to her being a police informant. It remained the defence case that if the word was used, contrary to the appellant's evidence, the jury could not treat it as sufficient to be sure of the relevant ingredient of the intimidation offence, because it could have referred to her part in this eviction. His denial of the use of the word remains consistent with his having used it in that sense, the denial being explicable as seeking to dispel evidence of motive for an assault: this was a case in which at trial he was denying that any assault took place at all and therefore he would not have wanted to have accepteds that he had said something which might have provided a motive. 17 Accordingly, the intimidation charge should have been withdrawn from the jury and the conviction on that charge is unsafe. The appeal will be allowed by quashing the conviction on Count 1. Now Mr Divaris, there is no question presumably of the Crown seeking a retrial? MR DIVARIS: No, my Lord, there is not. There is however an application for resentence of the assault by beating under s.4 of the Criminal Appeal Act. Your Lordship will be aware that in sentence Mr Heaven received a total of two years, but no separate penalty for assault by beating. LORD JUSTICE POPPLEWELL: Yes. Does that matter? I have in mind the release provisions. You are not going to invite us, are you, to impose a further consecutive sentence on that or are you? MR DIVARIS: No, I have also been informed by learned friend that Mr Heaven is currently serving an essential five and a half years for a separate matter, possession with intent to supply. LORD JUSTICE POPPLEWELL: If you are not inviting us to impose a sentence that is going to increase the length of his custody, does it matter that it was no separate penalty? MR DIVARIS: I am instructed simply to mark the criminality of the assault by beating. LORD JUSTICE POPPLEWELL: Well, he was convicted on the same occasion of another ABH offence, but I understand the submission. Is it there anything you want to say about that? MS DEUXBERRY: Not unless I can assist your Lordships, no. LORD JUSTICE POPPLEWELL: We will rise. (Short Adjournment) LORD JUSTICE POPPLEWELL: 18 We do think it is right to reconsider the sentence on the battery, given that that will be the only sentence, as we understand it, in respect of this victim; and we will therefore impose a concurrent sentence of three months' imprisonment on Count 2 for the battery. That will make no difference to the overall length of time spent in prison. When we say concurrent, that will run concurrently to the 12-month sentence that was imposed for the ABH offence on S20220353 for which he was sentenced at the same time by the Recorder. 19 So the order will be that on Count 1 the conviction will be quashed and on Count 2, pursuant to s.4 of the Criminal Appeal Act 1968 , the sentence of no separate penalty on Count 2 will be quashed and instead a sentence of three months' imprisonment will be imposed, but that will run concurrently with the sentence of 12 months which was imposed on the summary offence which was sent, S20220353 para.1, for the unrelated ABH. 20 Mr Heaven, the outcome of the appeal is that your conviction for the intimidation offence has been quashed. That sentence of 12 months for that offence disappears. We have imposed a sentence of three months for the battery, but that will run concurrently to the other sentences that you were sentenced for at the time and will have no overall effect on the length of time you spend in custody. _____________	{"ConvCourtName":["Crown Court at Bournemouth"],"ConvictPleaDate":[""],"ConvictOffence":["Intimidation by threatening and assaulting Ms Cosson intending to interfere with an investigation","Assault by battery on Ms Cosson"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["Three months' imprisonment (Count 2, battery), concurrent with 12 months for ABH on S20220353"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Police officer statement","Body-worn camera footage"],"DefEvidTypeTrial":["Offender denies offence","Defence case statement"],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction"],"AppealGround":["Recorder was wrong to reject a submission of no case to answer; no evidence appellant knew or believed victim assisted police in May 2022 offence"],"SentGuideWhich":["s.34 of the Criminal Justice and Public Order Act 1994","s.4 of the Criminal Appeal Act 1968"],"AppealOutcome":["Allowed & Conviction Quashed (Count 1); Sentence on Count 2 imposed (three months' imprisonment concurrent)"],"ReasonQuashConv":["Prosecution evidence not capable of making jury sure of appellant’s knowledge or suspicion that victim assisted police; use of 'snitch' equivocal; other evidence pointed away from knowledge"],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
No: 200106173/X3-200106616/X3 Neutral Citation Number: [2003] EWCA Crim 1966 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 6th June 2003 B E F O R E: LORD JUSTICE AULD MR JUSTICE SILBER MR JUSTICE OWEN - - - - - - - R E G I N A -v- WAYNE DANIEL JONES MATHEW JENKINS - - - - - - - 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 D AUBREY QC appeared on behalf of the APPELLANT JONES MR R MARKS QC appeared on behalf of the APPELLANT JENKINS MR P HARRINGTON & MR G WALTERS appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE AULD: On 23rd October 2001, before Pitchford J and a jury in the Crown Court at Swansea, the appellants, both aged then 16, were convicted of the murder of a 53 year old man called Leonard Proctor. The judge sentenced each of them to be detained during Her Majesty's Pleasure, specifying the periods under section 82A of the Powers of Criminal Court (Sentencing) Act 2000 at nine-and-a-half years for Jones and 9 years for Jenkins. By leave of the Single Judge, both appellants appeal against conviction, and Jones also appeals against the specified period of nine-and-a-half years. 2. The prosecution arose out of an incident that began on the evening of Christmas Day 2000 in the Miners' Arms public house, Trimsaran in South Wales. The prosecution case, in summary, was that towards the end of the evening, the two appellants followed Proctor out of the public house and, together, attacked him, causing him serious injuries which caused his death. 3. The appellants ran what might be called modified cut-throat defences. Jones' case was that they had both been party to the assault on Proctor; each had inflicted violence upon him, but that they had not caused the serious injuries from which he died. He suggested that the fatal injuries could have been caused subsequently by Proctor falling or wandering into the road and being struck by a vehicle. 4. Jenkins' case was that he had been present and close by when Jones attacked Proctor, but that he, Jenkins, neither took part in the attack, nor encouraged it. On the contrary, he had twice called on Jones to stop his violence. 5. There is broad agreement as to what led to the initial attack on Proctor. Jones, with his girlfriend, NS, and Jenkins with his girlfriend, Lindsay Powell, were drinking and talking in the bar of the Miners' Arms. Also drinking there that night was Gavin S, the brother of N, and another youth called Matthew Roberts. Sitting in his usual seat was Proctor who, as the evening wore on, became rather drunk. 6. In the course of the evening the appellants fell to talking about an incident, many years before, in which, according to Jones' girlfriend, N, Proctor had indecently assaulted her. Jones decided that he would, that night, exact some revenge on Proctor, by giving him a beating. 7. At about 9.45 pm Proctor left the public house to go home. The two appellants followed him. There is no doubt that shortly afterwards someone assaulted Proctor a short distance away from the public house. No one other than the appellants saw what happened. On both their accounts at trial, Jones punched him and did so in the presence of Jenkins. On Jones' account, Jenkins punched him too. Whoever did what to Proctor, it caused him to bleed. Some of his blood was later found on the road. 8. It is common ground that, shortly after that assault, both appellants returned to the public house. It is also common ground that, about 10 minutes or so later, they both left again, and found Proctor still only a short distance away from the public house. Together they walked him a few 100 yards up the road. They stopped in the vicinity of a house called Glyncoed. There, one or other, or both of them, assaulted Proctor for a second time. Again, there were no eyewitnesses to the assault but the two of them. According to Jones' account at trial, Jenkins head-butted Proctor. According to Jenkins' evidence at trial, Jones punched him to the ground and then, when Proctor was on the ground, kicked him and stamped on him. 9. There was disagreement between them at trial about the severity of Proctor's injuries after the second attack. Jones maintained that they were not serious and Jenkins acknowledged that they were. 10. The prosecution case was that this second attack on Proctor caused very serious injuries and further bleeding. A considerable quantity of Proctor's blood was found on the driveway of Glyncoed, where his body was found on the following morning. There was also blood on a brick pillar and on a kerb stone, which had also come from Proctor. 11. There were also signs of blood on Jenkins' boots and trouser bottoms when they were recovered from him following his arrest, which indicated his closeness to, though not necessarily his participation in, one or other of the attacks on Proctor. 12. The two appellants left Proctor on the ground, in or in the vicinity of the driveway to Glyncoed, and returned again to the Miners' Arms. There Jones heard that another youth in the bar had, in his absence, been pestering his girlfriend, N. He began to shout out and fight with the youth, as a result he was evicted from the public house. 13. The events of the night, so far as they are relevant, continued with Jones, N, her brother, Gavin, and the third youth, Matthew Roberts, walking together along the road away from the public house. Jenkins, it seems, went home separately in someone's car. The four, as they walked along the road, were noisy and argumentative, so much so that Mrs Ruth Rees, who lived at a house en route and had gone to bed, was disturbed by them. On looking out of her bedroom window, she saw, in the darkness, a youth and a girl walking in the middle of the road and two youths on the pavement. Because of the darkness she could not, and was not asked to, identify them, though she gave some descriptions of them and their clothing which do not matter for the purpose of these appeals. 14. What does matter, in the case of Jones' appeal, is the conversation that she said she saw and heard. One of the two youths on the pavement shouted: "I don't care if I go down for murder, I don't care." The second of the two youths on the pavement said: "Look I've got blood on my hands". He then turned towards the couple in the middle of the road and shouted: "Wayne, Wayne, can I go to your house to get this off?" The youth with the girl in the middle of the road said "yes". The significance of that evidence was that it could suggest that one of the two youths on the pavement was acknowledging his responsibility for the fatal attack on Proctor and that it could not have been Wayne Jones. That is because he was the youth with the girl in the middle of the road, who had been so addressed by the second youth on the pavement. 15. As we have said, the following morning Proctor's dead body was found in the driveway of Glyncoed. The post-mortem showed many serious injuries that could have resulted from heavy punches and or kicks and/or by blows from a blunt object. The injuries were to the head, including several fractures of the left jaw and the larynx, to the chest, including fractures of the ribs, and to the arms. 16. The pathologist was unable to say precisely what had caused the various injuries, other than that it was a blunt object or objects, for example, a fist or footwear. He said, in cross-examination, that some of the head injuries could have resulted from a bang on the pavement, and that some of the injuries could have resulted from a glancing blow from a passing vehicle. 17. On arrest, neither appellant produced to the police the clothes that they had been wearing at the time of the attacks on Proctor; they produced others. 18. In interview, Jones gave an account, which he was broadly to repeat in his evidence at trial. Jenkins, on the advice of his solicitor, declined to answer any of the police officers' questions in their interview of him. 19. Jones, in his evidence, gave the following account. He and Jenkins decided in the Miners' Arms to follow Proctor when he left and give him, as Jones put it, "a couple of slaps". They followed him out, and each of them punched him twice, not hurting him badly. They returned to the public house. Ten minutes later, and without saying why, Jenkins went outside. He, Jones, followed him. They found Proctor, and together walked him up the road. When they reached the vicinity of Glyncoed, Jenkins, without warning or reason, head-butted Proctor in the face. He, Jones, let go of Proctor, who fell to the ground. Jenkins then propped him up against the wall. He, Jones, did not assault him at all on this occasion. 20. They ran back to the Miners' Arms, where he and Jones had a fight with a youth who had been pestering his girlfriend, N. 21. Later, as he walked along the road on the way home with N, her brother, Gavin, and Matthew Roberts, they were a bit noisy, talking about his fight in the public house. He could not understand how Mrs Rees could have heard one of them comment about going down for murder. 22. Jenkins too gave evidence notwithstanding his earlier silence in interview. This is what he said. In the Miners' Arms Jones said that he was going to teach Proctor a lesson for what he had done to N. When Proctor left the public house, Jones followed him out. He, Jenkins, followed Jones. They caught up with Proctor. Jones punched him two or three times. He, Jenkins, did not hit him, and he told Jones to stop it. 23. They returned to the public house. Ten minutes later he left in order to help Proctor. This time Jones followed him. They helped Proctor along the road for a while and then Jones attacked Proctor again. He punched and kicked and stamped on him. He, Jenkins, took no part in the attack and eventually managed to pull Jones away. By that stage, Jones' shirt was covered in blood and he took it off. 24. He, Jenkins, said that, when he finally left for home that night, he could not see Proctor where they had left him, propped against the wall. 25. Mr David Aubrey QC advanced three grounds on appeal on behalf of Jones, all complaints of misdirection by the judge. The first concerned his treatment of the evidence of Mrs Rees who had heard the noisy quartet, including Jones, walking away from the Miners' Arms that night. Mr Aubrey submitted that her evidence, on the face of it, indicated that the first of the two youths on the pavement, the one who had made the self-inculpatory remark about not caring if he went down for murder, was not Jones. Jones was the youth in the middle of the road with a girl, whom the second youth on the pavement had addressed as Wayne - Jones' first name. That, and other aspects of her evidence, he submitted, suggested that if those self-inculpatory words were said, they were said by either Gavin S or Matthew Roberts, not Jones. 26. It appears that prosecuting counsel, Mr Patrick Harrington QC and Mr Aubrey were at one about that. Although Mr Harrington commented to the jury in his closing speech that Mrs Rees' evidence might have been wrong. Apparently she was an impressive witness, but Mr Harrington did not concede her accuracy. Also, Jenkins' counsel, Mr Richard Marks QC, relied on her evidence in suggesting to the jury that either Gavin S or Matthew Roberts may have been involved in a further and fatal attack on Proctor. 27. Despite the unanimity of counsel at the trial as to the exculpatory effect, so far as Jones was concerned, of Mrs Rees' evidence, the judge did not make that point to the jury. On the contrary - and this is Mr Aubrey's complaint - he invited the jury to consider which of the three youths may have made the self-inculpatory remark, S, Roberts or Jones. He made plain its significance, certainly as to Jones' admission of only modest violence, that the maker of the statement knew he had caused Proctor serious and potentially fatal injuries. 28. This is how the judge put the matter to the jury, in two of the main passages in which he focused on this evidence. At page 57 D to E of the first transcript, he asked them: "Were these words spoken? If it was Waynes Jones and he was so upset as to be giving the impression of being in tears and talking about going down for murder, why was he speaking in that way?" The judge returned to the point at page 61A to D of the second transcript: "I do realise... that I have spent some time analysing the evidence relevant to the walk home and the reason for that is that it has to be faced at one time or another it has been suggested that Matthew Roberts, Gavin S and Waynes Jones was the individual who made the remark about going down for murder. Only if you were sure that the evidence, on careful analysis, establishes that, first, the words were spoken, secondly, that it was Wayne Jones who uttered them and, thirdly, that when he did so he cannot have been referring to a fight with Mark Powell [that is the youth in the public house] could you regard this as evidence relevant to his case. But if you are sure that is the proper conclusion, it is relevant, is it not, to the question what knowledge did he have of what had happened to Leonard Proctor." 29. Mr Harrington submitted that, in those passages of the judge's direction, and generally in his treatment of this evidence of Mrs Rees, he was correct. He made two points. First, Mrs Rees was looking down through a window on a dark night. There was clear scope, he submitted, for her to be mistaken as to who said what to whom. Second, he maintained that it was difficult to see who else of that quartet but Jones could have made the remark "I do not care if I go down for murder". There had been no evidence or evidence-based suggestion that either Gavin S or Matthew Roberts had been involved. The only one present of the three, who had in fact been involved in an attack on Proctor, was Jones. 30. In our view, this was a misdirection and one capable of causing significant and unfair prejudice to Jones' defence, which, as we have said, was not a denial of any violence to Proctor, but a denial of fatal violence. Mrs Rees was an independent witness in a case where, on the critical issue for the jury - who did what - independent witnesses were thin on the ground. 31. Of course, Mrs Rees may have misheard what was said or have confused who said what to whom. Or it may have been, as at least three of the four road walkers said in evidence, that the reference was not to the attack on Proctor, but to the fight that Jones had just had in the public house with Mark Powell. 32. Whatever the possibilities, it is unfortunate that the judge left to the jury one possibility adverse to Jones that the effect of her evidence excluded, if the jury accepted it. 33. The second ground of appeal advanced by Mr Aubrey on Jones' behalf is that the judge failed to warn the jury that the evidence of Jenkins, a co-defendant running a cut-throat defence, should be treated with caution. 34. Certainly the judge's summing-up contained no such conventional warning to alert the jury to the danger of accepting possibly self-serving evidence of one defendant incriminating a co-defendant. 35. Mr Aubrey, with some initial diffidence, having regard to the case of R v Burrows [1999] 2 Crim LR 48, CA, submitted that some warning of this sort should have been given in accordance with the general guidance given by this Court in R v Cheema (1994) 98 Cr App R 195, 204. 36. Here, as it happens, the defences are not cut-throat in the full sense because Jones was saying that their combined violence was insufficient to cause death, whereas Jenkins maintained that all the violence had come from Jones and that it was sufficient to cause death. Evidence of Jenkins against Jones was crucial. The evidence of Jones against Jenkins was not so crucial. 37. Mr Harrington submitted that the approach in Burrows is to be preferred to that in Cheema in the circumstances of this case, because Cheema was not a direct cut-throat case, whereas Burrows was. Here, he characterised the defence of each appellant as: "I did not do it, you did." 38. Mr Harrington also submitted that the judge's general directions to the jury as to how they should approach the evidence in this case sufficed in the circumstances. He referred to: the judge's direction, at page 9G to H in transcript I, as to the need for separate treatment of the cases for and against each defendant; to his general direction, at pages 6F to 7D of transcript 1, as to the need to consider the credibility of each witness in the case and whether it is self seeking or given to protect or to reflect badly on one defendant rather than another; and to his direction at page 9B to C of the first transcript, as to the need for the jury to take the same care in their consideration of the evidence of each of the defendants as they did in respect of any other witness in the case. Those three directions, submitted Mr Harrington, taken together, were sufficient for the purpose. 39. Whether or not the defences are "mirror-image" cut-throat defences, the law, since R v Prater (1960) 44 Cr App R(S) 83, CA, has been that some such warning should normally be considered and given. Burrows was a case in which, as Judge LJ, giving the judgment of the Court said, "the difficulty facing the trial judge was somewhat stark". Any warning he might have given applied equally to each of the two co-defendants, whose cut-throat defences were almost a mirror image of each other. Each had given evidence casting all possible blame on the other. It may be, as Judge LJ said, that within the confines of that particular case, the trial judge could not warn the jury to approach the evidence of each defendant with care because he had an axe to grind, without indicating to the jury that he had formed an adverse view about the way in which it should be approached by the jury. Though, why that was so, even in the particular circumstances of that case, is not readily apparent to us. 40. A judge, even in a case of a mirror-image cut-throat defences, in the separate interest of each defendant, should be able to tailor a warning about the evidence of each against the other in a way that would not indicate that he, the judge, had formed an adverse view as to the defence of one or the other or both. Even though the cross allegations are inextricably bound up in the defences of each, it is for the judge, in a neutral way, to give the jury such assistance as he can in their evaluation of the credibility of the evidence of each defendant as it is of that of all other witnesses in the case, whether for the prosecution or the defence. 41. We see no reason to depart from the approach of this Court in R v Knowlden & Knowlden 77 Cr App R 94 , and confirmed by it in Cheema , that a judge, in exercising his discretion as to what to say to the jury should at least warn them, where one defendant has given evidence adverse to another, to examine the evidence of each with care because each has or may have an interest of his own to serve. Cheema was, as Mr Aubrey has observed, a cut-throat defence. 42. There was also, as Mr Aubrey commented in argument, a particular need for some such warning in this case, where Jenkins, unlike Jones, had refused to answer questions in interview and was therefore able, if he wished, to tailor his defence to the facts in evidence. 43. In our view, the failure to give such a warning was a serious omission and unfairly prejudicial to Jones' defence, and also, though possibly to a lesser extent, to that of Jenkins. Accordingly, we do not consider that the general directions as to evidence of the judge to which Mr Harrington referred us were sufficient for the purpose. 44. Our attention has been drawn to current guidance of the Judicial Studies Board in the form of a note to its specimen direction No 26, which advises a form of warning to a jury where one defendant has given evidence which may have an adverse effect on a co-defendant. The guidance in the note is that such warning should not be given where co-defendants have given evidence against each other. The authority given for that proposition is Burrows . 45. It follows from what we have said that we consider that no such general principle can be extracted from the case of Burrows , where it is plain from Judge LJ's judgment that the Court was heavily influenced by the particular facts of that case. 46. Mr Aubrey has ventured an approach, which may be appropriate in many or most cases where a trial judge has to consider what if any such warning to give where co-defendants have given evidence against each other. It seems to us to accord broadly with the general observations we have made about the principles derived from Knowlden & Knowlden and Cheema , subject always of course to what justice demands on the particular facts of each case. 47. Mr Aubrey suggested that a judge, when dealing with the case against and defence of each co-defendant, might consider four points to put to the jury - points that would not offend any sense of justice and certainly would not cast the judge in the light of one who has formed an adverse view against either or both co-defendants. First, the jury should consider the case for and against each defendant separately. Second, the jury should decide the case on all the evidence, including the evidence of each defendant's co-defendant. Third, when considering the evidence of co-defendants, the jury should bear in mind that he or she may have an interest to serve or, as it is often put, an axe to grind. Fourth, the jury should assess the evidence of co-defendants in the same way as that of the evidence of any other witness in the case. That seems to us to be a useful - and suitably focused - approach when judges are faced with this particular problem, and we commend it. 48. The third and last ground of appeal relied upon by Mr Aubrey for Jones is that the judge, in his summing-up, wrongly indicated that the defence suggestion that a road traffic accident may have caused the fatal injuries was unfounded. It will be remembered that the pathologist's unchallenged evidence was that some of Proctor's injuries could possibly have resulted from a glancing blow from a passing vehicle. 49. The judge, in dealing with this suggested possibility said this to the jury at pages 15F to 16B of the first transcript: "The second possibility which Mr Aubrey raised was the passing car. Suppose you regard it as a realistic possibility that Mr Proctor wandered into the road and was struck by a car, that would not necessarily be the result of the four blows admitted by Wayne Jones and the headbutt he alleges against Matthew Jenkins and there would be no way of knowing what further injuries Mr Proctor may have suffered as a consequence of such a collision. If this were the situation, therefore, you would not be able to find that the physical attack by the defendants, or either of them, made a significant contribution to death and you would have to find them both not guilty of any offence. You will appreciate, however, that there is no evidence that there was such a collision and there is evidence from Matthew Jenkins that Mr Proctor was physically beaten in a way which would account for all his injuries. It is only if you accept the possibility that only five blows were delivered that these questions arise at all." Later, when dealing with the cross-examination of the pathologist the judge said, at page 73F to H of the second transcript: "Dr Davidson described to you his overall impression of what had happened to Mr Proctor and dealt with each of the possibilities in the main areas of injury. And having heard all the evidence, not just the medical evidence, you will have to come to a conclusion whether he was subjected to a severe beating or to a maximum of possibly five blows, all other injuries being caused by stumbling, falling about and crawling." 50. Mr Aubrey submitted that those directions did not do justice to the pathologist's and other evidence of the possibility of a road traffic accident having caused the fatal injuries: first, in the emphasis that there was no evidence of it; and second, by putting forward a misleading, as Mr Aubrey suggested, antithesis between injuries caused by deliberate violence and those capable of having been caused by stumbling, falling about, or crawling. That is, he made no mention in that second passage of the further possibility, unevidenced or not, of a glancing blow from a vehicle. 51. Mr Aubrey suggested that the judge should have at least reminded the jury: first, of some evidence of an unexplained scuff mark on the pavement and coins in the gutter where Proctor's body was found; second, that Jenkins' account might be self-serving in this context, particularly given the judge's remarks at pages 15F to 16B of the first transcript that we have set out; and third, of the pathologist's evidence. 52. Mr Harrington, in reply, submitted that the judge's direction about this was not only fair but generous. It was, he said, correct that there was no evidence to support such a possibility. 53. It is to be noted that shortly before (at pages 72H to 73B of the second transcript) the passage containing the misleading antithesis of which Mr Aubrey complained, the judge reminded the jury of the pathologist's concession of the possibility that some of the serious injuries could have been caused by a passing vehicle. And, in our view, the evidence concerning the scuff mark and the coins were, at best, neutral and of very limited value as indicators of the possibility of Mr Proctor being a road traffic fatality. 54. Perhaps the most serious part of this complaint is that the judge, in seemingly playing down this possibility, resorted to the evidence of Jenkins to scotch it, without, as we have said, having warned the jury to treat his evidence with caution for the reasons we have mentioned in relation to Jones' second ground of appeal. 55. If this third ground had stood on its own we would not, however, have regarded it as sufficient to render Jones' conviction unsafe. But, for the reasons we have given, the first two grounds individually and cumulatively are, in our view, sufficient to render his trial unfair and his conviction unsafe. 56. We turn now to the appeal of Jenkins. The sole ground upon which Mr Marks, on his behalf, relied is that there is fresh evidence from a custodial officer that Jones, whilst awaiting trial, told her of his responsibility for this attack on Proctor and exonerated Jenkins. We have heard evidence from Mrs Susan Pearce, a custodial officer at the material time in the Young Offender Institution in which both appellants were placed on remand. We have heard that evidence with a view to our considering whether to "receive" it under section 23(1)(c) of the Criminal Appeal Act 1968 , as amended, and, contingently on our doing so, with a view to considering whether the evidence, if given at trial, might reasonably have affected the jury's decision to convict. 57. In her evidence Mrs Pearce has given an account of how, on three occasions in the course of her service at the Young Offender Institution, she had a conversation with Jones in which he volunteered information about the attack on Proctor. She has said that, on each occasion, he gave her the following account. He decided that he was going to teach Proctor a lesson because he was a pervert. He followed him out of the public house, punched him to the ground and then kicked him. Jenkins had followed him out of the public house and had tried to stop him. He did not stop. They both picked Proctor up but, because they had both been drinking he fell down again. He, Jones, then kicked him and stamped on his head. He had only wanted to teach him a lesson; he had not intended to kill him. 58. Mrs Pearce also said that she had asked Jones why Jenkins was also on remand charged with murder. Jones replied that Jenkins had nothing to worry about; he had played no part in it; and he had only been involved because the police had found blood on his clothes. 59. Mrs Pearce has explained why she did not come forward with this information before the trial. She said that she had believed that Jones would give the account at trial that he had given to her. And she said that she had also believed that he would possibly not be convicted of murder and that Jenkins would be acquitted completely, and that, accordingly, her evidence would not be required. 60. It was only after she heard of the convictions that she felt that she should come forward, and did so a short time afterwards by making a witness statement to Jenkins' solicitor. Mrs Pearce had told no one in the Young Offender Institution before then of what Jones had told her. She should have done so, to comply with the rules of procedure in the Institution covering such information imparted to a custodial officer. 61. When she learned, after the convictions, that Jones had not said in evidence at the trial what he had told her, namely that he alone had assaulted Proctor and that Jenkins had had nothing to do with it, she decided to make a statement about it to Jenkins' solicitor. She did that after seeking and obtaining permission from her unit manager, Miss Clare Marie Parkes, to take time off from work to do so. 62. Mrs Pearce's evidence accorded broadly with the witness statement that she had made to Jenkins' solicitor. However, some time early in 2002, she decided to withdraw that statement, and she wrote to Jenkins' solicitor saying so. On her evidence to the Court, which is supported by that of a number of colleagues and superior officers who Mr Harrington called to give evidence, she took that course because of the invidious position in which she felt it had put her in relation to Jones and Jenkins, who were back in the section of the Institution in which she worked. Looking at it with hindsight she felt that she had been manipulated. She spoke to Miss Parkes in a high state of distress and told her that, for that reason, she wished to withdraw the statement. 63. According to Mrs Pearce, she did not tell Miss Parkes or anyone that the statement was not true. None of the witnesses called by Mr Harrington has suggested to the contrary, none that is, save Miss Parkes. In her evidence, Miss Parkes had no independent recollection of the matter and, when prompted by her witness statement, made some months after the events, said that Mrs Pearce had told her that Jenkins, not Jones, had told her what she had spoken about in the statement. In cross-examination by Mr Marks, she acknowledged that she may have been confused about this attribution when she made her statement. 64. At all events, Mrs Pearce was firm in her evidence to the Court that she had never said to Miss Parkes that her witness statement had been based on what Jenkins had told her. It had been based, she said, on what Jones had told her and in accordance with the evidence which she gave to this Court. 65. In considering in the words of section 23(1) of the 1968 Act , whether to "receive" the evidence of Mr Pearce and, if so, whether to allow Jenkins' appeal, we apply the Pendleton test, namely whether her evidence if given at the trial, might reasonably have affected the jury's decision to convict. 66. In our view, the evidence of Mrs Pearce is capable of belief. Whether it would have been believed, if called, or would be believed by a jury on a re-trial, when considered alongside the sort of evidence Mr Harrington has deployed in this hearing, is not for this Court to say. But, having heard her and all those witnesses, we are firmly of the view that it is capable of belief. 67. We are also of the view that Mrs Pearce's evidence may, and does, afford a ground for allowing the appeal of Jenkins, since it is clearly highly material to the central issue going to his guilt or innocence. It would have been admissible at the trial and, in our view, Mrs Pearce has given a reasonable explanation for not coming forward with it before the trial. 68. All the factors in section 23(2) of the 1968 Act going into the exercise of our discretion whether to receive this evidence are therefore satisfied. For those reasons, we do receive it and, on the strength of it, allow the appeal of Jenkins also. 69. Accordingly, we allow both appeals against conviction and we invite the submissions of counsel as to what consequential order should flow from that. In particular whether there should be an order for a re-trial. (re-trial) 70. LORD JUSTICE AULD: We direct a re-trial in both cases. The fresh indictment should be preferred within 2 months of the date of this order and the appellant be re-arraigned on the fresh indictment within 2 months, I think, thereafter. The appropriate order would be for the trial to take place on the same circuit although not necessarily at the same Crown Court. The question arises then, Mr Marks, Mr Aubrey about custody. 71. MR MARKS: We have discussed with the prosecution and, although in due course we would wish to make an application for bail, which we gather the Crown may not wholly be unsympathetic to, there are logistical difficulties in pursuing such an application today, because of conditions that the Crown would want, particularly with regard to accommodation. In those circumstances, we feel the better course would be for such an application to be pursued at the Crown Court rather than here my Lord. 72. LORD JUSTICE AULD: When you get there. 73. MR MARKS: Yes. 74. LORD JUSTICE AULD: In the meantime to remain in custody. 75. MR MARKS: I think so, because the Crown in particular would want to be satisfied about any address at which the defendant may reside and I think it is going to be difficult to resolve to the satisfaction of the Crown today. 76. MR AUBREY: My Lord Wayne Jones was granted bail as your Lordships know. One of the conditions was a condition of residence well away from the Trimsaran area. On enquiries made overnight, that address is no longer available to Mr Jones, but there is another address which is available at Cross Quays, Newport. The Crown will not have had a chance to check that as yet. But may we respectfully invite your Lordships to consider granting the appellant bail, with a conditions subject to the address being satisfactory to the Crown, and if it is found that it is not then appropriate applications can be made before the Crown Court. 77. LORD JUSTICE AULD: Would the Crown Court have jurisdiction before the matter gets back to them? 78. MR AUBREY: It would not, we just make sure we get back there as quickly as we can. 79. LORD JUSTICE AULD: I think the order that I made may be wrong. I said that the indictment should be preferred within 2 months and arraignment within 2 months thereafter. It should be an arraignment within 2 months should it not, Madam Associate? I am told I was wrong. There should be an arraignment preferred and arraigned within 2 months of the date of the order. While we are talking about mistakes, my direction that the matter should be retried on the circuit was right but not sufficient, it should be referred to the presiding judge of the circuit to direct the court at which it should be tried. 80. MR AUBREY: I think we all think that provisionally it may be sensible if the trial proceeds somewhere other than Swansea. That can be arranged with the presiding judge. 81. LORD JUSTICE AULD: Representations can be made to the presiding judge. What about Mr Aubrey's suggestion about bail? 82. MR HARRINGTON: I do not want to the take a stance. When the first trial was aborted, we were concerned about the question of accommodation, as my learned friend knows there was a serious breach of bail, when Jones was on bail on the last occasion. We want to satisfy ourselves that the accommodation is appropriate. My Lord, might I undertake to lodge the fresh indictment quickly. I would arraign on time. We will arrange that the case is listed within the next week or so. 83. LORD JUSTICE AULD: That would probably be the best course, would it not Mr Aubrey? 84. MR AUBREY: As long as it can be done expeditiously. 85. LORD JUSTICE AULD: There is no reason why the indictment could not be preferred within a day or so. Once preferred the Crown Court has jurisdiction. 86. MR HARRINGTON: It has. 87. MR AUBREY: That is perfectly satisfactory. 88. LORD JUSTICE AULD: That is the order we make that both appellants will be remanded in custody. Then it is a matter for the Crown Court, any different order made once the matter is back within the jurisdiction. 89. Before concluding we would like to thank all counsel and those behind them for the assistance given in this case not only in the oral representations but the documentations. It has all been very helpful.	{"ConvCourtName":["Crown Court at Swansea"],"ConvictPleaDate":["2001-10-23"],"ConvictOffence":["Murder"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Swansea"],"Sentence":["Detained during Her Majesty's Pleasure (specified period: 9.5 years for Jones, 9 years for Jenkins)"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[16,16],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Male"],"VicAgeOffence":[53],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Eyewitness testimony","Forensic evidence (blood)","Pathologist report","Custodial officer fresh evidence"],"DefEvidTypeTrial":["Defendant testimony","Alibi/alternative explanation (road traffic accident)","Cross-examination of prosecution witnesses"],"PreSentReport":[],"AggFactSent":["Attack was planned as revenge","Victim was left injured and unattended"],"MitFactSent":["Offenders were 16 years old","No intent to kill (claimed by Jones)","Alcohol involved"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction","Sentence (Jones only)"],"AppealGround":["Misdirection regarding exculpatory evidence of Mrs Rees","Failure to warn jury about co-defendant's evidence (cut-throat defence)","Misdirection regarding possibility of fatal injuries being caused by road traffic accident","Fresh evidence exonerating Jenkins (Jenkins only)"],"SentGuideWhich":["section 82A of the Powers of Criminal Court (Sentencing) Act 2000","section 23(1)(c) of the Criminal Appeal Act 1968"],"AppealOutcome":["Allowed & Conviction Quashed","Retrial ordered"],"ReasonQuashConv":["Misdirection regarding exculpatory evidence of Mrs Rees","Failure to warn jury about co-defendant's evidence","Fresh evidence from custodial officer exonerating Jenkins"],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
Neutral Citation Number: [2011] EWCA Crim 461 Case No. 2010/03484/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 22 February 2011 B e f o r e: LORD JUSTICE RICHARDS MR JUSTICE EADY and SIR CHRISTOPHER HOLLAND __________________ R E G I N A - v - STEPHEN NEAL __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Miss C Bramwell appeared on behalf of the Appellant Mr P Gray appeared on behalf of the Crown ____________________ J U D G M E N T LORD JUSTICE RICHARDS: 1. The appellant was tried at Snaresbrook Crown Court, before Mr Recorder Peart QC and a jury, on six counts. During the course of the trial he was acquitted on the Recorder's direction on count 6, which charged him with possession of an extreme pornographic image, contrary to section 63(1) of the Criminal Justice and Immigration Act 2008 . At the end of the trial, on 6 May 2010, he was convicted on the remaining five counts, each of which charged him with possession of indecent photographs of a child, contrary to section 160(1) of the Criminal Justice Act 1988 . He was subsequently sentenced to a community order with a two year supervision requirement. Other consequential orders were also made. He now appeals against his conviction by leave of the single judge. 2. The material that was the subject of the charges was all found at the appellant's home in the course of a police search pursuant to a warrant after earlier efforts to search the premises had been unsuccessful. The search was extensive; it took seven hours and involved going through a very large amount of material. However, it led only to the six counts in the eventual indictment. 3. Count 6 related to a DVD depicting an adult male of large proportions penetrating with his penis the anus of a female child who had not yet achieved puberty. The reason why the Recorder directed an acquittal on that count was his acceptance that there was no evidence that one of the relevant statutory criteria was satisfied, namely that the image portrayed in an explicit and realistic way "an act which results or is likely to result in serious injury to a person's anus" (section 60(7)(b)). As the Recorder explained to the jury, there were no sounds of distress (there was no sound track to the DVD) and there were no obvious signs of distress displayed in the body language of the subject. No expert evidence had been called to suggest that serious injury would be likely to result from the act depicted, and the disparity in size between the man and the female in the image was insufficient to provide a proper evidential basis for conviction. 4. One of the grounds of appeal is that, given the prejudicial nature of the DVD evidence, the Recorder erred in giving the jury the detailed explanation he did of the reasons for the direction to acquit. We do not accept that the Recorder was in error in giving the jury such an explanation. It was much better for him to explain the existence of a sound legal basis for an acquittal on that count than to leave the jury guessing and possibly feeling a sense of grievance at having the count removed from them. It was entirely appropriate for him to inform the jury of the true position. 5. The next question, however, is whether, having directed an acquittal on count 6 and given that explanation, the Recorder ought to have discharged the jury. There was no application by defence counsel for the jury to be discharged. It is submitted on appeal that the Recorder ought nonetheless to have discharged the jury of his own motion. Mr Gray, who appears today on behalf of the Crown, concedes that the jury should have been discharged given the potential prejudice caused in relation to the remaining counts by the jury's knowledge of the subject matter of count 6. We agree that the jury ought to have been discharged. There was, in our judgment, a very real risk of the jury being prejudiced by what they had seen of the DVD in their assessment of the case against the appellant on the remaining counts (counts 1 to 5). 6. Nonetheless, we shall go on to consider counts 1 to 5, noting that if the case was to continue the Recorder plainly had to give the clearest of directions in relation to those counts to ensure that the jury approached them as fairly and correctly as could be in the circumstances. 7. A striking feature of counts 1 to 5 is that all the photographs to which they related are contained in books of photographs of well-known photographers that are widely available from reputable outlets. The books in question are: "The Age of Innocence" by David Hamilton, "At Twelve" by Sally Mann, and "Notes" by Jock Sturges. As was set out in agreed facts at the trial, those books are available for purchase in store or on-line from one or more major retail outlets such as WH Smith, Waterstones, Tesco and Amazon. One of the images in count 3 also appears as the front cover of another published book by Sally Mann, "Immediate Family", a copy of which was also seized from the appellant's home but which did not form the basis of a separate charge. The same photograph appeared in an article in The Guardian newspaper in May 2010 and was published in the on-line edition of that newspaper. Counsel formerly instructed on behalf of the Crown, Miss Oliver, who is unwell and unable to appear at today's hearing, informed the court in a written note of the result of her inquiries in relation to those other matters. She told the court that the publication of the photograph in The Guardian had been brought to the attention of the Crown Prosecution Service, which decided that no charges should be preferred. She also ascertained that the photographs in count 3 have since been on display at an exhibition in London between June and September 2010, where prints were on sale to visitors to the exhibition. Those facts were brought to the attention of the Crown Prosecution Service, which again decided that no charges should be preferred. Whilst that was the position communicated in Miss Oliver's written note, Mr Gray informs us today that there has not been a final decision in respect of those matters, although he accepts that there is no prosecution pending in relation to them. 8. Against that background it is a matter of some surprise that charges were brought against this individual appellant in relation to the possession of the photographs identified in counts 1 to 5. It is legitimate to wonder whether such charges would have been brought against him but for his possession of the DVD which formed the subject of count 6. Be that as it may, the background to which we have referred underlines the importance of the jury in this case being given an accurate and careful direction as to the matters of which they needed to be satisfied before they could convict on counts 1 to 5. 9. That brings us to the first ground of appeal, which focuses on a point identified by the single judge as the principal reason for his grant of leave. It concerns the Recorder's direction on whether the photographs in question were indecent. It is well established that the test of indecency is objective. The jury must decide whether the images complained of would be considered indecent according to "recognised standards of propriety" or "the standard of decency which ordinary right-thinking members of the public would set": see R v Stamford [1972] QB 391 and R v Graham-Kerr (1989) 88 Cr App R 302. Our attention has also been drawn by Mr Gray to the more recent case of R v Niklas [2006] EWCA Crim 2613 , where, however, the court did not purport to restate the test laid down in earlier authorities. 10. In his directions to the jury, in the course of setting out the ingredients to the offences, the Recorder said this: "In the case of each offence alleged in counts 1 to 5 it is for the prosecution to prove that the photographs in question are indecent and that you may think is the allegation which is at the heat of this case. As you have rightly been told by counsel it is for you to determine whether the photograph in question is indecent. In determining this point you are entitled to consider whether the photograph in question would be thought to be indecent by right-thinking people. Furthermore, in determining this question you are entitled to take into account the age of the subject depicted in the photograph." A little later, after giving the jury a direction as to the drawing of inferences from the appellant's failure to give evidence at the trial, the Recorder said: "I have given you that direction, but it may be that ultimately you conclude that nothing he might have said had he gone into the witness box would in fact impact on the issue that you have to decide because it is your decision as to whether these photographs or any of them are indecent. So it is not what he thinks, it is not what the officers who seized the books think, it is not what the Crown Prosecution Service think, it is not what counsel has urged upon you, it is certainly not what I think, it is what you think. Are these photographs or any of them indecent to your minds? That is the issue that you have to focus on in this case." 11. In granting leave the single judge expressed the view that those two passages, taken together, failed to make clear to the jury that they were to apply the recognised objective standard of right-thinking people, not their own subjective view. Miss Bramwell, for the appellant, focuses on that as the central point in her submissions on this appeal. 12. Mr Gray on behalf of the Crown has today conceded that in his directions to the jury the Recorder failed to put the objective standard. He has formulated wording that he submits would have been appropriate by way of direction to the jury. It is unnecessary either to set that out or to deal further with the test, which is well-established. 13. The submission by Miss Bramwell, and the concession by Mr Gray, are in our judgment rightly made. Whilst the jury are representative of the public, and (as it was put in Stamford at page 399C) "are themselves, so to speak, the custodians of the standards for the time being", it remains essential that they consider the question of indecency by reference to recognised standards of propriety, an objective test, rather than applying their wholly subjective views to the matter. That is all the more important where one is considering photographs in books that are widely available through respectable retail outlets and may in consequence be on the bookshelves of many ordinary members of the community. It was also very important in the circumstances of this case, as we have already mentioned, that if the trial was to proceed on counts 1 to 5, following the acquittal on count 6, the jury were warned against being influenced in any way in their evaluation of the photographs in counts 1 to 5 by their reaction to the DVD that was the subject of count 6 and which plainly fell into a very different category. 14. In our judgment the Recorder's direction was deficient in failing to focus the jury's attention with sufficient precision on their task. We have no doubt that the deficiency was a material one. There is a real possibility that, had they been directed to apply the correct test, the jury would have acquitted the appellant on these counts. That is additional to the point we made earlier in this judgment, that in the particular circumstances the Recorder should not have allowed this case to proceed in any event following the directed acquittal on count 6, but should have discharged the jury at that point. 15. For those various reason the appeal is allowed and the convictions on counts 1 to 5 are quashed. 16. The brings us to the question of retrial. Mr Gray has indicated that in the event of our quashing the convictions the Crown applies for a retrial. He submits that it is appropriate for a jury to consider whether these photographs were indecent, that the prosecution was properly brought and that there is no unfairness to the defendant in there being a retrial. Miss Bramwell resists that application for a retrial. She submits that it is neither fair nor in the interests of justice to prosecute the appellant for possession of such photographs which are contained in widely available books. 17. We have no doubt that we should refuse the application for a retrial. In our judgment a retrial is not in the interests of justice. We do not dispute for one moment that the question of indecency of photographs of this kind is one for a properly directed jury. It is, however, very unfair for an individual in the position of the appellant to be prosecuted for possession of photographs which are contained in widely available books. If it is wished to test whether the photographs in the books are indecent, the right way of dealing with the matter is by way of prosecution of the publisher or the retailer, not of an individual purchaser. We have already suggested that the decision to proceed against the appellant may have been influenced by the addition of count 6. It seems to us to be particularly unfair to put the appellant through the trial process again when, for reasons already covered by us, count 6 has long dropped out of the picture. 18. Accordingly, there will be no order for a retrial.	{"ConvCourtName":["Snaresbrook Crown Court"],"ConvictPleaDate":["2010-05-06"],"ConvictOffence":["Possession of indecent photographs of a child, contrary to section 160(1) of the Criminal Justice Act 1988"],"AcquitOffence":["Possession of an extreme pornographic image, contrary to section 63(1) of the Criminal Justice and Immigration Act 2008"],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Snaresbrook Crown Court"],"Sentence":["Community order with a two year supervision requirement"],"SentServe":[],"WhatAncillary":["Other consequential orders"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Recorder's direction to the jury failed to put the objective standard for indecency; jury should have been discharged after acquittal on count 6 due to potential prejudice"],"SentGuideWhich":["section 63(1) of the Criminal Justice and Immigration Act 2008","section 160(1) of the Criminal Justice Act 1988"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Recorder's direction was deficient in failing to focus the jury's attention with sufficient precision on the objective test for indecency; real possibility that, had they been directed to apply the correct test, the jury would have acquitted; jury should have been discharged after acquittal on count 6 due to risk of prejudice"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2015] EWCA Crim 1328 Case No: 201207170 C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Nottingham Crown Court HHJ Stokes QC T20127568 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/07/2015 Before : THE RIGHT HONOURABLE LORD JUSTICE FULFORD THE HONOPURABLE MR JUSTICE HOLROYD and THE HONOURABLE MR JUSTICE SINGH - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - Edward Brown (formerly Latham) Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Edward Fitzgerald QC and Mr. Simon Clarke (instructed by Cartwright King Solicitors ) for the Appellant Mr Steven Kovats QC and Ms Dawn Pritchard (instructed by CPS Appeals Unit ) for the Crown Hearing dates : 17th March 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Fulford: Introduction 1. On 21 November 2012 in the Crown Court at Nottingham before His Honour Judge Stokes Q.C. and a jury, the appellant was convicted of the attempted murder of Gavin Walker on 10 July 2011. On 30 November 2012 he was sentenced to life imprisonment with a minimum term of 4 years. The judge made a hospital and limitation direction under section 45A of the Mental Health Act 1983 . 2. The incident occurred in Rampton Hospital, where the appellant and Mr Walker were patients. The appellant was already serving life sentences for two other offences of attempted murder. 3. On 9 July 2011 there was concern amongst staff at Rampton Hospital because the appellant told the relevant team leader, Philip Smithson, that he had contemplated killing his solicitor on a visit which had taken place a few days earlier. On 10 July 2011, the appellant again discussed his violent thoughts with members of staff, and at 8.30 pm the appellant approached Mr Walker from behind; he put him in a headlock, and punctured his neck and head with a homemade weapon. Staff pulled him away and he was detained. The weapon was a thin piece of metal with a spike-like tip 3 to 4 inches in length. He had fashioned this from an aerial on his radio prior to his transfer from another ward three weeks before the incident. It was sufficiently sharp to puncture Mr Walker’s neck, although the injuries were superficial. He had brought the weapon to the ward concealed in his clothing. He managed to escape detection during the searches. In interview he said that he had planned to kill Walker as he wished to be returned to prison indefinitely because his violent thoughts made him dangerous ( “ he selected Mr Walker as the person he intended to kill ”) . He also gave this as the reason for his plan to kill his solicitor. The incident with Mr Walker was recorded on CCTV. 4. Unsurprisingly, the prosecution case was that his decision to attack Mr Walker had been pre-planned and pre-meditated. He had fashioned the weapon some weeks before and he concealed it. He had selected Mr Walker deliberately from a number of patients on the ward. As set out above, on his own admission he had intended to kill him. 5. The appellant gave evidence in which he repeated his earlier account that he had intended to kill Mr Walker: he thought killing someone would relieve the pressure he was experiencing. When he had carried out the attack, however, it had not been as if he was attacking Mr Walker; instead, what was in his mind had been his position as a victim of sexual abuse. 6. The issue for the jury, therefore, was whether or not the evidence established an intention to kill. The appellant instructed his counsel to run the defence of insanity, notwithstanding the lack of medical evidence to support this contention. Evidence of this kind is a legal requirement under section 1 (1) Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 to support a defence of insanity. The application re: the Rampton nurses 7. In advance of the trial, on 7 November 2012 the appellant’s solicitor wrote to the court to ask for arrangements to be put in place “ so as to enable the defendant to consult with his lawyers from the secure dock of the relevant court and in the absence of nurses, custody officers and others”. On the first day of the trial, an application was made on behalf of Rampton Hospital for an order that the appellant was to be accompanied by at least two nurses during any conferences with his counsel and solicitors, and for the appellant to be handcuffed to the nurses in the course of these meetings. It was suggested these measures were necessary to protect the appellant from self-harm as well as to protect others. 8. The appellant resisted the application on the basis that he had an absolute right to confidential communication with his lawyers. It was highlighted that it was necessary for the appellant’s representatives to take up -to-date instructions on the morning of the trial. It was submitted that the nurses held him in detention – they were his jailers – and as such they represented the establishment or the state, and their ability to listen to his communications with his lawyers was similar in nature to police officers overhearing privileged conversations. 9. At the Crown Court there were no facilities in the cells to protect defence counsel from the appellant, for instance separating the two men by means of a secure transparent screen. As a result, defence counsel repeated the proposal already made by the appellant’s solicitors, namely that the appellant should be left with his counsel alone in court, with the appellant situated in the secure dock, handcuffed, with the nurses observing from the other side of a secure door. 10. In support of this proposal, it was highlighted that the appellant had successfully participated in a number of confidential conferences with his lawyer at Rampton. These had been facilitated in a specially adapted conference room. A reinforced glass screen divided the appellant and his legal team. They spoke using a microphone and loudspeakers. Staff had watched through a door with a transparent pane. 11. The respondent objected to this proposal on the basis that the appellant might well be able to injure himself seriously, or even fatally, unless he was handcuffed to two members of staff. 12. The judge, in ruling on the issue, highlighted that the appellant was charged in this case with attempted murder, and that he had two previous convictions for attempted murder; additionally, he had planned to kill his solicitor. The judge decided that it was necessary to protect the appellant from the risk of self-harm, and that as a result “[…] he must be shackled to a minimum of two nurses if he is to be in direct personal contact with a third party ”. It is of significance that the judge determined: […] that is not simply, or solely, to protect the individual who wishes to have conversation with him but also, most importantly, to ensure that Mr Brown, as I shall call him, does not take the opportunity of harming himself. He has a long history of self-harm. He has a long history of extremely sophisticated steps being taken, some of a very extreme and unusual nature, to give him the opportunity of self-harming. One example is that he has self harmed and wounded himself and taken the opportunity of concealing within such a wound a blade, a razor blade or similar, having the wound treated, presumably stitched and then, by biting his own flesh, opening the wound, in order to remove the blade. He is, to coin a phrase, an exceptionally dangerous individual in the view of those who know him best. […] The sophisticated steps this defendant has taken in the past to injure others, are such that I have never heard of before, apparently he is capable of bursting a blood vessel in order to spray his interlocutor with his own blood . 13. The judge noted that there were no facilities in the building “ whereby he can see his lawyers whilst he is in one secure place and they are outside that secure place ”. 14. The judge rejected the suggestion that he should permit the appellant to sit handcuffed alone in the dock, communicating with his lawyers on the other side of the partition in an empty court. His reasons were as follows: […] even though […] the defendant would be restrained by handcuffs or similar, there is still a risk, given his history and his individual ability to harm himself, to use the walls of the dock or the glass or anything that is within the dock, be it a lock, a handle, the seating, the glass or wooden panelling, he could throw himself about in such a way that he could injure himself . The Rampton authorities are particularly concerned, given his history and the way he has been able to create situations whereby he has been able seriously to injure himself, the Rampton authorities are understandably concerned that, unless he were shackled to two nurses, there is no practical way of preventing his injuring himself. 15. The judge referred to the undertaking given by the appellant’s trial co unsel, Mr Clarke, that if necessary he would raise the alarm. The judge was of the view that by handcuffing the appellant to the furniture, the court would be providing him with a potential weapon with which to injure himself or others. 16. The judge recognised “ the importance of a defendant in a criminal case being able to instruct his lawyers without anyone concerned being present ”. He concluded, however, that the right on the part of the accused to instruct his lawyers “ privately ” was not “ so absolute ” that it could be used to “ trump his right to life ”. His overall conclusion was: Insofar as it necessary to take any further instructions from him and I emphasise that a (limited) defence statement has been served […] it seems to me that a proportionate and sensible view has to be taken of his right to instruct his lawyers. It is somewhat artificial, in my judgment, to equate nurses from Rampton, who may well know something of the case, with police officers who are investigating a case, overhearing deliberately what a defendant may say to his lawyers and equating that with quite disinterested nurses whose only concern is for the welfare of this highly dangerous and volatile individual. Insofar as any conference needs to take place, I am not prepared to direct that this defendant should be permitted, restrained or unrestrained, into the dock of this court in the absence of appropriate nursing staff, to ensure he cannot harm himself. 17. On 21 November 2012 one of the nurses made a comment during a conference at court when the appellant’s counsel was giving advice as to whether the appellant should give evidence, in the following circumstances. After counsel had explained that he was unable to assert that the appellant was insane, a nurse said “ one of the things he stated yesterday was how he was feeling generally leading up to this incident. That’s what you said the other day. You told us you would … you remember? You said … ”. At this point counsel interrupted him. 18. Shortly thereafter the judge enquired whether the appellant was proposing to give evidence. Although counsel indicated he intended to do so, he complained that the appellant had not had the benefit of the usual privacy in which conferences take place. He suggested that the appellant’s instructions were being given under apparent pressure because of the presence of the two nurses. The judge thereafter refused a request to revisit his ruling. 19. The appellant gave evidence without a further consultation with his counsel, who took the view that it would be inappropriate to discuss matters further with his client given the denial of confidentiality. As set out above, during the course of his evidence, the appellant admitted that he had intended to kill his victim. The Appeal 20. The central ground of appeal is that the appellant’s conviction is unsafe because the ruling of the judge – viz. t hat the appellant’s conferences at court with his lawyers were to take place in the presence of two nurses from Rampton Hospital – breached his right at common law to consult privately with his lawyers and under Article 6(3)(c) European Convention on Human Rights to “ defend himself through legal assistance of his own choosing ” (with the concomitant right to private discussions with his lawyers). 21. It is argued, additionally, that the intervention by one of the Rampton nurses at the conference with counsel on 21 November 2012 in fact interfered with his ability to communicate freely with his lawyers. It is suggested that the presence of the two nurses contributed to the appel lant’s decision to instruct his counsel not to cross-examine the Rampton witnesses, and that it inhibited the ability of counsel to give advice and take instructions shortly before the appellant gave evidence. The presence of the nurses – state employees with a custodial function – who were able to overhear confidential communications meant that this right was abrogated both in itself and in its consequences at the appellant’s trial, thereby rendering the proceedings unfair. In the result, it is contended that he may not have done justice to his case during his testimony. 22. It is further submitted that a conviction following an unfair trial in these circumstances cannot be regarded as safe. 23. The appellant contends there were two crucial flaws in the judge’s r easoning. First, it is argued that he erred when he decided that the right to confidential communication between the appellant and his legal representatives was “ not absolute ” but instead was qualified, and that in any event it did not trump the appellant’ s right to life. The appellant argues that the right to confidential communications is absolute (alternatively, that it is not qualified), although it is accepted restrictions can be placed on the time and place of the meeting between counsel and solicitors. Furthermore, it is acknowledged that if there are sufficient grounds for believing a conference is being misused – for instance, to perpetrate crime – then surveillance is justified. This is on the basis that the meeting was not one to which legal professional privilege applied because the proper and lawful basis for the confidential meeting was vitiated by the illegal purpose or objective. In those circumstances it is suggested the privilege would not exist. 24. If the exercise of the right to confidential communication could not be guaranteed without a serious risk to the appellant’s life (whereby Article 2 of the Convention became engaged), then it is suggested the trial should not have gone ahead until some feasible alternative could be devised. It is argued additionally that the state’s duty under Article 2 is to take all reasonable precautions, not to remove all possible risks. 25. The appellant’s second criticism of the judge’s reasons is that he wrongly distinguished the position when police officers as opposed to “ disinterested nurses ” overhear or listen to privileged communications. It is suggested exactly the same principles apply in both situations. Discussion The Common Law 26. Domestic jurisprudence has underscored that legal professional privilege and the closely connected right of a person to consult a lawyer in private are longstanding common law principles. In McE v Prison Service of Northern Ireland [2009] 1 AC 908 at [6], Lord Phillips described legal professional privilege as an important substantive right as opposed to a mere procedural right, and Lord Neuberger at [108] observed that “ Any modern civilised legal system recognises the fundamental importance of these two rights […]”. In Regina v Derby Magistrates’ Court, ex p. B. [1996] 1 AC 487 , Lord Taylor CJ at p. 507 D, having reviewed a number of the relevant authorities, generically summarised the position as regards these rights as follows: 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 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. 27. Indeed, the principle of legal professional privilege is often described in absolutist terms, in the sense that the right is not dependent on a balancing exercise by which the rule may yield to a consideration of greater importance. For example, in Regina (Daly) v Secretary of State for the Home Department [2001] UKHL 26 ; [2001] 2 AC 532 at [5] Lord Bingham observed: 5. Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment. 28. In a similar vein, Lord Scott in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 , at [25]) indicated it cannot be overridden by “ some supposedly greater public interest ” and in R v Derby Magistrates’ Court, Ex p B Lord Taylor, together with Lord Nicholls, described this as a principle for which there are no exceptions. 29. Therefore, when the privilege exists, it is inviolate. It is necessary in those circumstances to investigate whether in a given situation the protection is, in fact, available. R v Cox and Railton (1884) 14 QBD 153 established circumstances – “ the fraud exception ” or “ the iniquity exception ” – when the privilege does not exist as regards a meeting between an individual and his lawyers. As Stephen J set out when giving the judgment of the court: The question, therefore is, whether, if a client applies to a legal adviser for advice intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose for which his advice is wanted, the communication between the two is privileged? We expressed our opinion at the end of the argument that no such privilege existed. If it did, the result would be that a man intending to commit treason or murder might safely take legal advice for the purpose of enabling himself to do so with impunity, and that the solicitor to whom the application was made would not be at liberty to give information against his client for the purpose of frustrating his criminal purpose. Consequences so monstrous reduce to an absurdity any principle or rule in which they are involved. Upon the fullest examination of the authorities we believe that they are not warranted by any principle or rule of the law of England, but it must be admitted that the law upon the subject has never been so distinctly and fully stated as to shew clearly that these consequences do not follow from principles which do form part of the law, and which it is of the highest importance to maintain in their integrity. Later in the judgment, Stephen J added as regards the circumstances in which it can be assumed that the protection does not exist: We have one other matter to notice. We were greatly pressed with the argument that, speaking practically, the admission of any such exception to the privilege of legal advisers as that it is not to extend to communications made in furtherance of any criminal or fraudulent purpose would greatly diminish the value of that privilege. The privilege must, it was argued, be violated in order to ascertain whether it exists. The secret must be told in order to see whether it ought to be kept. We were earnestly pressed to lay down some rule as to the manner in which this consequence should be avoided. The only thing which we feel authorized to say upon this matter is, that in each particular case the Court must determine upon the facts actually given in evidence or proposed to be given in evidence, whether it seems probable that the accused person may have consulted his legal adviser, not after the commission of the crime for the legitimate purpose of being defended, but before the commission of the crime for the purpose of being guided or helped in committing it. We are far from saying that the question whether the advice was take before or after the offence will always be decisive as to the admissibility of such evidence. Courts must in every instance judge for themselves on the special facts of each particular case, just as they must judge whether a witness deserves to be examined on the supposition that he is hostile, or whether a dying declaration was made in the immediate prospect of death. In this particular case the fact that there had been a partnership (which was proved on the trial of the interpleader issue), the assertion that it had been dissolved, the fact that directly after the verdict a solicitor was consulted, and that the execution creditor was met by a bill of sale which purported to have been made by the defendant to the man who had been and was said to have ceased to be his partner, made it probable that the visit to the solicitor really was intended for the purpose for which, after he had given his evidence, it turned out to have been intended. If the interview had been for an innocent purpose, the evidence given would have done the defendants good instead of harm. Of course the power in question ought to be used with the greatest care not to hamper prisoners in making their defence, and not to enable unscrupulous persons to acquire knowledge to which they have no right, and every precaution should be taken against compelling unnecessary disclosures. 30. In Cox and Railton the court focussed on legal advice given at a meeting between the individual and his lawyer that was to be misused in order to commit a crime, and this case raises the issue as to whether exactly the same principle ought to apply if the meeting between the individual and his lawyer is to be used for a different improper purpose, albeit not a crime, that amounts to an abuse of the privilege such as to warrant or necessitate intervention. To hold otherwise would arguably risk reducing this important protection to absurdity. As Lord Neuberger set out in McE v Prison Service of Northern Ireland [2009] UKHL 15 ; [2009] 1 AC 908 : 109. However, while these two rights ( viz. the right of a person to consult a lawyer in private and the right to legal professional privilege in connection with communications with one’s lawyer) are very important, neither can possibly be regarded as unqualified. Both rights can self-evidently be abused for improper, even criminal, purposes; indeed, as a result of such abuse, the rights themselves could fall into disrepute. 31. In the present context, therefore, the question for the court was whether it should prevent the protection of legal privilege being utilised to enable individuals to inflict violence on themselves or others. The judge identified the real possibility that the appellant might use this meeting with his legal adviser for this improper purpose or in this improper manner, such as to constitute an abuse of the privilege justifying interference. 32. In our view, Judge Stokes was entirely justified in his conclusion that there was a real risk that the appellant would use the conference with his counsel in the courtroom at Nottingham Crown Court to cause himself serious injuries or to kill himself. Although this would not necessarily have involved the appellant committing a crime, it would have constituted an improper use of a meeting that would otherwise have been protected by legal professional privilege. 33. The central issue, therefore, is whether the circumstances of this case means that it falls within the “ iniquity exception ” to the usually inviolable right of an individual to communicate confidentially with his lawyers. This conclusion would involve an extension – albeit significantly limited in nature – to the principle established in Cox and Railton . We note there is a clear basis for distinguishing between an attempt to use the content of privileged conversations in evidence, on the one hand, and the fact that the discussions were not entirely private, on the other. In R v Derby Magistrates’ Court, Ex p B Lord Taylor and Lord Nicholls both focussed in their speeches on the possible use of evidence consisting of what had been said between the legal adviser and his client. Lord Hoffmann, in a similar vein, in Regina (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax and another [2003] 1 AC 563 when stressing the importance of right to confidentiality, observed at paragraph 7 “[…] advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice. […]” These and a number of other similar authorities did not address the discrete issue of the consequence of the presence of someone who was able to overhear what was said as distinct from the use that might be made of privileged communications in evidence. 34. This important difference was considered by Lord Carswell in McE v Prison Service of Northern Ireland , as follows: 82. It is to be noted that these and other authorities dealing with privilege were all concerned with the use of evidence consisting of what was said between legal advisers and clients. The rule preventing that remains absolute, even if that evidence would exculpate another person accused of a criminal offence (the position in R v Derby Magistrates' Court, Ex p B ). The only exceptions, which may not be true exceptions, are when the privilege is spent (per Lord Nicholls in Ex p B , at pp 512–513) or when the communication has been made to a solicitor by his client for the purpose of being guided or helped in the commission of a crime ( R v Cox and Railton (1884) 14 QBD 153 ), since the privilege does not attach at all to communications made for such a purpose. As Schiemann LJ expressed it in Barclays Bank plc v Eustice [1995] 1 WLR 1238 , 1249, “advice sought or given for the purpose of effecting iniquity is not privileged”. 83. None of these decisions concerned covert surveillance of legal consultations. Although the privilege is described in terms of a legal right, it is not clear from the decisions whether such surveillance is to be regarded as unlawful per se or whether the principle extends only to the protection of the product of legal consultations. I incline to the latter view, which appears to be consonant with the Strasbourg decisions, but I do not find it necessary to reach a definite decision on the point. The inviolability of the rule against the admission in evidence of privileged communications remains whichever way it might be decided. 35. Thereafter, in the course of a review of the reasons why Parliament in the Regulation of Investigatory Powers Act 2000 made legal consultations subject to the surveillance provisions, Lord Carswell included the following as one of five significant indicia: 102. Thirdly, there is the need to incorporate exceptions to the inviolability of privileged consultations. One such is the R v Cox and Railton 14 QBD 153 exception: if it were not possible to exercise covert surveillance of legal consultations where it is suspected on sufficiently strong grounds that the privilege was being abused, the law would confer an unjustified immunity on dishonest lawyers. There may be other situations where it would be lawful to monitor privileged consultations, for example, if it is necessary to obtain information of an impending terrorist attack or to prevent the threatened killing of a child. The limits of such possible exceptions have not been defined and I shall not attempt to do so, but they could not exist if the rule against surveillance of privileged consultations were absolute. 36. Currently there are, therefore, two generally recognised common law qualifications to the inviolable nature of legal professions privilege. First, the privilege does not apply if the communications are intended to further a criminal purpose (the “ iniquity exception ”). Second, statute can defeat the privilege if express words are used or necessary implication indicates, as demonstrated in McE v Prison Service of Northern Ireland : the privilege was overridden by the Regulation of Investigatory Powers Act 2000 . 37. It is of note that in the present case there is no suggestion of an intention to misuse any of the privileged communications that were overheard. In this context, nurses deployed to ensure that someone who is detained does not harm himself (or others) are not to be equated with investigating police officers. They are not present to eavesdrop or to secure a tactical advantage over the accused. The nurses were not present as part of an unlawful surveillance exercise. In future cases they would need to be instructed in the clearest terms that they must treat anything they overhear in confidence, and that they should not disclose the contents of the discussion save in wholly exceptional circumstances. Those circumstances may well be limited to the situation when it is apparent that the communications are intended to further a criminal or other serious abuse of the privilege. 38. This situation, therefore, is to be distinguished from the circumstances when the prosecuting authorities deliberately behave in an unlawful way in order to gain access to confidential communications, albeit it is not automatic when this occurs that the proceedings will be stayed as an abuse of the process of the court. In R v Grant [2005] EWCA Crim 1089 ; [2006] QB 60 the Court of Appeal Criminal Division allowed an appeal on the basis that the police, in the course of an investigation prior to criminal proceedings, had taken steps to eavesdrop on the communications of suspected persons which were subject to legal professional privilege. The court found that these steps, which were “ categorically ” unlawful and capable of infecting the proceedings, constituted an abuse of the court's process. Even in the absence of prejudice to the defendant, on the particular facts the court decided the case should have been stayed and the conviction was unsafe. Disapproval of this aspect of the decision in Grant was expressed by the Privy Council in Warren and others v Attorney General for Jersey [2011] UKPC 10 ; [2012] 1 AC 22 , in that Lord Dyson observed: 36. Nevertheless, the Board respectfully considers that the decision in R v Grant was wrong. The statement at para 54 suggests that the deliberate invasion of a suspected person's right to legal professional privilege is to be assimilated to the abduction and entrapment cases where the balancing exercise will generally lead to a stay of the proceedings. The Board agrees that the deliberate invasion by the police of a suspect's right to legal professional privilege is a serious affront to the integrity of the justice system which may often lead to the conclusion that the proceedings should be stayed. But the particular circumstances of each case must be considered and carefully weighed in the balance. It was obviously right to hold on the facts in R v Grant that the gravity of the misconduct was a factor which militated in favour of a stay. But as against that, the accused was charged with a most serious crime and, crucially, the misconduct caused no prejudice to the accused. This was not even a case where the “but for” factor had a part to play. The misconduct had no influence on the proceedings at all. In these circumstances, surely the trial judge was entitled to decide in the exercise of his discretion to refuse a stay and the Court of Appeal should not have held that his decision was wrong. 39. The statement by Lord Carswell in McE v Prison Service of Northern Ireland to the effect that it is necessary “to incorporate exceptions to the inviolability of privileged consultations” is clearly of particular significance in this context . As set out above, Lord Carswell indicated that in addition to the need to qualify the absolute rule when it is suspected, on sufficiently strong grounds, that the privilege is being abused in order to perpetrate a criminal offence, the courts need to be alive to other circumstances which will make it lawful to monitor confidential consultations, for instance in order to save life ( e.g. terrorism or the killing of a child). It follows that the usually inviolable or absolute nature of the rule is capable of qualification at common law outside the particular situation addressed in Cox and Railton . 40. The court, moreover, is a public authority within the meaning of section 6 (1) Human Rights Act 1998 (see section 6 (3) (a)). It has a duty to protect human life in circumstances where this positive obligation is applicable. Article 2 of the European Convention on Human Right s (“ ECHR ”) undoubtedly applied in this case ( “ Everyone’s life right to life shall be protected by law ”) and it is desirable that the common law is interpreted (and, if necessary, developed) in a way that is compatible with an individual’s Convention rights . Indeed it may be that this is required of a court, since the obligation created by section 6 of the Human Rights Act is a statutory one and legislation normally overrides the common law. 41. In our judgment, by way of an additional common law qualification or exception to the inviolable nature of legal professional privilege, and in what is likely to be an extremely narrow band of cases, it will be appropriate to impose a requirement that particular individuals can be present at discussions between an individual and his lawyers if there is a real possibility that the meeting is to be misused for a purpose, or in a manner, that involves impropriety amounting to an abuse of the privilege that justifies interference. This case exemplifies the rare circumstances in which it will be necessary to take this step. It was not suggested that any alternative (and available) Crown Court had been identified which had the facilities for a conference of the kind proposed by the appellant, essentially matching the arrangements provided at Rampton Hospital. The appellant did not apply for an adjournment in order to establish if another court could reasonably be used for the trial, and in the circumstances there was no other feasible alternative to the proposal made by the Crown. This appellant, with his particular criminal history, was charged with an extremely grave crime that it was self-evidently in the public interest to try. As set out above, the judge made a clear and sustainable finding that the appellant was at risk of harming himself, either seriously or fatally, if he acceded to his proposal that conferences with his lawyers should take place using an empty dock in one of the courtrooms. It follows that this step constituted a legitimate exception to the protection which the common law provides as regards legal professional privilege and the linked right of a person to consult a lawyer in private. We note that whether or not this risk, if it exists, justifies intervention will be a question of fact and degree in each case ( JSC BTA Bank v Ablyazov 2014 EWHC 2788 Comm) . 42. Additionally, addressing the impact of the European Convention on Human Rights and the Human Rights Act in this context, the duty to protect life will clearly be enforceable if there is a risk the individual may abuse legal professional privilege in this particular “iniquitous ” manner: the risk identified by the judge would have constituted an occurrence that amounts to a clear and sufficient abuse of the privilege such as to justify this particular interfe rence in order to preserve the appellant’s rights under Article 2 . 43. If, contrary to our conclusions set out above, this case constituted an infringement of the appellant’s right to confidential communications between a subject and his lawyer under the common law and the interference was not justified under section 6 Human Rights Act 1998 , the question then arises as to whether a) the proceedings were, as a result, rendered unfair and whether the conviction is unsafe, or b) the interference was of such seriousness that the court’s sense of justice and propriety means that the proceedings should have been stayed (see Warren and others v Attorney General for Jersey [2011] UKPC 10 ; [2012] 1 AC 22 ). As Lord Brown set out in McInnes v HM Advocate [2010] UKSC 7 ; [2010] HRLR 17 at [35] in a criminal case involving non-disclosure: 35. What, then, in the context of an undisclosed statement, makes a trial unfair? This, ultimately, is the determinative question in the case. I would answer it as follows. The trial will be adjudged unfair if, but only if, the appeal court concludes that the non-disclosure gave rise to a real risk of prejudice to the defence. This in turn depends upon whether the appeal court regards the non- disclosure as having denied the defence the real possibility of securing a different outcome. In short, in a case such as this, the appeal should be allowed if the court decides that, had defence counsel been in a position to make use of the undisclosed statement, the jury might reasonably have come to a different conclusion, otherwise not. It is that which must decide whether the jury's verdict should be allowed to stand. I understand Lord Hope's approach in para 22 to be entirely consistent with this formulation. 44. We recognise that the judgment of Lord Brown in this regard (along with those of Lord Hope and Lord Rodger) has been the subject of some editorial criticism (see Archbold Criminal Pleading, Evidence and Practice 2015 page 1184) and that, inter alia, it is important to remember that the two questions as to whether an accused had a fair trial and whether his conviction is safe are separate, albeit they will often result in the same answer (see, for instance, R v Togher and others [2001] 1 Cr App R 33 , considered below). However, in the context of the present case, when considering fairness and safety it is undoubtedly relevant to assess whether there might have been a different outcome if the two nurses had not been present. 45. We reiterate that these conferences took place at court after the appell ant’s core instructions had been taken, following service of his defence statement. This observation is not to denigrate the importance of discussions between an accused and his lawyers at whatever point they take place during the trial. That said, however , notwithstanding Mr Fitzgerald’s broad assertion that the presence of the nurses affected the appellant’s decision to instruct his counsel not to cross-examine witnesses from Rampton and it had an adverse impact on the process of giving advice and taking instructions, we do not accept there is a real possibility that the course of the present trial would have been materially different if a discussion had taken place in the absence of the nurses. The appellant’s evidence was that he had intended to kill, an d counsel’s consistent advice was that he was unable to advance a defence of insanity in the absence of appropriate medical evidence. Even allowing for the suggestion that the presence of the nurses may have had an inhibiting effect on the appellant and his counsel (the appellant apparently suggested he was worried the nurses would report the conversations to Rampton Hospital), there is no evidence before this court that counsel and the appellant were unable to communicate information of importance that might have altered the course, or the outcome, of the trial. On the material before this court, there was nothing that the appellant could have put to the prison officers in cross- examination that would have assisted his defence. This step was taken to protect or preserve the life of the appellant, and in consequence this case is very far removed from circumstances in which the court’s sense of justice and propriety was offended in a way that meant it should not have been asked to try the accused in the particular circumstances of the case. 46. To adopt Lord Brown’s formulation and addressing the position at common law, we do not consider the jury might reasonably have come to a different conclusion if the nurses had not been present. We do not consider the appel lant’s trial, applying common law principles, to have been unfair nor is his conviction unsafe. The European Convention 47. Addressing whether the European Convention on Human Rights (“ECHR”) yields a different result, by Article 6(3)(c): “ Everyone charged with a criminal offence has the following minimum rights: […] (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free where the interests of justice so require .” 48. The essence of the appellant’s argument in this regard is that the necessary corollary of the right in Article 6(3)(c) is that the defendant has the right to confidential communications with his lawyers. This, it is submitted, rendered the trial unfair and the conviction unsafe. In R v Togher and others , Lord Woolf CJ observed: 30. […] However, in the […] case of Francom [2001] 1 Cr.App.R. 17 , this Court indicated, in a judgment which I gave on behalf of the Court, that we would expect […] that the approach of this Court applying the test of lack of safety would produce the same result as the approach of the ECtHR applying the test of lack of fairness. We would suggest that, even if there was previously a difference of approach, that since the 1998 Act came into force, the circumstances in which there will be room for a different result before this Court and before the ECtHR because of unfairness based on the respective tests we employ will be rare indeed. Applying the broader approach […] we consider that if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe. […] 49. Turning to the suggested right under the ECHR to confidential communications with lawyers, in S v Switzerland (Application No 12629/87, 28 November 1991) a number of the applicant’s meetings with his lawyer were supervised by a police official, and his letters to his lawyer were intercepted and used for graphological reports. Against that background the European Court of Human Rights held that: 48. […] an accused’s right to communicate with his advocate out of the hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6(3)(c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see inter alia the Artico judgment of 13 May 1980, series A no.37, p.16, para.33) . 50. In Brennan v UK (2002) 34 E.H.R.R. 18 the European Court of Human Rights, having cited the above passage, set out: 58. The Court has noted above that Article 6(3) normally requires that an accused be allowed to benefit from the assistance of a lawyer in the initial phases of an interrogation. Furthermore, an accused's right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial and follows from Article 6(3)(c). If a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective. The importance to be attached to the confidentiality of such consultations, in particular that they should be conducted out of the hearing of third persons, is illustrated by the international provisions cited above. However, the Court’s case-law indicates that the right of access to a solicitor may be subject to restrictions for good cause and the question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. While it is not necessary to prove, assuming such were possible, that restriction had a prejudicial effect on the course of the trial, the applicant must be able to claim he had been directly affected by the restriction in the exercise of the rights of the defence . In this case, the trial judge found that the restriction served the purpose identified under section 45 of the 1991 Act of preventing information being passed on to suspects still at large. There was however no allegation that the solicitor was in fact likely to collaborate in such an attempt, and it was unclear to what extent a police officer would be able to spot a coded message if one was in fact passed. At most, it appears that the presence of the police officer would have had some effect in inhibiting any improper communication of information, assuming there was any risk that such might take place. While the Court finds that there is no reason to doubt the good faith of the police in imposing and implementing this measure—there is no suggestion, as pointed out by the Government, that the police sought to use the opportunity to obtain evidence for their own purposes—, it nonetheless finds no compelling reason arising in this case for the imposition of the restriction. (emphasis added) 51. The court went to consider proportionality, and then concluded “that the presence of the police officer would have inevitably prevented the applicant from speaking frankly to his solicitor and given him reason to hesitate before broaching questions of potential significance to the case against him” [62] and that the presence of the police officer at the hearing and within earshot during the applicant's first consultation with his solicitor infringed his right to an effective exercise of his defence rights and that there had been, in consequence, a violation of Article 6(3)(c) read in conjunction with Article 6(1) of the ECHR. 52. In Ocalan v Turkey (2005) 41 EHRR 18 (Tab 6), at para 133, the Grand Chamber of the European Court of Human Rights quoted approvingly a section of the Chamber’s decision: 133. […] However, as stated above … restrictions may be imposed on an accused's access to his lawyer if good cause exists. The relevant issue is whether, in the light of the proceedings taken as a whole, the restriction has deprived the accused of a fair hearing. … In the present case, the Court accepts … that the applicant and his lawyers were unable to consult out of hearing of the authorities at any stage. It considers that the inevitable consequence of that restriction, which was imposed during both the preliminary investigation and the trial, was to prevent the applicant from conversing openly with his lawyers and asking them questions that [might prove] important to the preparation of his defence. The rights of the defence were thus significantly affected. … The Court observes in that connection that the applicant had already made statements by the time he conferred with his lawyers and made further statements at hearings before the State Security Court after consulting them. If his defence to the serious charges he was required to answer was to be effective, it was essential that those statements be consistent. Accordingly, the Court considers that it was necessary for the applicant to be able to speak with his lawyers out of hearing of third parties. … As to the Government's contention that the supervision of the meetings between the applicant and his lawyers was necessary to ensure the applicant's security, the Court observes that the lawyers had been retained by the applicant himself and that there was no reason to suspect that they had threatened their client's life. They were not permitted to see the applicant until they had undergone a series of searches. Mere visual surveillance by the prison officials, accompanied by other measures, would have sufficed to ensure the applicant's security”. Consequently, the Court holds that the fact that it was impossible for the applicant to confer with his lawyers out of the hearing of members of the security forces infringed the rights of the defence. 53. It is clear, therefore, that under the jurisprudence of the European Court of Human Rights, the right to confidential communications with lawyers is not absolute. Instead, it can be restricted for good reason and one of those reasons is if the individual’s life is at risk . 54. It is of note in this regard that Recommendation Rec (2006) 2 of the Council of Europe Committee of Ministers to member states on the European Prison Rules (which is designed to reflect the ECHR and the case law of the European Court of Human Rights) provides: Legal advice 23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. 23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. 23.3 Where there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners. 23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. 23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security. 23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings. (emphasis added) 55. As set out above, Article 2 of the ECHR imposes a positive obligation on public authorities, including the court, to take reasonable measures to avert a real and immediate risk to life (see van Colle v United Kingdom (2013) 56 EHRR 839 at [88]-[89] and Osman v United Kingdom 29 EHRR 245 : “ it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge” [116]) . 56. Whether or not the restrictions were properly justified is clearly relevant to the issue of proportionality, and, against that background, the court needs to make the assessment as to whether the trial was fair. The correct approach was clearly adumbrated by Lord Carswell in McE v Prison Service of Northern Ireland at [85] when, after referring to S, Brennan and Ocalan, he set out: In other words, it was the effect of the supervision, not the supervision itself, which brought about the breach of Convention rights. It was accepted in Brennan (para.58) and Ocalan (para.146) that the right of access to a solicitor might be subject to restrictions for good cause, the ultimate question in each case being whether the restriction deprived the accused of a fair hearing. 57. For the reasons already set out at [41], [45] and [46], we consider these restrictions were a proportionate and appropriate response to the grave threat the appellant posed to himself and we do not accept that they rendered the proceedings unfair. As a result, there has been no breach of Article 6. Conclusion 58. In light of the conclusions set out above, this appeal is dismissed.	{"ConvCourtName":["Crown Court at Nottingham"],"ConvictPleaDate":["2012-11-21"],"ConvictOffence":["Attempted murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Nottingham"],"Sentence":["Life imprisonment with a minimum term of 4 years"],"SentServe":["Single"],"WhatAncillary":["Hospital and limitation direction under section 45A of the Mental Health Act 1983"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":["Sectioned"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Sectioned"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Victim testimony","Defendant's admissions"],"DefEvidTypeTrial":["Offender admits offence","Defence of insanity (unsupported by medical evidence)"],"PreSentReport":[],"AggFactSent":["Offence premeditated","Weapon fashioned and concealed","Previous convictions for attempted murder"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge's ruling requiring presence of nurses during legal conferences breached right to confidential communication with lawyers under common law and Article 6(3)(c) ECHR"],"SentGuideWhich":["section 45A of the Mental Health Act 1983"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["The restriction on confidential communication was justified and proportionate due to the real risk of self-harm; no real possibility the trial outcome would have been different; no unfairness or breach of Article 6 ECHR; conviction is safe"]}
No: 200603887/A9 Neutral Citation Number: [2006] EWCA Crim 2570 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 4th October 2006 B E F O R E: SIR IGOR JUDGE (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE GOLDRING MR JUSTICE HENRIQUES - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 89 OF 2006 (MICHAEL SHAW) - - - - - - - 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 J LAIDLAW appeared on behalf of the ATTORNEY GENERAL MR P BIRKETT QC & MR G FORLIN appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. SIR IGOR JUDGE: This is a Reference by Her Majesty's Attorney-General, under section 36 of the Criminal Justice Act 1988 . Those familiar words conceal what, in truth, was a most complex and difficult sentencing decision, in a case which flowed from the death of a young man aged 22, in a disastrous and tragic accident at work. 2. The offender in this case is Michael Shaw. He is 45 years old. He was born in January 1961. He is a man of previous positive good character. On 7th July 2006, in exceptional circumstances, at Winchester Crown Court, before Owen J, he pleaded guilty to manslaughter on the grounds of gross negligence. 3. There had been a trial on this charge which lasted between 14th June and 5th July. There were a further seven counts associated with offences against the Health and Safety at Work Provisions. 4. The jury convicted the offender of the Health and Safety offences; they were unable to reach a verdict on the manslaughter charge. The prosecution gave notice that they would seek a retrial on the manslaughter charge and on the following day the offender indicated that he intended to change his plea to guilty. On the day after, 7th July, he pleaded guilty. After hearing mitigation, Owen J sentenced him to 2 years' imprisonment, suspended for 2 years, for gross negligence manslaughter and imposed fines on him totalling £40,000 for the Health and Safety at Work counts of which the jury had convicted him. 5. A brief summary of the case is that at the stone cutting factory, which the offender effectively owned and ran, a young man, who had been inadequately trained, was fatally injured at a large cutting machine. An investigation into this tragedy revealed that a light beam safety device, which would have operated to prevent the accident, had been rendered inoperative. 6. In more detail, the facts emerge very starkly. The offender was the founder and managing director of a company known as Change of Style Ltd. The business involved at least, in part, the manufacture of fireplace surrounds and kitchen work surfaces using stone and marble. In 1985 the business was based at Ridley Farm, near Southampton, and then it moved to a new site, on an industrial park in Totton. By 2003 the company was reporting a turnover of £1.64 million, with projected turnover for the following year in excess of £1.8 million. 7. Although the offender was styled Managing Director, which is what he was, he was in fact a hands-on boss. He had a direct approach to the business. He was personally heavily involved at the shop floor level, observing what went on, supervising what went on, no doubt urging and encouraging those who worked for him and, it should be added, using the machinery himself and taking an active part in the manufacturing process. 8. By the time of the accident in May 2003 the company had three stone cutting machines known as 'CNC machines' installed and working. The machine at which the fatality occurred was purchased and installed in August 2000. The machines are designed to cut out and fashion marble, granite and other materials. They are fully automated. They operate in response to computer programmes set by operators. Those who use the machines -- and we take this very briefly -- load the stone onto the work surface and then, from the control box, set the programme running; they then wait until the programme finishes, remaining available to deal with any problems that might arise, and finally, the unfinished product is unloaded. 9. These three machines were designed, built and installed by an Italian engineering company known as Z Bavelloni. The machines had been manufactured and supplied with three safety devices or features. Photo electrical cells which emit a beam of light the length of the rear and front working side of the machine guarded what is described as "the danger zone" when the machine was in operation. If broken, because somebody stepped across that beam and into the danger zone, the device worked so as instantaneously to bring the machine to a halt. There were also raised skirts or skirt guards which ran the length of the front and rear working sides of the machine, and their purpose was to protect against debris from the cutting progress or from cutting tools, flying off and striking anyone in the vicinity. Contact switches had been fitted to ensure that the guards were not lowered during periods of operation. Finally, there were emergency stop buttons placed at strategic locations around the machine. 10. The operating manuals for the machines clearly defined "the danger zone" and contained this stark warning: "It is strictly forbidden for the operator to stay in the 'danger zone' while the machine is working". There was also a warning that the safety guards should not be removed because they were designed to protect against injury from moving parts. The light beam devices on these three machines were rendered inoperative by engineers supplied with Bavelloni at the time when the machines were fitted. 11. At the end of the trial, when passing sentence, the judge observed: "...it was clear on the evidence before the jury that it was the Bavelloni engineers who had disabled the photoelectric beams, both on the machine in question and on the two other Bavelloni machines owned by Change of Style. The evidence was overwhelmingly to the effect that the beams had not been functional from the point of installation. The control switch for the control guards had also been tampered with and the cutoff system had been bypassed." So in effect all the safety devices were out of action. 12. The prosecution suggested that the reason for the removal of these safety devices was that when activated they would lead to delay in the production process. By removing the safety devices, those employed as stone cutters could approach the danger zone in order to load or unload the machine, or indeed deal with problems which arose while the machine was still in operation. 13. As the stone cutting programmes could last as long as one-and-a-half hours, and the consequence of switching the machine off in mid-cycle would be a restart in the entire computer programme, one can see how time would be saved if the devices were removed. It is right, however, to record that again, according to the judge's findings, he considered that it would be appropriate to sentence the offender on the basis that his: "...fault lay in failing to recognise the danger that the machine presented in its unguarded state rather than in recognising the danger and deliberately deciding to run the risk." 14. However, there was evidence that in 1999 a Mr Smith, who was an independent Health and Safety officer, visited the offender's premises and, according to his evidence, observed that the light beam device on an automated machine had been rendered inoperative. His advice to the offender was that the device should be reinstated as a high priority. He gave evidence that although he had no independent recollection of his visit to the premises, he was sure that his report referred to the CNC machine. However, in cross-examination on behalf of offender it was put to him that he was mistaken and his recommendation related to a Tekna saw. The witness rejected that suggestion. 15. It is agreed between counsel for the Attorney-General and counsel for the offender that the realistic answer to this issue can be encapsulated in the conclusion that this visit did not result in the offender reinstating the safety device on the CNC machine. However, the judge appears from the way in which we have narrated his sentencing remarks, to have taken the view that there could not have been a previous warning in relation to the CNC machine. What, however, is less clear is whether or not we should draw from that the conclusion that Mr Smith had not given any warning. It would be impossible from the way in which the case was advanced on behalf of the offender to conclude that no warning at all had been given. What was put on his behalf was that something may have been said, but it related to the Tekna saw. Accordingly and in summary, we approach this part on the case on the basis that, at some stage, a Health and Safety officer observed that on some machines, other than a CNC, the light beam device had been rendered inoperative and that he had asked for it to be reinstated as a high priority. 16. Apart from this particular piece of evidence going back, now to 1999, it was clear and reasonable to infer from the jury's guilty verdicts on the charges relating to the Health and Safety at Work Act that the offender had very little time for Health and Safety issues. There was a lack of proper training and risk assessment made by the company in relation to its machinery and work practices. There was also evidence, consistent with those findings, of an occasion when the offender told a manager at the works: "Basically if we implemented Health and Safety to the letter of law it would cost too much. The company couldn't afford it and it would close us down. We had to think about production first." 17. Evidence was given at trial that the engineers from, or acting on behalf of Bavelloni continued to make frequent visits to the premises during the 5 years or so between the original installation of one of the CNC machines and the date of the accident. The number of visits was estimated at approximately 50. During the visits no effort was made to reinstall the safety features or to make them operative. There was further evidence that some other manufacturers, five or six in number, adopted similar practices to the offender in respect of the CNC light beam device. 18. The judge noted that: "...following the fatality inspection of other sites at which such machines had been installed revealed a number of other machines in which the photoelectric beams had been disabled in the same way. Whilst that does not in any sense excuse your gross negligence it does serve to put it into a wider context." 19. The judge accepted the submission made on behalf of offender that, although was guilty of gross negligence manslaughter, there were others who bore a degree of responsibility. As he pointed out, however, that did not relieve the offender of his responsibility, but served to put his criminal negligence into its proper context. We are told today, having asked, that there has been no report of a similar accident, but it is very alarming to hear that there are a number of companies who, at any rate prior to this ghastly disaster, had waved aside sensible safety precautions for their employees. 20. The victim of this tragedy was David Bail. He was 22 years old at the time of his death. He had various jobs of a manual and unskilled nature before he began work at Change of Style in November 2002. His training was described "in house" which in effect meant 'on the job'. Little was said about risks or the safety aspects of the machine or, and this is not without significance, the absence of the safety features. 21. He was put on to one of the stone cutting machines with full responsibility for its operation. In common with other employees, he was known to approach and enter into the "danger zone" for various reasons while the machine was in operation. As inevitably happens it had long become the practice that all those employed on stone cutting, in the absence of instructions not to do so, copied the example set by others. No doubt young David Bail followed the example of those who were more experienced in the work. 22. On 13th May 2003 he was working on the late shift. Shortly after 7 o'clock in the evening, while he and his colleagues were having refreshment, a noise was heard coming from one of the CNC machines. It appeared to be a tool fallen out of place, but nothing of any particular importance or problem, save that it would have involved replacing the misplaced tool and then re-starting the automatic programme with, as already described, the result that if the programme had to be rerun from the beginning there would be some delay. 23. We have given sufficient detail of the way in which this system worked for what happened afterwards to be readily understood. If the light safety device had been working in order, David Bail would not have entered "the danger zone". He would not have tried to clear up the problem in the machine without first stopping the programme. The risk that he faced was that while changing the tools, the head of the machine could move rapidly and suddenly and create a trapping point between the head of the machine and the pillar of the corner of the machine. Doing his duty, he responded to the noise and went to investigate it to clear up the problem. He entered "the danger zone" and became trapped by the head when the machine head suddenly moved forward. He suffered catastrophic head injuries; he never regained consciousness and he died a few hours later in hospital. With the light safety machine in operation, of course, he would never have gained access to the danger zone and he would not have sustained those fatal injuries. 24. The offender was arrested and interviewed in late November 2003, 6 months later. At that time he sought to distance himself from the events by blaming the Bavelloni engineers and indeed others. He also falsely claimed that he had not known that the light beam safety devices had been rendered inoperative. A year later, in November 2004, he was charged with manslaughter and related offences under the Health and Safety at Work Act 1974 . By then he had had a heart attack and had been hospitalised and had been put on to and still is on daily medication for his heart condition. 25. The trial took place in June 2006. There was a delay, as we were told, because of the unavailability of a High Court judge to sit in Winchester for such a long trial, as was anticipated. These delays were, as we have already observed, most unkind to the victim's family and indeed to the offender and his family. 26. While the jury was in retirement the judge was provided with a bundle of material about the financial position of the company. In summary, the position was as follows: for the year ended March 2003, the company reported a before tax profit of £71,000. In the tax year ended March 2004, that is the year following the death of the deceased, the company sustained a loss of just over £200,000. For the year ending March 2005, notwithstanding a substantial increase in turnover, the company reported a net profit of £10,000. As at July 2006 the accountant reported: "...the company is just holding its own, making a small net profit or loss each month and breaking even over a longer period of time." 27. This aspect of the position of the company was dealt with in his sentencing remarks by the learned judge. Among other things he observed: "If I now send you to prison the overwhelming probability in my judgment is that the business will fail, putting in jeopardy the livelihood of all those whom you employ and their dependents. The repercussions of a sentence of imprisonment at this point go far beyond you." He then asked rhetorically: "Should they too suffer the consequences of your criminal responsibilities for the death of David Bail?" 28. The importance of that observation to the subsequent sentence is this: the judge had summarised all the relevant features of the case, aggravating and the mitigating features and the issues which would serve to provide the appellant's personal mitigation. He then dealt with the position of the business and his final remarks having passed sentence can be seen in these words: "Finally I should say in conclusion that the fact that I have suspended the sentence of imprisonment that I have imposed upon you Michael Shaw was solely the consequence of my concern that the affect of such an immediate sentence of imprisonment would have upon your employees." That observation, and the basis on which the sentence was suspended is criticised on behalf of the Attorney-General as an inappropriate consideration, or an insufficient consideration to have justified the suspension of the sentence. 29. As to that issue, of course, we have to bear in mind that although the judge made clear that he attached great importance to the destruction of the company and the loss of employment prospects for the employees, he was doing it in the context of all the other matters of mitigation, which he had dealt with in detail and to which, having summarised the aggravating features we shall come. 30. The aggravating features of this case are plain. A young man lost his life because of the gross negligence of his employer. By way of emphasis this was not negligence sufficient to be dealt with by way of monetary compensation. this was criminal negligence. The offender ran his business without proper regard for Health and Safety issues. The warning in 1999 made its own point. The convictions returned by the jury of a number of offences of contravention of the Health and Safety provisions reinforced the same point. There are, of course, occasions when we read, probably superficially, or perhaps in superficial reports, about Health and Safety interfering in a disproportionate way with ordinary life. But, again, we emphasise that Health and Safety issues in this place of employment were literally a matter of life and death. 31. Here, at the peril of death, safety was ignored for business convenience. The machine on which the deceased met his death and the other two machines (identical machines) had in fact been dangerous and potentially lethal from the date of when they were first installed some years earlier. 32. It is true that the offender did not personally disable the safety devices on the machine. They were disabled when they were installed. In subsequent visits they were never put into working order by the installer. But as the offender acknowledged by his guilty plea, and he has never resiled from his guilty plea, the bypassing of safety procedures in his premises was his responsibility and he was criminally culpable. 33. The other side of the coin is that the appellant was able to point to significant features of mitigation. He was of previous good character. That was a matter of genuine positive good character; it was not simply a matter of avoiding conviction. He had pleaded guilty. This plea of guilty occurred in most unusual circumstances and, in our judgment, was a very significant piece of mitigation. It was not a guilty plea tendered at the first available opportunity. Indeed a trial had been completed. 34. If one strictly followed guidelines, that would lead to the conclusion that the mitigation afforded by the guilty plea was slight or trivial. But the whole point about guidelines is that that is what they are - they cannot cater for cases which are exceptional, which this one was. This offender, having had a trial, in which the jury was unable to agree and therefore, by definition, some members of the jury, at any rate, were not satisfied that guilt had been proved, elected to bring the entire proceedings to a halt by pleading guilty and accepting responsibility. He wrote a letter which the judge read out and which we shall read out, at any rate, in part to include in this judgment: "Due to the hung jury verdict I have had a few days to take stock of my position as Managing Director of Change of Style Ltd and the responsibilities, which I hold to David Bail's family and my employees. I realise it is my responsibility to provide a safe working environment which unknowingly I had failed to do. I feel it is in the interest of all concerned not to prolong the agony this has caused to David's family, the uncertainty and pressure caused to my employees and ex-staff. On a personal level I do not wish to put my family through any more heartache in the fear of me suffering another heart attack and ill health." That lead to the further considerations which the judge had to bear in mind. After the offender had been arrested and interviewed and before he was charged, his health had suffered. We have described the heart attack with its continuing consequences. The business was certainly in much poorer state than it was. As we now know, and this was not before the judge, the offender's marriage has also ended. No doubt all these different factors contributing to the stresses and strains on health and business and private life. 35. It is submitted to us that the power to suspend a term of imprisonment in this case, which arose under section 118 of the Powers of Criminal Courts (Sentencing) Act 2000 , simply did not arise. This section reads: "A court shall not deal with an offender by means of a suspended sentence unless it is of the opinion- (a) that the case is one in which a sentence of imprisonment would have been appropriate even without the power to suspend the sentence; and (b) that the exercise of that power can be justified by the exceptional circumstances of the case." The Act does not define "exceptional circumstances"; neither do any of the authorities in this Court. They simply address individual cases where exceptional circumstances were or were not established. Effectively by definition, exceptional circumstances are, in truth, fact specific to an individual case. But we have illustrated the basis on which the judge concluded that he should suspend this sentence, although, as we emphasise, his remarks have to be seen in the overall context of the mitigation which was available to the offender. 36. It seems to us, dealing with the matter broadly, that there will be occasions when it may well be relevant for a sentencing court to take account of the consequences of a sentence of imprisonment to a business run by the offender. We can think of a number of different examples where that may be appropriate. We certainly do not rule it out. But the problem with that approach in a case like this is that the crime for which sentence had to be imposed arose directly from the offender's misconduct of his business which unfolded disastrously on an employee. So different considerations apply to cases like this. If it were otherwise, many small businesses, dependent, as this one was on a "hands-on boss" -- and we use the colloquialism quite deliberately -- could operate without proper regard to the consequences of gross negligence resulting in death. To take the boss away would almost certainly damage the business, and might therefore put innocent people out of work. But if that consideration were to produce a suspended sentence in each case like this, there would be no particular incentive on the bosses in most small organisations to see that Health and Safety measures were complied with. As this case shows, it is imperative that Health and Safety provisions should be observed. It can be, as we have said already, a matter of life and death. So in situations like the present, it seems to us that the consideration that the result of an immediate sentence of imprisonment would be the collapse of the business and unemployment for employees cannot normally be treated as an exceptional circumstance. 37. There is, as we have acknowledged, much more to the mitigation than the collapse of the business, and many of the features which we have identified are typical of many defendants who have failed to comply with their health and safety obligation. They are decent men and women trying to run sensible businesses, taking dangerous shortcuts in order to keep production going. They are, as we say, decent people, working the business, no more and no less than that. They do not normally get before a court. That is an important feature in cases like this. The mitigation available to this offender is personal to him, but there are many in his position who have been found guilty of criminal negligence about whom all these things can be said. In our judgment, it was not appropriate to suspend this sentence, and to that extent the sentence was unduly lenient. 38. That then leaves us with this position: if the judge was not justified in passing a suspended sentence, and such a sentence was wrong in principle, it would, we believe, be wrong in principle for this Court to leave in place a sentence which has been found to be wrong. We shall not do so. 39. What should now happen? We have read the pre-appeal report. We recognise, and it is fair to the offender to repeat the genuineness of his remorse and the impact that the death of this young man has had on him. We recognise, too, the absence of good health and the other personal circumstances which have now overtaken him. We bear in mind that this is a new sentence. That is sometimes described as double jeopardy. Double jeopardy can be given all sorts of meanings. We shall explain how we approach the issue in this case. 40. The human problem has to be faced that this disaster happened over 3 years ago. The offender was told that he would be charged in November 2004. He has waited for 3 years after the accident before his trial. He pleaded guilty in the exceptional circumstances we have described and the judge did not pass an immediate custodial sentence. Now, we have come to the conclusion that we cannot avoid an immediate custodial sentence. We bear in mind all the delay and the way in which this case has unfolded; that we are dealing with a man of good character who now, having been told that he would not be going to prison will, in consequence of our order, be going to prison for the first time. 41. In those circumstances, we have come to the conclusion that the appropriate sentence to be passed on this offender is one of 15 months' imprisonment, which we shall order to run today. 42. SIR IGOR JUDGE: Is your client here, Mr Birkett? Would you stand up, please. Michael Shaw, you have heard the judgment of the Court. The effect of our order is that you will serve half that time and you will then be released on licence. This has not been an easy case for anyone and not an easy case for you. We have read the report with care. There is an element in this case which we want you to have in mind: it is called expiation. This disaster has been with you for 3 years now. Serving your sentence will help to expiate the undoubted sense of guilt that you suffer from. But you must now go. The sentence will be ordered to run from today. The Court will adjourn for a few minutes so that everybody who needs to do whatever they have to do now can do so. Sit down for a moment, please. 43. MR BIRKETT: Can I raise one matter? So far as the financial penalty, is it the Court's intention that that should stand at the level that was imposed? 44. SIR IGOR JUDGE: Yes. Thank you.	{"ConvCourtName":["Winchester Crown Court"],"ConvictPleaDate":["2006-07-07"],"ConvictOffence":["Manslaughter (gross negligence)","Health and Safety at Work offences"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Winchester Crown Court","Court of Appeal Criminal Division"],"Sentence":["15 months' imprisonment","Fines totalling £40,000 for Health and Safety at Work offences"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[42],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Male"],"VicAgeOffence":[22],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Expert report/testimony","Witness testimony","Company records","Health and Safety reports"],"DefEvidTypeTrial":["Offender denies offence","Cross-examination of Health and Safety officer"],"PreSentReport":[],"AggFactSent":["Offence resulted in death","Gross negligence","Lack of proper training and risk assessment","Ignored Health and Safety warnings","Multiple Health and Safety offences"],"MitFactSent":["Offender of previous good character","Guilty plea after trial","Genuine remorse","Health problems (heart attack)","Business and personal hardship"],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Suspension of sentence was inappropriate","Exceptional circumstances not justified for suspension"],"SentGuideWhich":["section 36 of the Criminal Justice Act 1988","section 118 of the Powers of Criminal Courts (Sentencing) Act 2000"],"AppealOutcome":["Allowed","Sentence increased to immediate custody"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":["Suspension of sentence not justified by exceptional circumstances","Business consequences not normally exceptional in gross negligence manslaughter"],"ReasonDismiss":[""]}
Case No: 2014/00467/C4 Neutral Citation Number: [2015] EWCA Crim 1936 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT HHJ Nicholas Cooke QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/12/2015 Before: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE OPENSHAW and SIR RICHARD HENRIQUES - - - - - - - - - - - - - - - - - - - - - Between: Regina Respondent - and - Robert David Ekaireb Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Orlando Pownall QC for the Appellant Brian Altman QC and Tom Little for the Respondent Hearing date: 24 and 25 November 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Thomas of Cwmgiedd, CJ: Introduction 1. On 19 December 2013 the appellant was convicted of the murder of his wife Li Hua Cao on or about 23 October 2006 at the Central Criminal Court before HHJ Nicholas Cooke QC and a jury. On 7 January 2014 the appellant was sentenced to imprisonment for life with a minimum term of 22 years less 209 days in respect of time spent on curfew. The appellant was ordered to pay £120,815.05 towards the costs of the prosecution. 2. His application for leave to appeal was made on several grounds. The single judge refused leave on three grounds of appeal and referred two grounds of appeal for consideration by the Full Court. One ground alone was pursued in respect of conviction which relates to the conduct of Michael Wolkind QC. He appeared for the appellant with Michael Skelley, instructed by Michael Kaye. Mr Wolkind was dismissed on 16 December 2013 after he made his closing speech in the circumstances we set out at paragraph 43. It was the case for the appellant that Mr Wolkind’s conduct was incompetent to a degree that rendered the conviction unsafe in accordance with the principles set out by Buxton LJ in R v Day [2003] EWCA Crim 1060 . 3. No criticism was made of junior counsel or of the solicitor. Each was called by the appellant to give evidence. Mr Wolkind provided a statement and was called by the court at the request of both parties and in accordance with the practice of the court he was cross-examined. 4. Before turning to the specific matters relied on, it is necessary to set out a brief summary of the case against the appellant and his defence. The background 5. The appellant was a wealthy property developer and jeweller. His wife had come from China with her brother to Ireland to learn English in about 2003. The wife had stayed on, working as a waitress. The appellant’s evidence was that he met her in a “lap dancing” club in November 2005 in Dublin where she worked. They married in China in July 2006 and went through a second marriage ceremony in England on 4 October 2006. She was pregnant. 6. They made their home at Flat 9, Pavilion Court, Mount Vernon Estate, Hampstead in North London. The appellant owned a number of other properties nearby. Following the wedding ceremony in England the wife was granted leave to remain in the United Kingdom until 5 October 2008. The initial investigation 7. The wife had opened a bank account in London on 20 October 2006. It was never used. 8. In February 2007 Li Bin, the wife’s brother to whom she had last spoken on 23 October 2006, reported to the police that she was missing as none of the family had heard from her at the time of the Chinese New Year. Although the appellant had not contacted police, he cooperated with the police enquiry that followed in 2007. He was spoken to by the police in February, May and August 2007 and gave a significant witness interview in October 2007. 9. He told them that his wife had left him in mid-November 2006 as she had done on previous occasions. She had not told him where she was going. He believed that she had returned to lap dancing in Dublin. The initial investigation concluded in December 2007 that the wife was “a free spirit … used to travelling … (and) had many short-term relationships.” 10. A full murder investigation began in February 2012 when she had failed in the intervening years to contact her family. The appellant voluntarily attended a witness interview and answered all questions under caution in 2012. The appellant was charged with his wife’s murder on 7 June 2012 and then again interviewed. 11. The body of the wife has never been found. There was no forensic evidence of any alleged place or cause of death. There was no forensic evidence at any of the appellant’s properties or in his vehicles. CCTV recordings on the Mount Vernon estate had only been kept for 14 days. No case was made by the prosecution precisely as to how or when she was killed. The case for the prosecution 12. The case for the prosecution was based on circumstantial evidence. Many witnesses were called, including the wife’s brother and two sisters, those who had known her in Ireland, members of the Chinese community in London, those who dealt with her in relation to her pregnancy and its possible termination, private investigators, those who worked on the Mount Vernon estate, those who had let Flat 9 Pavilion Court after 2006, those who conducted the missing person inquiries in 2007 and 2012. The prosecution had intended to call a resident of the Mount Vernon estate who had much more direct evidence, but a decision was made not to call her shortly before the trial 13. In terms of seeking to prove the wife’s death the prosecution relied generally upon: i) The wife’s lack of contact with her family and friends after speaking to her brother on 23 October 2006. That was out of character. Her brother’s evidence was that they were very close and in contact by phone and text. ii) Her landline, mobile telephone, e-mail account and bank accounts had not been used after October 2006. iii) Her failure to attend appointments relating to her pregnancy. iv) The fact that all enquiries seeking to establish proof that she was still alive came to nothing. v) The failure of the appellant to make any enquires about her or the child which she was carrying. vi) Lies told by the appellant. 14. The prosecution relied upon specific evidence relating to the period before her last telephone call to her brother on 23 October 2006. i) The appellant had a “nasty temper.” He was said to be controlling and disapproving about his wife’s past. She had told police in the past that she was afraid of him and that he had assaulted her in August 2006, though she subsequently retracted the allegation. ii) He was said to be a controlling man who restricted her access to money and to other people. Her brother’s evidence was that there had been a change after the wedding as he would not allow her to work and she felt she had no freedom and no friends. The evidence of her sister, Li Hong Cao, was to the same effect; she was afraid of him; she was unhappy and wanted to return to China. iii) They had a loud argument in China in July 2006, which resulted in bruising to her arm and scratches to his chest. The argument was overheard by the wife’s sister Li Hong Cao, and was said to be about her desire to leave possessions the appellant had bought her, at her family home in China. Her evidence was that the police had been called, but the case was dropped after it was agreed that monthly payments would be made to her parents. iv) The appellant was obsessed by her lap dancing past and whether she had continued lap dancing after she became his girlfriend. In late August 2006 he hired a private investigator and in October 2006 contacted polygraph companies. v) There was evidence of a previous report to police of the wife going missing. The appellant had called police on 15 August 2006 and referred to a text message which suggested she was considering suicide. When police made contact with the wife she told police that she was scared of the appellant. The appellant repeatedly called and texted; she did later agree to be picked up by him and taken home. In contrast in October 2006 he made no effort to telephone her and did not contact the police. 15. The prosecution relied on the following evidence of matters that had occurred on 23 October 2006 as pointing to the killing having occurred then or thereabouts: i) At 20:00 on 23 October 2006, the wife had spoken to her brother. About 3 hours later, a telephone call was made from 9 Pavilion Court to the appellant’s mobile telephone. At 23:07, the appellant’s key fob was activated allowing access to the car park. At 23:44 and 23:58 the appellant telephoned his parents. ii) The appellant went out in the early hours of 24 October to a nightclub in London’s West End having telephoned the manager of the nightclub at 01:08 from 9 Pavilion Court. A parking ticket was issued to the appellant’s father’s car at 03:15, near to the nightclub. iii) The appellant accepted that he was the last person to see her. iv) The inherent implausibility of the appellant’s account of her leaving Flat 9 on the Mount Vernon Estate on a night in October 2006 with her packed bags and no one having heard from her after that time. 16. The prosecution then relied on events after 23 October 2006 as confirming the appellant had killed her: i) After that night the appellant went to live with his parents and never used the flat again. ii) He sent text messages pretending to be his wife and asking for the contact details of her former roommate. iii) He sent a series of text messages to his previous girlfriend; the prosecution suggested he was trying to rekindle the relationship. iv) There had been “unusual key fob activity” showing repeated access from one of the car parks to Flat 9 on 8 November 2006 between 21:45 and 00:04. v) There was a sighting of the appellant being driven by his father from Flat 9 by one of the security porters in a “zombified” state possibly on the same date. vi) On 17 November 2006 a midwife telephoned and said that the wife had not attended for a scan. The appellant said that he was not sure why this was and that he would ask her to telephone later that evening. vii) A series of works were undertaken on Flat 9 prior to it being rented out on 21 December 2006. These included replacing the original carpets with new carpets of the same colour, the cleaning of the marble floors and a new partition between the bedroom and living area, from which the inference might have been drawn that he was anxious to remove incriminating traces. viii) The wife’s wedding ring, purchased as part of a matching set, and other possessions were recovered from a storage unit being rented by the appellant and his father in June 2012. The appellant had previously told police that his wife had taken all of her possessions with her when she left. The defence case 17. The defence case was that the wife was not necessarily dead and, if she were, the appellant was not responsible for her death. His case was that on 23 October 2006, she had told him that she was leaving him because her family needed her. She packed her bags and left the flat. He never saw her again. She was unhappy in her marriage and bored by his life-style in London. He gave evidence to that effect at the trial. 18. In supporting that case, and responding to the prosecution case he relied on the following: i) The wife had quickly become unhappy in the marriage, bored in London and had not wanted the baby. She left him on 23 October 2006 for those reasons. ii) She had not been as close to her family as the prosecution evidence suggested. Her parents had divorced when she was young and she lived with an aunt for 7-8 years. She had never lived with her family for any sustained period. iii) She resented her brother who lived in Denmark because he did not send money home to her parents as she did. iv) In August 2006, she had been reported missing. She had telephoned in response to a call from the police, but said she did not want her whereabouts disclosed as she was frightened of her boyfriend. This information had been passed on to the appellant. v) On 15 August 2006 she had sent him a text message saying: “I hope you can get good life with your money you are a bad boy in the world – I do not need money I am still can get good life after few year I will show you.” vi) She had withdrawn £1,800 from her Lloyds account on 10 October 2006. If she wanted to disappear and not be traced she would not use the known accounts after this as it would allow her to be traced. vii) She had spoken of terminating the pregnancy. She had attended an initial consultation with the British Pregnancy Advisory Service, but did not attend on 19 September 2006 for a scheduled termination. At the time of her disappearance she was 19 weeks pregnant and was therefore approaching the time limit for a legal termination. viii) In August 2006 after she had left the appellant, she had told Yin Tuen, a prosecution witness who helped Chinese people find work, that she would be prepared to work as an escort to make money. ix) She had no links with the UK other than her marriage to the appellant and therefore it was likely she would have gone to China or Ireland. 19. As to the prosecution’s circumstantial evidence against him relating to matters before 23 October 2006, the appellant’s case was that: i) Although he had a temper, he had not been violent towards her. He accepted that there had been an altercation in the street on 28 August 2006, but he did not assault her. She made a formal withdrawal of the statement she had given to police, stating: ‘My husband Robert … has never been violent towards me.’ ii) He did not restrict her, beyond restricting (a) her cooking because his Jewish faith involved restriction on his diet, and (b) her working, because she was pregnant and he did not want her to work. iii) They argued in China because she wanted to give away gifts that were sentimental. She had scratched him and he had restrained her by the wrists. iv) He had only hired a private investigator to establish whether she was still lap dancing as she had said that she was not. v) They had argued over the pregnancy, as he had wanted her to have the baby. 20. In respect of the evidence of events after 23 October 2006, the appellant maintained: i) He had telephoned his parents on 23 October as he was upset that she had left him. ii) There was no record of anything unusual in the security log at the Mount Vernon estate on the night of 23 October 2006. iii) He had decided to move out of Flat 9 prior to the disappearance as he and his wife were moving into a different flat in Heathview Court in any event, and he had already started to furnish the new home in September. iv) He wanted to let Flat 9 for a commercial rent. The carpets, cleaning and modifications were undertaken in furtherance of renting out the flat. The carpet changing was negotiated by his father and was a £1,500 investment which made sense since the flat could be rented for £3,000 per month, professional cleaning is standard and a partition was erected as that was a term of the lease with an incoming tenant. The evidence of a letting agent was to the effect that the new tenants wanted modifications. v) The attempts to contact Ireland and the wife’s friends in late October represented an indirect attempt to trace her by finding out the whereabouts of previous flat mates. vi) If he had been trying to lay a false trail by pretending to be her, he would not have used his own phone vii) He had contacted his ex-girlfriend in November 2006 as a “shoulder to cry on”. viii) The key fob activity of 8 November 2006 was him moving personal belongings out of the flat. ix) He admitted that he had not been frank with the midwife. This was due to embarrassment at being left by his pregnant wife and not knowing where she was. x) As for the wedding ring, it was found along with his own in the suitcase because neither of them regularly wore them and they were put in the suitcase in their presentation boxes after the UK marriage on 4 October 2006. The suitcases would have been placed in storage at some point in 2008. His suggestion in the 2012 interview that she had taken the ring with her, would have been an assumption, and the mistake therefore owed to a lapse of memory due to the passing of time rather than a lie. xi) He had not contacted police after his wife’s disappearance because she had been angry on previous occasions when he had involved the police. He believed not that she was missing but that she had left him as she had done before. xii) He had been depressed after his wife left and did not report her missing because to him she was not missing, but had left of her own free will. xiii) Although he had been identified as the last person to see his wife on 23 October 2006, no one else would necessarily remember something as mundane as a person leaving the estate where they lived on foot. 21. The trial began on 31 October 2013. The prosecution called 36 witnesses between 6 November 2013 and Wednesday 27 November 2013 when the prosecution closed its case. A submission of no case to answer was made on Friday 29 November 2013. The judge ruled there was a case to answer on Monday 2 December 2013. Mr Wolkind made an opening speech on the morning of Wednesday 4 December 2013 and the appellant was then called. He gave evidence until 10 December 2013 when 2 defence witness were called. The prosecution closing speech took the whole of Wednesday 11 December 2013 and part of the morning of Thursday 12 December 2013. The defence speech began at 12.15 that day; it continued until the end of the day with a further few minutes on Friday 13 December 2013, in circumstances to which we refer at paragraph 43 below. The judge summed up the case over three days, beginning on Friday 13 December 2013 and concluding on Tuesday 17 December 2013. A unanimous verdict of guilty was returned after a retirement of 7 hours. The criticism of Mr Wolkind (a) The law 22. It was agreed that the law relating to the basis upon which an appeal against conviction grounded upon the incompetence of the advocate should be considered was correctly stated by Buxton LJ in R v Day [2003] EWCA Crim 1060 at paragraph 15: “While incompetent representation is always to be deplored; is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe. We accept that, following the decision of this court in Thakrar [2001] EWCA Crim 1096 , the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe.” 23. At paragraph 52 of the decision of this court in R v Bolivar & Lee [2003] EWCA Crim 1167 the then Vice President, Rose LJ, had expressed the test: “Professionalism requires that a barrister should do his job properly, disregarding such matters. Of course, if his performance on behalf of a client is affected by such matters, different considerations apply. Hence, in our judgment, the test to be applied in relation to a barrister's conduct, is: was it Wednesbury unreasonable and such as to affect the fairness of the trial?” Both counsel submitted that the formulation was not apposite to the present case because that concerned advocacy affected by the personal circumstances of the barrister. We agree. In any event, the formulation by Buxton LJ is the more modern formulation. It is simpler to apply; it avoids consideration of how Wednesbury unreasonableness is to be applied to the conduct of an advocate; and it is more in accord with the formulation approved in a judgment of the Privy Council in Sankar v. State of Trinidad and Tobago [1995] 1 W.L.R. 194 at 200F–G . (b) The nature of the criticism 24. It was the submission made on behalf of the appellant that where the prosecution case was based entirely on circumstantial evidence, the defence depended on competent cross-examination of the witnesses called by the prosecution, competent advice on whether the defendant should give evidence, competent examination of the defendant and a very carefully prepared speech for the defence. We are satisfied that Mr Wolkind told Mr Skelley on a number of occasions that it was a closing speech case. 25. It was not suggested that Mr Wolkind was incompetent in the following respects: i) His advice on tactics. ii) His advice on calling witnesses, including the appellant. iii) His challenge to the admissibility of evidence. iv) His cross-examination of the witnesses called by the prosecution. v) His preparation for calling the appellant and his examination in chief of the appellant. vi) His agreement to the extensive agreed facts which were put before the jury and to the witness statements which were read to the jury. 26. The case for the appellant presented by Mr Orlando Pownall QC was that Mr Wolkind’s incompetence related to the final speech for the defence and fell into two categories: i) a ‘severe criticism of style’ which itself amounted to incompetent representation in that he: a) failed to present the defence in an appropriate and focused manner; b) often resorted to patronising the jury, conducting personal attacks on counsel for the prosecution. He indulged in a number of inappropriate attempts at humour which were bound to alienate the jury; ii) a failure to confront the matters advanced by the prosecution by displaying (as had been reflected in submissions of no case to answer and in his opening submissions), a reluctance fully to engage with the issues before the jury in stark contrast to the detailed way in which the prosecution had advanced the case. It was contended that Mr Wolkind had made the speech he did as the result of his failure before and during the trial to prepare himself properly for the trial and his lack of engagement in the trial and his doing of other work during the period he should have devoted himself to the defence of the appellant. He had substituted for proper preparation a speech that failed to rebut the case for the prosecution and relied instead on inappropriate diversions. 27. Before dealing with the closing speech, it is necessary to set out briefly an account of the instruction of Mr Wolkind and his conduct of the defence during the trial. The instruction of Mr Wolkind 28. The appellant instructed Mr Michael Kaye of Kaye Tesler, Solicitors, from the time of his police interviews to which we have referred. Mr Kaye initially instructed Anthony Arlidge QC with Mr Michael Skelley of 18 Red Lion Court as his junior. As we have noted, he gave evidence before us. This put him in a very difficult position; however he considered it was his duty to give evidence in accordance with the high standards all barristers are expected to observe. He discharged that duty with complete integrity and gave his evidence with great clarity. We accept the entirety of his evidence; therefore where it conflicts with that of other witnesses we accept his account. 29. After the hearing at which an attempt was made at dismissal in February 2013, the appellant decided to instruct Mr Wolkind. Mr Wolkind had been called to the bar in 1976 and been appointed one of Her Majesty’s Counsel in 1999; he practised at 2 Bedford Row. It appears that the appellant chose Mr Wolkind on the basis of Mr Wolkind’s personal website, “topcriminalqc”, (not that of his chambers) and some recommendations. Mr Skelley continued as the junior. 30. After Mr Wolkind had been instructed, it is apparent from the e-mail correspondence that has been disclosed that Mr Wolkind had more than one conference with the appellant; it was made clear by Mr Wolkind that he would be concerned with the trial and leave all the early preparation to his junior and his instructing solicitor. It was the evidence of Mr Kaye, which was not disputed by Mr Wolkind, that Mr Wolkind told the appellant that in the period immediately preceding the trial there would be daily conferences. The allegation that Mr Wolkind did not prepare the case properly (a) Position before the trial 31. The trial was originally scheduled to begin on 7/8 October 2013, but then moved back to 21 October 2013. On 10 October 2013 Mr Wolkind informed his solicitor and the appellant that the first conference would be on 14 October 2013. The conference was brought forward as a result of the reaction of the appellant and his solicitors. In an e-mail of 9 October 2013, Mr Kaye reported that he was very concerned that Mr Wolkind was, “far from up to speed and was not concerned about that being obvious”. There was nothing that called that assessment by an experienced solicitor into question. 32. The concern, which was discussed between Mr Skelley and Mr Kaye on 12 October 2013, was such that the possibility of dismissing Mr Wolkind was discussed. It was mooted that Mr Skelley should take the case over. Mr Skelley’s view was that it would not be appropriate for him to do so as he had never appeared on his own in a case of this size and complexity. 33. On 21 October 2013 the trial date was put back to 31 October 2013. Daily conferences were not held in accordance with what Mr Wolkind had said to the appellant; only one is recorded. Mr Wolkind’s diary for that period lists several conferences in other matters as well as one appearance in another matter. (b) The course of the prosecution case 34. On 31 October 2013, the trial was called on. An application was made before the case was opened to exclude the evidence of a psychologist, Judith Halperin whom the prosecution sought to call. The application was prepared entirely by junior counsel. We are satisfied that Mr Wolkind had not read the material. He simply, though competently, presented what his junior counsel had prepared for him. The application was successful. 35. As we have set out, there was no complaint that Mr Wolkind had failed to deal with the correct points on cross-examination. From the evidence that we have received it was clear that he relied very significantly on his junior for the points that were to be made. When the appellant asked Mr Wolkind why he had not asked a particular question or taken a certain approach, he would explain to the appellant that it was a closing speech case. Some evidence was given that pointed to Mr Wolkind’s lack of preparation for cross-examination; for example in the cross-examination of PC Vina Barrett a previous conviction of the appellant for possession of an offensive weapon was referred to when it should not have been. That resulted from Mr Wolkind asking the officer to read out parts of a document including that which contained the reference to the previous conviction, though it was wholly unnecessary for that particular passage to be read out. It was said that Mr Wolkind had not properly read the document, but this point was not put to Mr Wolkind. 36. It is, in our view, unnecessary for us to make any findings in relation to his state of preparation for the cross-examination of the prosecution witnesses; that is both because there was no criticism of the cross examination and for the reasons given at paragraph 53 below. The submission of no case to answer 37. As we have set out at paragraph 21 above, the prosecution closed its case on Wednesday 27 November 2013. There was then a day on which the court did not sit before the submission of no case to answer was to be made. Mr Skelley, as the junior, was engaged with Mr Tom Little, the junior for the prosecution, on that day in trying to agree the proposed agreed facts. Mr Skelley therefore told Mr Wolkind that he could not assist in preparing the submission of no case to answer. It appears from Mr Wolkind’s diary that he was engaged in another case in this court on that morning but in the afternoon there was a conference in the present case. That was concerned with the question as to whether the appellant should give evidence. There was no significant discussion of the submission of no case to answer. 38. Mr Altman for the prosecution provided to the court a detailed 17 page submission as to why there was a case to answer. The written submission provided by Mr Wolkind to the judge was nine paragraphs long, extending over a page and a half. It was prefaced by the following: “This document is written and provided to the court after receiving the prosecution’s submissions. The defence had prepared their own document but consider it easier now to respond to the prosecution.” 39. Mr Wolkind told us that the document described as “their own document” had been prepared by him in manuscript; a copy was no longer available. We were told by Mr Wolkind that he considered that his nine paragraph document was sufficient and that he made such arguments as could be made orally. Although concise submissions are to be encouraged, we are entirely satisfied that the document put before the court was lamentable. It was a wholly inadequate response to what had been prepared on behalf of the prosecution; it was not the submission required to support the argument in a case where the evidence was entirely circumstantial. It was not just an error of judgment, but represented a serious failure on the part of Mr Wolkind. In fact, in determining this appeal nothing turns on this serious failure, since it is now rightly conceded that there was a case to answer, as the judge found. The opening speech for the defence 40. On 4 December 2013, Mr Wolkind opened the defence case. The speech was in large part a criticism of the prosecution case and entirely unfocussed. It also contained unwarranted and unjustifiable specific criticism of both Mr Altman and Mr Little. We return to this at paragraphs 59 and following. However, we need not consider the speech further as it is not said to be incompetent. The evidence of the appellant 41. Mr Wolkind told us that it was a difficult decision as to whether to call the appellant; he was worried as to the impression he would make. We understood and appreciated that concern. Indeed that risk eventuated. Mr Wolkind said he had to fight hard to “rescue him”. As we have set out at paragraph 21, the appellant commenced his evidence after the conclusion of the opening speech for the defence. Mr Skelley told us that he felt by that time Mr Wolkind was engaged in the case; he had therefore commented to Mr Wolkind that, “You have had a good day at the office”. No criticism is, as we have said, made of the examination of the appellant. 42. Evidence was given to us by Mr Skelley that during the cross examination Mr Wolkind, whilst half listening to the evidence, was sending e-mails on other cases. The events after the closing speech 43. Before turning to the closing speech, it is necessary to refer to Mr Wolkind’s conduct during the summing up. Very little of the summing up was delivered on Friday 13 December 2013, as a juror became ill. When the judge resumed on Monday 16 December 2013, Mr Wolkind arrived part of the way through the morning and then left during the course of the afternoon. The appellant decided in those circumstances to terminate his instructions to Mr Wolkind and to continue with Mr Skelley alone. Mr Wolkind told us that he had been late because of a delay in a video conference he had arranged, according to his diary, for 10:00 for another case, where the defendant was held in prison. His diary showed that at 15:00 he had a meeting in another case. The consequence of Mr Wolkind’s dismissal was that he was not present on the following day when there was an exchange between Mr Altman and the judge about the answers of the defence to the detailed case made by the prosecution. We refer to this at paragraph 48 below. The closing speech (a) The instructions not to complete the closing speech 44. As we have set out at paragraph 21 above, the defence speech began at 12:15 on Thursday12 December 2013. Mr Wolkind had had no real discussion with his junior and no discussion with his solicitor or the appellant before the speech. In consequence, Mr Kaye spoke to Mr Wolkind at 13:55 and asked him not to close his speech that day. Mr Wolkind did not reply but Mr Kaye looked on this as an instruction and assumed Mr Wolkind would not finish that afternoon. When the speech came to an end, towards the close of the day, Mr Kaye, as he told us, was very angry. He spoke to Mr Wolkind who agreed that he would say a little more on the following morning. He did so. 45. Although this was a matter of complaint against Mr Wolkind, it was misconceived. Mr Wolkind was under no duty to act on instructions of this kind. In R v Farooqi [2014] 1 Crim App R 8 , [2013] EWCA Crim 1649 , Lord Judge CJ in giving the judgment of the court set out the duties of the advocate in relation to instructions given by a defendant in a trial at paragraphs 107 to 109. He made clear that the conduct of the case was the responsibility of the trial advocate. His instructions were contained in the defendant’s account of what had happened; it was the advocate alone who remained responsible for the forensic decisions and strategy. “That is the foundation for the right to appear as an advocate, with the privileges and responsibilities of advocates and as an advocate, burdened with twin responsibilities, both to the client and to the court.” 46. There is, in our view therefore, no basis upon which an advocate can be instructed as to what to say in his closing speech by his solicitor or by his client or when to conclude it. That is the advocate’s responsibility. Thus, although we understand the concern of Mr Kaye and the appellant, no criticism can attach to Mr Wolkind for disregarding what was said as to the time when he should conclude his speech. That was a matter for his judgment, bearing in mind his duties to the appellant and to the court. That was, however, a very minor part of the complaint against the way in which Mr Wolkind had dealt with the closing speech. (b) The case made on appeal about the speech 47. We have referred at paragraph 26 to the case made by Mr Pownall on behalf of the appellant. It was further submitted that during the trial Mr Wolkind had led the appellant, Mr Kaye and Mr Skelley to believe that he had been “harvesting” or “gathering” points to make in his closing speech and that he would make a detailed closing speech in rebuttal of the detailed closing speech that had been delivered by Mr Altman. The complaint was that Mr Wolkind had not made a closing speech which would rebut the points that had been made by the prosecution and explain the case properly to the jury. As was put in advice to the appellant on 8 January 2014: “We agree that he had all of the ammunition but then did not fire it.” 48. It was submitted that the incompetent nature of the defence closing speech had clearly caused the judge concern: i) On Tuesday 17 December 2013, after Mr Wolkind had been dismissed in the circumstances to which we have referred in paragraph 43, there occurred the exchange between the judge and Mr Altman to which we there referred. At the start of the day, Mr Altman raised a detailed question in relation to the summing up; the judge then referred to his duty to deliver a balanced summing up: “What we have here is a contrast between a prosecution who put their case on a very detailed analysis of the whole succession of facts. Mr Wolkind has not sought to answer those facts in detail.” After Mr Altman had observed that was often a question of style, the judge continued: “But there is a problem therefore, for a judge giving a balanced summing up, in that making a succession of prosecution points which have not be answered in detail, I have to go rather carefully, lest I give the impression this is simply a review of the prosecution case.” ii) Mr Altman responded that the prosecution’s position was that simply because important and significant points were not answered was not a reason for not airing them. He emphasised that this was a detailed circumstantial case and the devil lay in the detail. iii) There followed numerous passages in the summing-up where the judge had pointed to the way the prosecution had put their case and emphasised that it was a “circumstantial case where the devil is in the detail”. We were taken to examples in the summing-up where the judge had put the detailed nature of the points made by the prosecution, but where there was no readily apparent answer from the defence. (c) The way the speech was prepared 49. Mr Wolkind told us that he had, as he had explained to the appellant (as we have set out at paragraph 47 above), been keeping a list of points. From notes provided to us by Mr Wolkind it appears that he had prepared on his computer a first draft on Tuesday 10 December 2013 at 20.38, comprising two pages and a further draft of seven pages at 20:33 on Wednesday 11 December 2013. The final draft headed “Closing speech at 1.24” was timed at 08:41 on Thursday 12 December 2013. At 08:47 on that day Mr Wolkind sent to Mr Skelley an e-mail: “A man who worked till after 2 and restarted at 6 will be a little late arriving. If I am not in the building by close to 10 please tell the court I am on my way and should be there by 10.20.” The court was due to sit at 10:15 and did indeed start at 10:15. The evidence of Mr Skelley 50. It was Mr Skelley’s evidence that he prepared and provided to Mr Wolkind three documents entitled “Closing speech points”. He was not convinced Mr Wolkind was developing the points that needed to be made and had not been invited by Mr Wolkind to discuss the speech or to contribute to its drafting; he had told Mr Skelley it was his speech The first of the three documents, provided on 10 December at 23:31, was a document of some 12 pages. The second a document of two pages and the third a document of five pages were sent on 11 December 2013. These three documents contained detailed points in relation to the circumstantial evidence in the case. (d) An analysis of the speech 51. Mr Altman QC who appeared on the appeal for the prosecution helpfully provided us with a detailed analysis of Mr Wolkind’s closing speech. From that analysis and our detailed consideration of the closing speech, the following emerges: i) There were six themes of criticism of the prosecution case that formed the basis of Mr Wolkind’s speech: (i) “random attacks”, (ii) “speculation”, (iii) “pet theories”, (iv) “prejudice”, (v) “distortion” and (vi) “mistakes”. ii) The speech was developed round these themes. All the points that had been put forward by Mr Skelley in the three documents to which we have referred, were incorporated, sometimes with specific attribution to Mr Skelley, but there was little more. 52. We have asked ourselves the question, therefore, whether the speech can be described having reached a level of incompetence that called into question the safety of the conviction or the fairness of the trial. We cannot so describe it. Although it will be for others to consider wider issues, it was a speech that covered the points and it had a structure, however ill-judged the themes and the structure might have been. We accept as amply justified the criticism made by Mr Pownall that it was ill-judged, patronising and contained inappropriate attempts at humour. It also contained observations about prosecuting counsel which, as Mr Skelley told us, were completely unprofessional; no advocate should have put these observations into a speech, as we shall observe at paragraphs 59 and following below. However it did not reach a level of incompetence that called into question the fairness of the trial or safety of the conviction. 53. As we have reached that view, it would not be appropriate for us to make more general findings in relation to Mr Wolkind’s lack of preparation and conduct of the case. That must be a matter for the Bar Standards Board to which we direct the matter be referred. The safety of the conviction 54. Although we grant leave to appeal against conviction, we are satisfied that the sole ground on which it is advanced fails. We have considered the entirety of the evidence and see no reason to doubt the safety of the conviction. There were very telling points against the appellant such as the inherent unlikelihood of the wife leaving the flat on an October night with a suitcase given the location of the flat in Hampstead, the failure of the appellant to make inquiries about his wife though she was bearing his child, the refurbishment of the flat and the finding of the ring. The application for leave to appeal against sentence 55. We refuse leave to appeal against the minimum term of 22 years imposed. The judge took the correct starting point of 15 years. The concealment of the body in such a way that it has never been found and the fact that his wife was pregnant to his knowledge when he murdered her are both seriously aggravating factors that justified the significant increase above the minimum term. Concluding directions observations (a) Websites 56. Our attention was drawn to Mr Wolkind’s personal website. We were surprised at its content and tone. However whether it is within the proper bounds of professional conduct for a member of the bar, particularly one who has had since 1999 the status of being one of Her Majesty’s Counsel, is a matter which we direct be referred to the Bar Standards Board for their consideration. (b) Carrying out other work 57. We have had to make some express findings in relation to other work that Mr Wolkind was carrying out during this very complex murder trial. The fact that Mr Wolkind was doing so plainly caused the appellant very considerable concern and led to his dismissal of Mr Wolkind. However, it would not be right for us to make any observations. The terms upon which any barrister, particularly one of Her Majesty’s counsel, is free to engage on other work during the conduct of a case is a matter for the Bar Standards Board, subject to an overriding duty to the court in respect of the case before the court. We therefore direct that general issue be referred to the Bar Standards Board for their consideration. (c) Defence closing speeches 58. Unsurprisingly we were not referred to any decided case in which an incompetent defence speech has provided the grounds for a successful appeal. As was demonstrated in Farooqi the trial judge has the responsibility and ample scope to ensure that a defendant's case is accurately before the jury. That task may involve correcting or amplifying a closing speech. Should that prove impossible it may, in an extreme case, be necessary to discharge the jury. In the present case no such criticism has or can be made. (d) Personal criticism of opposing advocates in addresses to the jury 59. Finally, there is one feature of the conduct of this case which judges must ensure ceases immediately and not be repeated in any case. That conduct is making in an address to the jury personal criticism of opposing advocates in contradistinction to criticism of the prosecution case. 60. We were told that the practice of making personal criticism of prosecution advocates has become a feature of some addresses to the jury made by defence advocates. In this case the personal criticism of Mr Altman and Mr Little by Mr Wolkind should not have been made in his addresses to the jury. 61. If any advocate has a criticism of the personal conduct of an opposing advocate that is a matter that should be raised before the judge who will deal with it then and there, though, in what we hope would be the rarest of circumstances, it could be referred to the professional disciplinary body. 62. The conduct of a trial before a jury requires proper and professional conduct by all advocates in speeches to the jury. As any personal criticism of the conduct of an opposing advocate is a matter for the judge, it can form no proper part of an address to a jury. The regrettable departure from proper standards of advocacy by making personal criticisms of advocates of an opposing party in an address to the jury must therefore cease. No court will tolerate its continuance.	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2013-12-19"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["Imprisonment for life with a minimum term of 22 years less 209 days in respect of time spent on curfew"],"SentServe":[],"WhatAncillary":["Ordered to pay £120,815.05 towards the costs of the prosecution"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Circumstantial evidence","Witness testimony (family, friends, community, professionals)","Bank account inactivity","Phone and email inactivity","Key fob activity","Text messages","Physical evidence (wedding ring, possessions)"],"DefEvidTypeTrial":["Defendant testimony","Witness testimony (defendant's account, family background)","Alternative explanations for evidence"],"PreSentReport":[],"AggFactSent":["Concealment of the body in such a way that it has never been found","Victim was pregnant to the offender's knowledge when murdered"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["Incompetence of trial advocate (closing speech) rendered conviction unsafe"],"SentGuideWhich":[],"AppealOutcome":["Dismissed","Leave to appeal against conviction granted but appeal dismissed","Leave to appeal against sentence refused"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Closing speech was ill-judged and unprofessional but did not reach a level of incompetence that rendered the trial unfair or the conviction unsafe","Judge took correct starting point for sentence and aggravating factors justified the minimum term imposed"]}
No: 2005/05527/A6 Neutral Citation Number: [2006] EWCA Crim 400 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Monday, 6 February 2006 B e f o r e: LORD JUSTICE PILL MRS JUSTICE SWIFT DBE HIS HONOUR JUDGE RADFORD ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - R E G I N A - v - SB - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - MR R HOWAT appeared on behalf of THE APPELLANT MR R UNDERWOOD appeared on behalf of THE CROWN - - - - - - - J U D G M E N T Monday, 6 February 2006 LORD JUSTICE PILL: I will ask Mrs Justice Swift to give the judgment of the court. MRS JUSTICE SWIFT: 1. Before giving judgment we should remind you that it is an offence under the provisions of the Sexual Offences (Amendment) Act 1992 to publish the name and address, or any matter which might lead to the identification of the victim of an offence listed in section 2 of the Act . That restriction applies to the present case. 2. On 23 August 2005, in Crown Court, the appellant, who is now 51 years old, pleaded guilty to two counts of rape contrary to section 1 of the Sexual Offences Act 2003 and to one count of attempted rape. On 26 September he was sentenced to life imprisonment pursuant to section 225 of the Criminal Justice Act 2003 , with a minimum term of five years' imprisonment concurrent on counts 1 and 3 (rape), and a determinate sentence of five years' imprisonment concurrent on count 2 (attempted rape). An order was made pursuant to section 28 of the Criminal Justice and Court Services Act 2000 disqualifying him from working with children. 3. The appellant appeals against sentence by leave of the single judge. 4. The circumstances of the offences are these. The 14 year old complainant was a friend of the appellant's daughter. On 18 June 2005, she arranged to meet the appellant's daughter and to stay overnight at the appellant's house. She had stayed there on many previous occasions. Indeed the appellant and her father were good friends. 5. On that day the appellant met the complainant and his daughter after he had finished work at the fun fair where he was employed. He bought them some alcohol. They drank the alcohol and watched television. The girls drank alcopops and the appellant drank absinthe and apple. The appellant's daughter went upstairs with the complainant and the two girls changed into their nightclothes. They then went back downstairs and continued drinking. At about midnight the complainant said that she felt tired and a bit tipsy. She went upstairs to bed. She slept on a quilt on the floor of her friend's room. 6. At about 3am the appellant entered the room and woke the complainant. He told her that he had something to show her and took her into his bedroom. Once she was there he forced her to put her wrists into some dog leads, which he secured to the bed posts. He tied her ankles with a belt and forced open her legs. He poured a mug of absinthe and told her to drink it. Initially she was reluctant to do so, but she was frightened. Over the period of the next fifteen minutes she drank all of it. By this time she was crying and distressed. When she finished, the appellant pulled down her pyjama bottoms and her thong to her ankles. He then took off his own clothes and said, "You have a choice, either up the front or up the back". He turned her over and committed an act of anal rape. By this time the complainant was in pain. She was crying and begging him to stop. He removed his penis, pulled down her head and tried to force his penis into her mouth. She tried to pull away. That was the subject of count 2. He then forced her legs apart and began to lick her vagina. He committed an act of vaginal rape. She asked him if he had finished. He replied, "Another two minutes". She said that when he finished her vagina felt sore and wet. She thought that he had ejaculated. The appellant told her not to tell anyone and threatened that if she did so he would get her. The appellant then cut her free and she ran downstairs, where the appellant's daughter was asleep on the sofa. The complainant got onto the sofa with her friend and remained there for the rest of the night. The appellant made himself a cup of tea and went back upstairs. 7. The following morning when the complainant woke up, she, the appellant and his daughter went into town. The complainant told her friend that her father had raped her, but the friend, understandably, would not accept it. The complainant was very distressed and went to her sister's home. Her sister told their father what had happened and the police were duly called. 8. The complainant underwent a medical examination which confirmed in every respect the allegations that she had made. Injuries consistent with the acts which had been performed on her were found. 9. The appellant had appeared before the court on only one previous occasion in 1987 when he was conditionally discharged for common assault. 10. There was a letter from the appellant before the court which sentenced him, expressing remorse. We have seen that. 11. The offences to which the appellant pleaded guilty were serious offences within the meaning of section 224 of the Criminal Justice Act 2003 . Under the provisions of section 225 of the Act , if a person aged 18 or over is convicted of a serious offence, the court is required to impose either a sentence of imprisonment for life or a sentence of imprisonment for public protection if the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. The judge concluded that there was such a risk. In reaching that conclusion he took into account the very serious breach of trust, the element of force used and the fact that the appellant had diminished the complainant's resistance by forcing her to drink alcohol and by tying her up before committing the offences upon her. He said that he gave the appellant full credit for his early guilty plea. However, he indicated that the fact that the appellant had been capable of perpetrating these acts in these circumstances on a friend of his daughter satisfied him that there was a significant risk of serious harm being caused by the appellant committing further serious offences. He went on to impose the two life sentences to which we have referred, together with a determinate sentence for the attempted rape. 12. Counsel for the appellant submits that the life sentences were wrong in principle. He has drawn the court's attention to R v Lang and Others [2005] EWCA Crim 2864 . At paragraph 7 of the judgment, the Vice President, Rose LJ, said: "Significant risk must be shown in relation to two matters: first, the commission of further specified, but not necessarily serious, offences; and, secondly, the causing thereby of serious harm to members of the public." At paragraph 17 of the judgment, the Vice-President set out the various factors to be borne in mind when considering whether such a significant risk existed. 13. Counsel for the appellant submits that there was no evidence before the judge that there was indeed a significant risk of re-offending by the appellant, so that the first criterion set out in section 225(1) (b) is not met. He pointed in particular to the fact that the pre-sentence report suggested that the risk of re-offending was low to medium. There was no psychiatric evidence to suggest that the appellant was likely to re-offend. Defence counsel had applied on a number of occasions for psychiatric evidence to be obtained, but the applications had been refused. Thirdly, the appellant had no history of previous sexual offending. Fourthly, the appellant had pleaded guilty at the earliest opportunity and had shown genuine remorse and victim empathy. Finally, the offence was not premeditated and therefore, counsel submitted, there was no evidence of risk of re-offending. 14. For the respondent today Mr Underwood has submitted that it was open to the court, particularly having regard to the circumstances of the offence, to find that there was a significant risk of re-offending. 15. It is not suggested on behalf of the appellant that if he were to re-offend it would not give rise to a significant risk of serious harm to members of the public. Plainly this type of offence gives rise to a risk of serious harm. Thus the second criterion set out in section 225(1) (b) is satisfied. 16. Section 225 , insofar as it is relevant, provides: "(2) If -- (a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and (b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life the Court must impose a sentence of imprisonment for life. (3) In a case not falling within sub section (2 ) the Court must impose a sentence of imprisonment for public protection." 17. All three of the offences to which the appellant pleaded guilty carry a sentence of imprisonment for life. Counsel for the appellant submits that the offences were not so serious as to justify a life sentence. In view of the appellant's previous history there were no associated offences to be taken into account. The instant offences fell to be considered alone. 18. Finally, counsel submits that the minimum period to be served of five years set by the judge was excessive, having regard to the appellant's guilty plea and to the protection afforded to the public by the imposition of the life sentence. He points out that the sentence passed equates to a sentence after trial of fifteen years which, he says, is plainly excessive. He suggests that, if a life sentence were appropriate, the minimum term should have been three-and-a-half years. As it is, he submits that a determinate sentence would have been the appropriate sentence. This could have taken account of any perceived need to protect the public. Relying on the guideline case of R v Millberry and Others [2002] EWCA Crim 2891 , he submits that the starting point should have been ten years and that this should have been reduced to reflect the guilty plea and for the mitigation personal to the appellant, to give a determinate sentence of six to six-and-a-half years. 19. Having considered all the circumstances in this case, we conclude that there was ample evidence on which the judge could have decided that there was a significant risk of serious harm to members of the public occasioned by the commission by the appellant of further specified offences. We note that, when assessing the risk of re-offending as low to medium, the author of the pre-sentence report observed that if the appellant were to become intoxicated and to be in a situation where he was alone with a young girl, there was a risk that this type of behaviour might be repeated. The author said that this risk might be reduced if the appellant undertook work to address his offending behaviour. However, she noted that he seemed to be in denial over some of the details of the offence. The offences were very unpleasant indeed. They demonstrated a desire to control the complainant, as well as to abuse her. They also represented a gross breach of trust. We share the view that there must be a significant risk that, if placed in similar circumstances in the future, the appellant might re-offend. Although he has shown remorse, he does not appear to have faced up fully to the reality of what he has done. We consider that the judge was entitled to form his own view about the presence or absence of risk, without having expert evidence on the point. As the court made clear in Lang , the judge was not bound to accept the assessment contained in the pre-sentence report. He was entitled to make his own assessment based on all the circumstances of the case. 20. Having decided that there was a significant risk within the meaning of section 25(1)(b), the judge should then have proceeded to consider whether the seriousness of the offences was such as to justify the imposition of a sentence of imprisonment for life. Instead he proceeded immediately to impose a life sentence. The level of seriousness required for the imposition of a life sentence is dealt with in Lang in paragraph 8, where the Vice President said: "It is not clear whether Parliament, when referring in sections 225(2) (b) and 226(2)(c) to the seriousness of an offence or offences being 'such as to justify' imprisonment or detention for life, thereby making such a sentence mandatory, was intending to adopt this Court's criteria for the imposition of a discretionary life sentence (see R v Chapman [2000] 2 Cr App R(S) 77) or was seeking to introduce a new, more restrictive criterion for seriousness relating it solely to the offence rather than, also, to the dangerousness of the offender On the basis that Parliament is presumed to know the law, we incline to the former view. This construction is supported by section 143(1) which requires the court, when considering the seriousness of any offence, to consider the offender's culpability and 'any harm which the offence caused, was intended to cause or might foreseeably have caused'. This language clearly requires consideration of the culpability of the defendant as well as the seriousness of the offence and therefore involves consideration of dangerousness." 21. Serious though these offences are -- and we in no way seek to minimise them -- they would not hitherto have been such as to justify a discretionary life sentence. Nor, in our view, do they now. We therefore quash the life sentences and substitute for them sentences of imprisonment for public protection. In view of the mitigation, in particular the early plea of guilty, we agree that a notional determinate sentence of ten years was too high. In our judgment seven years would have sufficed. The specified term to be served will be three-and-a-half on each of counts 1 and 3 concurrent, less the time spent in custody, which we understand to have been 98 days. 22. So far as the attempted rape is concerned, we do not fully understand the basis on which the determinate sentence was passed, but we make no alteration to that sentence. In any event it will have no effect, having regard to the sentences on counts 1 and 3. 23. To that extent the appellant's appeal is allowed. _____________________	{"ConvCourtName":["Crown Court"],"ConvictPleaDate":["2005-08-23"],"ConvictOffence":["Rape (2 counts) contrary to section 1 of the Sexual Offences Act 2003","Attempted rape"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["earliest opportunity"],"RemandDecision":[],"RemandCustodyTime":[98],"SentCourtName":["Crown Court"],"Sentence":["Life imprisonment (counts 1 and 3, rape) with minimum term of 5 years concurrent; 5 years imprisonment (count 2, attempted rape) concurrent"],"SentServe":["Concurrent"],"WhatAncillary":["Order under section 28 of the Criminal Justice and Court Services Act 2000 disqualifying from working with children"],"OffSex":["All Male"],"OffAgeOffence":[51],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[14],"VicJobOffence":["Child"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Medical examination confirming allegations and injuries"],"DefEvidTypeTrial":["Letter from appellant expressing remorse"],"PreSentReport":["Low risk of reoffending","Medium risk of reoffending"],"AggFactSent":["Very serious breach of trust","Element of force used","Diminished resistance by forcing victim to drink alcohol and tying her up"],"MitFactSent":["Early guilty plea","Genuine remorse","No history of previous sexual offending"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["Life sentences wrong in principle","Minimum term excessive given guilty plea and mitigation"],"SentGuideWhich":["section 225 of the Criminal Justice Act 2003","section 224 of the Criminal Justice Act 2003","section 28 of the Criminal Justice and Court Services Act 2000","R v Lang and Others [2005] EWCA Crim 2864","R v Millberry and Others [2002] EWCA Crim 2891"],"AppealOutcome":["Allowed & Sentence Substituted"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Offences not so serious as to justify a discretionary life sentence","Mitigation including early guilty plea not sufficiently reflected"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
No. 2007/05237/A4 Neutral Citation Number: [2008] EWCA Crim 679 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 29 February 2008 B e f o r e: LORD JUSTICE DYSON MR JUSTICE MADDISON and SIR RICHARD CURTIS - - - - - - - - - - - - - - - R E G I N A - v - COURTNEY DALEY - - - - - - - - - - - - - - - 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 C Salon QC and Mr J Mann appeared on behalf of the Applicant Miss B Cheema appeared on behalf of the Crown - - - - - - - - - - - - - - - Judgment Friday 29 February 2008 LORD JUSTICE DYSON: I will ask Mr Justice Maddison to give the judgment of the court. MR JUSTICE MADDISON: 1. On 26 July 2007, in the Central Criminal Court, the applicant, Courtney Daley, was convicted of manslaughter by way of provocation as an alternative to the single count of murder with which he was indicted. On 23 August he was sentenced by His Honour Judge Van Der Werff to nine years' detention in a young offender institution. He renews his application for leave to appeal against sentence following refusal by the single judge. 2. The relevant circumstances were that the victim, who was 18 at the time of his death, had first had contact with the applicant, who was 17 at the time of the offence, in November 2005 at the College of North East London, where both had been involved in violent clashes between their opposing groups of friends. 3. At just after midnight on 9 January 2007 the victim was speaking to his girlfriend on the telephone. He was walking home from an evening out with friends. He was a few houses away from his own address in Broadwater Road, Tottenham. He cut the call short because the applicant had caught his attention and it appeared had called out to him. A neighbour saw them facing each other but was not able to see exactly what happened next. Accordingly, there was no independent evidence as to the circumstances in which the violent incident between the two young men began. However, there was clear evidence that shortly after that incident the victim staggered home and collapsed outside. He had been fatally stabbed to the chest by the applicant. The applicant was chased by the victim's father and caught by police officers who were in the vicinity. The applicant had discarded a lock-knife which was found in a nearby garden. 4. The victim was treated at the scene and taken to the North Middlesex Hospital. He died at 1am. He had sustained several stab wounds, some superficial, but including two principal wounds to the chest, one of which had been inflicted with sufficient force to cut a rib and to penetrate his heart. The jury's verdict was on the basis that there was present the mental element sufficient for the crime of murder, but provocation of a degree sufficient to reduce that crime to one of manslaughter. 5. In interview the applicant declined to answer any questions, but provided a prepared statement. He said that he had been walking along Broadwater Road and had seen the victim of his offence walking in front of him. The victim had turned around and confronted the applicant and then head-butted the applicant to the nose, before grabbing hold of him and attempting to punch him. At that point the applicant had taken out the knife that he carried for defensive purposes and had swung at the victim in order to dissuade him from pursuing the assault. The applicant said that he did not intend to kill or to cause grievous bodily harm. That was plainly rejected by the jury. At the trial, as we understand it, the defences of provocation and self-defence were put before the jury. 6. The applicant at the date of his conviction was 18. He was of previous good character. The judge had a pre-sentence report which stated that the applicant's approach was still to place much of the blame on the deceased. Although the applicant attempted to express remorse, the author of the report considered that that remorse and regret had more to do with the fact that the applicant was in custody than anything else. He was assessed as posing a low risk of re-offending generally, though somewhat confusingly the pre-sentence report later stated both that the applicant did not pose an imminent risk of significant harm and that he did pose a high risk of harm to the public. 7. The judge also had before him a victim impact statement from the deceased's mother which we have read. It spoke movingly about the loss which she and the entire family had suffered and about the grief which inevitably accompanied that loss. 8. In passing sentence the learned judge accepted that the deceased had head-butted the applicant. There was medical evidence to support that contention. There was also scientific evidence to support the contention that the deceased had taken hold of the applicant's clothing. We accept that in both of those regards what the applicant had said in his prepared statement was borne out. The judge commented, as was certainly the case, that the jury was sure that at the time of the stabbing the applicant intended at the least to cause the deceased really serious injury, but recognised that as a result of the provocation the verdict had been one of guilty of manslaughter. The jury rejected self-defence. The judge adverted to the fact that there had been several stabs and to the fact that the deceased had been unarmed. The judge also had in mind that the deceased was a much bigger man than the applicant, though both were of a similar age. 9. In considering the principles that should govern his sentence, the judge said that there could be nothing other than a lengthy term of detention in a young offender institution. He referred to the fact that ten years ago the Court of Appeal had said that, where an offender deliberately goes out with a knife, carries it as a weapon and uses it to cause death, even if there is provocation, he should expect to receive on conviction in a contested case a sentence in the region of ten to twelve years. That was a reference to one of the authorities drawn to our attention, that of Attorney General's Reference No 33 of 1996 ( R v Latham ) [1997] 2 Cr App R(S) 10. The judge went on to state that even the most recent guidelines did not materially depart from that principle. That was a reference to the recently published guideline by the Sentencing Guidelines Council in relation to manslaughter by reason of provocation. However, said the judge, life had changed a good deal in the last ten years. He referred to the widespread public concern relating to the carrying of knives by young people. Having considered all the points in mitigation and the points referred to in the pre-sentence report, the judge concluded that, although an indeterminate sentence was inappropriate having regard to the applicant's good character, a lengthy term of detention was inevitable and that the right term was one of nine years. 10. In support of this application several proposed grounds are put before us. We have considered them. We regard them as properly arguable and we grant leave to appeal. We have taken into account all of the matters raised in the written material placed before us both by way of written advice and grounds of appeal and by way of a recently submitted skeleton argument. 11. The central points made are that the sentence passed insufficiently allowed for the appellant's age and good character. Secondly, it is submitted that in a case in which the verdict was based on provocation, deterrence should have played less of a part in the sentencing process than it appears to have done. Thirdly, it is submitted that the sentence insufficiently recognised the principles set out by this court in R v Suratan and Others [2002] EWCA Crim 2982 , both as to the reduced importance of deterrence when sentencing in a provocation case, and as to the importance of recognising the elements of a successful defence of provocation. It is further submitted that, having regard to a variety of authorities which have been placed before us, the judge adopted a wrong starting point. We have taken account of all of the authorities cited, though all to some degree turn on their own facts and most arose before the publication by the Sentencing Guidelines Council of the guideline to which we have referred. 12. We turn to consider that guideline. Where there is a low degree of provocation, the Sentencing Guidelines Council suggests in relation to an adult a sentencing range of between ten years and life in custody, with a starting point of twelve years. Where there has been a substantial degree of provocation, the suggested sentencing range is one of four to nine years, with a starting point of eight years again in the case of an adult. Where there is a high degree of provocation, the starting point is one of three years. The sentencing range (if custody is necessary) is one of up to four years. 13. We have considered into which of these brackets this case properly falls. We conclude that it falls into the bracket involving a substantial degree of provocation. It seems to us that that is the only reasonable conclusion, having regard to the fact that there was no independent evidence as to how the incident started, and that there was scientific evidence to support the proposition that the deceased (on any fair view the larger man) had head-butted and grabbed hold of the appellant. Accordingly, we look at a sentencing range of four to nine years, with a starting point of eight years' custody in respect of an adult offender. 14. However, there are two qualifications that we think it right to place upon the application of the guideline in this case. The first is that the Sentencing Guidelines Council purports to be doing no more than to be issuing guidelines; it is not setting fixed or rigid boundaries. Secondly, although we have taken into account the youth of the appellant and all the points made by Mr Salon QC on his behalf, we also have in mind that it is young men of this sort of age who are very frequently carrying the knives about which there is such heightened, and in our view justifiable, public concern. 15. We do accept, having regard to the guideline, the youth and good character of the appellant and all of the points made on his behalf, that the sentence of nine years' detention in a young offender institution was too high. But in our judgment it would be wrong, particularly in the light of the public concern to which we have just referred, to substitute a sentence lower than one of eight years' detention in a young offender institution. To that limited extent this appeal is allowed. 16. MR SALON: My Lord, thank you very much. There is an application for a representation order. 17. LORD JUSTICE DYSON: Yes, you may have that -- limited to one counsel. It is very nice to see you Mr Salon, but it must be for one junior counsel. Thank you.	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2007-07-26"],"ConvictOffence":["Manslaughter by way of provocation"],"AcquitOffence":["Murder"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["9 years' detention in a young offender institution (original)","8 years' detention in a young offender institution (substituted on appeal)"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[17],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[18],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Medical evidence","Scientific evidence","Victim impact statement"],"DefEvidTypeTrial":["Prepared statement by defendant"],"PreSentReport":["Low risk of reoffending","High risk of harm"],"AggFactSent":["Use of a knife","Multiple stab wounds","Victim unarmed"],"MitFactSent":["Offender of previous good character","Substantial degree of provocation","Offender was 17 at time of offence"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Sentence insufficiently allowed for age and good character","Deterrence should have played less of a part due to provocation","Insufficient recognition of principles in R v Suratan and Others","Wrong starting point adopted by judge"],"SentGuideWhich":["Sentencing Guidelines Council guideline on manslaughter by reason of provocation","Attorney General's Reference No 33 of 1996 (R v Latham)","R v Suratan and Others [2002] EWCA Crim 2982"],"AppealOutcome":["Allowed and sentence reduced to 8 years"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Insufficient allowance for youth and good character","Insufficient recognition of provocation","Deterrence overemphasised"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
Neutral Citation Number: [2020] EWCA Crim 1266 Case No: 202001282 B1 & 202001379 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT TEESSIDE HHJ CROWSON & CROWN COURT AT AYLESBURY HHJ TULK T20197344, T20197386 & T20187056 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/10/2020 Before : THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE FULFORD MR JUSTICE HILLIARD and MR JUSTICE JOHNSON - - - - - - - - - - - - - - - - - - - - - Between : Simon Paul FLINT 1 st Appellant Anthony Michael HOLMES 2 nd Appellant -and- REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Mark Styles (instructed by Representation Order ) for the 1 st Appellant Mr David Smith (instructed by Phillips Osborne Solicitors ) for the 2 nd Appellant Mr Louis Mably QC (instructed by CPS Appeals & Review Unit ) for the Respondent Hearing dates : 22 nd July 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Fulford : The issue 1. These two cases involved the possession of explosive substances for the suggested object of experimentation and self-education/curiosity. The applicants were convicted before the decision of the Supreme Court in R v Copeland [2020] UKSC 8 ; [2020] 2 Cr App R 4 . The common issue is whether this court should grant their applications for exceptional leave to appeal out of time, bearing in mind the majority decision in Copeland . We have outlined the circumstances and the arguments in each case before discussing their respective merits. At the end of the judgment we have made a number of observations about the potential difficulties in establishing the defence of lawful object in cases involving the possession of explosive substances in this general context. Anthony Holmes 2. On 13 December 2018 in the Crown Court at Aylesbury before Judge Tulk and a jury, the applicant Anthony Holmes (who is now aged 49) was convicted of five counts of having an explosive substance, contrary to section 4 of the Explosive Substances Act 1883 (“ESA”) (counts 3, 4, 5, 6 and 7) and he was sentenced to 5 years’ imprisonment on each count to be served concurrently. 3. His application for an extension of 472 days for leave to appeal against his conviction has been referred to the Full Court by the Registrar of Criminal Appeals. As set out in [1] above, exceptional leave to appeal against conviction out of time is sought as a result of the recent decision of the Supreme Court in the case of Copeland . As developed below, it is submitted that the applicant will suffer substantial injustice if leave is not granted. The jury were directed that as a matter of law, failure to hold an appropriate licence meant that the applicant could not have had a lawful object in his possession of the substances. It is submitted that the effect of the legal direction was to remove a crucial element of the applicant’s defence. 4. On 25 June 2016 the applicant made contact with the police to report a suspected burglary at his home address in Burnham. It transpired that no burglary had occurred. However, the police officers noticed a number of different chemicals whilst they were at the premises. As a consequence, a search warrant was obtained and Crime Scene Investigators uncovered a large cache of chemicals and laboratory equipment, together with explosive substances which included primary high explosives. Amongst these were black powder (gunpowder) (count 3); Hexamethylene Triperoxide Diamine (“HMTD”) (count 4); Triacetone Triperoxide (“TATP”) (count 5); Nitrocellulose (gun cotton) (count 6); and various fuses (count 7). 5. In addition, the police discovered potassium nitrate, potassium permanganate, sulphuric acid, acetylsalicylic acid, hexamine boric acid, calcium carbide, acetone, nitric acid, hydrogen peroxide and ammonia, along with the remains of improvised explosive devices 6. The Crown relied on a forensic explosives expert, Lorna Philp, who gave evidence about the items covered by the counts on the indictment (see [4]). The judge provided the jury with a summary of the materials which had been discovered. Black powder/gunpowder (a combination of potassium nitrate, charcoal and sulphur) (count 3), is commonly used in fireworks. HMTD (count 4) is an extremely sensitive primary high explosive, which has no commercial use in powder form. It is used in liquid form in commercial detonators. There were sufficient chemical ingredients at the property to manufacture 195 – 270 grams of HMTD. TATP (count 5) is of such instability that it has no commercial uses within the mainstream explosives industry. There were sufficient chemical ingredients at the property to manufacture 205 – 290 grams of TATP. The HMTD and TATP must have been manufactured by someone as they are not commonly available in powder format because of their instability. Nitrocellulose (count 6), otherwise known as gun cotton, is commonly used in firearms as a propellant for ammunition. The fuses (count 7) could be used to explode a large quantity of explosives. 7. The applicant had conducted a number of internet searches relating to explosives which included visiting sites for the Anarchist’s Cookbook, Pitric Acid Synthesis and ‘making plastic explosives from bleach’. A number of video recordings in the applicant’s possession showed him igniting explosives which he had manufactured in his kitchen, garage and garden. 8. The police considered the exchanges on social media between the applicant and some of his friends. Messages from the applicant included: i) “I’m nitrating some fine cotton strips […] Bit risky on hob but I don’t mind a little excitement. [….] Should be halfway between plastic and powder If u hear an extra-large firework. It’s probably Burnham. Am a little concerned with acid fumes.” ii) “Rosemary’s vehicle will be my next big bang. Working on remote electronic detonation.” iii) “Made some weird shit today, Powdered metals and stuff explodes or catches fire in contact with water.” iv) “Made some perchlorate yesterday. Watch this charred space.” v) “Syllabus will not be anything like what part of chemistry I’m interested in. It’s kind of untaught and certainly not allowed in a uni environment I fear. Only end up thieving all their glassware for home products!” vi) “If I’m going to prison might as well make it worthwhile. Working on remote electronic detonation...A shaped powder charge of a mere 100g will be plenty to make a mess of strawberry jam and twiste[d] smoking metal and glass. Charge needs to b replaced accurately under floor pan of driver’s side.” (This was apparently a reference to his hostility towards Rosemary Alexander.) vii) “Quit scared but not certain. Don’t wanna move it...too scared to test...2 greenhouse glass windows gone. I’m deaf. Paving slab shattered.” viii) “holy shit. I’m not making any more. scared witless. Proper detonation.” ix) “I got a phone call from a neighbour asking if I’d heard any loud explosions. She has had the gas board out today.” x) “Its a risky pastime. Wouldn’t suggest it as a safe hobby.” xi) “There’s a theoretical 380ml. probably get 65% of that. still enough to demolish part of the house I guess.” 9. Two neighbours had heard bangs of varying volume coming from the applicant’s house over the preceding months. One of these was sufficiently loud that it made someone in the vicinity jump. One neighbour kept a log between 14 and 23 June 2016, in which he recorded nine such incidents. His concern was such that he contacted the police. However, another of the neighbours did not consider this activity presented any danger and concluded somebody was messing around. 10. The applicant was interviewed on three occasions. The first interview was on the day of the search, 25 June 2016. The applicant told the police that the items they had found were all used as cleaning products or for other domestic purposes; he denied mixing any of the chemicals, save when making gun cotton; and he said he was unaware that the compounds of the chemicals had been mixed in a way which would result in explosives. The second interview was on 26 June 2016, when the applicant again denied making explosives and he said he needed strong bleach for cleaning. He claimed the loud bangs heard by his neighbours were firecrackers purchased from Amazon. The third interview was on 7 March 2017, almost 10 months later. The applicant was asked about the expert findings and he was shown a selection of the videos. He said he did not know if he was featured in the footage, given the person’s face was not visible and he did not recognise the voice. He admitted in due course that he was to be seen in one of the videos but said he had been making white chocolate. He did not deny taking the firecrackers apart, and said he did things of this kind to amuse himself rather than to make objects “go bang”. He did not recognise the remains of one of the improvised explosive devices that had been found. He said it was irrelevant where the black powder came from. He knew nothing about the HMTD. He suggested, “If I’m not allowed to try to educate myself around chemicals, it must be a police state we live in”. 11. At trial, there was no dispute that he knew the relevant items were explosive substances which were in his possession or under his control. It was the prosecution case at trial that the applicant did not have these items for a ‘lawful object’. 12. The defence case was that the applicant had the chemicals for his own entertainment and amusement and that this amounted to a lawful object. The applicant testified as to how he used to help out at his father’s factory. His father, when he passed away, left the house where the applicant lived to a friend, Rosemary Alexander. The applicant said he had sent negative messages about Rosemary when drunk late at night, albeit he described the messages as dark-humoured banter and said that they were a joke; he claimed he avoided Rosemary like the plague. The messages in [8] (ii) and (vi) about planting a bomb under Rosemary’s car were intended as humour and the prosecution had taken them out of context. He said that he had acquired most of the chemicals via the online retailer, Amazon, although there were small quantities of some substances which had been in the house for many years. He indicated he manufactured the black powder and made “little bangs” with it. He had put the powder in a banger and used a fuse to make a firework; one of the videos showed him igniting an item of this type. He accepted that the videos showed him causing explosions and lighting the gun cotton. He did not see it as presenting a danger to anyone apart from himself, and described it as, “Just morbid curiosity to entertain myself”. He thought he would be the only person who was likely to be harmed. He explained that he had manufactured the HMTD and TATP and the method used. He made the HMTD and TATP for the same reason as the black powder ( viz. to make a banger in the garden). He went on the internet on a daily basis for information and had read various sections of The Anarchist’s Cookbook. He had no specific intention in his mind as to what he was going to do with all the items and did not consider he was doing anything wrong. As to the messages, they were the late night talk of “sad old men, sitting there at 3am having drunk your wine”. His activities were, therefore, the result of a morbid curiosity and provided entertainment to broaden his knowledge of what made the world tick, and enabled him to avoid sitting around drinking all day. He could not remember if he had lied in his police interview. 13. With the agreement of counsel, the sole issue for the jury was whether the applicant had explosive substances in circumstances such as to give rise to a reasonable suspicion that he did not have them for a lawful object. The judge left this issue to the jury as follows, in part responding to a question she received from them during the summing up: “The elements of the offence which the prosecution must prove, so that you are sure, are, first of all, that the substance specified in each of those five charges was in the possession or under the control of Anthony Holmes, and that he knew that the substance was in his possession or under his control. That the substance concerned was an explosive substance, and that he knew that it was an explosive substance. And, finally, that the circumstances in which the substance was in his possession or under his control, were such as to give rise to a reasonable suspicion that he did not have it for a lawful object. Explosive substance includes any materials for making any explosive substance; any apparatus, machine, implement or materials used or intended to be used, or adapted for causing or aiding in causing – used or adapted for causing or aiding in causing, any explosion in or with any explosive substance, and any part of such, any such, apparatus, machine or implement. It is a bit of a mouthful, but all you need to know, is that there is no dispute that in each of the five cases, the item concerned – the substance concerned – was in the possession or under the control of the defendant. Neither is there any dispute that each substance is in fact an explosive substance within that definition. There is no dispute that the defendant both knew that the substances were in his possession or under his control, and that they were explosive substances. And, therefore, the only question which you must decide, is whether the circumstances in which they were in his possession or under his control, were such as to give to rise to a reasonable suspicion that he did not have them for a lawful object. You have seen the photographs of all the chemicals that were found at the house and the various positions in which they were found. Do you think it would be reasonable for somebody walking into that house and seeing all those chemicals, to suspect that he did not have them for a lawful object or a purpose? It is not a requirement of the offence that the prosecution prove that he did not have a lawful purpose for possessing them, merely that the circumstances were such as to give rise to a reasonable suspicion that he did not. Now, if you are sure of all those elements, there is an available defence to Mr Holmes. So, even if the prosecution made you sure of the elements of the offence, Mr Holmes will not be guilty if he can show you that he, in fact, did have the substance in his possession or under his control for a lawful object. And, unlike the prosecution, he would not need to make you sure that he had it for a lawful object. He only needs to persuade you on the balance of probabilities. In other words, you just need to find that it is more probable that he had it for a lawful object, than not. Now, there are some regulations that cover explosives, as you may anticipate - the Explosive Regulations 2014 – and they make it unlawful to acquire or keep explosives without a valid certificate, and to manufacture explosives - in the circumstances in which Mr Holmes admits that he manufactured them – without holding a licence and complying with the conditions of that licence. The fact that Mr Holmes did not know or may not have known that he required a certificate or a licence, does not matter. Ignorance of the law is no defence – that is something you might have heard said before. The explanation which Mr Holmes has given for making and keeping the explosive, therefore, is not capable in law of amounting to a lawful object. […] (Following a question from the jury – “Is making fireworks to keep yourself amused a legal reason?” – the judge gave a further direction:) Just to go back to the question that I have just had from the jury, is making fireworks to keep yourself amused, a legal reason? The answer to that is no, unless you have got – as I said in the legal directions – if you want to manufacture fireworks for any reason, unless you are doing so under laboratory conditions – there is an exemption in the Explosives Regulations 2014 , which allows you to manufacture explosives for the purpose of laboratory analysis, testing, demonstration or experimentation. So, in other words, under controlled conditions. If you think about it, logically, the purpose of those regulations is to make sure that people who are dealing with fireworks – dealing with explosives in any circumstances and manufacturing explosives, are doing so under safe and controlled conditions. So, if you are in a laboratory and you are making a limited amount of explosives, then you do not need a licence, but in order to make explosives in your own home, you would have to apply for a licence and the people who issue the licences would want to be sure that you were a fit and proper person to be doing it, and they ’d also want to come and have a look at your premises to make sure that the premises were safe for you to be doing it in. And, if you have not gone through that process and you have not got that licence, then it is not lawful for you to be doing it. 14. Section 4(1) ESA provides: “Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an offence. ” 15. The regulations to which the judge referred are the Explosives Regulations 2014 (SI 2014/1638) . They do not prohibit making and keeping explosives for recreational purposes, but, by way of summary, they require that any person doing so must obtain a licence. Making or keeping explosive substances without a licence constitutes a breach of the Regulations, and an offence. The applicant conceded he had not complied with these regulations, in that he did not hold a licence at the relevant time, or at all. 16. In the grounds of appeal and in oral argument, Mr Smith, on behalf of the applicant, advances by way of a central proposition that following the decisions of the Court of Appeal in R v Fegan (1984) 78 Cr App R 189 and the Supreme Court in R v Copeland [2020] UKSC 8 , it is possible for a defendant to have a lawful object for the purposes of section 4(1) ESA notwithstanding the fact that his possession of the explosive substances in question involved the commission of relevant regulatory offences. On this basis, it is contended that the judge erred in directing the jury, as set out above, that since the regulations had been contravened, the applicant’s explanation for making and keeping the explosives was incapable in law of amounting to a “lawful object”. Put otherwise, it is argued that the jury should have been given the opportunity to consider the applicant’s account and to reach its own conclusions as to whether he had demonstrated, on the balance of probabilities, that entertainment and amusement was his true purpose and whether on the facts this amounted to a lawful object. It is suggested, therefore, that the judge erroneously removed the applicant’s defence, when there was evidence on which he could properly have been acquitted. 17. For the Crown, Mr Mably QC, first, highlights that given the time limit for an appeal against conviction has expired, the applicant is applying for exceptional leave to appeal out of time, relying on a suggested change in the law. The court is reminded that in R v Johnson and others [2016] EWCA Crim 1613 ; [2017] 1 Cr App R 12 (at [18]) it was highlighted that a change in the law does not of itself result in previously decided cases being reopened. Exceptional leave will only be granted if the applicant can establish that a substantial injustice would otherwise result. 18. Second, Mr Mably emphasises that this application is, in any event, not dependent on the decision of the Supreme Court in Copeland. He submits it was clear from earlier authorities such as Fegan and AG’s Ref (No 2 of 1983) that any offence committed under the Explosives Regulations did not of itself render the applicant’s object in possessing the explosive substances unlawful for the purposes of section 4(1). This position was merely confirmed in Copeland (see [21] and [24]). Therefore, any error by the judge in Holmes’s case in her direction as regards the consequence of the breach of the Explosives Regulations was clear at the time the summing up was delivered. The judge’s direction was focussed on the impact on the applicant’s defence of the failure to obtain a licence, thereby leading to the commission of regulatory offences. Therefore, it was entirely open to Holmes to appeal in 2018 based on the law of England and Wales at the time of his conviction. 19. Mr Mably, by way of a third submission, argues that on the undisputed facts the applicant’s defence was, at best, tenuous; indeed, his admitted use of the explosive substances involved the commission of criminal offences involving people and property. In all the circumstances, it is argued that it cannot sustainably be argued that substantial injustice will be caused to the applicant if exceptional leave is refused or that the applicant’s conviction is unsafe. Simon Flint 20. On 9 December 2019, in the Crown Court at Teesside before Judge Crowson, the applicant (now aged 43) changed his plea to guilty on two offences of having an explosive substance, contrary to section 4 ESA (counts 4 and 8). 21. In addition, the applicant changed his plea to guilty to count 3, affray, and, at an earlier hearing (on 9 August 2019), he had pleaded guilty to counts 2 and 5 (both possessing a prohibited weapon), count 6 (having an offensive weapon) and count 7 (having an article with a blade or point). 22. On 16 December 2019 he was sentenced to 27 months’ imprisonment on each of the explosive substance offences (counts 4 and 8), concurrent with each other but consecutive to a 3-month sentence imposed on count 3 (affray). He was sentenced to 12 months’ imprisonment on counts 2 and 5; 1 month’s imprisonment on count 6; and 10 months’ imprisonment on count 7, all to be served concurrently. The total sentence was 30 months’ imprisonment. 23. His application for an extension of time (118 days) for leave to appeal against his conviction has been referred by the Registrar. The applicant submits he would suffer substantial injustice should leave to appeal out of time not be granted. In essence, it is argued the ambit of the defence of ‘lawful object’ was clarified in Copeland in a way that was highly relevant in this case, given it is submitted experimentation and self-education can potentially constitute a lawful object. 24. On 28 June 2019 Mr Greenwell, a man in his later years, was walking his dogs near a beauty spot in the vicinity of Bishop Auckland Rugby Club. He saw the applicant arguing with a group of youths. As he approached, the applicant raised a crossbow to his shoulder and aimed it at Mr Greenwell. Mr Greenwell retreated to his vehicle and called the police. The applicant drove away from the scene in his campervan. 25. Approximately 30 minutes later, shortly after 4pm, the police stopped the applicant, who was under the influence of cannabis. The police seized the crossbow and a number of swords. Additionally, they found a black box in the sleeping area labelled “Explosive 1”. The box contained seven rocket motors, a type ordinarily used to propel amateur hobbyists’ rockets. One rocket had fuse wire attached to it, and there were other ignition fuses in the box. In a separate section of the box there was a smaller case containing seven modified pen bodies and on further scientific examination one was found to contain three blank firing 8mm cartridges, a 6mm cartridge and an 8mm cartridge. There was a quantity of black low explosive powder. One of the pens had been prepared for use and was attached to the head of a crossbow bolt with tape. 26. Towards the rear of the camper van there was a second box labelled “Explosive”. The contents of the box were examined by a forensic scientist. It contained a number of items relating to explosives. These included certain electrical and other components: bulbs with filaments intact, one of which had two wires soldered to its terminals; high voltage batteries; electrical block connectors; an electrical circuit board receiver; a wireless transmitter device; and a length of plastic pipe with two conductor wires which were connected, via holes drilled in the side, using hexagonal threaded end caps. There was a containment vessel for explosive powder. There was also a functioning railway fog signal which contained up to 8.42 grams of low explosive powder. There were various types of ammunition, comprising a shotgun cartridge, which had been cut open to allow removal of its low explosive propellant; 16 8mm blank firing rounds, two of them emptied of propellant; 23 9mm blank firing rounds, one of which had been emptied of propellant; a number of nail gun cartridges containing low explosive powder; and two containers with 44.8 and 3.1 grams of low explosive powder. 27. Other items found within the camper van included a crossbow bolt with tape round the head, attaching an 8mm blank firing cartridge. The cartridge had been resealed after being overfilled with propellant. There were three 8 mm firing rounds which had been duct taped and glued together. There was a further crossbow bolt which had been modified to contain a converted 8 mm blank cartridge and a firing pin. The cartridge, in turn, had been modified by the removal of the blank rounds from the plastic burst capsule, which were replaced by pointed metal projectiles. As set out above, a number of offensive weapons were found in addition to the crossbows. Amongst these there were 85 knives, 29 lock knives, 6 modified crossbow bolts with Stanley knife blades inserted in them; 3 swords; and credit card knife, with a concealed blade. 28. The applicant was interviewed. He told the officers that he had a container lockup on Dockside Road in Middlesbrough where he stored items. When asked what they would find there, he disclosed that there were precursor chemicals that he had used in previous attempts to make gunpowder inside a similar box to those recovered from the camper van and that the gunpowder was used to attempt to propel his skateboard. He told the police that inside the case was a metal tube that he was going to turn into a rocket, but he never got around to doing it. He then said “That’s probably going to look like a pipe bomb [….] I don’t feel I have explained myself enough. A suitcase full of chemicals to make gunpowder, a metal tube – it looks horrendous”. 29. On 30 June 2019 the lock-up was searched and a metal style suitcase was removed and examined. It contained 550 grams of charcoal powder; 500 grams of potassium nitrate; 50 grams of potassium permanganate; 500 grams of sulphur powder; a pestle and mortar containing black powder; a small metal pipe end cap which had been drilled with two holes; four further pipe end caps, two of which had four holes drilled into them for ignition fuses to pass through; and a 17cm steel pipe that had been crimped and welded at one end and the other end had a screw thread head, and the cap had been drilled with two holes. One of the officers concluded that due to its construction, the steel pipe was a casing for a pipe bomb (an improvised explosive device or “IED”). 30. A second box contained a plastic pipe with threaded end caps. It contained high voltage batteries, a wireless transmitter and receiver unit, and the officer concluded that these items represented all that was required to make an IED, with the only missing item being the explosive material. 31. A number of digital communication devices were seized. On examination they were found to contain a number of videos of the applicant engaged in detonating IEDs, along with one video of the applicant igniting a rocket motor taped to the underside of a skateboard. One recording was of the applicant using an IED with a wireless transmitter to destroy an apple and another video showed the applicant using an IED to destroy a cucumber. There was a recording of the applicant firing modified crossbow bolts at a laptop which had ceased working. 32. On 17 October 2019 the applicant pleaded not guilty to both counts. On 5 November 2019 he provided a Defence Statement. He indicated that he relied on the defence of “lawful object”. He maintained that he had a long-standing interest in physics and engineering, inherited from his father. He suggested he is an enthusiastic engineer who enjoys “tinkering with various and diverse projects”. He had a significant amount of equipment in his possession at Dockside Road, Middlesbrough that he claimed was connected with his former metal machine business. The 8 improvised crossbow bolts were said to “make them more fun” when shooting at a wooden target. The 7 rocket motors were to create a rocket propelled skateboard. His initial efforts had been unsuccessful and he had bought some additional materials, including the chemicals, with the intention of making a more effective rocket. His possession of gunpowder and shotgun propellant was to assist in the development of a solid fuel propellant, as well as to improve the “flash” on the crossbow bolts. Any modification to one or more of the pipes was not to create IEDs but instead they were part of an improvement to the design of the rocket skateboard. 33. This Defence Statement was significantly untruthful. 34. The applicant, on 5 December 2019, appeared before the nominated trial judge, Judge Crowson, at Teeside Crown Court for a hearing to ensure the case was ready for trial. There was a discussion as to whether the applicant had a defence to the charges, and the judge focussed particularly on the decision in R v Riding [2009] EWCA Crim 892 ; [2010] 1 Cr App R (S) 7 (considered below). The judge did not give a ruling, nor did he express any concluded view. 35. Having received further advice from his counsel, Mr Styles and Ms Towers, on 9 December 2019 the applicant pleaded guilty on the following accepted basis: “i) The defendant accepted that he had engaged in the acquisition and modification of component parts for the construction of IEDs. ii) The defendant had no intention to cause any damage to any property or harm to person. He accepts however that such activity, which stemmed from ‘interest’ and ‘curiosity’ cannot amount to lawful object. iii) The use to which the devices were contemplated is demonstrated in a series of videos in which the defendant explodes pieces of fruit and damages a laptop computer through IED devices. iv) It is accepted that the item GCR/37 has the capacity to act as a containment vessel for an IED. Again it was not to be used with intent to harm anyone and was a ‘project’ which has not been advanced for some 5 years.” 36. It was accepted during his mitigation that the explosive substances involved an inherent risk of harm to people or property. 37. In the grounds of appeal and in oral argument, Mr Styles submits that the guilty plea was entered on the basis of the decision of the Court of Appeal in Riding . However, following the decision of the Supreme Court in Copeland , he should have been able to rely, by way of a defence to both charges, on the interest and curiosity which he expressed in his defence statement. It is contended that his explanation in this context constituted, at least potentially, a “lawful object”, similar to the experimentation and self-education which was considered in Copeland . 38. Mr Mably argues that, even allowing for the clarification provided by the decision in Copeland , it had always been open to the applicant to rely on curiosity and self-experimentation as a defence. He suggests that the relevant part of the judgment in Riding was not expressed as a principle of law and was instead limited to the particular explosive substance in that case. Accordingly, he submits that there was no reason for the applicant to interpret the decision in Riding as being of general applicability. Against that background, it is contended the real complaint by the applicant is that he pleaded guilty on the basis of incorrect legal advice, and not because the law founding his conviction subsequently changed because it was in error. Mr Mably, furthermore, emphasises that the applicant accepted that the explosive substances involved a risk of harm, most particularly to the applicant but also to members of the public. We interpolate to note that at least one of the IEDs was detonated inside the lockup garage where other explosive substances were stored, thereby creating a real risk of causing damage to people and property ( viz . the land on which the containers stood and nearby commercial premises, along with anyone in the immediate vicinity). Mr Mably highlights that the explosive substances were stored with swords, knives and pepper spray. Some of them had been taken to a public place in a camper van, at a time when a member of the public was threatened with a crossbow. There was no credible reason why the applicant’s curiosity should lead him to drive some of the explosive substances around in a camper van, and the applicant was detained in a public place when intoxicated and in possession of these substances. The explosive bolts were compatible for use with a crossbow. Finally, Mr Mably relies on the significant and admitted lie in the defence statement, namely that the applicant had not been making IEDs. In all the circumstances, it is suggested that the applicant, on this application for exceptional leave to appeal out of time, has failed to demonstrate that a substantial injustice would be done if leave is not granted. The court is reminded this is a high threshold and in determining whether it has been met, the court will “primarily and ordinarily” have regard to the strength of the case advanced and whether the suggested change in the law would, in fact, have made a difference. It is argued by the Crown that on these facts it is highly unlikely that the applicant would have been acquitted. Discussion Holmes 39. The applicant is correct to submit that the judge should not have directed the jury that the breach of the Explosives Regulations was determinative of the issue as to whether, on a balance of probabilities, he had a lawful object. However, Mr Mably is equally correct when he observes that the erroneous nature of this direction was clear on the jurisprudence at the time of the trial. This was amply demonstrated, for instance, in Fegan (judgment reported in 1984). In that case, the appellant had a firearm in his possession without a permit or other authority as required by the relevant legislation, yet the court accepted that did not lead to the consequence that it could not be possessed at the same time for a lawful object. As was highlighted, the absence of a certificate, permit or other authority may well be evidence of whether there was a lawful object, but its absence was not necessarily incompatible with the firearm being possessed for a lawful object. On the facts of that case, the court concluded that possession of a firearm for the purpose of protecting the possessor, his wife or family from acts of violence may constitute possession for a lawful object. It was stressed that the danger must be reasonably imminent and of a nature that could not be reasonably met by more pacific means. The lawful object in that particular context fell, therefore, within a “strictly limited category”, one that will not provide a justification for going beyond what the law permits for meeting the situation of danger. (See also in this regard the Attorney General’s Reference (No 2 of 1983) (1984) 78 Cr App R 183 at 188: the fact the commission of other offences was unavoidable in the making and possessing of the explosive substance did not result in any of those offences becoming one of the accused’s objects for the purposes of section 4(1)). 40. In consequence, the incorrect direction the judge gave before and after the jury’s question was apparent at the time of the trial ( viz. the instruction that since the applicant had not gone through that process of applying for a licence, his object could not be lawful). As a result, the ordinary test of whether the conviction is safe applies, and the court, if relevant, will need additionally to consider whether substantial grounds have been provided for the period of the delay. In this regard, it is important to note that the test to be applied in cases relating to a change in the law is different from that otherwise applied in the Court of Appeal (Criminal Division). As was set out by this court in Johnson : “18. In our view […] the fact that there has been a change in the law brought about by correcting [a] wrong turning […] is plainly, in itself, insufficient. […] a long line of authority clearly establishes that if a person was properly convicted on the law as it then stood, the court will not grant leave without it being demonstrated that a substantial injustice would otherwise be done. The need to establish substantial injustice results from the wider public interest in legal certainty and the finality of decisions made in accordance with the then clearly established law. The requirement takes into account the requirement in a common law system for a court to be able to alter or correct the law upon which a large number of cases have been determined without the consequence that each of those cases can be re- opened. It also takes into account the interests of the victim (or the victim's family), particularly in cases where death has resulted and closure is particularly important. […] 21. In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference. If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, that is likely to be very difficult. At the other end of the spectrum, if crime A is a different crime, not involving intended violence or use of force, it may well be easier to demonstrate substantial injustice. The court will also have regard to other matters including whether the applicant was guilty of other, though less serious, criminal conduct. It is not, however, in our view, material to consider the length of time that has elapsed. If there was a substantial injustice, it is irrelevant whether that injustice occurred a short time or a long time ago. It is and remains an injustice. […] 23. […] the task of the court is first to determine whether there may have been a substantial injustice which involves the wider considerations to which we have referred. Having said that, if the threshold required to justify exceptional leave to appeal is reached, it is likely to be difficult to conclude that the conviction remains safe.” (See also R v Towers and Hawkes [2019] EWCA Crim 198 in this context.) 41. Accordingly, the questions for this court are whether Holmes’ convictions are safe on the five counts, and (if relevant) whether there are substantial grounds to justify the notable delay (472 days). 42. We are unhesitatingly of the view that the conviction is safe. If the correct directions had been given to the jury on the issue of lawful object, we are confident the applicant would have been unable to make out the defence on a balance of probabilities. In reaching that conclusion it has been necessary to consider the law as explained in Copeland. This was another explosive substances case in which the majority in the Supreme Court held that the accused did not have to identify precisely how the explosive was to be used, but instead he or she needed to identify a relatively general object to which the explosive substance was to be put, it being within his or her reasonable contemplation that the explosive substance might be required for that purpose and could lawfully be used for that purpose. The majority determined that experimentation and self-education, including to satisfy one’s curiosity in relation to the subject of investigation, are lawful objects, applying that approach ([33]). 43. On a particular aspect of the issue of lawfulness, the Supreme Court was unanimously of the view, as expressed by Lord Sales, that: “29. If an accused does identify a specific object for which he made the substance or had it in his possession/control, which is lawful in the requisite sense, issue will be joined on that at trial. The prosecution may seek to show that this was not in fact his object, or that it was not his sole object and that his object, as correctly understood, included an unlawful element. For example, as indicated in Fegan ’s case, if the accused had not been put in fear of a reasonably imminent risk of serious physical harm such as might be capable of providing a justification for use of the pistol, there would not be a sufficient connection between his possession of the pistol and any use of it in his reasonable contemplation which could be lawful. In my view, it would also be open to the prosecution to meet the defence under limb (2) by seeking to show that pursuit of the object specified by the accused, although the object might be lawful in a general sense, would involve such obvious risk to other people or their property from use of the explosive substance that the inference should be drawn that the object of the accused was mixed, and not wholly lawful in the sense indicated in Fegan ’s case. If the accused knew that his proposed use of the explosive substance in his possession would injure others or cause damage to their property or was reckless regarding the risk of this, the ostensibly lawful object identified by him would be tainted by the unlawfulness inherent in his pursuit of that object. Typically, these would be matters to be explored at trial.” 44. Lord Lloyd-Jones and Lord Hamblen, at paragraph 55, concurred with the majority when they observed: “ […] In this case, for example, it was apparently envisaged that experimentation would take the form of detonations of the explosives in the defendant’s back garden. (It is the prosecution case that over the months prior to his arrest the defendant had made explosive substances with other chemicals on approximately six or seven occasions, had detonated or had attempted to detonate those explosive substances in his back garden by means either of homemade initiators made from fairy lights filled with firework powder or by means of a mobile telephone, and had made video recordings of these detonations or attempted detonations on his mobile telephone.) Such detonations involve an obvious risk of causing injury and damage to property and causing a public nuisance. […]” 45. Holmes’s possession of these explosives was not simply for experimentation and self-education, including to satisfy his curiosity. To the extent he has provided a truthful explanation, on any view his possession of the explosive substances was, in part, for an unlawful objective. The explosions constituted a continuing public nuisance given the evidence of the widespread nature of the noise, and he had destroyed property at Rosemary Alexander’s house (two broken windows and a paving stone). These are criminal offences. It follows that “the ostensibly lawful object identified by him (was) tainted by the unlawfulness inherent in his pursuit of that object” (per Lord Sales at [29]). On these undisputed facts, the applicant would have been unable properly to establish his defence. Accordingly, the conviction is safe and the application for special leave is refused. Flint 46. The first issue to be addressed for this applicant is Mr Mably’s contention that notwithstanding the clarification provided by the Supreme Court in Copeland , curiosity and self-experimentation have always been available as a defence. He argues – based on the decision of the majority of the Supreme Court in Copeland – that Riding did not establish as a principle of law that this was not a defence, and instead the relevant part of the decision turned on the particular facts in that case. 47. In these circumstances, it is necessary to consider what this court decided in Riding and how it described its conclusions. In that case the defendant made a pipe bomb in which he followed instructions on the internet. His defence was that he had simply been curious and was experimenting as to whether he could construct this device. As was pointed out by the trial judge and this court, he did not use an inert material such as sand, which would equally have demonstrated whether or not he was capable of constructing it. Hughes LJ VP observed, in dismissing his contention that he had a lawful object and that a lawful object is the absence of any object which is criminal: “9. That is an argument which […] we are satisfied cannot succeed. We agree of course that it is the place of the criminal law to operate proscriptively rather than permissively. In this case Parliament has made a proscriptive order. It has proscribed by section 4 the making, and for that matter also the possession, of explosives in circumstances which give rise to the reasonable suspicion that there is no lawful object. It has then provided that the offence is not committed if there is in fact a lawful object. That is an example of a proscriptive provision of the criminal law. 10. The short point in the case is whether it is correct that a lawful object is simply the absence of criminal purpose. We are satisfied that that is not what the Act says. The Act requires that if you are found in possession or have made an explosive substance in circumstances in which there is a reasonable suspicion that there is no lawful object, it is an offence unless there was in fact some affirmative object which was lawful. That is, as it seems to us, an entirely unsurprising provision for a statute to make, given the enormous danger of explosive substances generally. […] 12. […] Mere curiosity simply could not be a lawful object in the making of a lethal pipe bomb. It would indeed be very remarkable indeed if it could. Mr West was frank enough to accept that if the statute had used the words “good reason” instead of lawful object the defendant could not have established that he had good reason for making the bomb. We are entirely satisfied that he did not have a lawful object for it either. 48. In the light of that seemingly clear indication, it is useful to consider the approach taken by the Court of Appeal in Copeland in this context. Sir Brian Leveson P set this out as follows: “42. […] we agree with Riding. We accept that a person in possession of explosives must show, on balance of probabilities, that he or she has an “affirmative” or “positive” object for possessing those explosives. We reject the proposition that an absence of unlawful purpose is the same thing as a lawful purpose. We conclude that on a proper interpretation, s. 4 requires that the defence is only made out when the person in possession of the explosives can show that the way in which those explosives will be used is itself lawful. That means, the person must be able to show both, first, the use to which the explosives will be put and second, that such a use is lawful. 43. We come then to the applicant’s case that he possessed these explosives out of curiosity, or because he wished to experiment with them. Consistent with Riding, we reject the proposition that curiosity or experimentation is a “lawful object”. The fact that a person is curious or wishes to experiment may be an explanation for why that person has accumulated the explosives; but it says nothing about his continued possession of them and the use to which they will be put. Indeed, it would be perfectly possible, if unattractive, to argue that explosives were detonated, with potential loss to life and limb, out of mere curiosity or in order to experiment. These are not objects in and of themselves; they are not uses to which explosives may be put; they are just explanations for past actions.” 49. The Supreme Court in Copeland determined that the conclusion in Riding was correct on the facts of that case, given the defendant had not advanced as a part of his case that he had made the pipe bomb in order to see if he could make it explode and that the Vice-President’s statement at [12] that “Mere curiosity simply could not be a lawful object in the making of a lethal pipe bomb” has to be read in this context ([31]). The majority determined that this statement had been taken to have wider significance by the trial judge and the Court of Appeal in Copeland . 50. The Supreme Court decision in Copeland is, self-evidently, binding authority, but we are unsurprised that the Court of Appeal in that case interpreted the remarks of Hughes LJ VP as having general application extending beyond the particular facts of Riding , given the seemingly unqualified statement that “Mere curiosity simply could not be a lawful object in the making of a lethal pipe bomb” (our emphasis). That proposition in Riding was not advanced in the context of the defendant’s particular defence in that case, nor was there any suggestion that if his object – founded on curiosity and experimentation – had been to construct a lethal pipe bomb, that may have constituted a lawful object. 51. Accordingly, we are unpersuaded by Mr Mably’s submission that it would have been apparent to the applicant that curiosity and self-experimentation has always been available as a defence. To the contrary, we consider it was understandable that the applicant interpreted the decision in Riding as indicating that his defence could not amount to a lawful object, particularly given the true position, as he accepted in his basis of plea, was that he had “engaged in the acquisition and modification of component parts for the construction of IEDs”, an explanation which varied significantly from his defence as set out in his Defence Statement. 52. We are, however, equally unpersuaded that a substantial injustice will result if exceptional leave is not granted. The circumstances in which these explosive substances were in the possession of the applicant involved a clear risk of harm, most particularly to the applicant but also to members of the public. As already indicated, at least one of the IEDs had been detonated inside the lockup garage where other explosive substances were stored, thereby creating a real risk of damage to people and property. Some of the explosive substances had been taken wholly unnecessarily to a public place, which had nothing to do with the applicant’s suggested experimentation and curiosity, and the applicant was detained in public when intoxicated and in possession of a sample of them. 53. As set out above, insofar as he relied on experimentation and self- education/curiosity, his basis of plea makes it clear that he had clearly gone far further than the object set out in his Defence Statement, namely of i) experimenting with the propellants in order to test their qualities and burn time; ii) improving on the commercially available rockets; and iii) enhancing the thrust delivered to the skateboard by developing a solid fuel propellant to use inside home-made rocket motors. As just rehearsed, he had, instead, engaged in the acquisition and modification of component parts in order to construct IEDs, in a way that posed a danger to people and property, thereby going beyond any potentially lawful object of experimentation and selfeducation/curiosity. 54. In conclusion, it follows that the applicant, in the way he pursued these activities, posed an obvious risk to other people and their property and his object was, on any view, clearly mixed and therefore not wholly lawful. At the very least, he was reckless regarding the risk of damage or injury, and in consequence his activities were tainted by the unlawfulness inherent in what he did. Furthermore, we emphasise and repeat the creation of the IEDs was not in any sense a part of the suggested lawful object of “experimentation”, as set out in his Defence Statement. 55. On the undisputed facts, the applicant would have been unable properly to establish his defence. The court will not grant leave unless it is demonstrated a substantial injustice will otherwise be done. We are confident there will be no substantial injustice and that his conviction, founded on his guilty plea, is safe. This application is refused. Postscript 56. These cases vividly reveal the difficulties that defendants may face when seeking to prove that they had a lawful object, in circumstances broadly similar to the present two sets of facts. We have had the advantage of being able to consider the evidence as it emerged at trial. Explosive substances – depending always on their nature and the quantities involved – unless handled and stored responsibly and with care, self-evidently pose a potential danger to people and property. Some of them, such as HMTD and TATP, are inherently unstable; using explosive substances for experimentation rather than inert substances, particularly when detonating them, may well lead to damage to other people or their property, or cause a public nuisance; and the storage of these materials can be hazardous. It is a central element of the majority decision in Copeland that an otherwise lawful objective (such as experimentation) which involves obvious risk to other people, or their property, from the use of the explosive substance will lead to the inference that the object of the accused was mixed, and therefore was not (wholly) lawful. Further, if the defendant knew that his or her proposed use of the explosive substance in his possession would injure others or cause damage to their property, or was reckless regarding this risk, the object would be tainted by that unlawfulness inherent in the way the object was being pursued, thereby rendering it impossible to establish the defence. 57. All cases differ on their facts, but we emphasise, therefore, that given the obvious risks with using explosive substances, any experimentation involving them which gives rise to a risk of harm to other people or their property, or other unlawfulness such as causing a public nuisance, will not be capable of coming within the scope of the lawful object defence.	{"ConvCourtName":["Crown Court at Aylesbury","Crown Court at Teesside"],"ConvictPleaDate":["2018-12-13","2019-12-09"],"ConvictOffence":["Possession of explosive substances contrary to section 4 of the Explosive Substances Act 1883 (counts 3, 4, 5, 6, 7)","Possession of explosive substances contrary to section 4 of the Explosive Substances Act 1883 (counts 4 and 8)","Affray (count 3)","Possessing a prohibited weapon (counts 2 and 5)","Having an offensive weapon (count 6)","Having an article with a blade or point (count 7)"],"AcquitOffence":[],"ConfessPleadGuilty":["No","Yes"],"PleaPoint":["At trial (Holmes)","Changed plea to guilty before trial (Flint)"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Aylesbury","Crown Court at Teesside"],"Sentence":["5 years’ imprisonment on each count (Holmes, counts 3-7), concurrent","27 months’ imprisonment on each of the explosive substance offences (Flint, counts 4 and 8), concurrent with each other but consecutive to 3 months for affray","12 months’ imprisonment on counts 2 and 5 (Flint)","1 month’s imprisonment on count 6 (Flint)","10 months’ imprisonment on count 7 (Flint)","Total sentence for Flint: 30 months’ imprisonment"],"SentServe":["Concurrent","Consecutive"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[49,43],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Forensic expert evidence","Video recordings of explosions","Social media messages","Physical evidence (chemicals, explosives, weapons)","Neighbour testimony"],"DefEvidTypeTrial":["Defendant testimony (Holmes)","Defence statement (Flint)"],"PreSentReport":[],"AggFactSent":["Explosions caused public nuisance (Holmes)","Destruction of property (Holmes)","IEDs detonated in lockup with risk to people/property (Flint)","Explosives and weapons taken to public place (Flint)"],"MitFactSent":["No intention to harm people or property (Flint, basis of plea)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction"],"AppealGround":["Judge misdirected jury on lawful object (Holmes)","Guilty plea entered on incorrect legal advice regarding lawful object defence (Flint)"],"SentGuideWhich":["Section 4 of the Explosive Substances Act 1883","Explosives Regulations 2014"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Conviction is safe; even with correct direction, defence would not have succeeded (Holmes)","No substantial injustice; facts show risk to people/property, object not wholly lawful (Flint)"]}
No: 2005/0999/A6 Neutral Citation Number: [2005] EWCA Crim 3692 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday 27th April 2005 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE CHRISTOPHER CLARKE SIR DOUGLAS BROWN - - - - - - - R E G I N A -v- JUNAID SHEIKH - - - - - - - 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 N PALMER appeared on behalf of the Appellant MR D GROOME appeared on behalf of the Crown - - - - - - - J U D G M E N T 1. SIR DOUGLAS BROWN: This appellant is Junaid Sheikh, who is 32 years of age. This case has an unusual history. On 6th March 2002 the appellant pleaded guilty at Snaresbrook Crown Court before Her Honour Judge Woollam to six counts of using trademarks without authority, contrary to section 92 of the Trade Marks Act 1994 . His brother, Saqeb Sheikh, pleaded guilty to the same six counts and their father, Hafeez Sheikh, to two counts in the indictment. They were not arraigned on a count alleging conspiracy to defraud and that was left on the file on the usual terms. Sentence was adjourned and in April, confirmed at the end of May, it became apparent that confiscation proceedings were going to be brought. At the end of May an application was made by the prosecution for restraint orders in respect of the appellant's property with a view to those proceedings and on 25th July, having changed their legal representation, they made an application at the same court to Judge Khayat QC to be allowed to vacate their pleas of guilty. In short, fresh counsel criticised original counsel for not advising or warning that there was a risk of confiscation orders being made. Following leave to appeal from the single judge, the full court dismissed the appeal against conviction on 19th February 2004. When Mantell LJ giving the judgment of the court said this, referring to the evidence heard by Judge Khayat, he found that the appellant had been properly advised as to the nature of the offences and what it was necessary for the prosecution to prove before they could be found guilty. He further found that by their pleas the appellants were freely confessing their guilt, the only matter of which they had not been informed was following conviction the possibility of confiscation proceedings taking place. That of itself could have no bearing on their acceptance of guilt. This court remitted the case to the Crown Court for sentence and for the confiscation hearings. 2. A contested confiscation order hearing took place in January 2005 at which the appellant and his brother gave evidence, with a ruling on February 14th and they were sentenced on February 15th as follows. The appellant was sentenced to 12 months' imprisonment on each count, those sentences to run concurrently. A confiscation order was made under section 71 of the Criminal Justice Act 1988 in the sum of £84,548 with six months to pay that amount, with a consecutive term of two years' imprisonment in default of payment. He was also ordered to pay £25,000 towards the prosecution costs to be paid in three months. A forfeiture order was made in respect of a large number of mobile phone fascia covers and other items. He now appeals against sentence and the confiscation order with the leave of the single judge. 3. His brother was sentenced to two years' imprisonment on each count to run concurrently and he was ordered by way of confiscation to pay £36,328 with 18 months' imprisonment in default and the same order as to costs was made in his case. His father was sentenced to 12 months' imprisonment in each count, those sentences being suspended for two years, and a confiscation order of £389,121 was made in his case with four years' imprisonment in default. He was ordered to pay the same amount in costs. We have no information about the father. It appears that recently the brother lodged a notice of appeal out of time. 4. The circumstances of these offences were these. The appellant, together with his co-accused, traded under the name of Nadir Traders and subsequently Nadir Traders Limited. The business operated from a business estate in Walthamstow selling mobile phone accessories wholesale. The business described itself as "The UK's largest importer and wholesalers of mobile phone accessories." The goods comprised counterfeit mobile telephone covers bearing the registered trademark of several famous brands made in the Far East, the designs provided by Nadir; counterfeit Nokia phone covers and counterfeit Nokia, Ericsson and Motorola batteries and chargers. In addition there were legitimate accessories such as aerials and car kits. 5. The appellant's brother had established the business in May 1999 and dealt in ready-made counterfeit products soon after. The appellant began working in the business from 15th May 2000 and his father on the following day. The appellant's brother remained in charge of the business with the appellant as his deputy and with the father's main responsibility being bookkeeping. 6. From September 2000 the business commissioned counterfeit parts to its own design. The appellant was left in charge whilst his brother travelled to the Far East. The business attempted to conceal the fact that they were commissioning counterfeit goods by the fiction that other companies were responsible. 7. In December 2000 the business was incorporated. The appellant became a director and the father company secretary. It continued to trade until shortly after the raids by Trading Standards Officers in December 2001. The Crown alleged that during its two year life the business grossed approximately £3.7 million and sales were subsequently agreed at £3.2 million. At an earlier stage sales of over £11 million were calculated by a Trading Standards Officer who by the time of the hearing had left the employment of the local authority and did not play an active role in the hearing. The takings were channelled through the father and paid into various bank accounts. 8. On 22nd February 2001 Trading Standards Officers in Croydon had seized a quantity of counterfeit mobile telephone covers from a market stall and enquiries revealed that these covers had originated with Nadir. 9. On 10th May 2001 Mr Sharp, that is the Trading Standards Officer we have already referred to, with the London Borough of Waltham Forest, executed a search warrant at the Nadir premises. The premises on the ground floor consisted of a small public counter behind which telephone parts were stored on racking. A majority of those on public display were genuine. One customer was found to have purchased 50 counterfeit covers. The appellant's brother indicated that the counterfeit accessories were kept on the upper floor of the premises. A search upstairs revealed a storeroom containing 4,850 counterfeit covers, 300 counterfeit blister packs, 200 counterfeit batteries and sheets of over 250 counterfeit battery labels. An office on the ground floor contained a computer. The appellant and his brother provided a floppy disk containing 50 invoices setting out sales of £40,903. There were three invoices dated 25th, 26th April and the remainder dated 26th March. There were sales books giving other details. Documentation was also seized on the premises showing transactions with manufacturers of counterfeit goods in the Far East from 27th April 1999 onwards. The appellant acted as a point of contact with an agent in Taiwan who was employed as liaison with the factories producing the goods. She was dismissed in September 2000 for not working hard enough. The documentation revealed that Nadir used three air cargo companies to convey counterfeit goods. Partial documentation revealed that Nadir purchased £700,000-worth of stock between May 1999 and May 2001. 10. At first all three accused declined to answer questions in interview. On 4th July 2001 the appellant requested a further interview. He stated that the business held over 200,000 items in stock, only a small proportion of which comprised batteries and covers. He had only recently joined the business and was mainly responsible for the computer system. His brother ran the business although the appellant accepted that he assumed responsibility when his brother was away. He accepted that the covers were made to Nadir's design and these designs incorporated famous brands. He thought there was nothing wrong with this so long as the companies did not make their own covers. He could not explain why the counterfeit Nokia products or the sheets of counterfeit labels came to be there. There was no written basis of plea. 11. On the question of sentence, Mr Palmer of counsel, who appeared before Judge Khayat, accepted for the appellant that for what could only be described as serious commercial trading offences substantial custodial sentences had been imposed and approved in this court for similar trademark frauds. By way of example, the case of Davies [2003] EWCA Crim. 3110 where a sentence of three-and-a-half years' imprisonment was upheld and Ansari [2000] 1 Cr.App.R (S) 94, the bracket of sentencing was two to three years, a case not similar to this. 12. Counsel for the respondent, Mr Groome, has helpfully provided a schedule with reports exhibited to it of the levels of sentencing in a large number of cases and they indicate that the level of sentencing, apart from the minor cases, is of the order of between two and four years' imprisonment. 13. Mr Palmer says firstly here, and this is his main point, that there was no credit given for guilty pleas because of the attempt to vacate the plea and set aside the conviction. It is true that the judge said that he took it into account but he was dismissive of the effect of the pleas of guilty discounting the sentences because of that circumstance. Mr Palmer also submitted that the appellant had been sentenced on the wrong factual basis. The judge said that he did not regard the six counts as specimen counts and the sentences he imposed were sentences for a course of conduct over two years. Next, Mr Palmer said that the personal mitigation of this appellant should have resulted in either a non-custodial sentence or even at this stage from this court a suspended sentence. He was a man of good character and indeed positive good character because he had worked for charities. He had been co-operative with the investigating authority and more particularly he was extremely well-qualified as a teacher. He had gained a PHD in chemical engineering from Imperial College and at the time of sentencing and for some time before that had been employed as a science teacher at the Langdon School in East London. He furnished to the sentencing judge, and we have seen them, references from the head teacher of that school and the assistant head teacher which speak of him in glowing terms as a teacher and pointing out the difficulty of recruiting high calibre teachers such as the appellant in London and particularly in science. Mr Palmer made a strong submission to the judge based on that, that society would be better served by this appellant returning to teaching rather than receiving a custodial sentence. His present position is, we are told, that he has not yet decided whether to seek to return to teaching when he is released because of the considerable adverse publicity that this case has engendered. 14. We have considered those submissions. It is not altogether easy to understand why the judge treated these counts not as specimen counts. This ran completely contrary to the way the defence ran the case throughout including the confiscation proceedings. The evidence of the appellant and the reports of his expert accountant, Mr de Nahlik, were directed at meeting the Crown's evidence of the scale of trading and resultant benefit over two years. The appellant gave evidence over two days before the judge and as we understand it it was not once suggested that the confiscation amount might be limited to six individual instances in May 2001. 15. The judge in sentencing did say that he was treating these offences not as specimen counts but he prefaced that by saying that he was going to sentence the appellants for their conduct over a two year period and he indicated that he had to regard their conduct over a long period to take that into account. That is why we indicate that we do not entirely understand what the judge said about specimen counts, but it can have come as no surprise to the appellant or his advisers that he was being sentenced for dishonest trading over a period of two years. 16. This was, in our view, clearly a case for immediate custody. The sentence imposed was well below the level of sentencing in this class of case and we feel that the judge must have taken into account his substantial mitigation in reducing the sentence. He was not entitled to very much credit for his plea of guilty. Mr Palmer did not argue for the full one-third but said it should be appreciable. In our view, although the judge did not address this point specifically, we think that some credit must have been given to produce a sentence as lenient as 12 months' imprisonment. We take into account the strong personal mitigation that this appellant had but it does not, in our view, amount to an exceptional circumstance which would have justified a judge or this court in suspending the sentence. In the result the appeal against sentence fails. 17. We turn to the confiscation order. This order was made after a long and thorough investigation by the judge following expert evidence for the Crown and for the appellant. The question for the court was: had the Crown satisfied the judge that the appellant had benefited from any criminal conduct? 18. In summary, it was agreed between the financial witnesses that the turnover of the business over two years was £3.2 million. This was not, however, the benefit to the appellant, his father and his brother because it was accepted that there were genuine sales. Indeed it was agreed, and the judge acted on this, that the bulk of the sales were genuine sales. The dispute lay in the percentage of dishonest sales or "trademark breach trade", as the experts described it. An important consideration for the judge and for this court is the burden on the Crown to satisfy itself as to the amount of benefit and the burden by statute is the Civil standard of proof. The Crown's expert at the hearing was another Trading Standards Officer Mr Terrell. Mr Sharp, his predecessor, had put forward a figure of 52.8 per cent of the sales being definitely legal and 6.6 per cent as definitely illicit. The remaining 40.6 per cent may have been illicit. Mr Terrell invited the court to take a medium ration between the minimum and maximum proportion of disputed sales, which was 20.3 per cent, to which should be added the 6.6 per cent agreed illicit sales. Mr de Nahlik contended for the figure of 6.6 per cent because the figure could be proved with certainty. 19. The judge having heard all the evidence was satisfied that there were substantial illicit sales. He accepted Mr Terrell's approach and found that the benefit for the three defendants was £860,800 or 26.96 of the £3.2 million. The defendants then agreed amongst themselves in what proportion they would bear that amount and the appellant's share and the amount of the order was £84,548. 20. Mr Palmer submit that this decision by the judge was Wednesbury unreasonable. It was an irrational approach by the judge. Mr de Nahlik was much better qualified than Mr Terrell and should have been preferred. We have to say that we do not agree. After his consideration of much evidence, oral and written, the judge was satisfied that the illegal trade was substantial. We see nothing irrational in his preference for Mr Terrell's approach which produced a percentage which itself was substantial. On the judge's view of the evidence it may even have been generous to the appellant and his co-defendants. The appeal in respect of the confiscation order therefore fails. 21. The last matter that has to be considered is the question of time to pay. As we have said, the judge gave six months in which to pay the confiscation order amount and three months in which to pay the costs. Mr Palmer, in a sensible and practical submission, has pointed out that there are considerable difficulties in selling a house - which will be the only way in which these amounts can be met - when the vendor is in prison, when time is short and the best price may not be easily achievable in the short-term. 22. We think that there is force in that and we propose to vary the order made by the learned judge to an order of 12 months from the date of sentence, 15th February 2005, in respect both of the confiscation amount and the award of £25,000 costs. To that limited extent this appeal succeeds.	{"ConvCourtName":["Snaresbrook Crown Court"],"ConvictPleaDate":["2002-03-06"],"ConvictOffence":["Using trademarks without authority, contrary to section 92 of the Trade Marks Act 1994"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Snaresbrook Crown Court"],"Sentence":["12 months' imprisonment on each count, concurrent"],"SentServe":["Concurrent"],"WhatAncillary":["Confiscation order (£84,548) under section 71 of the Criminal Justice Act 1988 with 6 months to pay (varied to 12 months on appeal), 2 years' imprisonment in default of payment, £25,000 prosecution costs (to be paid in 3 months, varied to 12 months on appeal), forfeiture order for mobile phone fascia covers and other items"],"OffSex":["All Male"],"OffAgeOffence":[32],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Company"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Documentary evidence (invoices, sales books, documentation of transactions, financial expert reports)","Physical evidence (counterfeit goods seized)","Testimony of Trading Standards Officers"],"DefEvidTypeTrial":["Testimony of appellant and his expert accountant (Mr de Nahlik)"],"PreSentReport":[],"AggFactSent":["Serious commercial trading offences","Course of conduct over two years","Substantial illicit sales"],"MitFactSent":["Good character","Positive good character (charity work)","Cooperative with investigating authority","Highly qualified (PhD in chemical engineering)","Employed as a science teacher with excellent references"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Sentence","Confiscation order"],"AppealGround":["No credit given for guilty plea","Sentenced on wrong factual basis (not as specimen counts)","Personal mitigation not sufficiently considered","Confiscation order calculation unreasonable"],"SentGuideWhich":["Section 92 of the Trade Marks Act 1994","Section 71 of the Criminal Justice Act 1988","Davies [2003] EWCA Crim. 3110","Ansari [2000] 1 Cr.App.R (S) 94"],"AppealOutcome":["Sentence appeal dismissed except for extension of time to pay confiscation and costs; appeal against confiscation order dismissed except for extension of time to pay"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Judge did not give appreciable credit for guilty plea","Personal mitigation did not justify suspension of sentence"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Sentence was well below the level of sentencing in this class of case","Judge must have taken into account substantial mitigation","No exceptional circumstance to justify suspension of sentence","Confiscation order calculation was not irrational; judge entitled to prefer Crown's expert evidence"]}
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 NEUTRAL CITATION NO: [2021] EWCA Crim 175 CASE NO 202002863/A3 Royal Courts of Justice Strand London WC2A 2LL Friday 5 February 2021 LORD JUSTICE DAVIS MR JUSTICE WILLIAM DAVIS HIS HONOUR JUDGE LODDER QC (Sitting as a Judge of the CACD) REGINA V PATRICK ALBERT JESSEMEY 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 L FRENCH appeared on behalf of the Applicant. MR P JARVIS appeared on behalf of the Crown. J U D G M E N T 1. MR JUSTICE WILLIAM DAVIS: Patrick Jessemey is 76 years old. Until the matters with which we are concerned, he was of good character. 2. On 21 October 2020 he appeared for sentence in the Crown Court at Oxford. For an offence of attempting to incite a child under the age of 13 to engage in non-penetrative sexual activity a term of 3 years' imprisonment was imposed. A sexual harm prevention order ("SHPO") was made. This order was indefinite in its duration. 3. His application for leave to appeal against sentence has been referred to the Full Court by the Registrar. We give leave. 4. This case initially had been identified as one suitable for consideration by this Court with a view to resolving an apparent conflict between the principles expounded in R v Privett [2020] 4 WLR 111 and the decision of this Court in R v Russell [2020] EWCA Crim 956 . About that apparent conflict we need say no more. This case cannot, and will not, be a vehicle for addressing such conflict as there may be. 5. That is because of the procedural minefield through which the parties in the courts below attempted to negotiate. Their lack of success in that endeavour means that no general principle of sentencing in relation to sexual offences arises. Rather, this is a cautionary tale of the consequences of errors of procedure in the Magistrates' Court and the Crown Court. The problems with which we must grapple were first identified by Rebecca Saillet, a lawyer in the Criminal Appeal Office. We pay tribute to the assistance she has given us in finding our way through the issues which have arisen. We have also been given very considerable assistance by Mr Paul Jarvis instructed on behalf of the respondent prosecutor. He did not appear in the court below but he has made valuable submissions to us. 6. What the appellant did can be stated very shortly. On eight occasions in August 2019 he participated in online chatroom text conversations with someone who called herself "Leon". Leon supposedly was a 12-year-old girl. That is how the person advertised herself online. In fact, Leon was an adult police officer. The appellant did not know that. He believed that he was engaging with a 12-year-old girl. His conversations with Leon were overtly sexual. He asked to kiss her and to touch her. He incited her to masturbate herself to orgasm and to engage in telephone sex with him. The appellant was arrested in December 2019. He told the police that he would not have done anything. He said that it was just talk, that he did not know how old Leon was and that he was just messing about. 7. In June 2020 the appellant was sent a postal requisition. It contained a single charge of attempting to engage in sexual communication with a child. The substantive offence is set out in section 15 A of the Sexual Offences Act 2003 . It is an either way offence with a maximum sentence of 2 years' imprisonment. 8. On 11 August 2020 the appellant appeared at the Oxford Magistrates' Court. This was his first appearance in answer to the postal requisition. At court the prosecution preferred a second charge, namely the charge in respect of which the appellant eventually was sentenced. The underlying substantive offence in relation to that charge (namely section 8 of the Sexual Offences Act 2003 ) also is an either way offence. Where the activity alleged is non-penetrative the maximum sentence is 14 years' imprisonment. Although particularised as an attempt to commit the offence - as it had to be since there was no child to incite - the offence was described on the court record as being contrary to section 8 of the Sexual Offences Act 2003 rather than section 1 of the Criminal Attempts Act 1981. 9. This is the first procedural issue which we must address. Rebecca Saillet was concerned that the statement of the offence being in those terms might have affected the lawfulness or validity of the charge. We are satisfied that it did not. Anyone charged with a substantive offence can be convicted in the alternative on an attempt to commit the offence. It must follow that a misdescription of the statutory basis of the charge of the kind that occurred in this case will be of no substantive consequence. 10. At the Magistrates' Court, when the plea before venue procedure took place, the appellant gave no indication of plea in relation to the offence charged in the postal requisition. He did indicate a plea of guilty to the offence charged on the day of his appearance before the Magistrates' Court. 11. The Magistrates determined that the charge of attempting to engage in sexual communication with a child should be sent for trial. The charge of attempting to commit an offence contrary to section 8 of the 2003 Act was committed for sentence. The committal was pursuant to section 4 of the Powers of Criminal Courts (Sentencing) Act 2000 . "(1) This section applies where- (a) a person aged 18 or over appears or is brought before a magistrates' court (the court') on an information charging him with an offence triable either way ('the offence'); (b) he or his representative indicates that he would plead guilty if the offence were to proceed to trial; and (c) proceeding as if section 9(1) of the Magistrates' Courts Act 1980 were complied with and he pleaded guilty under it, the court convicts him of the offence. (2) If the court has committed the offender to the Crown Court for trial for one or more related offences, that is to say, one or more offences which, in its opinion, are related to the offence, it may commit him in custody or on bail to the Crown Court to be dealt with in respect of the offence in accordance with section 5(1) below. (3) If the power conferred by subsection (2) above is not exercisable but the court is still to inquire, as examining justices, into one or more related offences- (a) it shall adjourn the proceedings relating to the offence until after the conclusion of its inquiries; and (b) if it commits the offender to the Crown Court for trial for one or more related offences, it may then exercise that power. (4) Where the court- (a) under subsection (2) above commits the offender to the Crown Court to be dealt with in respect of the offence, and (b) does not state that, in its opinion, it also has power so to commit him under section 3(2) above i. section 5(1) below shall not apply unless he is convicted before the Crown Court of one or more of the related offences. ii. (5) Where section 5(1) below does not apply, the Crown Court may deal with the offender in respect of the offence in any way in which the magistrates' court could deal with him if it had just convicted him of the offence." 12. Section 4(2) provides that a person committed under the section can be dealt with as if they had been convicted by the Crown Court. This flows from the reference to section 5(1) of the 2000 Act . There is an exception to this provision as set out in section 4(4) . The Magistrates' Court can say that it also had power to commit the person under section 3(2) of the 2000 Act . If the court fails to do that and the person then is not convicted of the offence or offences for which they were sent for trial, the Crown Court's sentencing powers are restricted to those of the Magistrates' Court. In this case the Magistrates' Court did not state that, in its opinion, it had the power to commit the appellant under section 3(2) of the 2000 Act . 13. The first hearing in the Crown Court was on 10 September 2020. On 9 September 2020 the prosecution uploaded two indictments onto the DCS. The first indictment was uploaded at 3.10 pm on that day in the "Indictment" section of the DCS. It contained a single count reflecting the charge sent for trial. The second indictment was uploaded at 3.50 pm in the "Applications" section of the DCS. It contained two counts. One was in the same terms as the count on the single count indictment. The other reflected the charge committed for sentence. This was done because it was thought that the documentation received from the Magistrates' Court was ambiguous about the manner in which the charge relating to the section 8 offence had been sent to the Crown Court. 14. The existence of two indictments is the next procedural issue which we have to consider. Mr Jarvis submitted that an indictment is preferred when it is uploaded to the DCS. He further submitted that an indictment could only be preferred by such uploading if it was uploaded to the appropriate section of the DCS, ie the section designated as "Indictment". The two count indictment was of no effect because it had been uploaded to a different section. It was a mere draft. 15. The preferring of indictments is dealt with in Part 10 of the Criminal Procedure Rules. Part 10.2(5) is in these terms: "(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)(d) (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, or (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)." 16. We are concerned with the position governed by sub-paragraph (b)(ii). The relevant Criminal Practice Direction is CPD Part 10A.8: "It requires the prosecutor to prepare a draft indictment and serve it on the Crown Court officer, who by CrimPR 10.2(7)(b) then must serve it on the defendant. In most instances service will be by electronic means, usually by making use of the Crown Court digital case system to which the prosecutor will upload the draft (which at once then becomes the indictment, under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 and CrimPR 10.2(5)(b)(ii))." 17. The import of these provisions was summarised by this Court in R v W(P) [2016] 2 Cr App R 27 at [20]: "An indictment is preferred within the meaning of s.2(1) of the 1933 Act , once it is electronically entered onto the Court digital system at the Crown Court. The consequence is, as s.2(1) provides, that 'it shall thereupon become an indictment and be proceeded with accordingly'." 18. Nowhere in the Criminal Procedure Rules or in the Criminal Practice Direction, is it said that the indictment must be uploaded to a particular part of the DCS. Mr Jarvis's submission was that the uploading must be to the “Indictment” section of the DCS. An indictment uploaded to another part of the DCS will not have been preferred. Were it otherwise confusion and error would be the likely result. If the indictment were not in the right section there would be no reason for anybody to look for it. In our judgment, although nothing is said whether in the rules or the Practice Direction as to the relevant section on the DCS onto which the indictment should be loaded, we agree with Mr Jarvis that in order for it to be preferred the indictment must be loaded into the "Indictment" section. For it to be otherwise would be a recipe for chaos. 19. There can of course be two or more indictments outstanding against a defendant at any one time in the course of proceedings in the Crown Court: see R v MJ [2019] 1 Cr App R 10 at [51]. If two indictments have been uploaded to the “Indictment” section (as will frequently occur in the course of proceedings) both will have been preferred. As was explained in MJ the prosecution will be required to elect the indictment in respect of which they intend to proceed. Here the prosecution uploaded to the indictment containing two counts to the wrong section of the DCS where no indictment belonged. It was a mere draft. No election was required because there was only one indictment which had been preferred. 20. In any event prosecution counsel explained the position at the first hearing. He said that the single count indictment had been uploaded because it charged the offence in respect of which the appellant had been sent for trial. This was the offence where the appellant had given no indication of plea at the Magistrates' Court. The two count indictment had been uploaded because there had been some confusion as to whether the other offence had been committed for sentence or sent for trial. Counsel explained that the confusion had been resolved. In so far as it was necessary, it was implicit in what counsel said that he elected to proceed on the single count indictment insofar as he was to proceed at all. No attempt was made to move the two count indictment to the appropriate section of the DCS. He informed the judge that the plea to the offence of attempting to incite a child to engage in sexual activity - the matter on which he had been committed for sentence - fully reflected the appellant's criminality. That was a perfectly sensible conclusion. It might be asked why this view had not been reached on 11 August 2020 at the Magistrates' Court. 21. For whatever reason it was not. 22. As Sir Brian Leveson P made clear, both in his review of criminal proceedings and elsewhere, the overriding requirement of criminal proceedings is to get it right first time. That did not occur here. Whatever the position, the end result was that the two count indictment had no purpose and no status. It was in existence only in case the offence committed for sentence in fact had been sent for trial. 23. Prosecution counsel then addressed the existence of the single count indictment charging the offence not committed for sentence. He said this: "...Your Honour my application today should it find favour and I think I'm - I'm in a position to do this because - because we haven't served our case yet is to ask for that indictment simply to be discontinued under Section 23A and then that... if your Honour's with me, that just leaves us with the matter that's been committed for sentence..." 24. This so-called application came without any warning to the judge who observed that she had not had the opportunity to research whether this course was appropriate. Counsel reassured her by saying this: "... as long as the case hasn't formally been served at stage 1, then we're in a position to discontinue and I don't think that there's any objection..." 25. There was no objection from defence counsel. The hearing continued on the assumption that the indictment had been discontinued. The judge at no point made any order. 26. The application made by the prosecution was misconceived. The relevant part of section 23 A of the Prosecution of Offences Act 1985 is as follows: "(1)This section applies where- (a) the Director of Public Prosecutions…has the conduct of proceedings for an offence; and (b)the accused has been sent for trial ... for the offence. (2)Where, at any time before the indictment is preferred, the Director or authority gives notice under this section to the Crown Court sitting at the place specified in the notice under section 51 D(1) of the Crime and Disorder Act 1998 that he or it does not want the proceedings to continue, they shall be discontinued with effect from the giving of that notice." 27. The power to give notice of discontinuance of proceedings in the Crown Court is exercisable at any time before the indictment is preferred. It is not exercisable thereafter. In this case the indictment had been preferred. If it had not been, discontinuance of proceedings would not have been a matter for the court. Prosecution counsel's use of the term "my application...should it find favour" was inapposite. There could never have been any question of the judge making an order. She did not do so. She was simply a bystander albeit one who had correctly expressed concern at the course being taken. 28. The consequence is that the single count indictment on which the prosecution had elected to proceed - albeit simply with a view to discontinuing - remained extant. Much more significantly for our purposes there was no conviction on that indictment. No-one appreciated the significance of this. No-one recognised that the nature of the committal for sentence under section 4 of the Powers of Criminal Courts (Sentencing) Act 2000 , unaccompanied by a statement that the court would have had power to commit under section 3 of the 2000 Act , restricted the powers of the Crown Court to those of the Magistrates' Court. 29. That is clear from the discussion which occupied the rest of the hearing on 10 September. Counsel and the judge spent some time discussing the applicability of the principles in Privett to the instant case and the potential categorisation of the offence. These issues were wholly irrelevant given the restriction on the Crown Court's powers at sentence. 30. The case returned for sentence on 21 October 2020 before a different judge. This judge proceeded on the understanding that his sentencing powers were those of the Crown Court. Doubtless it did not occur to him that the position might be otherwise. The issue litigated before the sentencing judge was whether the offence for which he had to sentence the appellant was one to which the principles in Privett applied. The judge decided that they did though he then reduced the starting point significantly. It is unnecessary for us to consider his approach beyond that. Unbeknownst to him his sentencing powers were limited to those of the Magistrates' Court. There was one offence. The maximum sentence he could impose was 6 months' imprisonment. 31. Had the judge realised the position, he would have taken a starting point of 6 months. That was significantly less than the appropriate sentence irrespective of which line of sentencing authority he might have applied. But the judge had no power to do otherwise. 32. The restriction on the judge's sentencing powers arose from a catalogue of unfortunate errors: the failure to take a proper view as to the acceptance of the appellant's plea in the Magistrates' Court; the consequent committal for sentence under section 4 of the 2000 Act ; the failure to ensure that the court stated that it had the power to commit the appellant for sentence under section 3 of the 2000 Act ; the failure to recognise the consequence of discontinuing the proceedings; the erroneous application of section 23 A of the 1985 Act . 33. We are assured by Mr Jarvis that the Crown Prosecution Service at least will be addressing all of those errors as they occurred in this case in terms of their general application to cases of this kind. 34. We hope that the Justices' Clerks Society and others concerned with Magistrates' Court procedure will do likewise. 35. None of this was the appellant's fault. He had pleaded guilty to the offence for which he was to be sentenced at the first opportunity. The maximum sentence open to the Crown Court was 6 months' imprisonment. The appellant must be entitled to full discount for his plea. Therefore, the sentence which should have been imposed was 4 months' imprisonment. 36. We should say that Mr Jarvis on behalf of the prosecution entirely agrees with that analysis. 37. The appellant has already served that sentence. Therefore, issues relating to the effect of the current pandemic on those serving prison sentences and the prospect of suspending any prison sentence of that length are wholly academic. 38. We quash the sentence of 3 years' imprisonment and substitute a sentence of 4 months' imprisonment. 39. That reduction of the length of the sentence will reduce the duration of the notification requirements. They will now operate for 7 years. That follows administratively; it is not part of the order of the court. However, as is normal, the duration of the SHPO was directly related to the length of the sentence. It is conventional for the duration of notification requirements and any SHPO to be in step. In those circumstances and particularly taking into account the appellant's age, we shall reduce the operative period of the SHPO to 7 years. 40. To that extent therefore this appeal is allowed. 41. As we have observed the single count indictment remains extant. It is necessary to take some step to dispose of the indictment. We consider that the appropriate course is to order the indictment to lie on the file on the usual terms. One of us will sit as a judge of the Crown Court in order to achieve that end. We should say that we find it difficult to conceive of any circumstances in which any court would give leave for the prosecution to proceed with that indictment. 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 Oxford"],"ConvictPleaDate":["2020-08-11"],"ConvictOffence":["Attempting to incite a child under the age of 13 to engage in non-penetrative sexual activity"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Oxford"],"Sentence":["3 years' imprisonment (quashed and substituted with 4 months' imprisonment)"],"SentServe":["Single"],"WhatAncillary":["Sexual Harm Prevention Order (SHPO) (duration reduced to 7 years)"],"OffSex":["All Male"],"OffAgeOffence":[75],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[12],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Online chatroom text conversations"],"DefEvidTypeTrial":["Offender denies intent to act, claims 'just talk', did not know age"],"PreSentReport":[],"AggFactSent":["Offence involved inciting a person believed to be a child under 13 to engage in sexual activity"],"MitFactSent":["Offender pleaded guilty at first opportunity","Offender was of good character"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Crown Court's sentencing powers were limited to those of the Magistrates' Court (maximum 6 months) due to procedural errors"],"SentGuideWhich":["Section 4 of the Powers of Criminal Courts (Sentencing) Act 2000"],"AppealOutcome":["Allowed and sentence reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Crown Court imposed a sentence (3 years) in excess of its powers (maximum 6 months) due to procedural errors"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
No:200402733 - 02735 - 02736 A9 Neutral Citation Number: [2004] EWCA Crim 2062 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 20 July 2004 B E F O R E: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MR JUSTICE NELSON MR JUSTICE MCCOMBE - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NOs 054, 055, 056 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS S WHITEHOUSE appeared on behalf of the ATTORNEY GENERAL MISS J HAYNE appeared on behalf of SAM STECHMAN MISS C HADFIELD appeared on behalf of LEE WALTON MISS K BEX appeared on behalf of SIMON GRIFFIN - - - - - - - J U D G M E N T 1. LORD JUSTICE ROSE: The Attorney General seeks the leave of the court under section 36 of the Criminal Justice Act 1988 to refer sentences on these three offenders to this court on the ground that they were unduly lenient. We grant leave. 2. The offender, Stechman, is 16, having been born in January 1988. The offender, Griffin, is 17, having been born in October 1986, and the offender, Walton, is 16, having been born in March 1988. 3. On 7 November 2003, Griffin pleaded guilty to causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861 . On 23 February 2004, the two other offenders, Walton and Stechman, pleaded guilty to the same offence. On 16 April 2004, they were sentenced at Inner London Crown Court by Mr Recorder Conlin. Stechman and Griffin were sentenced to a Community Punishment and Rehabilitation Order consisting of 100 hours' Community Punishment and 24 months' Rehabilitation, and both were also subjected to an electronically monitored curfew for six months from 8pm to 8am. In relation to Walton, a Community Rehabilitation Order for two years was made, together with a similar curfew order. 4. In summary, the three offenders approached the 14 year-old male victim at about 11 o'clock on the evening of 22 August 2003. They took his bicycle, pushed it into his leg, kicked and punched him about the face and body, threatened to kill him, broke his arm and threw him into a nearby canal. 5. In a little more detail, the victim was sitting on a curb in Dame Street, London N1 on this summer evening. His bicycle was propped behind him. The three offenders approached. The victim recognised the offender, Stechman. Walton took the bicycle and rode it away. Stechman and Griffin walked alongside Walton, laughing and joking. The victim followed, trying to retrieve his bicycle. Walton rammed the bicycle into the boy's right leg, causing him to fall back against a wall. All three offenders then began punching and kicking him about the head and body. The boy pleaded with them to stop. They continued, saying he had better not tell the police or he would get more. 6. Stechman suggested they kill the victim by "popping" his head on the spikes of some railings nearby. The kicking and punching continued. The boy tried to protect his face with his arm, but Walton pulled his right arm away and said he was going to break it. Thereupon the boy's face became unprotected and Stechman and Griffin punched him repeatedly in the face. All three said they were going to kill him. 7. They dragged him to the spiked railings and the earlier threat was repeated. Walton suggested that, instead, they should throw him into the canal. That was agreed. They dragged him, still beating him, to the canal. They took off his jacket. They swung him backwards and forwards twice, before throwing him into the canal. He surfaced about halfway across and was able to swim to the other side. As he did so, he heard the offenders say, "Let's throw some rocks at him". They did not in fact throw rocks. 8. Later, at hospital, it was found that his left elbow was broken in three places. He had bruising around his left eye and right cheek, and abrasions to his forehead, the back of his head, his left arm and knees. 9. On behalf of the Attorney General, Miss Whitehouse draws attention to the following aggravating features: first, the attack was unprovoked; secondly, it was carried out by three against one; thirdly, the victim was only 14; fourthly, he was kicked with shod feet as he lay on the floor; finally, he was thrown into a canal, with his arm by that stage broken whether the offenders knew it or not, so that he had to swim to survive. 10. Miss Whitehouse draws attention to the mitigation to be found in the fact that Stechman and Walton were only 15 and Griffin only 16 at the time. Griffin pleaded guilty at the earliest opportunity and had no previous convictions of relevance. It is right to say that none of these offenders has any previous conviction for violence. Walton has a poor record for dishonesty. 11. Miss Whitehouse drew attention to a number of authorities, including Attorney General's Reference No 59 of 1996 [1997] 2 Cr App R (S) 250, Attorney General's Reference Nos 30 and 31 of 1998 [1999] 1 Cr App R (S) 200 and Attorney General's Reference No 121 of 2002 [2003] EWCA Crim 684 . In Attorney General's Reference Nos 59, 60 and 63 of 1998 [1999] 2 Crim App R (S) 128 at 131, Lord Bingham CJ, giving the judgment of the court, said this: "When an offender, however young, deliberately inflicts serious injury on another there is a legitimate public expectation that such offender will be severely punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way. If such punishment does not follow, public confidence in the administration of the criminal law is weakened and the temptation arises to give offenders extra-judicially the punishment that the formal processes of law have not given. When we speak of the public we do not forget the victim, the party who has actually suffered the injury, and those close to him. If punishment of the offender does little to heal the victim's wounds, there can be little doubt that inadequate punishment adds insult to injury." 12. The submission which is made by Miss Whitehouse in the light of those authorities and the circumstances of this case is that a community punishment wholly failed to reflect the gravity of the offence and a custodial penalty was required. In consequence, she submits, the sentences passed by the learned Recorder were unduly lenient. 13. On behalf of Stechman, Miss Hayne concedes that the sentence was lenient and that the authorities show that custody is ordinarily appropriate. But, she submits, there are, in the present case, personal circumstances of mitigation so far as Stechman is concerned which justify a non-custodial penalty. She points out, as we have already said, that he is only 15 and he has no previous convictions. This offence was entirely out of character. He had been drinking heavily, not looking for violence. He accepts that what he did was appalling and despicable. But, she submits, he has shown genuine remorse and has made progress in the months which have passed since he was sentenced in April. He has not breached his order. He has, it is true, difficulty in talking about the offence, but he is only 16, even now. 14. There are indications in one of the pre-sentence reports upon him that he is experiencing difficulty in expressing sympathy with the victim. Miss Hayne points out that the nature of the area where he lives is such that he is being taunted by some for his part in this attack and taunted by others for having pleaded guilty to the offence. Sadly, as Miss Hayne points out, his grandfather died soon after the offence was committed, but before Stechman was sentenced. She submits that he has taken such opportunity as was presented by the Recorder's sentence to show signs of improvement for the future, and she asserts he will not be before the courts again. He spent a week in custody before he was sentenced by the Recorder. 15. Miss Hadfield, on behalf of Walton, accepts that the sentence was an unusually lenient one, but he spent some seven months in custody before he was sentenced, and during that period, had to endure the death of a baby born prematurely to his girlfriend of which he was the father. 16. Miss Hadfield's second submission is that, even if the sentence was unduly lenient, the court should not exercise its discretion to interfere with it. She stresses the plea of guilty, the absence of premeditation and the lack of any sign of violence in the offender, Walton's, previous record. She said that it was not obvious why in Walton's case the Recorder had imposed a different sentence to that imposed on the other two offenders. But it may be that he had in mind the fact that Walton had already spent seven months in custody. 17. Miss Hadfield drew attention to the contents of the reports upon Walton, indicating that he has taken responsibility for doing that which he did, and has written a letter of apology and expressed his remorse. He has an unhappy youthful background, having been in and out of care, in particular during the currency of previous supervision orders. 18. He has apparently been in breach of the curfew order which the Recorder imposed, and that is due to be dealt with later this week. That came about because he left his mother's address and he is now apparently living in sheltered accommodation. It is apparent that the evidence which his mother gave before the Recorder, indicating an apparent increase in maturity following the death of his baby, had a significant influence upon the Recorder. 19. Miss Hadfield submits that, in view of Walton's age, the balance in his case tips in favour of rehabilitation rather than punishment. He has responded to the order which was made and has engaged fully, apart from the breach of curfew to which we have referred. 20. Miss Hadfield refers to double jeopardy, that is the second sentencing process, which is involved in all Attorney General's References, and she submits that the offender, Walton, is being rehabilitated by the sentence which the Recorder passed. 21. On behalf of Griffin, Miss Bex stresses that he displayed courage in that he was the first to plead guilty: by reason of that, he is entitled to maximum credit. He has been on bail throughout and for a short period worked. Indeed his then employer gave evidence before the Recorder as to how well he was doing after some two weeks, and the Recorder was clearly impressed by that. The present position is that the offender is not living with his mother. He has been sleeping at her garden gate and breach proceedings in relation to the curfew are to be considered by the youth court next week. She accepts that he has, as is apparent from the reports, failed to comply with the punishment part of the order, and he has, according to the report, been verbally abusive to staff. She submits that his present position, as we have briefly described it, is cruel so far as he is concerned. 22. There are clearly particular circumstances of mitigation affecting each of these three offenders in different ways: in relation to Stechman, the sad death of his grandfather; in relation to Walton, the sad death of his baby; in relation to Griffin, his early plea of guilty. Looking at the picture in the round, we are satisfied that no distinction should be drawn in the way in which the three offenders are dealt with. 23. This was a terrible offence - in its persistence, in the variety of violence, in the numbers involved, and in its culmination in the victim being cast into the canal. The physical injuries were serious and included the multiple fractures of the elbow, to which we have referred. There were mental injuries as well. The victim has required psychological treatment. That being so, notwithstanding the pleas of guilty and the youth of all these three offenders, we would have expected a sentence in the court below in relation to each of them of three years' detention under the Powers of Criminal Courts (Sentencing) Act 2000, S.91 . That is not a sentence which this court should now impose, having regard both to double jeopardy and the fact that, if they are incarcerated now, having previously been at liberty since they were sentenced, a further discount is called for from the sentence which would be appropriate. Taking those matters into account, subject to one matter in relation to Walton, which we will deal with, the sentence which would here be appropriate in relation to all three offenders is a Detention and Training Order of two years. 24. So far as Walton is concerned, because, as we have said, he has spent seven months in custody prior to sentence which period would not count towards his sentence, the sentence which we impose on him is a Detention and Training Order of 12 months. In relation to Stechman and Griffin, the sentence is a 24-month Detention and Training Order. Those sentences will start to run when the offenders respectively surrender to custody. 25. Miss Hayne, Miss Hadfield, Miss Bex, so far as surrender is concerned, we know not whether or not they are here at court? 26. They are present in court. Is there any reason why they should not surrender now? 27. MISS BEX: My Lord, no. 28. LORD JUSTICE ROSE: We shall direct that they surrender at 1 o'clock.	{"ConvCourtName":["Inner London Crown Court"],"ConvictPleaDate":["2003-11-07","2004-02-23"],"ConvictOffence":["Causing grievous bodily harm with intent (s.18 Offences against the Person Act 1861)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["Griffin: earliest opportunity","Walton and Stechman: before trial"],"RemandDecision":["Unconditional Bail","Remanded into custody"],"RemandCustodyTime":[7,1,0],"SentCourtName":["Inner London Crown Court"],"Sentence":["Stechman: Community Punishment and Rehabilitation Order (100 hours Community Punishment, 24 months Rehabilitation), 6 months electronically monitored curfew (8pm-8am)","Griffin: Community Punishment and Rehabilitation Order (100 hours Community Punishment, 24 months Rehabilitation), 6 months electronically monitored curfew (8pm-8am)","Walton: Community Rehabilitation Order (2 years), 6 months electronically monitored curfew (8pm-8am)"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[15,15,16],"OffJobOffence":["Unemployed","Unemployed","Employed"],"OffHomeOffence":["Fixed Address","Temporary Accommodation","Homeless"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking","No","No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[14],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["attack was unprovoked","three against one","victim was only 14","kicked with shod feet as he lay on the floor","thrown into a canal with broken arm"],"MitFactSent":["offenders were only 15 and 16 at the time","Griffin pleaded guilty at earliest opportunity","no previous convictions for violence","offence out of character for Stechman","Stechman had been drinking heavily","genuine remorse shown by Stechman and Walton","Walton spent 7 months in custody before sentence","Walton had unhappy background, in and out of care","Griffin worked for a short period and employer gave positive evidence"],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["community punishment wholly failed to reflect the gravity of the offence","custodial penalty was required"],"SentGuideWhich":["section 36 of the Criminal Justice Act 1988","section 18 of the Offences against the Person Act 1861","Powers of Criminal Courts (Sentencing) Act 2000, S.91"],"AppealOutcome":["Allowed","Sentences increased: Stechman and Griffin to 24 months Detention and Training Order, Walton to 12 months Detention and Training Order"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["community punishment wholly failed to reflect the gravity of the offence","custodial penalty was required"],"ReasonDismiss":[]}
Neutral Citation Number: [2010] EWCA Crim 1023 Case No. 2009/04855/D3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 27 April 2010 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE DAVID CLARKE and MR JUSTICE LLOYD JONES __________________ R E G I N A - v - PAUL BURNS __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Miss Joanna Greenberg QC appeared on behalf of the Applicant Mr Jonathan Devlin appeared on behalf of the Crown ____________________ J U D G M E N T THE LORD CHIEF JUSTICE: 1. This application for leave to appeal against conviction, which has been referred to the full court by the Registrar, raises a short but not uninteresting point relating to offences of violence and the defences to them. We grant leave. 2. On 17 August 2009, in the Crown Court at Bradford, before His Honour Judge Benson and a jury, the appellant was convicted of assault occasioning actual bodily harm. He was also convicted of committing an offence with intent to commit a sexual offence, and had earlier pleaded guilty to common assault. The last two convictions have no bearing on the present appeal. In due course the appellant was sentenced to concurrent sentences of imprisonment for assault occasioning actual bodily harm and the sexual offence, but the sentences were suspended. 3. The facts are these. The complainant was a prostitute working in Huddersfield. In the early hours of 13 July 2008 the appellant drove to the red light area of the town. He got out of his car and spoke to the complainant. They agreed a price of £50 for oral sex. The price was paid. The appellant said that he wanted to go somewhere safe because he had seen a police car in the vicinity, so they got into his car together. When the complainant got into the car it was understood between them that she would later be returned to the area where the journey had started. He drove for about ten minutes to a more secluded area. There he stopped the car. It was in dispute whether he provided both of them with a line of cocaine which they both took, or whether he offered her cocaine which she refused. It appears that he left the car to urinate. On his return, according to his account, he turned on the interior light. 4. The complainant was then seen to be less attractive than the appellant had thought. That put him off the entire transaction. He asked her to get out of the car. She was not happy and refused. He removed her from the car with force. On his own account he pulled her out by her armpits. She resisted. After a struggle he removed her from the car. She wanted to get back into it. She asked him not to leave her where they were and struggled with him. He pushed her away. Eventually she stopped struggling. He got back into the car and drove away. 5. The complainant's account was of more serious violence. However, it was not in dispute that as a result of the struggle she had sustained scratches and grazes to her legs, which were bleeding, and that this constituted actual bodily harm. 6. In his evidence at trial the appellant conceded that he should have taken the complainant back to where she had been picked up. Miss Joanna Greenberg QC, for whose submissions both written and oral we are grateful, pointed out that this concession would be a matter of courtesy rather than a matter or law. The appellant also conceded that nothing prevented him from taking the complainant back, apart from his change of mind. There was no other reason why, when the complainant refused to leave, he could not have taken her back. 7. After his evidence was completed, it was submitted to the trial judge that the force used by the appellant to remove the complainant from his car, and the subsequent struggle to prevent her from returning back into it was lawful. The judge rejected the submission. In due course he directed the jury that, even on the appellant's account of what had happened "he was not entitled to use force to eject [the complainant] from that vehicle and to prevent her from getting back into it in the circumstances of this case." The judge further directed the jury that, provided they were satisfied that the complainant had sustained actual bodily harm at the appellant's hands, as a matter of law, "the force that [he] used was unlawful...." The question in this appeal is whether the direction was correct. 8. The contention advanced on behalf of the appellant is that, although there are no authorities directly in point, he was entitled to use reasonable force to remove the complainant from his car; alternatively, that the use of force in the circumstances which obtained here was not necessarily unlawful. The foundation of the argument is that it is settled law that such force can be used to eject an individual from any property after he has refused to leave on request. By refusing, he becomes a trespasser and so can be removed. This would apply, for example, to a house. The argument is that the principles of common law relating to an individual's home or house are analogous to those which apply in relation to his car. It is well known that the owner of a house has the right to say who may enter and who may remain. Similarly, the common law provides the right to remove a trespasser from his car as to remove a trespasser from his land. That certainly applies to an individual who enters a vehicle without permission and who sought to remain there indefinitely. It applies to the complainant who sought to remain indefinitely, notwithstanding the appellant's request that she should leave. Although she entered with his permission, he had terminated it. 9. On this contention it is irrelevant that the original entry by the complainant into the car was at the invitation of the appellant. The invitation remained subject to his permission and licence, which he was entitled to remove or withdraw at any time and for any reason, and indeed without any reason or justification. In the written submissions our attention was drawn to R v Tabbart [1693] Skinner 387, where the plaintiff desired the defendant who had come into his house to leave it and accordingly commanded that his wife put the defendant out, molliter manus imposuit . It is an indication of how ancient the decision in Tabbart is that it was reported that the plaintiff had given his wife such a command. Nowadays the language might be "request". In Archbold (2010 edition) it is suggested (paragraph 19-187) that "It is a good defence that the battery was committed by the defendant in defence of his possession; as, for instance, to remove the prosecutor out of the prisoner's close of house; or to prevent him from entering it: Rolle Abr. 548, 1.25...." In essence it is contended on behalf of the appellant is that these principles apply to his car. 10. The problem with Miss Greenberg's submission is stark. The common law is a remarkably flexible instrument; but it is perhaps worth emphasising that the flexibility of the common law, and its capacity for development, lies at least in part on its ability to reflect practical and contemporary realities. 11. The question in this appeal is whether the violence to which the complainant was subjected was unlawful. The appellant did not act in self-defence nor in defence of anyone else, nor to prevent a crime, nor in defence of his property from the threat or risk of damage, nor indeed for any of the purposes envisaged either by the Criminal Law Act 1967 or the Criminal Damage Act 1971 or well-established common law defences to allegations of violence which would otherwise be criminal, such as participation in sports like rugby which involve an element of violence. Even as a matter of legal theory we doubt the validity of the analogy between the appellant seeking to remove the complainant from his car and the rights of the house or landowner to remove a trespasser from his property. If anything, the appellant's activities could be said to amount to self-help, that is action to recover exclusive possession and occupation of his car, a concept sometimes described as recaption of property. However, the common law itself has always been reluctant to extend the ambit of self-help to situations which may culminate in violence. Sir Matthew Hale commented in the seventeenth century on the many times "tumults and disorders" were occasioned by the abatement (or removal) of nuisances: see Winfield and Jolowicz on Tort, 17th edition, at 22-47. 12. More recently, in Southwark London Borough v Williams [1971] Ch 734 , Edmund Davis LJ described how ".... the law regards with the deepest suspicion any remedies of self-help, and permits these remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear -- necessity can very easily become simply a mask for anarchy." 13. Similarly, in Lloyd v DPP [1992] 1 All ER 984 , Nolan LJ said: "Self-help involving the use of force can only be contemplated where there is no reasonable alternative." 14. We are invited to extend the very limited circumstances in which self-help may be used to justify activity which would otherwise constitute a violent offence. The submission therefore requires the closest possible scrutiny. Recognising that to be lawful the use of force must always be reasonable in the circumstances, we accept that it might be open to the owner of a vehicle, in the last resort and when all reasonably practicable alternatives have failed, forcibly to remove an individual who has entered into his vehicle without permission and refuses to leave it. However, where that individual entered the car as a passenger, in effect at the invitation of the car owner, on the basis that they mutually understood that when their dealings were completed she would be driven back in the car from whence she had come, the use of force to remove her at the appellant's unilateral whim, was unlawful. In any event, the resort to self-help was not justified in the circumstances of this case because the appellant could readily have regained exclusive possession to his vehicle by means not involving the use of force, that is, by simply driving the complainant back to the starting point. 15. In these circumstances, Judge Benson's direction to the jury was correct. The appeal is dismissed. 16. It was unnecessary further to consider two possible civil law questions: first, any further investigation into the principles relating to the recaption of property and the interesting disagreement between the jurisdictions in Canada, Australia and New Zealand, typified here in the differences of approach found in Clerk and Linsell on Tort, 18th edition, and Salmon and Heuston on Tort, 21st edition, to the question whether force may ever be used to recover property of which the holder's initial possession was consensual and lawful; second, in the context of any contractual licence, whether the illegality which marked this transaction would have precluded the complainant from seeking any contractual remedy for the failure to return her to the starting point. Neither of those considerations arises in this appeal.	{"ConvCourtName":["Crown Court at Bradford"],"ConvictPleaDate":["2009-08-17"],"ConvictOffence":["assault occasioning actual bodily harm","committing an offence with intent to commit a sexual offence","common assault"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["concurrent sentences of imprisonment for assault occasioning actual bodily harm and the sexual offence, but the sentences were suspended"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drugs"],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["the force used by the appellant to remove the complainant from his car, and the subsequent struggle to prevent her from returning back into it was lawful"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge Benson's direction to the jury was correct","the resort to self-help was not justified in the circumstances of this case because the appellant could readily have regained exclusive possession to his vehicle by means not involving the use of force, that is, by simply driving the complainant back to the starting point"]}
Case No: 200201157X5 Neutral Citation No: [2003] EWCA Crim 270 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HIS HONOUR JUDGE HUMPHRIES MANCHESTER CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 14 th FEBRUARY 2003 Before: LORD JUSTICE MANTELL MR JUSTICE MORLAND and MR JUSTICE JACK - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - JOHN JAMES FOGGON - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr A Munday QC (instructed by Russell Jones & Walker ) for the Appellant Mr A Mitchell QC and Mr D Talbot (instructed by the Inland Revenue ) for the Crown Hearing dates: 4 th February 2003 - - - - - - - - - - - - - - - - - - - - - JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) Mr Justice Jack: Introduction 1. The appellant, John Foggon, is now 57 years old. Since 1985 he has run a successful company, first named Vaclensa Limited, which then became Vaclensa PLC. He is chairman and until March 1999 owned 55% of the shares, the balance being held within his family. The company supplied cleaning machines and had service contracts with commercial customers including breweries and hotels. In the year to 31 March 1999 its turnover was more than £4 million. The company banked with Lloyds. 2. Between 1 June 1990 and 31 October 1998 the appellant arranged for substantial sums of money received from Vaclensa’s customers totalling £1,007,034 to be paid into a bank account in the company’s name with the Trustee Savings Bank. The existence of this account was not disclosed to Vaclensa’s auditors. The monies which went into it were not declared for tax. The appellant used the monies largely for his own private purposes. 3. On 23 March 2001 the appellant pleaded guilty to an offence of cheating the public revenue. On 11 May 2001 he was sentenced to 2 years imprisonment. Confiscation proceedings were postponed and were heard before His Honour Judge Humphries on 30 August 2001. A confiscation order was then made by the judge in the sum of £1,068,441 with 6 years imprisonment in default, to be consecutive to the sentence of 2 years. The sum has been paid. 4. The appellant appeals against the making of the confiscation order with the leave of the single judge to argue three grounds of appeal. Those are : i) that the applicable statutory provisions were those of the Criminal Justice Act 1988 prior to amendment by the Proceeds of Crime Act 1995 , whereas the judge held that the amended provisions applied; ii) that the judge was wrong to hold that the amount of benefit was the amount of money paid into the TSB account less certain deductions, but should have held that it was the amount of tax not paid; iii) that in any event there should have been a credit against that benefit in the sum of £125,000 which was paid on account of VAT after the appellant faced proceedings. Which statutory provisions applied? 5. The judge proceeded on the basis that the case was governed by the Criminal Justice Act 1988 as amended by the Proceeds of Crime Act 1995 . The prosecution now accept on the basis of R v Ahmed , Court of Appeal, unreported, 8 February 2000 and R v Brown [2001] EWCA Crim 2761 , Court of Appeal, unreported, 7 December 2001, that this was wrong. Those cases were not cited to the judge. As the offence commenced before the commencement date for the amendments, the 1988 Act should have been applied as unamended by the 1995 Act . The relevant difference is that under the 1988 Act as unamended the judge had a discretion whether to make a confiscation order and as to its amount. Under the Act as amended he would have had a duty. The judge held that, if he was wrong and his power was discretionary, he would nonetheless make an order in the circumstances. That was plainly right and has not been challenged before us. So, subject to the possible resurrection of discretion in connection with VAT (to which we will come), this ground has gone. What was the “benefit”? 6. Sections 71 (1) to (7) of the 1998 Act prior to amendment provided : “71 (1) The Crown Court … shall … have power, in addition to dealing with an offender in any other way, to make an order under this section requiring him to pay such sum as the court thinks fit. (2) The Crown Court may make an order against an offender where – (a) he is found guilty of any offence to which this Part of this Act applies; and (b) it is satisfied – (i) that he has benefited from that offence or from that offence taken together with some other offence of which he is convicted in the same proceedings, or which the court takes into consideration in determining his sentence, and which is not a drug trafficking offence; and (ii) that his benefit is at least the minimum amount. (4) For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained. (5) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence he is treated for the purposes of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage. (6) The sum which an order made by a court under this section requires an offender to pay must be at least the minimum amount, but must not exceed – (a) the benefit in respect of which it is made; or (b) the amount appearing to the court to be the amount that might be realised at the time the order is made, which ever is the less. (7) For the purposes of this Part of this Act the minimum amount is £10,000 or such other amount as the Secretary of State may specify by order made by Statutory Instrument.” 7. By section 102 (1), “property” includes money. Section 102 (5) provides : “References in this part of this Part of this Act to property obtained, or to a pecuniary advantage derived, in connection with the commission of an offence include a reference to property obtained or to a pecuniary advantage derived, both in that connection and in some other connection.” 8. The amount of the confiscation order, £1,068,441, was the total of the sums paid into the account (£1,007,0034) less £87,674 (which was agreed to be from sources unconnected with the offence), giving £919,360, which was then adjusted to take account of changes in the value of money as required by section 74 (5) of the Act. It was agreed before the judge to be the correct figure if the prosecution approach to the value of the benefit received by the appellant was right. 9. The prosecution approach was as follows. Section 71 (1) (a) required the court to be satisfied that the appellant had benefited from the offence. Section 71 (4) which relates to where property is received, then applied to determine whether he had benefited and the amount of the benefit. The appellant had received property as a result of the commission of the offence, or in connection with its commission, namely the monies in the TSB account amounting to £919,360. For the appellant has been able to treat these as his own, and has done so. 10. The argument before Judge Humphries on behalf of the appellant was that this was not a case falling within section 71 (4) of the Act but was covered by section 71 (5) which relates to where an offender derives a pecuniary advantage as a result of or in the connection with the commission of the offence. The pecuniary advantage was submitted to be the amount of the unpaid corporation tax due on the profits paid into the TSB account namely £450,398. It was submitted that the case was indistinguishable from that in Attorney General v Moran [2001] EWCA Crim 1770 , 27 July 2001, unreported. 11. The judge held that the prosecution’s approach was correct and that the case was covered by section 71 (4). Early in his judgment he stated : “He diverted the money to a concealed account for his own purposes and failed to declare it to the Inland Revenue.” (page 33H) Later he stated : “Money transferred to the account was property obtained in connection with the commission of the offence ….” (Pages 34H, 35A) 12. The submissions before us have taken the same form. The essential issue is whether the money in the account was, with the exception of the £87,674 referred to above, money obtained by the appellant as a result or in connection with the offence, within the meaning of section 71 (4). 13. The Particulars of Offence given in the indictment read : “ PARTICULARS OF OFFENCE JOHN JAMES FOGGON and JENNIFER AILEEN SPENCER between the 1 st day of June 1990 and 31 st day of October 1998 with intent to defraud and to the prejudice of Her Majesty the Queen and the Commissioners of Inland Revenue cheated Her Majesty the Queen and the Commissioners of Inland Revenue of public revenue namely income tax and corporation tax and interest thereon by (i) diverting company income of Vaclensa Limited to their own use. (ii) diverting company income of Vaclensa Plc to their own use. (iii) failing to disclose to the Commissioners of Inland Revenue the existence of untaxed profits of Vaclensa Limited. (iv) failing to disclose to the Commissioners of Inland Revenue the existence of untaxed profits of Vaclensa Plc.” We mention that the prosecution ultimately offered no evidence against Jennifer Spencer and she was acquitted. 14. The offence was thus stated to comprise the diversion of monies coupled with the failure to disclose. If the diversion of the monies was an essential part of the offence and properly included in the particulars in the indictment, it becomes impossible to say that the monies appropriated by the appellant were not properly obtained as a result of it. No objection was ever taken to the form of the indictment : we do not suggest that it should have been. 15. The prosecution case was as stated, that all the money in the account, with the exception noted, was property received by the appellant. The basis of this was that he had had control of the monies and the ability to use them for his own purposes as he chose. As a statement of fact, that was not challenged before the judge and was accepted by him. There is a suggestion in the papers that some part of the monies in the account were used for the proper purposes of Vaclensa. This could have permitted an argument that these monies should have been deducted as not being property obtained by the appellant. But the sum was not identified before the judge and the argument was not pressed before him. No particular sum could be identified before us: the schedule which purported to do so, emanating from the appellant’s accountants, appeared to relate to something else. In any event the sum was but a small proportion of the total, and the prosecution approach that in the circumstances the whole of the monies in the account should be treated as obtained by the appellant was right. There was no other basis on which the judge, or this court, could proceed. 16. It was submitted on behalf of the prosecution that, even if the appellant had only appropriated, for example, half the monies in the account for his own use, and the balance had been properly used for the company’s purposes, albeit undeclared for tax, in the circumstances he should be treated as having obtained the whole for the purpose of section 71 (4). We would simply say that in such a situation is seems to us arguable that the appellant would have “obtained” only the proportion of the monies in the account which he appropriated to his own use. But that is a long way from the actual situation here. 17. Even if the approach is taken that there were in reality two offences here, first cheating the Revenue, second stealing monies from the company, this would not assist the appellant. For the removal of the greater part of the monies from the TSB account for the appellant’s benefit would have been an essential part of an overall scheme having the combined purpose of defrauding the Revenue and benefiting him. On this approach the monies he obtained would still be monies obtained in connection with the commission of the offence of cheating the Revenue. We need say no more as to the effect of section 102 (5) than that on the basis considered in this paragraph, it could only assist the prosecution. 18. It is therefore to be concluded that the present case falls within section 71 (4) as the judge held and that he correctly assessed the benefit. 19. The suggestion made on behalf of the appellant that his case fell within section 71 (5) relating to pecuniary advantage, and that the advantage derived by him was the unpaid tax, namely £450,398, has insuperable difficulties. The tax was not due from the defendant. It was due from the company, Vaclensa. At the most, as a 55% shareholder it was to his financial advantage if the company avoided tax. The pecuniary benefit to him of it doing so would be a matter of calculation, and the calculation might not be straightforward. It seems to us that the tax avoided, or attempted to be avoided, will only be a pecuniary advantage obtained by the offender in two situations. One is where it is tax for which he himself is liable. That was the situation in Moran . The other is where any companies involved are fronts for the offender and it is appropriate to pierce the corporate veil. That was the situation in R v Dimsey & Allen [2001] 1 Cr. App. R (S) 497. In that situation too, it becomes his tax. 20. In Moran the defendant was a market trader. He traded in his own right. There was no company. There was no misappropriation of money. For 20 years he understated his income on his tax returns. He was charged with cheating and making false statements. In confiscation proceedings it was alleged that the benefit he had received was the whole of his undeclared profits - £386,584. The judge rejected that submission and made a confiscation order in the sum of £190,000 representing under payment of tax and interest. The issue was referred to the Court of Appeal by the Attorney General. In giving the judgment of the court, Mantell LJ. stated at paragraph 8 : “8. We have little help from authority. What is plain and has been accepted before this court as it was before the Judge is that we are dealing with a pecuniary advantage. On the face of things the pecuniary advantage would seem to be represented by the underpayment of tax which resulted from the failure to fully disclose profits. On the wording of the Act the pecuniary advantage must be taken to include any interest accrued or investment returned upon that sum. Giving the words of Act their ordinary and natural meaning it is hard to see how the balance of the profits which are the product of lawful trading can be said to represent a pecuniary advantage which has resulted from or come about in connection with the commission of an offence. We reject Mr. Perry’s argument that where there has been systematic and persistent non-disclosure of profits the whole enterprise is to be regarded as fraudulent and the proceeds liable to forfeiture. It seem to us, therefore, that, authority apart, the judge was plainly right.” 21. In Dimsey & Allen (which preceded Moran ) Allen was convicted of 13 counts of cheating the public revenue in an amount of £4 million. The main point that was argued was that a failure to pay tax did not amount to a pecuniary advantage for the purpose of section 71 (4) of the Act because the tax remained payable. The court held that the deferment of payment of tax was a pecuniary advantage in the amount of the tax deferred. Laws LJ. stated at page 501 : “Had these very grave frauds succeeded then, in crude terms, Mr. Allen would have been better off to the tune of £4 million. That represents in our judgment, the measure of his pecuniary advantage.” 22. A second point was dealt with briefly. It was that the tax liability was not the liability of Allen but that of a number of offshore companies, and that any pecuniary advantage arising from the withholding of the tax would be their advantage and not Allen’s. Laws LJ. stated at page 502 : “However, it is plain from the authorities cited by the Crown that the corporate veil may fall to be lifted where companies are used as a vehicle for fraud. Here the companies in question were the appellant’s alter ego: we refer to our judgment of July 7, 1999 for the full facts.” That judgment dealt with the appeals against conviction, and contained a full statement of the facts. 23. In conclusion on this aspect of the appeal, where a person misappropriates money from a company as an essential part of a fraud on the Inland Revenue, and is convicted of that fraud, he is liable to a confiscation order in the amount of the monies which he has misappropriated on the ground that the monies are property obtained as a result of or in connection with the fraud. The VAT point 24. After the Inland Revenue had discovered what the appellant had been doing, he was anxious that the outstanding tax should be repaid. In December 2000 a cheque of £250,000 drawn on Vaclensa’s account was proffered to the Inland Revenue. As the Revenue had already decided to seek a confiscation order against the defendant it was returned. The defendant was advised that, if he wished to make a payment on account of any confiscation order which might be made against him, payment could be made to the Manchester Magistrates Court. In addition to a cheque from Vaclensa being offered to the Revenue on account of corporation tax, a cheque from Vaclensa was offered to the Commissioners of Customs and Excise in the sum of £125,000 on account of value added tax. This cheque was accepted. Vaclensa’s liability for VAT was thereby reduced by that sum. 25. It was argued before us that the sum of £1,007,034 in which the confiscation order was made should be reduced to take account of this payment. The argument was put on the basis that the money in the TSB account was partly VAT money and so the appellant did not get the benefit of it. The factual answer is that he did. He appropriated the money in the account and had the benefit of it, regardless of whether it was notionally VAT money or not. Meanwhile Vaclensa remained liable for the VAT. 26. This point was not raised before Judge Humphries. It was advanced to us on the basis that the judge should have exercised his discretion arising under section 71 (1) of the Act (prior to amendment) to exclude the VAT “element” of £125,000. We are satisfied that for the reason set out in the previous paragraph the proper exercise of the judge’s discretion would have been to take no account of the payment made by Vaclensa to the Commissioners after the discovery of the fraud. Conclusion 27. The appeal must be dismissed.	{"ConvCourtName":["Manchester Crown Court"],"ConvictPleaDate":["2001-03-23"],"ConvictOffence":["Cheating the public revenue"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Manchester Crown Court"],"Sentence":["2 years imprisonment","Confiscation order £1,068,441 with 6 years imprisonment in default, consecutive"],"SentServe":["Consecutive"],"WhatAncillary":["Confiscation order"],"OffSex":["All Male"],"OffAgeOffence":[55],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Organisation"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Financial records","Bank account evidence","Indictment particulars"],"DefEvidTypeTrial":["Argument on statutory interpretation","Accountant's schedule"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Large sum of money involved","Offence over long period"],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Appeal against confiscation order"],"AppealGround":["Wrong statutory provisions applied","Benefit should be tax not total money","Credit for VAT payment should be given"],"SentGuideWhich":["Criminal Justice Act 1988","Proceeds of Crime Act 1995"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge applied correct approach to benefit under statute","Appellant obtained benefit of all monies","VAT payment did not reduce benefit","Correct exercise of discretion by judge"]}
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. [2022] EWCA Crim 1784 IN THE COURT OF APPEAL CRIMINAL DIVISION Nos. 202103987 202200239 B5 Royal Courts of Justice Tuesday, 13 December 2022 Before: LADY JUSTICE CARR MR JUSTICE GOOSE HIS HONOUR JUDGE JEREMY RICHARDSON KC (Recorder of Sheffield) REX V WAYNE ANTHONY A'HEARNE __________ Transcript prepared from digital audio by Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MR R LITTLER KC appeared on behalf of the Appellant. _________ J U D G M E N T LADY JUSTICE CARR: Introduction 1. This is a renewed application for leave to appeal against conviction and, if that application is refused, against sentence. 2. We indicated at the outset of the hearing that we refused the application for leave to appeal conviction and would give our reasons later. These are those reasons, followed by our judgment on the sentence application. For the purpose of that latter application, the applicant has had the benefit of pro bono representation by Mr Littler KC, to whom we express our gratitude for his assistance. 3. On 19 December 2021 the applicant, who is now 56 years old, was convicted following trial of attempted murder contrary to section 1(1) of the Criminal Attempts Act 1981. On 23 December 2021 the trial Judge, HHJ Alan Conrad KC ("the Judge"), sentenced him to an extended determinate sentence of 33 years, pursuant to section 279 of the Sentencing Act 2020, comprised of a custodial term of 30 years and an extended licence period of three. The facts 4. On 13 March 2021 Miss Morgan Jones, also known as Vikki, ("Miss Jones") was found in her bungalow with serious, extensive and life threatening injuries. She had been subjected to a savage and prolonged attack from which she was fortunate to have survived. The most serious injury was to her head: an axe had been embedded into her skull causing an extensive and deep front scalp laceration running across the whole of her forehead in which her skull was exposed. Her other physical injuries included a collapsed lung, five fractured ribs to her side, two to her back, a fractured sternum, lumbar fractures to her spine, a displaced fractured left nasal bone, and multiple fractures to her face and eye sockets. There was also near complete amputation of her left middle finger. 5. The applicant denied responsibility for the serious injuries, saying that they had been caused accidentally. To the extent that he had caused any injury, he had not intended to kill (or intended to cause grievous bodily harm for the purpose of an alternative count under section 18 of the Offences Against the Persons Act 1861). 6. Miss Jones, aged 45, had been in a relationship with the applicant for some months prior to the final assault. She had been receiving support for drug and mental health problems, including anxiety and depression, and was considered to be vulnerable. Her health noticeably declined during her relationship with the applicant, as did her appearance. She was also struggling financially at the time. The prosecution and defence cases 7. The prosecution case was that between 10 and 13 March 2021 the applicant had attacked her both in her own home and at his address, intending to kill her, the attack culminating in the use of an axe. The offending had taken place against a background of domestic violence and drugs. He was violent and controlling towards her, forcing her to take drugs by kneeling on her, and threatening violence if she did not do as she was told. When violent, he was under the influence of “Spice” and when he wrongly believed that she had stolen his drugs he was again violent. There was a previous incident shortly before the final assault when he had tried to strangle her, resulting in her passing out and redness to her throat. On a separate occasion he had stamped on one of her left-hand fingers causing a near partial amputation. 8. In addition to medical evidence, and evidence of the 999 calls and from the attending paramedics, the prosecution relied on evidence from Gary Marsh, a friend of Miss Jones, and two of her neighbours, Mark O'Donaghue and Jan Modrak. Gary Marsh had attended her address on 13 March at the request of Kelly Nabbs, and had found Miss Jones there injured. Kelly Nabbs was also a friend of Miss Jones, and had been concerned about her welfare. Mark O'Donaghue, amongst other things, said that he had been threatened by the applicant with an axe in the early hours of 11 March. Jan Modrak said that he had heard a female crying, and also banging noises from Miss Jones' house during the nights leading up to 13 March. 9. The Judge allowed the admission of hearsay evidence from DC Williams in relation to evidence from DC Oliver and Miss Nabbs as to a confession made by the applicant to the assault. DC Williams had been present with DC Oliver when they had attended on Miss Nabbs on 13 March. At that stage he disclosed that the applicant had been at her address earlier that afternoon and told her that he had "battered a girl". He had admitted to Miss Nabbs that he had assaulted Miss Jones over the space of a couple of days punching her to the face, strangling her and hitting her head against the radiator. Miss Nabbs, however, refused to sign the police notebook or to provide a witness statement. DC Oliver was unable to attend court through illness. Reliance was also placed on a letter of apology written by the applicant, dated 18 March 2021 sent to Miss Nabbs. 10. The Judge also permitted the prosecution to rely on the applicant's previous convictions for offences of violence. In 1986 he had been convicted of causing grievous bodily harm with intent. In 1994 he had been convicted of wounding with intent. In 1990, 1996, 1998 and 2001 he received convictions for assault occasioning actual bodily harm. He had a conviction for assault in 1998, assault with intent to rob. These convictions for violence were said to be relevant to whether the injuries sustained by Miss Jones were caused accidentally or had been caused by the applicant, and whether the applicant had a propensity to use violence. 11. The prosecution also relied on the applicant's numerous convictions for offences of dishonesty, and for interfering with the course of justice, relevant to his credibility and demonstrating a propensity to be untruthful. The applicant's convictions relating to drug supply in 2011 and 2014 were admitted as relevant context to the accounts given by Miss Jones and witnesses in describing the events leading up to 13 March, and to correct a false impression that the applicant had attempted to create, namely that he was a user rather than a supplier of drugs. Finally, the prosecution relied on inconsistencies in the applicant's police interviews. 12. The defence case was that the applicant was not responsible for the really serious injuries. They had been caused rather by a bicycle accident and a heavy fall into furniture. He had not intended to kill or cause serious bodily harm. He and Miss Jones were both drug users. There had been no use of or possession of an axe or weapon of any kind. Miss Jones had a history of mental illness and had suffered visual hallucinations, including seeing weapons coming towards her. She had no meaningful recollection of the index events. The evidence of Mr O'Donaghue was fabricated to help an old friend and neighbour, and the evidence from others was unclear. 13. The applicant gave evidence in support of his defence. In the course of doing so he accepted that he had gone to Miss Nabbs' address on 13 March, but denied making any apology or confession of any sort. As for the letter of apology he had written, that was a letter of apology not for causing injuries to Miss Jones, but rather for an assault leading to a raid on Miss Nabbs' house where drugs were found and Miss Nabbs' partner was arrested as a result. Renewed application for leave to appeal against conviction 14. The applicant seeks leave to pursue challenges to the Judge's decisions to admit the hearsay evidence of the alleged confession to Miss Nabbs and to admit, by way of bad character evidence, two old previous convictions for wounding with intent (for offences committed in 1986 and 1993). It is said that their prejudicial effect outweighed any probative value. 15. We have read the Judge's rulings on these matters and the parties’ respective submissions at the time, alongside the written advice on appeal. 16. The admissions made by the applicant to Miss Nabbs on 13 March were a confession that he had attacked her, including details of how he had done so. Miss Nabbs' evidence about the confession could be admitted as hearsay because she refused to attend court due to fear of the applicant (see section 116(1)(a) of the Criminal Justice Act 2003 ("the 2003 Act")). The evidence of DC Oliver, who recorded what Miss Nabbs had told him in his notebook, and in a statement, could also be admitted as hearsay because he was too ill to attend trial (see section 116(1)(b) of the 2003 Act). 17. Recognising that the evidence from DC Oliver would arguably be multiple hearsay, the Judge applied the test in section 121(1)(c) of the 2003 Act, and he did so correctly, using the factors identified in section 114(2) as a guide. It is not properly arguable that the Judge applied the test or the law to the facts incorrectly, in particular as he noted it was unlikely that someone afraid of the applicant, such as Miss Nabbs, would fabricate evidence against him, and there was good evidence from the police officers as to what Miss Nabbs had told them not long after the admissions in question. Further, the applicant was able to make submissions about other aspects of Miss Nabbs' reliability, and the jury was able to assess those submissions. The Judge's direction to the jury, including the need to exercise caution in relation to the hearsay evidence, has rightly not been impugned. In short, there is no arguable error of law such as to justify appellate interference with the Judge's decision to admit the hearsay evidence. 18. The Judge's decision to admit the applicant's previous convictions for wounding with intent pursuant to section 101(1)(d) of the 2003 Act equally reveals no arguable error of law. He considered the age of the offences in terms, and was entitled to take the view that they were indicative of a lifetime of violence, the record showing violent offences being committed regularly. He went on to consider his powers to exclude under section 101(3) and (4) of the 2003 Act, the applicant's long history of violence, including these two earlier incidents, had substantial probative value, and the Judge was not arguably wrong to admit it. 19. Finally, the applicant suggests that the Judge erred in refusing to discharge the jury in the light of late disclosure from the prosecution during the trial. The new information related to the discovery of drugs at Miss Nabbs' address, and the consequent arrest of her partner, alongside communications between her partner, Mr Marsh, and Miss Nabbs. The information was said to corroborate the applicant's evidence as to the target of the letter of apology that he wrote, and further to call into question the reliability and independence of Miss Nabbs as a witness. 20. Again, there is in our judgment no real prospect of appellate interference with the Judge's decision to refuse to discharge the jury. The new information did not undermine the Judge's central reasoning for allowing in the hearsay evidence, and the applicant was able to use the new material in submissions to the jury on the question of Miss Nabbs' reliability. The applicant's case had been put to each prosecution witness in the presence of the jury in terms of fairness, as the Judge pointed out, the timing and circumstances of the late disclosure could be said positively to have assisted the defence. There was no need to discharge the jury. 21. For these reasons we concluded that it was not arguable that the applicant's conviction is unsafe. In the absence of any merit in the application, we also decline to grant the necessary seven day extension of time. Renewed application for leave to appeal against sentence 22. We turn then to the renewed application for leave to appeal against sentence. Pre-sentence materials 23. The Judge had before him the following material for sentencing purposes: the applicant's antecedents, some of which have already been outlined above. The applicant had 52 convictions for 143 offences spanning from 1977 to 2016. The relevant convictions included: causing grievous bodily harm with intent and wounding with intent in 1986 and 1994, assault occasioning actual bodily harm in 1990, 1993, 1996, 1998 and 200. One offence of battery in 2016 was committed on a previous partner. 24. The Judge had the benefit of a pre-sentence report in which the applicant continued to deny committing the offence and indicated his intention to appeal conviction. He was assessed as presenting a high risk of causing serious harm by his offending behaviour, in particular posing a high risk of serious harm to his partner. 25. In terms of Miss Jones' medical position, the court received a letter from a General Practitioner, Dr Catherine Hart, dated 24 November 2021. In that letter Dr Hart detailed Miss Jones' past injuries and ongoing treatment. Miss Jones had post-traumatic stress disorder ("PTSD") directly relating to the attack, as well as generalised anxiety, depression and panic attacks. She remained under the care of her mental health team, and was engaging with her support worker and the complex dependency team. She had undergone repair and reconstruction work to her left medial orbital wall fracture in July 2021, with exploration and repair of the wall with a full follow-up for facial injuries in six months' time. She was suffering back pain which continued, and for which she was waiting further MRI imaging. 26. Miss Jones submitted a victim personal statement. She described herself as feeling awful psychologically, traumatised, with trouble sleeping at night, with night terrors and screaming. She had a breakdown in September 2021; she had just had enough. She had felt that she was worthless and could not carry on anymore. She stated that she was making a slow recovery. She was on stronger medication than that which she had been taking before. She was terrified to be outside on her own. Her mental health team was worried that if she went back to normal life too quickly this could set her back. She had problems with her back which were still very painful, and her legs kept giving way. She had a permanent scar on her forehead, it had healed "nicely", but she was still self-conscious about it. Her eye operation had been "incredibly painful". Her left pupil remained smaller than her right. Her other facial fractures had healed. Her middle finger, the one that was nearly amputated, would take 12 to 18 months to fully heal. Towards the end of her statement she said this: "In essence, physically I am doing a lot better, however, psychologically I am still feeling at rock bottom and this is going to be a very slow, long healing process. This assault will take me years, if not a lifetime, to get over . . . It is going to take me years and years but I am going to slowly try to rebuild my life after it was destroyed by [the applicant]." The sentence 27. The Judge commented that this was the worst case of domestic violence that he had ever seen. The injuries were terrible and resulted from a savage and prolonged attack. It was fortunate that Miss Jones had survived. He recognised that prior to her relationship Miss Jones was a vulnerable person, small in stature compared to the applicant, and suffering from mental health problems, and drug abuse. Her relationship with the applicant had caused a decline in her health, and her confidence had been undermined. Over a period of time she had been attacked by the applicant in her own home. She had suffered numerous injuries at his hands, the attacks culminating in an axe being embedded in her skull resulting in an extensive scalp laceration across the whole head. 28. The effects of the assaults on Miss Jones were considered by the Judge particularly in the context of categorisation of harm. She was noted to have been diagnosed with post-traumatic stress disorder and generalised anxiety, depression and panic attacks. She remained under the care of her mental health team. The Judge considered her victim personal statement and noted the continuing treatment being undertaken and the effect and impact of the assault on her and members of her family. The Judge considered the applicant to be a violent bully who intimidated people, some of whom had given evidence at the trial but some of whom had been too frightened to do so. He was a man with a long and prolific history of violence, who had shown no signs of rehabilitation or remorse. The Judge determined the applicant to be dangerous on the facts of the case and his record. He presented a continuing risk of serious harm to the public from the further commission of violent offences. The Judge assessed culpability as Category C and harm as Category 1 for the purpose of the Sentencing Council Guideline for Attempted Murder ("the Guideline"). In terms of harm, he said that he was satisfied that the offence had: ". . . resulted in a psychological condition with a substantial and long term effect on the complainant's ability to carry out her normal day to day activities." 29. The Judge then identified the aggravating factors to be the applicant's record of violence and weapons offences; the domestic context of the offence and its location in Miss Jones’ home; his use of the axe as a weapon and the fact that he was under the influence of drugs at the time. He had attempted to take money from Miss Jones' account whilst she was injured and to dispose of evidence. There were in the Judge's view no mitigating factors to be found. 30. He was satisfied that an extended sentence was necessary, and that the aggravating factors raised the custodial term to the top of the range to 30 years, with an extension period of three years. Grounds of appeal 31. Mr Littler submits, as his first and central ground of appeal, that the Judge erred in determining that the offending fell within Category 1 for the purpose of the Guideline. The Judge applied the wrong test and, in particular, ignored the requirement of permanency and irreversibility for Category 1 harm. Category 1 harm does not simply deal with cases where: "serious physical or psychological harm" exists - that is Category 2 harm. Category 1 harm requires the injury or psychological condition to be "permanent", "irreversible", resulting in "lifelong dependency". It is said that the only medical evidence before the court was that of Dr Hart, which was limited, and certainly could not form a safe basis for a finding of permanent or irreversible serious physical or psychological harm. Mr Littler emphasises that cogent and clear evidence must exist in order for a mental health condition to be found to be permanent, irreversible, and incapable of improvement over time with help from professionals and medication. There was no such evidence before the Judge. There was then the added complication of Miss Jones having pre-existing mental health problems. 32. Secondly, and separately, Mr Littler submits that the Judge double-counted the aggravating features in relation to the use of a weapon in particular, which factor had played a part in fixing culpability in Category 1. Discussion 33. This was not an easy sentencing exercise. The culpability factors in the Guideline in particular do not fit readily with the facts of this particular case. The Judge was quite right to consider whether or not he was obliged to impose a life sentence; some Judges would have felt so obliged. 34. As set out above, the central challenge to the sentence is based on the submission that the Judge misapplied the Guideline in wrongly applying the definition of Category 1 harm. There is no criticism of his assessment that this was medium culpability offending. 35. Category 1 harm is identified in the Guideline as follows: "• Injury results in physical or psychological harm resulting in lifelong dependency on third party care or medical treatment. • Offence results in a permanent, irreversible injury or psychological condition which has a substantial and long term effect on the victim's ability to carry out their normal day to day activities or on their ability to work." 36. The second bullet point echoes the definition of disability in section 6 of the Equality Act 2010. 37. Category 2 harm is identified in the Guideline as follows: "• Serious physical or psychological harm not in category 1." 38. The starting point for Category C1 harm in the Guideline is 25 years' imprisonment with a range of 20 to 30 years. For Category C2 harm, the starting point is 20 years' imprisonment with a range of 15 to 25 years. 39. We accept that in order for there to be Category 1 harm there must be a lifelong dependency on medical treatment, or permanent irreversible injury or psychological condition that has a substantial and long term effect on the victim's ability to carry out normal day to day activities or work. The question here is whether or not the Judge was entitled to find the necessary degree of permanence and irreversibility. We see force in the submission made by Mr Littler that the evidence available did not substantiate the necessary permanence or irreversibility of relevant injury or psychological condition. The sentencing exercise was carried out only seven months on from the attack. Whilst there were ongoing issues so far as Miss Jones' physical injuries were concerned, there was no medical evidence as to the long term prognosis for them. She stated that, physically, she was doing a lot better. As for her psychological injuries there was clear evidence of PTSD directly relating to the attack, but Miss Jones stated, to her credit, that she will be working with her mental health team for a considerable amount of time. There was, on the material available, clearly the possibility of improvement in the long term even in her psychological condition. 40. We are therefore persuaded that it is at least arguable that there was an insufficient evidential platform for any outright finding of permanence and irreversibility of injury or condition of relevant severity. We therefore grant leave. We emphasise, as the courts have done on many occasions, that it is wrong and can be dangerous to make assumptions as to long term prognoses without a secure and satisfactory evidential basis for doing so (see, for example, R v Jones [2021] EWCA Crim 1139, [2021] Cr App R 36 at [14], and R v Yasin Sati [2021] EWCA Crim 85 at [21]). 41. That, however, does not necessarily dispose of the outcome of this appeal. 42. Whatever the state of the medical evidence before the Judge, the situation was, on any view, unpredictable, and there was every reason to believe that Miss Jones' psychological condition in particular would carry on for a very considerable length of time in the future, and potentially have lifelong and carry life-inhibiting consequences. Even if the harm in question fell to be placed in Category 2 for the purpose of the Guideline, it fell right at the upper end, as Mr Littler fairly conceded. These were life-threatening injuries at the outset. Miss Jones suffered very significant physical and psychological difficulties that on any sensible view, as we have indicated, were going to last a very long time before improvement. She suffered PTSD directly related to the attack, as well as generalised anxiety, depression and panic attacks. These are problems having a substantial effect on her ability to work or to carry out normal day to day activities such that the Judge would have been fully entitled in any event to adopt a term of at least at, or around, 25 years’ custody before considering what uplift for aggravating features. We would add that, in terms of culpability, there were elements of high (as well as medium) culpability, such as planning. On this basis, and considering the aggravating features in play, we consider that the Judge would have been justified in going well outside the range for category C2 offending. 43. As for the suggestion that there was any double-counting in relation to aggravating factors, apart from the question of use of an axe, which should not have played a part additionally as an aggravating factor, there was, nevertheless, a host of aggravating factors to take into account. We refer, in particular, to the applicant's extreme record of violence and weapons offences, the domestic context of what was sustained abuse in Miss Jones' home, the fact that the appellant was under the influence of drugs at the time of the offending and that he attempted to take money from her account when she was injured and to dispose of evidence. There were, as the Judge commented, no mitigating factors. 44. Standing back then, this was a deeply disturbing case of domestic violence involving a traumatic and horrific sustained attack, including the use of an axe. The Judge had to, and did, consider carefully whether or not a sentence of life imprisonment was justified. He had presided over the full trial and was entitled to pass an overall sentence that was, in his view, just and proportionate in all the circumstances of the case. An overall term of 30 years’ custody was undoubtedly severe. However, we have not been persuaded in the end result that it can be said to be manifestly excessive. 45. For these reasons, we grant leave to pursue the application for leave to appeal against sentence, but we dismiss the appeal. __________	{"ConvCourtName":[""],"ConvictPleaDate":["2021-12-19"],"ConvictOffence":["Attempted murder contrary to section 1(1) of the Criminal Attempts Act 1981"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["Extended determinate sentence of 33 years (30 years custody, 3 years extended licence)"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[54],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[45],"VicJobOffence":["Unemployed"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":["Yes-drugs"],"ProsEvidTypeTrial":["Medical evidence","999 calls","Paramedic evidence","Witness testimony (Gary Marsh, Mark O'Donaghue, Jan Modrak)","Hearsay confession evidence","Letter of apology","Previous convictions","Inconsistencies in police interviews"],"DefEvidTypeTrial":["Offender denies offence","Alternative explanation (accident, fall)","Victim's mental health history","Victim's lack of recollection","Challenge to witness reliability"],"PreSentReport":["High risk of harm"],"AggFactSent":["Record of violence and weapons offences","Domestic context","Offence in victim's home","Use of axe as weapon","Offender under influence of drugs","Attempt to take victim's money","Attempt to dispose of evidence"],"MitFactSent":[""],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe","Appeal against sentence"],"AppealGround":["Admission of hearsay confession evidence","Admission of previous convictions as bad character evidence","Refusal to discharge jury after late disclosure","Misapplication of Sentencing Council Guideline for Attempted Murder (harm category)","Double-counting aggravating factors"],"SentGuideWhich":["Sentencing Council Guideline for Attempted Murder","Section 279 of the Sentencing Act 2020"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Insufficient evidence for permanence/irreversibility of harm for Category 1 harm under guideline","Double-counting of aggravating factors"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["No arguable error of law in admitting hearsay or bad character evidence","No need to discharge jury; late disclosure did not undermine fairness","Even if harm was Category 2, sentence justified at upper end due to seriousness and aggravating factors","Sentence not manifestly excessive"]}
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No. 202001749 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION [2021] EWCA Crim 268 Royal Courts of Justice Thursday, 4 February 2021 Before: LADY JUSTICE ANDREWS MR JUSTICE SPENCER HER HONOUR JUDGE AUBREY QC REGINA V MARTIN JOHN McLATCHIE __________ 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 S. ROBINSON appeared on behalf of the Appellant. The Crown were not represented. _________ J U D G M E N T MR JUSTICE SPENCER: 1 This is an appeal against sentence brought by leave of the single judge. 2 On 5 June 2020 in the Crown Court at Kingston-upon-Hull the appellant, who is now 64 years of age, pleaded guilty to an offence of domestic burglary (Count 1), and two offences of fraud (Counts 2 and 3). He was sentenced by HHJ Thackray QC to a term of four years' imprisonment for the burglary with concurrent sentences of six months' imprisonment for the two offences of fraud. 3 It was the third time that the appellant had been liable to be sentenced to a minimum term of three years' imprisonment as a "three strikes" burglar, pursuant to s.111 of the Powers of Criminal Courts (Sentencing) Act 2000 . The judge took six years as his starting point and allowed full credit of one-third for the appellant's early guilty pleas. The additional criminality of the fraud offences was reflected in the lead sentence for the burglary. 4 The grounds of appeal are that the judge's starting point of six years was too high, resulting in a sentence which was manifestly excessive having regard to the overall circumstances of the offending and the appellant's personal mitigation. 5 The facts can be very shortly stated. The burglary took place in the early hours of 2 May 2020 at a house in Hull occupied by a university student, Daniel Bouabida. He shared the accommodation with three other students, but at the time he was living there alone because the others had moved out when the university closed as a result of the pandemic. 6 Mr Bouabida stayed up late studying that night and retired to bed at 4.00 a.m, having first checked that the back door was locked. Some time thereafter and before 5.15 a.m., the appellant broke into the house by forcing the back door with a screwdriver. He stole Mr Bouabida's wallet from the pocket of his jacket which was in the kitchen. Fortunately, Mr Bouabida slept through it all, so there was no confrontation. It was only when he woke up around midday that he discovered he had been burgled and that his wallet was missing. There had been no cash in the wallet, but his bank card was stolen and his driving licence and student card. He discovered that the bank card had been used twice, first at 5.15 a.m. and again at 6.12 a.m., when the appellant twice put £20 credit on his mobile phone, first at a nearby supermarket and then at a petrol station. These withdrawals gave rise to the counts of fraud. 7 The burglary took its toll on Mr Bouabida. In his impact statement he said it had made him feel very nervous living at the property, thinking what would have happened if the burglar had come into his bedroom. No doubt this anxiety was increased by the fact that he was living alone in the house during the pandemic. There was CCTV evidence showing the appellant arriving at the property on a pushbike sometime after 5.00 a.m.. He was wearing a hat and carrying a plastic bag. He forced the lock on the back door with a screwdriver which he brought with him, damaging the wooden frame. 8 The appellant was arrested later the same day. In interview he initially denied the burglary, claiming that someone had given him the bank card. When confronted with the CCTV footage, he admitted the offence. He said he had used a screwdriver to get in; he had found the jacket, taken the wallet and left. He expressed remorse, saying that he had made a stupid mistake. 9 The appellant had a very bad record for dishonesty generally and for domestic burglary OPUS 2 DIGITAL TRANSCRIPTION in particular. His first sentence for burglary of a dwelling was in 1979, twelve months' imprisonment. 1984 he received a suspended sentence for a domestic burglary. In 1988 he received a sentence of three years' imprisonment for two offences of domestic burglary with thirteen offences taken into consideration. In 1996 he was sentenced to two years' imprisonment for a domestic burglary. In 2004 he received a sentence of three years' imprisonment for a domestic burglary. In 2006 he was sentenced to 12 months' imprisonment for attempted burglary of a dwelling. In 2012 he received his first minimum sentence of three years for burglary of a dwelling, reduced by 20 per cent for his guilty plea. In 2015 he received his second minimum sentence for burglary of a dwelling, 33 months' imprisonment after credit for plea. In between these sentences for domestic burglary he had also served several terms of imprisonment for a variety of offences, including non-domestic burglary, handling stolen goods and possession of drugs. His most recent sentence before the current offending was four months' imprisonment imposed in February 2018 for going equipped for theft. 10 There was no pre-sentence report, nor was any report necessary. A substantial sentence of imprisonment was inevitable. 11 The mitigation advanced to the judge supported by a letter written by the appellant himself was that he had kept out of trouble for 21 months prior to these offences, which was quite an achievement in view of his record. The main personal mitigation was that in 2019 his partner had been rushed to hospital and diagnosed with cancer with only months to live. He had devoted himself to her care over the next few months. It must have been the stress of his partner's illness and the responsibility of looking after her which caused him to commit this burglary. He could not explain why he had done it. He had expressed remorse in interview and in his letter to the judge. The appellant also suffered from ill-health himself as a result of an abscess in his stomach which had burst during his time in prison in the past. He was required to use a stoma bag for the rest of his life. 12 It was common ground that the burglary was a Category 1 offence under the Sentencing Council Guideline. There was greater harm because the occupier was at home. There was higher culpability because the appellant had gone equipped for burglary with a screwdriver. The starting point under the guideline was, therefore, three years' custody with a range of two to six years. It was an aggravating factor that the offence was committed at night. By far the most serious aggravating factor, however, was the appellant's very bad record for domestic burglary. The judge also treated the offence of fraud as an aggravating feature of the burglary. 13 In passing sentence, the judge observed that some people never fully recover from being the victim of domestic burglary. This offence was particularly serious because it was a night-time burglary when the house was occupied and the appellant had gone equipped. The judge said that the appellant's previous convictions would have justified a “radical departure" from the guideline, and perhaps even a sentence outside the range of two to six years. However, he took into account the mitigation advanced in the appellant's letter, and in particular, his partner's illness. That begged the question, the judge said, of why the appellant was committing a night-time burglary when he should have been caring for his partner at home. For that reason, the judge said, the mitigation carried very little weight, although he did take the appellant's letter into account. The judge concluded that the least sentence he could have passed after trial was six years. With full credit for plea, the sentence was four years. 14 On behalf of the appellant, Mr Robinson, in very helpful, able and focused submissions, argues that although it was entirely appropriate to move up from the starting point of three OPUS 2 DIGITAL TRANSCRIPTION years, the aggravating features were not of such severity as to justify a sentence of six years, which was at the very top of the range under the guideline. He submits that the judge failed to give sufficient weight to the appellant's personal mitigation, including the serious illness of his partner. He submits that the judge gave insufficient weight to the appellant’s own ill-health, particularly in the climate of the pandemic. He submits that this was an additional factor which should have been taken into account. Mr Robinson in his written submissions contended that the starting point should have been around four and a half years not six years. 15 In answer to questions from the court in the course of submissions, Mr Robinson explained that, sadly, the appellant's partner has died since the sentence was imposed. It also appears that the stoma bag which the appellant has had to wear is something which was fitted when he was last serving a sentence, over 21 months ago. It follows, we regret to say, that he was out burgling that night in that condition despite his disability. 16 We have considered all Mr Robinson’s submissions very carefully. We are quite unable to accept that this sentence was manifestly excessive. The judge gave full weight to the appellant's mitigation by drawing back from taking a starting point above the category range. As the guideline makes clear, in some cases the seriousness of the aggravating factors may make it appropriate to move outside the identified category range, and for category 1 that means above six years. This was just such a case. It was the third time the appellant fell to be sentenced as a three strikes burglar. Nevertheless, the judge drew back from that. 17 We have every sympathy for the appellant now mourning the death of his partner and having to cope with his partner's ill-health at that time, but as the judge pointed out, the force of any mitigation arising from her ill-health was undermined by the very fact that the appellant chose to go out burgling that night, rather than staying at home to look after his partner. We also observe that although the pandemic was not at its height in June last year, the appellant was creating a further potential health risk for his partner by going into someone else's house in this way. The judge's starting point of six years also reflected the additional criminality of the two offences of fraud, which themselves would have merited a sentence of nine months' imprisonment after trial. 18 Therefore, despite Mr Robinson's valiant submissions, we are quite satisfied that the sentence the judge passed was neither wrong in principle, nor manifestly excessive, and the appeal must therefore be dismissed. _________________ OPUS 2 DIGITAL TRANSCRIPTION CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] This transcript has been approved by the Judge.	{"ConvCourtName":["Crown Court at Kingston-upon-Hull"],"ConvictPleaDate":["2020-06-05"],"ConvictOffence":["domestic burglary","fraud"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["early guilty pleas"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Kingston-upon-Hull"],"Sentence":["4 years' imprisonment for burglary","6 months' imprisonment for each of two offences of fraud (concurrent)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[63],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Student"],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Victim testimony"],"DefEvidTypeTrial":["Offender denies offence","Admission after confronted with CCTV"],"PreSentReport":[],"AggFactSent":["offence committed at night","offender went equipped with a screwdriver","very bad record for domestic burglary","offence committed while house was occupied","additional criminality of fraud offences"],"MitFactSent":["offender showed genuine remorse","offender's partner was seriously ill","offender suffered from ill-health (stoma bag)","offender kept out of trouble for 21 months prior"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["judge's starting point of six years was too high","insufficient weight to personal mitigation"],"SentGuideWhich":["s.111 of the Powers of Criminal Courts (Sentencing) Act 2000","Sentencing Council Guideline for burglary"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["sentence was neither wrong in principle nor manifestly excessive","judge gave full weight to mitigation","seriousness of aggravating factors justified sentence"]}
Neutral Citation Number: [2004] EWCA Crim 621 Case No: 200305369 C5 IN THE SUPREME COURT OF JUDICATURE COURT MARTIAL APPEALS COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 18 March 2004 Before : The Vice President of the Court of Appeal Criminal Divison (LORD JUSTICE ROSE) MR JUSTICE DOUGLAS BROWN and MR JUSTICE NEWMAN - - - - - - - - - - - - - - - - - - - - - Between: R Appellant/ Claimant - and - Richard John DUNDON Respondent Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr N Lewin appeared for DUNDON Mr P Havers QC & Mr T Otty appeared both for the Respondent and for the interested party the Secretary of State for Defence Hearing dates : 8 th March 2004 - - - - - - - - - - - - - - - - - - - - - Judgment The Vice President : 1. On 17 th July 2003 at a Naval Court Martial held at HMS Drake (Commander Williams sitting as Judge Advocate) the applicant was found guilty of using violence to a superior officer contrary to s11 of the Naval Discipline Act 1957 and was sentenced to be kept in detention for 36 days and to suffer the consequential penalties involved. On 22 nd July 2003 he presented a petition to the reviewing authority against the findings. That petition expressly accepted that appropriate directions on law had been given by the Judge Advocate. No decision has yet been made by the reviewing authority. The applicant now seeks an extension of time of 14 days within which to renew an application for leave to appeal against conviction and, the Crown not resisting such an extension, it was granted by this court at the outset of these proceedings. 2. The original grounds of appeal which were before the single judge, while accepting that appropriate directions had been given by the Judge Advocate, complained that the court did not adequately consider self defence. The single judge refused leave and those grounds are not now sought to be relied upon. The application has been referred by the Registrar to the Full Court, in the light of the decision of the European Court of Human Rights in Grieves Application No 57067/OO 16 th December 2003, for consideration of whether the applicant’s right to a fair trial by an independent and impartial tribunal under Article 6.1 of the European Convention on Human Rights has been breached and whether, in consequence, his conviction was unsafe. In addition a declaration of incompatibility is sought under Rule 8A of the Courts-Martial Appeal Rules 1968 as enacted by s5 of the Courts-Martial Appeal (Amendment) Rules 2000. In consequence notice has been served on the Secretary of State for Defence who appears as an interested party. We grant leave to appeal. 3. The facts are of no present materiality and can be briefly stated. On the evening of 21 st August 2002 there was an altercation between the appellant and Petty Officer Taylor in the Two Trees public house in Plymouth. The appellant struck Taylor. Taylor claimed the appellant punched him. The appellant claimed that he was acting in self-defence. 4. Four questions arise on this appeal. First, in the light of Grieves , were the appellant’s Article 6 rights breached because the Judge Advocate at his trial, albeit an appropriately qualified barrister, was a serving naval officer? Secondly, were his Article 6 rights breached because of the possibility of relationships between members of the court martial and others taking part in his trial? Thirdly, if his Article 6 rights were breached, is his conviction nonetheless safe? Fourthly, is a declaration of incompatibility called for? 5. Before addressing these questions in turn, it is pertinent to record certain matters of history. The defendant in Grieves was tried by a naval court martial in June 1998. In April 2003, that is after his trial but prior to the appellant’s trial, QRRN 3630 came into force. It provides, so far as is material, as follows “3. Judge Advocates must be free from any supervisional restraints in order to carry out independently the duties required of them by law. In the conduct of their professional duties at Courts Martial Judge Advocates are accountable only in so far as the standard and performance of their duties are concerned to the Judge Advocate of the Fleet. 4. The JAF is solely responsible for reporting on the professional performance of Judge Advocates in the conduct of their duties in courts martial trial. No other personal report, assessment, or other document is to be prepared or used to determine whether an officer conducting Judge Advocate duties is qualified to be promoted or is qualified or suited for particular appointment or training. Where Judge Advocates are appointed to general appointments or whilst carrying out their general duties nothing in this article shall prevent the appropriate report being prepared on them concerning their conduct of those duties for promotion, appointing or training purposes.” Also, the briefing notes for naval courts martial, presidents and court members applicable at the time of Grieves’ court martial had been amended by the time of the appellant’s court martial to include a new paragraph in relation to independence and impartiality in these terms: “7. In accordance with QRRN Article 3631 the performance as a member of a Court Martial must be carried out independently and impartially. Accordingly Court Martial members are not to be subjected to any external influence or pressure before, during or after any case on which they sit. Any attempt to do so may give rise to an offence of attempting to pervert the course of justice or an offence under s14A(1) of the NDA 57. Further, their performance shall not be considered or evaluated in the preparation of any personal report, assessment or other document used in whole or part for the purpose of determining whether a member qualified to be promoted, or qualified or suited for particular appointments or training.” In the appellant’s trial, the judge advocate directed the members of the tribunal (a Commander, Acting Commander, Lieutenant Commander and Warrant Officer) as to their roles, and in particular, that the Judge Advocate should be informed immediately if any pressure was put on them regarding the case either before the trial started, during the course of the trial or when the case had been disposed of. The appellant, when asked, made no objection to any member of the court. After the Judge Advocate, the president and members of the court had been sworn in, the Judge Advocate again emphasised that it was imperative that they remain independent and impartial throughout the course of the trial and that no pressure was brought to bear on them from any outside source. 6. Furthermore, as from the date of the judgment in Grieves, the policy whereby uniformed Judge Advocates were appointed has been terminated. Since that time the Judge Advocate at all naval courts martial has been a civilian judge chosen by the Judge Advocate of the Fleet, a civilian Circuit Judge. On 16 th January 2004, to regularise the manner of appointment, there came into force the Naval Discipline Act 1957 (Remedial) Order 2004, made in response to the judgment in Grieves . Judge Advocates are, in consequence, now appointed by the Judge Advocate of the Fleet, rather than by the Chief Naval Judge Advocate, a serving naval officer. The explanatory note to the Order, which makes the necessary changes to a number of sections including s53 C of the Naval Discipline Act 1957 “to remove the incompatibility of those provisions with a Convention Right”, recognises that the Grand Chamber of the European Court of Human Rights in Grieves held “that the position of the Judge Advocate in the applicants’ trial by court martial did not provide a sufficient guarantee of the independence of the court martial because, among other reasons, he had been appointed by the Chief Naval Judge Advocate”. 7. It is apparent, therefore, that although this judgment will have implications for courts martial held before the decision in Grieves, it is unlikely to affect courts martial held since the post- Grieves changes to which we have referred. 8. The first question which arises on this appeal is whether this court should regard the conclusions of the European Court of Human Rights in Grieves as being applicable to the appellant. This court is not bound by that decision but must, in accordance with s2(1) of the Human Rights Act, take it into account. In Grieves it was held that the defendant did not have a fair trial in accordance with his Article 6 rights because his misgivings about the independence and impartiality of the court martial, in particular the Judge Advocate, were objectively justified. The European Court of Human Rights were aware of the provisions of QRRN 3630 as is apparent from paragraph 32 of their judgment, although, as we have indicated, it was not in force at the time of Grieves ’ court martial. 9. It is at this point convenient to set out a number of paragraphs from the court’s judgment in Grieves in which, it is to be noted, the court differed in its conclusions from those in relation to RAF courts martial in Cooper v United Kingdom Application No 48843/99 16 th December 2003. In Grieves the court identified six respects in which Naval courts martial differ from the Air Force system. The first three differences are of no present materialality. The court then referred to the Permanent President of Courts Martial (PPCM): “80. Fourthly, the post of PPCM does not exist in the naval system, the president of a naval court-martial being appointed for each court-martial as it is convened. The applicant pointed out that, as a result, the entire court-martial was convened on an ad hoc basis. The Government explained that since there were less naval courts-martial, there was no need for a group of officers with the sole task of acting as PPCMs and considered that the naval court-martial complied with Article 6 s1 even without PPCMs. 81. The Court considers that the absence of a full-time PPCM, with no hope of promotion and no effective fear of removal and who was not subject to report on his judicial decision-making ( the Cooper judgment para 118) deprives naval court-martials of what was considered, in the air-force context, to be an important contribution to the independence of an otherwise ad hoc tribunal 82. Fifthly, and most importantly, the Judge Advocate in a naval court-martial is a serving naval officer who, when not sitting in a court-martial, carries out regular naval duties. In contrast, the Judge advocate in the air-force is a civilian working full-time on the staff of the Judge Advocate General, himself a civilian. 83. The applicant considered this distinction sufficient of itself to conclude as to the lack of independence of naval courts-martial… The CNJA, who appointed the Judge Advocate, is a service appointment. The JAF is not responsible for the appointment of the Judge Advocate… 85. The Court notes that, as in the air-force, the naval Judge Advocate fulfils a pivotal role in the court-martial but that, unlike his air-force equivalent, he is a serving naval officer in a post which may or may not be a legal one and who, although “ticketed” indefinitely, sits in courts-martial only from time to time. As to the Government’s reliance on the involvement of a civilian JAF, the Court observes that the JAF has no input into naval court-martial proceedings, his principal role being to report to the Reviewing Authority on those proceedings. Further, it is not the JAF but the CNJA (a naval officer) who is responsible for the initial “ticketing” of a Judge Advocate (albeit with the agreement of the JAF). 86. Moreover, the Court notes with some concern certain reporting practices as regards Judge Advocates which applied at the relevant time. The JAF could pass comments about a Judge Advocate’s court-martial performance to CNJA… In addition, at the relevant time the JAF’s report on a Judge Advocate’s judicial performance could be forwarded to the Judge Advocate’s service reporting officer. While this may not actually have happened in the present case, the Judge Advocate took up his duties in the applicant’s court-martial at a time when his performance in those proceedings could, in principle, have been the subject of a report to his evaluating service officer. It is not submitted that QRRN 3630 was in force at the time of the present applicant’s court-martial (see paragraph 32 above). 87. For these reasons, the Court considers that even if the naval Judge Advocate appointed to the applicant’s court-martial could be considered to have been independent despite the reporting matters highlighted in the preceding paragraph, the position of a naval Judge Advocate cannot be considered to constitute a strong guarantee of the independence of a naval court-martial... 89.Accordingly, the lack of a civilian in the pivotal role of Judge Advocate deprives a naval court-martial of one of the most significant guarantees of independence enjoyed by other services’ courts-martial (army and air-force court martial systems being the same for all relevant purposes-the Cooper judgment, s107), for the absence of which the Government have offered no convincing explanation. 90.Sixthly and finally, the Court considers the Briefing Notes sent to members of naval courts-martial to be substantially less detailed and significantly less clear than the CMAU (RAF) Briefing Notes examined in detail in the above-cited Cooper case (see paragraphs 45-62 of that judgment). The Court considers that they are consequently less effective in safeguarding the independence of the ordinary members of courts-martial from inappropriate outside influence. 91.The Court accordingly finds that the distinction between the air-force court-martial system assessed in the above-cited Cooper case and naval court-martial system at issue in the present case are such that the present applicant’s misgivings about the independence and impartiality of his naval court-martial, convened under the 1996 Act, can be considered to be objectively justified. His court-martial proceedings were consequently unfair.” 10. For the appellant, Mr Lewin submits that QRRN 3630 and the new paragraph 7 in the Briefing Notes introduced since Grieves’ trial and before the appellant’s do not suggest that the European Court of Human Rights conclusion in Grieves would be any different in relation to the appellant. The test of independence and impartiality of a tribunal is that set out in Findlay v United Kingdom [1997] 24 EHRR 221 at paragraph 73, namely as to independence - “Regard must be had inter alia to the manner of appointment of its members and their terms of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of impartiality there are two aspects to this requirement. First the tribunal must be subjectively free of personal prejudices or bias. Secondly it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The concepts of independence and objective impartiality are closely linked and the court will consider them together.” In Cooper in relation to an RAF court-martial the court said at paragraph 117 “The Judge Advocate is a legally qualified civilian appointed to the staff of the JAG (also a civilian) by the Lord Chancellor and from there to each court-martial by the JAG. The independence of air-force Judge Advocates is not questioned by the applicant and the court considers that there is no ground upon which to do so…. The Court finds that the presence in a court-martial of a civilian with such qualifications and with such a pivotal role in the proceedings constitutes not only an important safeguard but one of the most significant guarantees of the independence of the court-martial proceedings” The importance of a civilian Judge Advocate was central to the court’s decision in Grieves . The absence of a civilian Judge Advocate at the appellant’s trial as well as the manner of his appointment by the Chief Naval Judge Advocate, (as now remedied by the 2004 Order), gave rise to breaches of the appellant’s Article 6 rights. 11. For the Crown (as the naval prosecuting authority) and the Secretary of State for Defence as the interested party, Mr Havers QC subjected the court’s judgment in Grieves to detailed analysis. He stressed the word “strong” in the court’s reference in paragraph 87 to “a strong guarantee of the independence of the naval court-martial.” He submitted that the court’s conclusion in paragraph 89 must have been based on the same reasons as the conclusion in paragraph 87, apart from the additional comment at the end of paragraph 89 about the absence of convincing explanation. The court’s conclusions were, he submitted, dependent on all the factors to which they referred. Their conclusion may not have been the same had QRRN 3630 been in force. As to the three reasons given by the court in paragraphs 85 and 86 of the judgment the first in relation to “ticketing” was a misunderstanding demonstrated by reference to paragraph 31 of the court’s judgment, the second cannot be said to give rise to an objection in Article 6 terms and the third does not apply in the appellant’s case. 12. In our judgment it is not appropriate to seek to construe the judgment in Grieves as if it were a statute. Whatever comments can be made in relation to the detail of the court’s reasoning, the leitmotif of the judgment repeatedly shines out from paragraphs 82,85,87,89 and 91. This is that that naval court-martial was unfair because the pivotal role of the Naval Judge Advocate was performed by a serving naval officer not a civilian; in consequence, the most significant guarantee of independence in other courts martial was missing; and the applicant’s misgivings about independence and impartiality were objectively justified. These considerations apply equally in the case of the appellant. His trial was unfair in breach of his Article 6 rights because the Judge Advocate was a serving naval officer as well as because he was appointed by the Chief Naval Judge Advocate, another serving naval officer. 13. We turn to the second question. This can be dealt with more shortly. We do not accept Mr Lewin’s submission that the appellant’s Article 6 rights were breached by the nature of the court-martial’s composition as to President and ordinary members. The evidence from Commander Crozier, the Naval Prosecution Authority, admitted before us by agreement, shows that, although the Royal Navy is, compared to the Army and the Royal Air Force, a comparatively small service, there is a substantial number of officers eligible to sit on courts-martial (5623) and a pool of 368 officers having the rank of Captain and above are eligible to be President. Appointment is by way of random selection from a computer generated data base. Certain categories of officer are excluded from sitting (see section 53 C of the Naval Discipline Act 1957 ). Attempting to influence members of a court-martial is an offence at common law and under statute as is emphasised by the revised briefing notes. Members of a court-martial are advised to inform either the Judge Advocate or the Naval Court Administration Officer, a civil servant, if they know any prosecution witness. The accused is given an express opportunity to object to any member (and, in the present case, as we have said, did not do so.) And the President and members of the court-martial each swear an oath properly to carry out their duties “without partiality, favour or affection” (see paragraphs 33 to 38 of the judgment in Grieves ). In addition, the Judge Advocate, prosecutor and defence representative were all bound by professional obligations as barristers or solicitors to act with independence and in the interest of justice: any inappropriate relationships ought therefore to have been disclosed by them. In our judgment, the revised naval briefing notes provide, in paragraphs 8 to 25, a sufficiently detailed step by step guide to ordinary court-martial members, in paragraphs 1,6,13,16 and 20, an adequate manual of the roles of members and the Judge Advocate and, in paragraphs 7 and 17 amplified by the direction to members by the Judge Advocate, appropriate instructions as to the need to function independently and free from outside pressure. 14. In the light of the breaches we have identified of the appellant’s Article 6 right to trial by an independent and impartial tribunal, we turn to the question of whether the appellant’s conviction should be regarded as safe. In our judgment it cannot be so regarded. 15. In many cases, breach of an Article 6 right will result in the quashing of a conviction as unsafe. But that is not necessarily the result in all cases (see per Lord Woolf CJ Togher [2001] 1 Cr App R 457 @468 para 30; Lambert [2002] 2 AC 545 at para 18 per Lord Slynn and para 43 per Lord Steyn; and Mills [2002] 3 WLR1597 paras 18-23 per Lord Steyn and paras 53 and 55 per Lord Hope; see also Ashton & Webber [2002] EWCA 2782). In every case the outcome depends on the kind of breach and the nature and quality of the evidence in the case. Just and proportionate satisfaction may, in an appropriate case, be provided, for example, by a declaration of breach or a reduction in sentence, rather than the quashing of a conviction. Breach arising from delay may have such a consequence. (see AGs Ref (No 2 of 2001) [2004] 2 WLR 1 ). And there may be other exceptional cases in which a conviction may not be unsafe, for example if there has been unfairness because of a legal misdirection but the evidence is overwhelming (see Lambert above) or, possibly, if the trial is unfair because of inadequate prosecution disclosure on a peripheral issue but compelling evidence of guilt makes the conviction safe. 16. However, we are unable to envisage any circumstance in which, an Article 6 breach having arisen from want of independence and impartiality in the tribunal, it would be possible to conclude that the conviction is safe. Despite Mr Havers’ submissions to the contrary, we are of the view that, although no criticism is or could be made of this Judge Advocate’s conduct, want of independence and impartiality on his part tainted the basic fairness of the proceedings in relation to conviction as well as sentence. The appellant’s conviction must therefore be declared unsafe, as a matter of principle and authority: see per Lord Bingham, with whom the other members of the Privy Council agreed, at para 16 in Millar v Dickson [2002] 1 WLR 1615 ; and per Lord Rodger, with whom the other members of the House agreed at para 100 in Spear [2003] 1 AC 734 ; the contrary view, expressed, obiter, by a differently constituted division of this court in Skuse, CACD transcript 3 rd May 2002 paras 56 to 63, was not informed by the House of Lords’ decision in Spear , which was a court martial case. 17. As to the possibility of a declaration of incompatibility, Mr Lewin contends for this on the basis that, by excluding from eligibility to be a member of a court-martial the 5 categories of officers listed in s53 C(4) of the naval Discipline Act 1957 , the legislature has left eligible to sit persons who may not be impartial or independent. The proposition has only to be stated for its implausibility to be recognised. In any event, this court’s obligation under s3(1) of the Human Rights Act is to read and give affect to the legislation in a way which is compatible with the Convention and this can obviously be done. There is no basis for a declaration of incompatibility. 18. For the reasons given, this appeal is allowed and the appellant’s conviction quashed. A re-trial would not be appropriate. 19. In relation to those other cases presently awaiting review by the Reviewing Authority under s70 of the Naval Discipline Act where, prior to the procedural changes implemented as a consequence of Grieves , a defendant was tried by a court-martial in which the Judge Advocate was a serving officer, it seems likely that this court will quash any convictions confirmed on review. In an appropriate case, it will, of course, be possible to order a re-trial under s19(1) of the Courts Martial (Appeals) Act 1968 . In older cases, tried since 1 st October 2000 and already reviewed by the Reviewing Authority, it seems unlikely, generally speaking, that this court will grant leave to appeal out of time on the Article 6 ground, which we have been considering (see per Lord Bingham CJ in Hawkins [1997] 1 Cr App R 234 at 239D to 240E).	{"ConvCourtName":["Naval Court Martial at HMS Drake"],"ConvictPleaDate":["2003-07-17"],"ConvictOffence":["using violence to a superior officer contrary to s11 of the Naval Discipline Act 1957"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Naval Court Martial at HMS Drake"],"Sentence":["36 days detention and consequential penalties"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Breach of Article 6 right to a fair trial by an independent and impartial tribunal under the European Convention on Human Rights"],"SentGuideWhich":["Article 6.1 of the European Convention on Human Rights"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Trial was unfair in breach of Article 6 rights because the Judge Advocate was a serving naval officer and was appointed by the Chief Naval Judge Advocate, another serving naval officer, resulting in lack of independence and impartiality"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
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IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202200452/B5 [2023] EWCA Crim 815 Royal Courts of Justice Strand London WC2A 2LL Tuesday 4 July 2023 Before: LADY JUSTICE ANDREWS DBE MR JUSTICE BRYAN HER HONOUR JUDGE MUNRO KC (Sitting as a Judge of the CACD) REX V JOSEPH RONAN __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ NON-COUNSEL APPLICATION _________ J U D G M E N T 1. MR JUSTICE BRYAN: On 22 April 2021 in the Crown Court at Luton (before Her Honour Judge Tayton KC) the applicant, then aged 32, pleaded guilty to Putting a Person in Fear of Violence by Harassment, contrary to section 4(1) of the Protection from Harassment Act 1997 (Count 3) and Assault Occasioning Actual Bodily Harm, contrary to section 47 of the Offences Against the Person Act 1861 (Count 5). 2. Between the plea and sentence, the applicant sought to vacate the guilty pleas but eventually abandoned that course and served the following basis of plea: "1. I, Joseph Ronan, accept that I am guilty of the Counts (3 and 5) to which I pleaded guilty on 22.04.21 before HHJ Tayton. I am sorry for any inconvenience caused by the raising of an application to vacate pleas. It has taken time for me to make my instructions clear to my new solicitors and counsel. Now that I have been able to do so, I confirm, unequivocally, that I do not wish to apply to vacate either of the two pleas entered on 22.04.21. 2.In relation to Count 3, I wish to make the following clear: I do not accept (and have, in fact, never accepted), the activity on SIM cards ending 502 and 259 was me. This activity (in terms of exhibits) is represented at pp J65 to 67 DCS . These SIM cards were not in my control at the relevant time. 3.I explicitly accept that the remainder of the activity alleged in relation to this count (including the Instagram messaging) is behaviour for which I am responsible." 3. Paragraph 2 of the basis of plea document was not accepted by the Crown. However, it was not litigated as it was not thought to make a material difference to the sentence on Count 3 overall. On 26 August 2021, before the same Court (Her Honour Judge Herbert), the applicant was sentenced to 64 months' imprisonment on Count 3 and a concurrent sentence of 18 months' imprisonment on Count 5. He was made the subject of a Restraining Order indefinitely and ordered to pay the statutory surcharge of £181. 4. The Judge directed that a not guilty verdict be entered on a count of Unlawful Wounding (Count 2) which was in the alternative to Count 5. A further count of Assault Occasioning Actual Bodily Harm (Count 1) and Breach of a Non-Molestation Order (Count 4) were ordered to lie on the file against him in the usual terms. An application for leave to appeal against sentence settled by Mr Bloomer of counsel, was lodged by Messrs. Alexander Bennett Solicitors but abandoned before the section 31 procedure. 5. The applicant renews his application for an extension of time (266 days) in which to seek leave to appeal against conviction, following refusal by the single judge. He also applies for leave to adduce fresh evidence pursuant to Section 23 of the Criminal Appeal Act 1968 in relation to a statement of Zoe Benjamin dated 1 April 2021. 6. Turning to the facts, the applicant and the complainant, Sanna Majeed, met and began a relationship in February 2019. Within a short period of time, the applicant moved into the complainant's home where she lived with her young son. The prosecution case was that by September 2019, the relationship had broken down, in part due to the applicant's aggressive behaviour when he had been drinking. The applicant set up a fake social media profile posing as someone else and entered into a conversation with the complainant. On 19 September 2019 he was at the complainant's flat and accused her of cheating on him. He became violent and punched her, kicked her and pursued her through the flat for approximately 40 minutes. The applicant took the complainant's phone and when she tried to leave, he hit her over the head with it causing her to fall to the floor. The complainant wounded her head which subsequently required hospital treatment (Count 5). 7. The applicant took the complainant to collect her son from school and then onwards to his sister's house, who eventually took the complainant to hospital. The wound required stapling and she had bruising to her hands and ribs. The applicant threatened that she would lose her son if she told the hospital how she had been wounded, so she lied to the medical staff about what had happened. 8. The applicant then began a persistent campaign of stalking and harassing the complainant by phone and on social media which lasted for several months. The applicant sent messages to the complainant from a variety of telephone numbers and false social media profiles. He left voice messages and sent images of himself and images from outside the complainant's flat. 9. In November 2019, the applicant turned up outside the complainant's flat. On another occasion he attacked her in her car and banged on the window causing her to experience a panic attack. The police were called on both those occasions. The complainant and her son had to move house as a result of the applicant's behaviour. This conduct formed the subject matter of Count 3. 10. At sentence, the case was opened by the Crown without reference to the messages emanating from mobile phone numbers 502 and 259 (messages sent to the complainant in circa June and July 2020). They were not opened and did not feature as part of the Crown's case. As part of the police investigation a statement was taken from a Theodore Thomas, a friend of the complainant, who gave evidence of complaint and to whom the complainant had sent photographs of her injuries. 11. In terms of the application for an extension of time in which to seek permission to appeal against conviction, the applicant asserts that he was misled and wrongly advised by his legal representatives with regard to his right to appeal. In the light of the applicant's allegations against those instructed by him there was a waiver of privilege. 12. The applicant's Grounds of Appeal, as considered by the Single Judge, are contained within two Easy Read Form NGs, one dated 31 January 2022 and one dated 18 March 2022, as well as a further undated set of submissions and a 23-page "Principal Grounds" document entitled: "Application for leave to appeal against conviction on the principal ground of a procedural irregularity and misrepresentation", received by the CAO on 13 June 2022 (following comments on the applicant's grounds lodged by his trial representatives). 13. The original grounds included allegations: (1) That the Crown had committed "multiple cases of bad faith, prejudice and irregularities in procedure to secure his conviction". (2) Counsel had misled him as to his basis of plea. (3) He had "fresh evidence". (4) His right to a fair trial had been violated of which criticism can be had of his former solicitors and counsel. (5) He received bad legal advice from his former solicitors. (6) He had been poorly represented by his previous solicitors. (7) There were failures as to disclosure (in fact the evidence that was served); and (8) The prosecution sentencing note contained "blatant lies". In particular the victim personal statement was unsupported by medical evidence. 14. In the subsequent "Principal Grounds" there were numerous complaints made against his previous legal teams, an assertion that he had been denied access to evidence of disclosure and he also sought to rely as "fresh evidence" the evidence of a Zoe Benjamin who it was said was asked to lie by the complainant about harassment. 15. In the light of the allegations made by the applicant, a waiver of privilege was sought and given, and a detailed response was received from Minal Rajshankha of Healey Colbon Solicitors and James Bloomer of counsel by way of rebuttal of the allegations made against them. 16. The Crown also put in both a Respondent's Notice and an addendum Respondent's Notice (addressing the Principal Grounds). At the heart of these documents was a submission that the applicant by his guilty pleas had unequivocally admitted the offences within Counts 3 and 5 and that even within the principal grounds he continued to admit the offences, stating: "I accept liability for the ABH and I did send the Instagram messages between November 2019 till February 2020." It was submitted that he was in due course sentenced in line with the basis of plea and the prosecution complied with all of their duties to the court and any suggestion of a conspiracy was utterly unfounded. 17. The single judge refused leave to appeal, giving the following reasons: "1. You pleaded guilty and now you are trying to undo those guilty pleas. A plea of guilty is an admission of guilt. Having pleaded guilty you originally tried to change those pleas in the Crown Court but you abandoned that attempt. The evidence against you was strong and there is no basis to suggest that you only admitted something you had not done because you were under the influence of drugs or any form of improper pressure. 2. There is no evidence of any conspiracy between the counsel for the prosecution, your own counsel and the complainant. The evidence against you was set out clearly and there is no ground to say that any of the evidence against you, or the written basis of your guilty plea, was obtained improperly. 3. Your solicitor has given a very detailed account of the requests made for the telephone data and your instructions. You accepted that the relevant messages had been sent from your number/SIM card but alleged that the complainant had stolen your card and used it to send the messages to herself. You had been given all the relevant data and further matter would not have assisted you on that point. 4. Fresh evidence. The witness you now want to call has known you for 10 years. She was in touch with your solicitors before the trial and you discussed with them whether she would attend to give evidence. In her witness statement, (made in February 2021 and signed 1/4/2021) she says she saw you with the complainant but did not recognise you. In her statement she says that the complainant was telling people at the time that she was being assaulted by her boyfriend. She was highly likely to have been an unreliable witness even if she had been willing to attend. 5. You were properly advised throughout this process and you were faced with a strong case against you. You cannot show that your pleas of guilty were based on any failure by your counsel, your solicitor or the court. You discussed this plea on different occasions and there is no basis for saying you were incompetent to enter a valid plea. You were interested to find out what reduction in sentence you would obtain by pleading guilty. 6. There is no merit in any of the individual grounds you are trying to argue, there is no merit in the combination of all the points you make. If there had been a point you could have properly argued I would have considered the request for a lengthy extension of time. You have not shown any arguable grounds and it is not necessary to decide that application." 18. Notwithstanding those sentiments that were expressed in refusing the application, the Single Judge did not initial the box to indicate that the application was considered to be wholly without merit. 19. Following the decision of the Single Judge, the applicant lodged further submissions and documents in support of those submissions. The Registrar directed the applicant to consolidate his grounds of appeal and provide an index of documents lodged in support. In response the applicant has provided: "Consolidated Grounds of Appeal against Conviction" with an index list of documents to which he refers. Within the Consolidated Grounds of Appeal drafted by the applicant the following grounds are advanced: (1) Disclosure failure: The applicant's defence team, Healey Colbon Solicitors, failed to disclose in full the police interview transcripts; unused material; data reports; IPA disclosure; statements and screenshots from the defence witness Zoe Benjamin. (2) Wrongful admission of evidence: There were errors in the applicant's Defence Statement. The applicant's concerns in that regard were ignored by solicitor Minal Rajshankha and not corrected. (3) Counsel James Bloomer made a wrongful admission of evidence. The applicant signed the basis of plea believing he was only admitting to some Instagram messages in retaliation to the complainant and Theodore Thomas harassing the applicant. The basis of plea was vague and signed in the absence of full disclosure. (4) Misrepresentation: There was professional misconduct of the applicant's defence team and deliberate abuse of process which made it impossible for the applicant to have a fair trial. (5) Irregularity in Procedure: There was a conspiracy by the prosecution who removed and failed to disclose 34 pages from the IPA Disclosure for the number ending in 716. Those pages would have shown the complainant was in regular contact with the harassing number in the form of outgoing and incoming calls. (6) The defence team were part of the conspiracy and failed to provide the applicant with the material which would have assisted the defence case. 20. Further submissions were also provided within a letter from the applicant received on 25 November 2021, which was originally lodged as part of his sentence application which was subsequently abandoned. 21. The applicant also seeks disclosure of the 34 pages from the IPA disclosure for the number ending in 716. The applicant also applies under section 23 of the Criminal Appeals Act 1968 to admit as fresh evidence the statement of Zoe Benjamin dated 1 April 2021 and copies of messages in March 2021 between a Lianne Salam of Colborn Solicitors and Ms Benjamin. 22. We have given careful consideration to the consolidated grounds of appeal and the associated documentation relied upon. In material respects they are simply a "repackaging" of the previous grounds. The consolidated grounds of appeal do not raise any arguable ground of appeal against conviction. We endorse the views expressed by the Single Judge which remain apposite. The applicant entered unequivocal guilty pleas to Counts 3 and 5. Such pleas are also consistent with the admissions in the Principal Grounds. There is no substance in the allegations the applicant makes in relation to the Crown and his former solicitors and counsel. The points made in relation to the defence statement and the basis of plea do not go to conviction. The documents referred to and sought do not disclose and do not undermine the safety of the convictions, and the alleged "fresh evidence" is neither fresh nor reliable, as rightly noted by the Single Judge. In any event it does not go to the assault (which is evidenced) or the course of harassment (which is also readily evidenced). 23. No good reason for the delay in applying for permission to appeal against conviction has ever been given and the extension of time sought is refused. In any event, there is no arguable ground of appeal against conviction and the applications are accordingly refused. 24. We consider that the application for permission to appeal against conviction is wholly without merit and no attempt has been made to address the grounds of refusal of the Single Judge. 25. When warned of the possibility of a loss of time order, the applicant made the following representations: "Material facts existed which have not been previously presented and heard, which in the interest of justice requires vacation of the conviction and charge that was instituted by Luton Police or State or Government. The Luton Crown Court has acted wrong in law where they have failed in having jurisdiction to perform any duty, as purported in elements of the Magna Carta 1297, Petition of Rights 1627, The Bill of Rights 1688 and the Habeas Corpus Acts 1640, 1679 and 1816, where their actions denied me my fundamental human rights." 26. The application is considered to be wholly without merit and the representations made do not provide any good reason why we should not make a loss of time order. Accordingly, and in accordance with the observations in R v Gray and others [2014] EWCA Crim 237 we make a loss of time order whereby 28 of the days spent in custody will not count towards the time spent in custody. It is by making such orders that unmeritorious applications, such as the present, which waste the time of this court, are to be discouraged.	{"ConvCourtName":["Crown Court at Luton"],"ConvictPleaDate":["2021-04-22"],"ConvictOffence":["Putting a Person in Fear of Violence by Harassment, contrary to section 4(1) of the Protection from Harassment Act 1997 (Count 3)","Assault Occasioning Actual Bodily Harm, contrary to section 47 of the Offences Against the Person Act 1861 (Count 5)"],"AcquitOffence":["Unlawful Wounding (Count 2)"],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Luton"],"Sentence":["64 months' imprisonment on Count 3","18 months' imprisonment on Count 5 (concurrent)"],"SentServe":["Concurrent"],"WhatAncillary":["Restraining Order indefinitely","Statutory surcharge of £181"],"OffSex":["All Male"],"OffAgeOffence":[32],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["one"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Photographs of injuries","Police investigation","Social media messages"],"DefEvidTypeTrial":["Basis of plea denying some SIM card activity","Application to vacate plea","Alleged fresh evidence from Zoe Benjamin"],"PreSentReport":[],"AggFactSent":["Persistent campaign of stalking and harassment","Violence in presence of victim's child","Victim had to move house"],"MitFactSent":["Offender showed remorse (expressed in basis of plea)"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction"],"AppealGround":["Procedural irregularity","Misrepresentation by counsel","Disclosure failure","Wrongful admission of evidence","Irregularity in procedure","Fresh evidence"],"SentGuideWhich":["section 4(1) of the Protection from Harassment Act 1997","section 47 of the Offences Against the Person Act 1861"],"AppealOutcome":["Dismissed","Loss of time order (28 days)"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Applicant pleaded guilty and abandoned attempt to vacate plea","No evidence of conspiracy or improper pressure","Applicant properly advised throughout","No merit in any of the grounds","Alleged fresh evidence not fresh or reliable","No good reason for delay in appeal","No arguable ground of appeal against conviction"]}
Neutral Citation Number: [2013] EWCA Crim 1024 Case No: 201300883 A6 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEICESTER CROWN COURT HHJ Pert QC S20120537 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/06/2013 Before : LORD JUSTICE HUGHES VICE PRESIDENT OF COURT OF APPEAL CRIMINAL DIVISION MR JUSTICE SWEENEY and RECORDER OF REDBRIDGE - HIS HONOUR JUDGE RADFORD (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN - and - BARRIE HOGGARD - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss F Campbell (Solicitor Advocate) (instructed by The Johnson Partnership) appeared on behalf of the Appellant Hearing dates : 27 March 2013 - - - - - - - - - - - - - - - - - - - - - Judgment MR JUSTICE SWEENEY: 1. On 27 March 2013 we allowed this appeal against sentence, which was brought by leave of the single judge. The appeal was limited to the issues of whether there should have been a direction under s.240A of the Criminal Justice Act 2003 (“the 2003 Act”), as amended by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (“the 2012 Act”), and, if so, how many days spent on qualifying curfew and electronic monitoring conditions should count towards service of the sentence of 12 months’ imprisonment imposed upon the appellant in the Crown Court at Leicester on 13 December 2012. 2. The appeal underlined the problems that can still be encountered in relation to the credit to be given when the offender has been subject to the relevant conditions. In the result, we concluded that a direction should have been given, and ordered that 47 days should count towards service of the appellant’s sentence. 3. We now give our reasons. 4. The factual background is, in short, as follows. On 18 May 2012, for an offence of burglary and for two breaches of a non-molestation order the appellant was sentenced by HH Judge Milmo QC, in the Crown Court at Nottingham, to a two year Community Order with a requirement to attend an integrated domestic abuse programme, a six month drug rehabilitation requirement and a six month electronically monitored curfew order. 5. On 17 th July 2012, following a breach, the Community Order was extended by two months. 6. On 13 December 2012 in the Crown Court at Leicester, following a further breach, HH Judge Pert QC revoked the Community Order and re-sentenced the appellant. As we have already noted, a total sentence of twelve months’ imprisonment was imposed. 7. It is unnecessary to set out the facts of the offences. 8. There is no doubt that the appellant was on bail, and subject to a qualifying curfew condition and an electronic monitoring condition, for a number of days during the period from 1 February 2012 until he was first sentenced on 18 May 2012. 9. It is also clear that, in re-sentencing the appellant on 13 December 2012, HH Judge Pert QC intended that the appellant should receive credit for the 38 days that he had spent on remand and for half the number of days that he had spent on bail whilst subject to the relevant conditions. However the judge did not give a direction to that effect because he believed that, following the then recent coming into force of the 2012 Act amendments in relation to sections 240 & 240A of the 2003 Act, no such direction was required as appropriate credit would be given automatically. Equally, whilst an attempt was made thereafter to invite the judge to give a direction in relation to the days spent on bail whilst subject to the relevant conditions, the papers were not placed before him until after the expiry of the 56 day period provided by s.155 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”). 10. The position before us was further complicated by information that was not before the judge – namely a letter from the Probation Service dated 19 March 2013 asserting that the appellant had breached the terms of the qualifying curfew on a number of the relevant days. 11. We first make a number of general observations. 12. As originally enacted, S.240 of the 2003 Act required the court to give a direction as to time spent on remand counting towards a custodial sentence. The difficulties to which that gave rise are notorious. 13. As to crediting time spent on bail, s.240A of the 2003 Act was inserted by s.21(1) & (4) of the Criminal Justice and Immigration Act 2008 (which came into force on 3 November 2008). As originally enacted it provided that: “Crediting periods of remand on bail… (1) This section applies where – (a) a court sentences an offender to imprisonment for a term in respect of an offence committed on or after 4 th April 2005. (b) the offender was remanded on bail by a court in course of or in connection with proceedings for the offence, or any related offence, after the coming into force of section 21 of the Criminal Justice and Immigration Act 2008 (c) the offender’s bail was subject to a qualifying curfew condition and an electronic monitoring condition (“the relevant conditions”) (2) Subject to subsection (4) the court must direct that the credit period is to count as the time served by the offender as part of the sentence. (3) The “credit period” is the number of days represented by half of the sum of – The day upon which the offender’s bail was first subject to conditions that, had they applied throughout the day in question, would have been relevant conditions, and (b) the number of other days on which the offender’s bail was subject to those conditions (excluding the last day on which it was so subject) rounded up to the nearest whole number. (4) Subsection (2) does not apply if and to the extent that – (a) rules made by the Secretary of State so provide, or (b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection. (5) Where as a result of subparagraph (a) or (b) of subsection (4) the court does not give a direction under subsection (2), it may give a direction in accordance with either of those paragraphs to the effect that a period of days which is less than the credit period is to count as time served by the offender as part of the sentence. (6) Rules made under subsection 4(a) may, in particular, make provision in relation to – (a) sentences of imprisonment for consecutive terms; (b) sentences of imprisonment for terms which are wholly or partly concurrent; (c) periods during which a person granted bail is also subject to electronic monitoring required by an order made by a Court of the Secretary of State. (7) In considering whether it is of the opinion mentioned in subsection (4)(b) the court must, in particular, take into account whether or not the offender has, at any time whilst on bail subject to the relevant conditions, broken either or both of them (8) Where the court gives a direction under subsection (2) or (5) it shall state in open court – (a) the number of days on which the offender was subject to the relevant conditions, and (b) the number of days in relation to which the direction is given. (9) Subsection (10) applies where the court – (a) does not give a direction under subsection (2) but gives a direction under subsection (5), or (b) decides not to give a direction under this section. (10) The court shall state in open court – (a) that its decision in accordance with Rules made under paragraph (a) of subsection (4), or (b) that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are…. (12) In this section – “electronic monitoring condition” means any electronic monitoring requirement imposed under section 3(6ZAA) of the Bail Act 1976 for the purpose of securing the electronic monitoring of a person’s compliance with a qualifying curfew condition; “qualifying curfew condition” means a condition of bail which requires the person granted bail to remain at one or more specified places for a total of not less than 9 hours in any given day ……” 14. The rules made under subsection (4)(a) were the Remand on Bail (Disapplication of Credit Period) Rules 2008 (S.I. 2008 no. 2793). 15. The difficulties to which s.240A (as thus originally enacted) and the Rules gave rise are also notorious. 16. In Irving [2010] 2 Cr. App. R. (S.) 75 , which followed the detailed examination and explanation of the statutory provisions in Monaghan [2010] 2 Cr. App. R. (S.) 50 , the Court observed that the general effect of s.240A was that a court was required, when passing sentence, to make a specific order as to the number of days for which credit was to be given – with that number being one-half of the days on which the defendant was subject to a court order for bail containing a condition imposing a curfew for at least nine hours per day and requiring electronic tagging. The court indicated that the problem, as the court had already observed in Nnaji [2009] 2 Cr. App. R. (S.) 107 , was that it was not always simple to have the necessary information before the sentencing court and that, in the event of error, and if the error was not corrected within the 56 day period provided by s.155 of the 2000 Act it could only be corrected on appeal – which would inevitably involve the use of valuable administrative time, court time and expense. 17. Accordingly in Irving (above) the court identified four things which, under the provisions then in force, courts and practitioners were required to do, or to take note of, as follows:- (1) When passing sentence every judge was required to employ the formula suggested in Gordon [2007] 2 Cr. App. R. (S.) 66 , which was simplified in Nnaji (above) to the following effect: “The defendant will receive full credit for the full period of time spent in custody on remand and half the time spent under curfew if the curfew qualified under the provision of s.240A. On the information before me the total period is …. days, but if this period is mistaken, this court will order an amendment of the record for the correct period to be recorded.” It was underlined that use of the formula would mean that, if an error was made, it could be corrected in the court office even after the expiry of the 56 day period provided by s.155 of the 2000 Act. (2) Every court which imposed a curfew and tagging condition was required to use the Court Service form entitled “Record of Electronic Monitoring of Curfew Bail”, which was required to follow the defendant from court to court. It was thus said to be essential, when a defendant was committed or sent to the Crown Court, and either was or had been in the past subject to curfew and tagging, that the form (properly completed) went with his papers to the Crown Court. If the defendant was on bail but had never been the subject of curfew and tagging the magistrates were required to say so, or to send a copy of his bail conditions. If on receipt of a case involving a defendant on bail there was no such form and the question of his status was not clear, then the Crown Court was required to ask the magistrates for clarification and to get hold of the form if it existed. Solicitors and, if they had not done it, counsel were required to ask the defendant whether he had been subject to curfew and tagging. If he said he had, they were required to find out, from the court record, for which periods. It was the responsibility of the CPS also to have a system for ensuring that such information was available. (4) Whether in connection with alleged errors of calculation made under s.240 or s.240A, it ought not to be expected in future that the Court would routinely grant long extensions of time when no one had applied his mind to the issue until long after the event. 18. Finally, the Court in Irving urged Parliament to consider making changes to sections 240 and 240A as soon as a convenient opportunity presented itself – so that continuing undesirable consequences could be avoided in the future. 19. In Williams [2012] EWCA Crim 1590 , which was concerned with time spent on remand, the Court indicated that the form of words used in Irving (above) should always be used, even if all parties believed that there were no days to count. 20. Sections 108 and 109 of the 2012 Act came into force on 3 December 2012 – i.e. ten days before sentences was passed in this case. 21. Section 108, which by virtue of paragraph 2(1)(a) of Schedule 15 to the 2012 Act applies in relation to any person who falls to be released under Chapter 6 of Part 12 the 2003 Act on or after the commencement date, removes s.240 of the 2003 Act altogether and inserts in its place s.240ZA – which provides a scheme for the crediting of time on remand in custody to be dealt with administratively. 22. Section 109, which by virtue of paragraph 3(a) of Schedule 15 to the 2012 Act applies in relation to any person sentenced on or after the commencement date, combined with s.121(5) and paragraphs 13 and 14 of Schedule 16 to the 2012 Act, amends s.240A of the 2003 Act so that it now provides as follows:- “Time remanded on bail to count towards time served…. (1) This section applies where – a) A court sentences an offender to imprisonment for a term in respect of an offence b) The offender was remanded on bail by a court in course of or in connection with proceedings for the offence, or any related offence, after the coming into force of section 21 of the Criminal Justice and Immigration Act 2008, and c) The offender’s bail was subject to a qualifying curfew condition and an electronic monitoring condition (“the relevant conditions”). (1) Subject to subsections (3A) and (3B) the court must direct that the credit period is to count as time served by the offender as part of the sentence The credit period is calculated by taking the following steps. Step 1 Add – a) The day on which the offender’s bail was first subject to the relevant conditions (and for this purpose a condition is not prevented from being a relevant condition by the fact that it does not apply for the whole of the day in question), and b) The number of other days on which the offender’s bail was subject to those conditions (but excludes the last of those days if the offender spends the last part of it in custody). Step 2 Deduct the number of days on which the offender, whilst on bail subject to the relevant conditions, was also – a) subject to any requirement imposed for the purpose of securing the electronic monitoring of the offender’s compliance with a curfew requirement, or b) on temporary release under rules made under section 47 of the Prison Act 1952. Step 3 From the remainder, deduct the number of days during that remainder on which the offender has broken either or both of the relevant conditions. Step 4 Divide the result by 2 Step 5 If necessary, round up to the nearest whole number. (3A) A day of the credit period counts as time served – a) in relation to any one sentence b) only once in relation to that sentence. (3B) A day of credit is not to count as time served as part of any period of 28 days served by the offender before automatic release (see section 255B(1)). (8) Where the court gives a direction under subsection (2) it shall state in open court - a) the number of days on which the offender was subject to the relevant conditions, and b) the number of days (if any) which it deducted under each of Steps 2 and 3……. (12) In this section- “curfew requirement” means a requirement (however described) to remain at one or more specified places for a specified number of hours in any given day, provided that the requirement is imposed by a court or the Secretary of State and arises as a result of a conviction. “electronic monitoring condition” means any electronic monitoring of a person’s compliance with a qualifying curfew condition. “qualifying curfew condition” means a condition of bail which requires the person granted bail to remain at one or more specified places for a total of not less than 9 hours in any given day.” 23. It can thus be seen, amongst other things, that:- (1) In contrast to s.240ZA, there is no automatic deduction of days spent on bail subject to a qualifying curfew condition and an electronic monitoring condition. (2) The discretion, formerly provided by the combination of subsections 4(b) (5) and (7), not to give a direction at all, or to give a direction as to a period of days less than the credit period, has gone. (3) Instead, there is now a requirement under subsection (2) that, subject to subsections (3A) and (3B), the court must direct that the credit period is to count as time served. (4) Subsection (3A) prevents the same remand time counting several times against two or more sentences (whether they are to be served concurrently or consecutively) (5) Subsection (3B) prevents remand time shortening any ‘fixed term recall’ under s.255B (which was introduced by the 2008 Act). (6) Step 2 in subsection (3) prevents credit for tagged bail counting towards a subsequent sentence for such time as the defendant was also subject to an electronically monitored curfew requirement in connection with any other sentence (which includes being released on Home Detention Curfew) or had been temporarily released from prison in relation to another sentence. (7) Step 3 in subsection (3) prevents credit for days on which the defendant breached either the qualifying curfew condition or the electronic monitoring condition. (8) Under subsection (8), when a direction is given the court must state in open court the number of days on which the offender was subject to the relevant conditions, and the number of days (if any) which it has deducted under Steps 2 and 3. 24. Against that background, and in view of the guidance previously given in Irving and in Williams (above) it seems to us that: It remains essential that every court which imposes a curfew and tagging condition uses the Court Service form entitled ‘Record of Electronic Monitoring of Curfew Bail’ (or its up-to-date equivalent) which is required to follow the defendant from court to court. When a defendant is sent or committed to the Crown Court then the form (properly completed) must go with the papers to the Crown Court. If the defendant has never been subject to curfew and tagging the magistrates are required to say so, or to send a copy of his bail conditions. If on receipt of a case involving a defendant on bail there is no such form and the question of his status is not clear, then the Crown Court must ask the magistrates for clarification and get hold of the form if it exists. (1) Solicitors and, if they have not done it, counsel are required to ask the defendant whether he has been subject to curfew and tagging. If he says that he has, they are required to find out, from the court record, for which periods. It is also the responsibility of the CPS to have a system for ensuring that such information is available. (2) Compliance with above-mentioned requirements should ensure that Step 1 is relatively straightforward. (3) In any event, the consideration of Steps 1 – 3 will be part of the post-conviction proceedings and thus not subject to the invariable application of strict rules of evidence. The approach to admissibility, particularly in relation to hearsay evidence, should be that identified in Clipston [2011] 2 Cr. App. R. (S.) 101 – with emphasis upon the procedures adopted to deal with Steps 1-3 being both flexible and fair. (4) Nevertheless, if there is a dispute under, in particular, Step 2 and/or Step 3, then the prosecution must prove to the criminal standard that the days sought to be deducted from the number of days identified under Step 1 are caught by the relevant Step. (5) However, if the court is of the opinion that the resolution of the dispute, or part of it, would be likely to amount to the disproportionate use of time and expense then (without more) the dispute, or the relevant part of it, should be resolved in the defendant’s favour and no deduction made from the number of days identified under Step 1. The court is only likely to be of such an opinion if the number of days involved is relatively modest. (6) The court will then deal with the maths required by Steps 4 and 5 and will thereafter give a direction – complying in the process with subsection (8). (7) Save in a case where it is clear that there is no possibility of crediting a period of remand on bail, the order of the court should, in accordance with Nnaji and Williams , be along the following lines: “The defendant will receive full credit for half the time spent under curfew if the curfew qualified under the provisions of s.240A. On the information before me the total period is … days (subject to the deduction of ... days that I have directed under Step(s) 2 and/or 3 making a total of … days), but if this period is mistaken, this Court will order an amendment of the record for the correct period to be recorded.” (8) It remains the case that it ought not to be expected that this Court will routinely grant long extensions of time to correct errors when no one has applied his mind to the issue until long after the event. 25. As to the instant case, the judge was clearly right to conclude that, in accordance with s.240ZA, the 38 days which the appellant had spent on remand in custody would automatically count towards the service of his sentence. However, the judge erred in concluding that, likewise, no direction was required in relation to the days that the appellant had spent on bail whilst subject to qualifying curfew and electronic monitoring conditions. A direction complying with s.240A (as now amended) was required. We therefore considered s.240A(3) Steps 1-5. Under Step 1 we identified a period of 94 days. There was nothing to suggest the need for a deduction from that total under Step 2. However, the letter from the Probation Service dated 19 March 2013 (to which we have already made reference) raised the issue, under Step 3, of whether the appellant had broken either or both of the relevant conditions on a total of 8 of the 94 days. The alleged breaches were denied. The net credit in dispute was thus 4 days. In the particular circumstances of this case resolution of the dispute would have required an adjournment, the attendance of the prosecution, and the likely calling of evidence. We concluded that such further proceedings would be likely to amount to a disproportionate use of time and expense. Accordingly we resolved the dispute in the appellant’s favour and, having applied Steps 4 & 5, ordered (as indicated above) that 47 days should count towards the service of his sentence.	{"ConvCourtName":["Crown Court at Leicester"],"ConvictPleaDate":["2012-12-13"],"ConvictOffence":["breach of Community Order"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[38],"SentCourtName":["Crown Court at Leicester"],"Sentence":["12 months' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["whether there should have been a direction under s.240A of the Criminal Justice Act 2003 as amended, and if so, how many days spent on qualifying curfew and electronic monitoring conditions should count towards service of the sentence"],"SentGuideWhich":["s.240A of the Criminal Justice Act 2003","Legal Aid Sentencing and Punishment of Offenders Act 2012","s.155 of the Powers of Criminal Courts (Sentencing) Act 2000"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2003] EWCA Crim 1008 No: 2000/4587/W3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 27 March 2003 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE MITTING SIR BRIAN SMEDLEY - - - - - - - - - - - R E G I N A -v- HAROLD WILLIAMS (DECEASED) - - - - - - - - - - - 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 JUCKES QC AND MR M BROOKS appeared on behalf of the APPELLANT MR M WILSON QC AND MR D ALLAN appeared on behalf of the CROWN - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TUCKEY: On 5th December 1977 in the Worcester Crown Court before Mr Justice Stephen Brown and a jury, Harold Percival Williams was convicted of murder and sentenced to life imprisonment. On 15th February 1979 this court (Lord Justice Waller, Mr Justice Lawson and Mr Justice Jupp) refused his application for leave to appeal against conviction. On 3rd August 2000 the Criminal Cases Review Commission referred his conviction to this court under section 9 of the Criminal Appeal Act 1995 . Mr Williams died on 9th October 2000 but approval under section 44A of the Criminal Appeal Act 1968 has been granted by the single judge to his sister to continue the appeal. We shall refer to Mr Williams as the appellant. 2. Margaret Davies was murdered some time between 9.35 pm on Friday 21st and 2.30 pm on Sunday 23rd January 1977. The appellant was in a relationship but was not living with her at the time she was killed. He had a good alibi for the Friday evening up to about 11.50 pm and from 7.45 am the following morning. The Crown's case was that he killed the deceased between these times. The case against him was circumstantial. The time of death was therefore crucial. The Reference by the Commission has primarily been made to enable us to consider new evidence which is said to cast doubt on the evidence given at trial about the time of death. 3. The deceased lived at 76 Whittern Way in Hereford. At the time of her death she was 40. She was divorced, a heavy drinker and had had a number of relationships with various men. She met the appellant, then about 44, himself much married, at the end of 1975, and he moved in with her in early 1976. Their relationship was a stormy and violent one. However, on 3rd January 1977 he was made to leave after the deceased alleged that he had assaulted her. He was charged with assault occasioning actual bodily harm to which he later pleaded guilty and it was a condition of his bail that he should not contact or associate with the deceased and should live at his parents' address in Hereford, a couple of miles away. There was, however, continuing antagonism between the two of them after this separation. 4. At 9.35 pm on the Friday evening, a woman who knew the deceased well met her coming out of the fish and chip shop near to her house. The appellant was employed as a coach driver. On the Saturday morning at 7.45 his employer went to open up the garage when, to his surprise, he saw the appellant's car parked in the yard with its engine running. A few minutes later he went over to the car. Its engine was still running and the appellant appeared to be asleep. The employer opened the door and the appellant woke up with a start, saying he had just been having a doze. 5. On the Sunday the deceased's daughter let herself in to her mother's house at about 2.30 pm. The living room curtains were drawn. Her mother was dead upstairs on her bed. She was clothed, lying on her back and gagged. Her hands and feet were tied with one continuous piece of string. Her upper garments had been pulled up exposing her left breast. She had been stabbed. The police arrived at about 3.00 pm and they noticed that there were papers fanned out on the floor in the hall below a table. The rear door and the door leading to the front were locked from the inside. There was no sign of forcible entry and apart from the papers on the floor the house was undisturbed. 6. The home office pathologist, Dr Davies, arrived at 5.45 pm. He noted a ligature mark around the deceased's neck. The body was cold, with rigormortis fully developed. At 6.00 pm he took the body temperature and the room temperature. He noted marked signs of putrefaction. On turning the body blood issued from the stab wounds. He concluded that the cause of death was strangulation by ligature. There were six stab wounds and four puncture wounds on the upper part of the deceased's body which Dr Davies considered had been inflicted after death. One stab wound had divided the third rib which indicated use of considerable force. A duster had been stuffed firmly into the deceased's mouth and another duster had been tied around to hold it in place. Bruising to the back of the throat suggested that this had occurred before death. It is apparent from what we have said that whatever the cause of death, this was a violent and frenzied killing. 7. The Reference has been has focused on two aspects of Dr Davies' evidence: the time of death and the nature of the weapon used to inflict the wounds. In his autopsy report Dr Davies said that death appeared to have taken place about two days before he saw the body. The wounds had been inflicted with two types of weapon -- a sharp pointed knife and a bodkin-type weapon. We shall return to consider what Dr Davies said at trial about these two matters later in this judgment. 8. The appellant was interviewed by police on the Sunday afternoon at his parents' home, at about 4.30 pm. When asked when he last saw the deceased he replied not since he was put on bail. She had telephoned him at work but he had had nothing to do with her. He told the officers he had something to show them and returned with a pad of paper which included a reference to his magistrates hearing and a memo dated 20th January to the effect that the deceased had telephoned him at work. He said he made the note to show she kept trying to contact him. He presumed she wanted money for bills. He had paid a lot of her debts. He also supplied the police with a list of names and addresses of her associates. He gave an accurate account of his movements for the Saturday after 8.00 am. He then informed that the deceased was dead. He asked if the police were joking and said he did not believe it. He put his head in his hands and started to cry. After he had composed himself he said he loved her and asked "How did she die?" and "Was she on the bed?" He said he blamed the doctor for giving her pills. He said she could be a bitch when on the drink but at other times she was a lovely woman. He alleged that she had threatened to desecrate his son's grave. 9. He was taken to the police station and further interviewed that day and a number of times over the following days and weeks until he was charged with murder in April. In the course of these interviews he described his movements between leaving work on the Friday evening and the following morning. He said that after a meal and a visit to the Friar Tuck Chip Shop, he had driven at about 11.15 pm to a second chip shop in Grandstand Road which was on the other side of Hereford from where the deceased lived. He had then driven home to his parents' house, getting there at about 12.30 am. The police found no one at the Grandstand Road chip shop (which closed at midnight) who had seen him. When this was put to him the appellant named the assistant whom he said had served him, but this assistant was not on duty that night. Nevertheless, the appellant maintained his account of this visit through several interviews and up to trial. 10. The deceased's address book and other personal papers were found by police in the appellant's car. He said he had taken them because she had taken his address book and cheque book. But neither of these items were found in the deceased's house and an address book belonging to the appellant was found when the police searched his parents' house. 11. In the course of their enquiries the police searched a derelict car belonging to the appellant which he kept in the yard at work. A thorough search on 24th January revealed a table knife (exhibit 26) in the glove compartment. Six days later the boot was searched again and a fishing bag was found in or near to which was a bent knitting needle. These items had not been in the car earlier. In interview the appellant said that the knife had been in his car for a long time and he used the needle to pierce eels through the neck after he had caught them. No blood was found on the knife or the needle or on the appellant's clothing. The only scientific evidence to link the appellant to the killing was that a rib pattern in the blood on the deceased's body and on her bedspread could have been caused by the fabric of the trousers which the Crown alleged the appellant had been wearing that evening and which were found by police to have been freshly cleaned and pressed. The knots used to truss the deceased were those used by hop pickers. The appellant had worked as a hop picker. 12. At the trial, which lasted 14 days, the appellant was represented by leading and junior counsel. It is clear from the transcripts which we have seen that he was vigorously defended. It is common ground that the defence were assisted at trial by Dr, now Professor, Bernard Knight, a pathologist from whom they had a report which said: "I would have thought that death must have occurred not less than 36 hours previously and I have no reason to dispute Dr Davis' opinion." [in the autopsy report to which we have already referred]. This put the time of death not later than 6.00 am on the Saturday morning and is no doubt why the defence decided that their best tactical hope was to try and show that the death had occurred before 11.50 pm on the Friday, up to which time the appellant had a good alibi. 13. We have seen the full transcript of Dr Davies' evidence. His estimate of the time of death was based on the deceased's body temperature and the putrefaction. He made it clear that, as he put it: "It is a very approximate idea. I cannot give it in hours." In cross-examination he was persuaded to accept a time bracket of between 36 hours and four days before the time when he took the deceased's body temperature. He had been told by the police at some stage that someone had said that they had seen the deceased alive 24 hours before he had first seen the body and his evidence was that he had found that very difficult to believe. 14. Dr Davies was also asked about the stab wounds and said that they could have been caused by the knife (exhibit 26) and the knitting needle. He maintained this opinion despite the fact that he had said in the autopsy report that the deep wounds had been made by a sharp pointed object and that his measurements of the length of these wounds was less than the width of the blade of a knife. He explained the latter discrepancy by saying that he had only used a foot rule, so his measurements might have been inaccurate. 15. The Crown called Dawn Mapp, a 16 year old schoolgirl at the time of the murder. She was a neighbour and had made a statement to the police in which she said she had seen the deceased in the street at 2.00 pm on the Saturday. However, on 28th March 1977 she made a further statement saying that having thought about it, it could well have been the Friday afternoon that she had seen the deceased. On the Saturday she remembered watching a film on television until about 3.30 pm and she would not have gone out of her house before she had finished watching the film. She gave evidence to the latter effect at trial, although we have not seen a transcript. The defence had both her statements and we do not know what questions they asked her, but it is apparent that they at least kept open the option that she was right in her first statement, although, as we have said, they had made the tactical decision to try and push the time of death back as far as possible. 16. At the close of the Crown's case the defence submitted that there was no case to answer. The judge disagreed. The defendant elected not to give evidence but made a statement from the dock. What he said was: "There is only one thing I would like to say. I told my counsel in the early part of this trial, although I went from Friar Tuck to Grandstand Road I did not go in. I pull in on the layby by the shop next door, realised that I had had enough to eat, could not go into the shop without buying something, so I drove off up Grandstand Road to go home. I was worried about Margaret ringing earlier and requesting me to ring her after lunch. I got to the phone box by the White Cross roundabout, I rang Margaret and there was no reply. I thought if it is urgent enough she will ring the next day so I went straight home to my parents. I did not tell this to the police I was afraid of my bail, so I told them I went to the chip shop. This is the only time that I did not tell the police the truth and I bitterly regret it. I loved Margaret very much and I didn't kill her." 17. The judge summed the case up to the jury very fully and fairly. No complaint is now made about his directions of law. The jury convicted the appellant after a six hour retirement. 18. On the first appeal to this court leading counsel argued that the judge should have allowed the submission of no case to answer. The circumstantial evidence, it was submitted, did not establish guilt beyond reasonable doubt. It was, as counsel submitted, a lurking doubt case. Lord Justice Waller's fifteen page judgment makes it clear that the court gave full consideration to all the arguments which were raised about the quality of the circumstantial evidence. The court noted that the case depended not on just one small point of circumstantial evidence but on an accumulation of points. This led the court to the view that there clearly was a case to go to the jury and to say "that in the mind of each of us there is no lurking doubt." 19. So we turn to the new evidence upon which the Reference is based, the thrust of which is to show that the verdict was unsafe because the deceased may not have died until after 7.45 am on the Saturday. It comes in the shape of a lay witness, Mrs Hall, who says she saw the deceased alive on the Saturday morning, and evidence from the distinguished pathologist Professor Crane which it is argued casts doubt on Dr Davies' evidence as a whole, including his evidence about the time of death. 20. We heard the evidence from Mrs Hall without ruling on whether we should receive it. We admitted the evidence of Professor Crane without objection from the Crown and heard briefly from him. We were also asked to admit further evidence from Miss Dawn Mapp, now Johnson, but refused to do so. She made a further statement in September 2002 saying that her first statement was correct and that she had been tricked or pressurised by police into making her second statement. This is not the sort of evidence which this court should admit on appeal. It involves an admission that the evidence which the witness gave at trial was untrue - to put it bluntly, she had committed perjury. This court is now asked to admit further evidence from her to explain why it was that she perjured herself in circumstances where the senior police officers involved deny her allegations about how she came to make her second statement. At best if we had admitted her evidence we would have been left with a series of contradictory statements, all of which had been made under the usual caution about the need to tell the truth, one of which had been made on oath, and another of which had been made in hotly disputed circumstances. Analysed in terms of section 23 of the Criminal Appeal Act 1968 such evidence does not appear to be capable of belief and for that reason we refused to receive it. 21. The evidence of Mrs Hall did not fall into this category. Although there may be good technical section 23 reasons for refusing to admit her evidence based on the fact that for tactical reasons the defence might not have wanted to rely on her evidence at trial, we do not think this is a good enough reason for refusing to receive it on this Reference, for the simple reason that it appears the defence were not aware of Mrs Hall's evidence at the time. What Mrs Hall told us was that she was seen several times by police officers in the days following the murder and that she made a written statement to them. This was a handwritten statement and she does not recall being asked to sign a typed copy, which is the usual police practice. This may explain why the police have not been able to produce any early statement from Mrs Hall and why, apparently, the defence, who it is accepted had unlimited access to the relevant police records before trial, did not come across any such statement either. 22. Mrs Hall lived with her husband and four children three doors down from the deceased whom she saw in the street almost every day. She also had an exacting job as a bingo caller working Mondays to Fridays 1.30 to 3.00 pm and then 6.30 to 9.00 pm, plus Sunday afternoons. She did not work on Saturdays. She says that on the Sunday, after returning from work, she was unable to park because of police vehicles and general commotion. At some time, which she cannot now remember, she learned of the murder; nor could she remember, although it must have been much later, when she first became aware of the significance of when it was she had last seen the deceased. At all events, she told us that she was sure that she had seen the deceased on the Saturday. That morning she had just come out of her house and was going up to the shop. As she went towards the shop the deceased came down from the direction of the shop. The deceased was wearing a beige mac which had an attached hood with fur around it and was bent down. Mrs Hall thought the deceased was going home. They passed one another on the path. "We just said 'hello'. I went to the shop which was two minutes up the road." This was late morning "around 11.00-ish, something like that. I went to work at about 1 o'clock." 23. There are a number of features about Mrs Hall's evidence which call for comment. First, she clearly told us that she went to work after seeing the deceased, but she did not work on Saturdays. When this was pointed out Mrs Hall did not seem to remember what she had said about going to work and then maintained that she had not done so because it was a Saturday. Next, in the first written statement by Mrs Hall, which we have seen which is dated 9th October 1991, she said that she had seen the deceased on the Saturday some time during late morning, early afternoon, and "I had seen Margaret come out of the front door of her house, walk up her garden path, from where she turned left and walked up the street towards the shop ... I did not actually see her face. I was satisfied that it was Margaret because the person that I had seen leaving the front door of her house had been wearing the same type of coat that Margaret Davies always wore." This is a significantly different account from the one she gave us of passing on the deceased on the path somewhere away from but going towards her home. To be fair to Mrs Hall in a statement made last year she said that the earlier statement was wrong. But wherever or whenever Mrs Hall last saw the deceased, she did not actually see her face. Finally, Mrs Hall told us she saw the deceased almost every day. She does not know when she first became aware of the significance of seeing her on the Saturday. 24. We should not, however, make our final assessment of Mrs Hall's evidence without first considering Professor Crane's evidence about the time of death. He was first asked to consider this case in 1998. In a letter to the Commission, which he sent in April 1998, after commenting on how one could calculate the time of death by various methods and that he had used such methods in this case, he said: "It would seem likely that death took place late Friday night or in the early hours of Saturday morning. That is during the period when Mr Williams did not have an alibi. Therefore on the basis of these calculations it seems a very remote possibility, if indeed even that, that Mrs Davies was still alive on the Saturday afternoon when she was allegedly seen by a witness." 25. In his reports and in his evidence yesterday Professor Crane stressed that a pathologist cannot give you a time of death with any degree of certainty. Body temperature is the best guide but it has to be taken accurately. Minor inaccuracy can significantly affect the assessment. It is taken rectally and this is often difficult. Mr Juckes, counsel for the appellant, argued that one could have no confidence in the temperature which Dr Davies took, given Professor Crane's other criticisms of his methods and conclusions to which we will come shortly. But we think there is no reason to doubt the accuracy of the temperature taken by Dr Davies. In a case such as this the approximate time of death is a vital piece of information to aid the investigation. An experienced pathologist, as Dr Davies was, will want to ensure that his assessment is based upon an accurate measurement and will have had much experience of overcoming the difficulties of taking the temperature. 26. So what it comes to is this. All three pathologists who have considered this case are agreed that it is unlikely that the deceased died after 6.00 am on the Saturday morning. Professor Crane yesterday said that he stood by the passage in his letter which we have quoted where he uses the words "very remote possibility, if indeed even that." 27. Looking at Mrs Hall's evidence in the light of the consensus between the pathologists, it is improbable that she saw the deceased at the time that she said she did, quite apart from her evidence suffering from the defects to which we have already referred. We make it clear that we do not think she is lying. She honestly believes she saw the deceased on the Saturday. But we think, for the reasons we have given, that she is mistaken about this. 28. At this point we must remind ourselves what this court's approach should be in a case where it has heard new evidence. That was clearly spelt out in R v Pendleton [2002] 1 Cr.App.R 441 at paragraphs 17, 18 and 19. Lord Bingham said that new evidence admitted by this court fell into three categories. The first was where the court concludes without doubt that the evidence cannot be accepted or cannot afford a ground for allowing the appeal. At the other extreme the evidence might conclusively lead to the appeal being allowed. In between lay the most difficult cases. Here, the court had to bear in mind that it was not and should never become the primary decision-maker. Its concern as an appeal court was with the safety of the conviction which was a decision of a jury. The Court of Appeal will have an imperfect and incomplete understanding of the full processes which led the jury to convict, so in making its assessment: " ... it will usually be wise for the Court of Appeal in the case of any difficulty to test their own provisional view by the asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might the conviction must be thought to be unsafe." 29. We must make this assessment in the light of all the new evidence and so there is one further aspect of Professor Crane's evidence to which we must refer. That is his evidence about whether the knife (exhibit 26) could have caused the six stab wounds found on the deceased's body. His view was that this was unlikely. The knife was not sharp or strong enough to have made them. The puncture wounds could have been made with the sharp tip of a knife, as well as by a needle. 30. Mr Juckes says that this evidence undermines the evidence which Dr Davies gave at trial, which added unjustified weight to the fact that the police had found exhibit 26 and the needle in the appellant's car. The impact of that evidence would have been considerably reduced if the jury had been told that it was unlikely that the knife had made the wounds. 31. We can well understand these submissions but Professor Crane's view has had to be formed without the obvious advantage of seeing the body. He has had to work from (as we understand it) photocopies of the mortuary photographs. Dr Knight was present at the trial. If he had really thought that Dr Davies had gone over the top about this, the defence could and would have called him. As it was, they were able strongly to challenge this part of his evidence for exactly the same reasons as those advanced by Professor Crane. 32. Mr Juckes further submitted that the scientific evidence about the trousers was very inconclusive and had been given in more assertive terms than such evidence would be given today. He also made a series of points similar to those made to this court in 1979 about the significance of the matters relied on by the Crown in support of their case. His overall submission was that this was a thin case to start with and the new evidence now made it one where this court should say that the conviction was unsafe. We have taken all these submissions into account in reaching our decision. 33. Like the court in 1979, we do not agree that this was a weak case. On the contrary, it was cumulatively a strong circumstantial case. The killer was known to the deceased. Either he got into the house with a key or she let him in. The way in which the deceased was killed suggested, as the trial judge said, "a remarkable degree of emotion, hatred or passion". The appellant had a strong and violent relationship with the deceased which had clearly not come to an end. The killer had obviously searched the deceased's papers in the hall but not been interested in anything else in the house. The appellant's address book was found at his parents' home and yet he had claimed that the deceased had taken it. His question "Was she on the bed?" when first told of her death was significant. His persistent lies about going to the chip shop in Grandstand Road were telling. This was very crucial if in fact he had gone from the Friar Tuck Chip Shop to the deceased's house. His explanation for the lie was unconvincing. The fact that he was found asleep in his car with the engine running the following morning, at a time when his employer was surprised to see him, added to the picture. There was no evidence that anyone else was suspected of the killing. 34. Against this background we do not think that the evidence of Mrs Hall or Professor Crane might reasonably have affected the trial jury's decision to convict. For the reasons we have given, supported as they are by the three pathologists' view of the time of death, we think the jury would, like us, have concluded that Mrs Hall must have been mistaken. Professor Crane's views about the knife would have added little to the evidence and argument which the jury already had. 35. We understand the strong feelings of those who believe that the appellant was wrongly convicted, but in this country we pride ourselves on our system of trial by jury and a jury's verdict should not lightly be set aside. The appellant was convicted after a full and fair trial, on what was strong circumstantial evidence. We do not think the new evidence would have affected the outcome. So we conclude that the conviction was safe and that this appeal must therefore be dismissed.	{"ConvCourtName":["Worcester Crown Court"],"ConvictPleaDate":["1977-12-05"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Worcester Crown Court"],"Sentence":["Life imprisonment"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[44],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[40],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Pathologist testimony","Circumstantial evidence","Scientific evidence (fabric pattern)","Witness testimony"],"DefEvidTypeTrial":["Alibi claim","Expert report/testimony","Offender denies offence"],"PreSentReport":[],"AggFactSent":["Violent and frenzied killing","Previous assault on victim","Breach of bail condition"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["New evidence (time of death and weapon)","Jury may have been misled by expert evidence"],"SentGuideWhich":["section 9 of the Criminal Appeal Act 1995","section 44A of the Criminal Appeal Act 1968","section 23 of the Criminal Appeal Act 1968"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["New evidence would not have affected the jury's decision","Consensus of pathologists on time of death","Circumstantial case was strong","Jury's verdict was safe"]}
Case No: 201404543 A8 Neutral Citation Number: [2015] EWCA Crim 960 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING MRS RECORDER ARBUTHNOT Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/06/2015 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES THE RIGHT HONOURABLE LORD THOMAS OF CWMGIEDD MR JUSTICE MITTING and MR JUSTICE LEWIS - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - THAMES WATER UTILITIES LTD - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR RICHARD HONEY AND MISS ALISON PRYOR (who did not appear at the Crown Court) (instructed by BERWIN LEIGHTON PAISNER LLP ) for the Appellant MR BARRY BERLIN AND MRS ROOMA HOREESORUN (instructed by THE ENVIRONMENT AGENCY ) for the Crown Hearing date: 18 FEBRUARY 2015 - - - - - - - - - - - - - - - - - - - - - Judgment MR JUSTICE MITTING This is the judgment of the Court to which we have all contributed. Facts 1. Between 29 August 2012 and 4 September 2012 untreated sewage was discharged from Broadlayings Sewage Pumping Station into the Chase Brook which flows through a 143 acre nature reserve owned by the National Trust in the North Wessex Downs Area of Outstanding Natural Beauty. The discharge occurred otherwise than under and to the extent permitted by an environmental permit. An offence was therefore committed, contrary to Regulations 38(1)(a) and 39(1) Environmental Permitting (England and Wales) Regulations 2010. Thames Water Utilities Limited (the Appellant), as the operator of the pumping station, was culpable. 2. On 18 July 2014 the Appellant pleaded guilty to that offence at the first opportunity at Reading Magistrates’ Court. It was committed to the Crown Court for sentence. 3. On 29 August 2014 at Reading Crown Court, Mrs. Recorder Arbuthnot imposed a fine of £250,000 plus a victim surcharge of £120 and ordered the Appellant to pay costs of £6,887.48. 4. The Appellant appeals, with the permission of the single judge, against the amount of the fine only. 5. The function of Broadlayings Sewage Pumping Station was to receive untreated sewage from the surrounding area and from another upstream pumping station and to pump it to a downstream pumping station and thence to a sewage treatment works. Sewage was pumped by two pumps submersed in a “wet well”. The cause of the discharge was the failure (by tripping) of both pumps. In consequence, sewage was not pumped to the downstream pumping station but discharged directly into the Chase Brook. The cause of the failure of the pumps was well known: they became clogged with “rag” inappropriately discarded into the sewage system by domestic and other users. When this occurred, an alarm was triggered which alerted the Appellant’s staff to the failure. The Appellant laid down a response time to the failure of one pump of 24 hours and to the failure of both, manifested by the triggering of an alarm which signified that the liquid level in the wet well was rising, of four hours. In the five months before the incident, there had been at least 16 instances of failure of one or both of the pumps. Each incident was recorded in the Appellant’s log. 6. On 29 August 2012 alarms signifying pump failure were triggered on 12 occasions between 7.20 am and 8.50 am. The alarms indicated that both pumps had failed and that the water level in the wet well was high. The Appellant’s staff did not respond to the alarms on 29 August 2012 or at all. Further alarms were triggered on 4 September 2012 between 1.17 am and 2.57 am. Again, there was no response. The discharge was first discovered by a member of the public walking in the Chase, who reported it to the National Trust who, in turn, reported it to the Appellant. Once notified, the Appellant’s staff attended and unblocked the pumps. 7. Soon afterwards the pumps were replaced by newer pumps with a more robust specification better able to cope with the ingestion of rag. 8. In her sentencing remarks, the Recorder said this: “The Crown and Thames Water agree that the culpability of Thames Water can be described as negligence. I agree with that assessment on the basis that the company had had a number of warnings that the pumps were breaking down. They were close to a very special nature site and they should have replaced the pumps before they had to in September after the sewage had run into the brook.” A central issue in this appeal is whether or not she was entitled to reach those conclusions. Application to admit fresh evidence - principles 9. The Appellant seeks permission to adduce fresh evidence pursuant to s.23 of the Criminal Appeals Act 1968, for the stated purpose of correcting what are claimed to be errors of fact. The principal errors are said to be contained in the passage cited; but the application is not limited to them. The fresh evidence is contained in witness statements made by Nigel Membury, Christopher Ralph and Helen Newman which, together with appendices, run to 119 pages. As well as the stated purpose, they seek to demonstrate that the Appellant is a responsible organisation which conscientiously discharges its duties to the wider community. 10. The application raises questions as to the circumstances in which fresh evidence may be adduced on a sentence appeal. If the evidence is in essence fresh information about the offender, a court will normally not require the conditions and formalities of the governing statutory provision, s.23 of the Criminal Appeals Act 1968, to be complied: see R v Roberts [2007] 1 WLR 1109 at [44]. However outside that limited area, the provisions of s.23 must be met: see Beesley, Coyle and Rehman [2012] 1 Cr App R (S) 15 at [33] – [36]. Under s.23(1) the Court may receive evidence not admitted in proceedings from which the appeal lies if the court thinks it necessary or expedient in the interests of justice. The factors to which it must have regard are those set out in s.23(2), “The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to – (a) whether the evidence appears to the court to be capable of belief; (b) whether it appears to the court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.” 11. In addressing those factors, in particular that identified in s.23(2)(d) in a sentence appeal, the court will have regard to CrimPD VII B – Determining the Factual Basis of Sentence. The relevant paragraphs are as follows: “B.6 A defendant may put forward a plea of guilty without accepting all of the facts as alleged by the prosecution. The basis of plea offered may seek to limit the facts or the extent of the offending for which the defendant is to be sentenced. Depending on the view taken by the prosecution and content of the offered basis, the case will fall into one of four categories… (a) A plea of guilty upon a basis of plea agreed by the prosecution and defence. B.7 The prosecution may reach an agreement with the defendant as to the factual basis on which the defendant will plead guilty, often known as an “agreed basis of plea”. It is always subject to the approval of the court, which will consider whether it adequately and appropriately reflects the evidence as disclosed on the papers, whether it is fair and whether it is in the interests of justice. B.8 R v Underwood …outlines the principles to be applied where the defendant admits that he…is guilty, but disputes the basis of offending alleged by the prosecution; (a) The prosecution may accept and agree the defendant’s account of the disputed facts or reject it in its entirety, or in part; if the prosecution accepts the defendant’s basis of plea, it must ensure that the basis of plea is factually accurate and enables the sentencing judge to impose a sentence appropriate to reflect the justice of the case; (b) In resolving any disputed factual matters, the prosecution must consider its primary duty to the court and must not agree with or acquiesce in an agreement which contains material factual disputes; (c) If the prosecution does accept the basis of plea, it must be reduced to writing, be signed by advocates for both sides, and made available to the judge prior to the prosecution’s opening; (d) An agreed basis of plea that has been reached between the parties should not contain matters which are in dispute and any aspects upon which there is not agreement should be clearly identified. B.11 Where the defendant pleads guilty, but disputes the basis of offending alleged by the prosecution and agreement as to that has not been reached, the following procedure should be followed; (a) The defendant’s basis of plea must be set out in writing, identifying what is in dispute and must be signed by the defendant; (b) The prosecution must respond in writing setting out their alternative contentions and indicating whether or not they submit that a Newton hearing is necessary; (c) The court may invite the parties to make representations about whether the dispute is material to sentence; and (d) If the court decides that it is a material dispute, the court will invite such further representations or evidence as it may require and resolve the dispute in accordance with the principles set out in R v Newton .” 12. In environmental pollution cases, it is now routine for the Crown to produce a “ Friskies” schedule of aggravating and mitigating factors ( R v. Friskies Petcare (UK) Limited [2000] 2 CAR (S) 401). As from 23 July 2014 this practice is expressly endorsed by the Practice Direction: [2014] 1 WLR 3001 at 3019. Q.3 deals with a case in which the offence is of a character or against a prohibition with which the sentencing court is unlikely to be familiar, “…Save where the circumstances are very straightforward, it is likely that justice will best be served by the submission of the required information in writing: see R v. Friskies Petcare (UK) Limited…. Though it is the prosecutor’s responsibility to the court to prepare any such document, if the defendant pleads guilty, or indicates a guilty plea, then it is very highly desirable that such sentencing information should be agreed between the parties and jointly submitted. If agreement cannot be reached in all particulars, then the nature and extent of the disagreement should be indicated. If the court concludes that what is in issue is material to sentence, then it will give directions for resolution of the dispute, whether by hearing oral evidence or by other means…” Case at first instance 13. The Practice Direction and the “ Friskies ” procedure were followed by the prosecution. In late June 2014 in advance of the hearing before the Magistrates’ Court, they served a detailed 20 page case summary in which their contentions about the cause and effect of the sewage discharge and on the Appellant’s culpability were fully set out. A “ Friskies ” schedule set out two agreed aggravating factors and nine agreed mitigating factors. One aggravating factor was identified by the prosecution which was not agreed by the Appellant, “3. Financial decisions may have been partly responsible for this incident as work to improve, upgrade or replace the two pumps at Broadlayings SPS would have had costs associated with them. In this instance Thames Water deemed it more effective to attend site and resolve each blockage as they occurred through activities being raised following activation of alarms.” Counsel for the prosecution opened the case to the Recorder on the basis of the facts and contentions set out in the case summary. The Appellant relied on a witness statement by Richard Aylard, External Affairs and Sustainability Director, which expanded upon the agreed mitigating factors. 14. Both sides rightly accepted that the step-by-step approach set out in the Sentencing Council’s definitive guideline on environmental offences should be followed. The prosecution case was that the harm caused by the incident fell within category 2, because it had a significant adverse effect on water quality, amenity value and animal health; and that culpability fell into the negligent category: “Failure by the organisation as a whole to take reasonable care to put in place and enforce proper systems for avoiding commission of the offence.” 15. In paragraph 16 of the case summary, the prosecution identified failings in the pumps revealed by the Appellant’s records, “ ● Between 20/04/2012 and 04/09/2012 Thames Water attended Broadlayings SPS on 16 separate occasions to unblock both pumps and on a further three occasions to unblock a single pump. ● Between 21/06/2012 and 29/06/2012 Thames Water attended the Broadlayings SPS for three separate multiple pump failures and to unblock both pumps. ● On 31/07/2012 both pumps were pulling over-amps even when they had just been unblocked, and that pump number one was missing a ware ring (component of pump) with numerous quotes for spares raised over the past six months. Another job was raised for a new impellor (creates flow through pump) and ware ring that day. ● On the 04/09/2012 as part of the response to the pollution incident another job was raised for new impellors and ware rings for the SPS.” 16. The thrust of Mr. Aylard’s witness statement was that the Appellant took its duties seriously. It explained the cause of the blockage (rag deposited in the sewage system), what had been done to put it right and what expense the Appellant had incurred in consequence. The expense included a sum which the Appellant was under no legal liability to incur: funding a National Trust community warden for three years at a cost of £90,000. The statement also contained a balanced and detailed explanation of the financial and regulatory environment in which it undertook its activities. 17. Significantly, Mr. Aylard’s statement did not dispute the proposition that the pumps required replacement before September 2012. In paragraph 3 he acknowledged “the severity of the incident and the need to do more to seek to reduce the risks of incidents such as this from occurring in the future”. In paragraphs 11 and 12 he explained what had been done about the pumps, “11. The station pumps were replaced shortly after the incident with models less susceptible to blocking by rag. 12. The emergency overflow into the Chase Brook has been sealed and a bunded area created around the pumping station….While we are confident that the actions we have taken will prevent failures of this kind from happening again, the bunding provides a further level of protection.” 18. The thrust of the mitigation advanced by Mr. Bunyan, counsel for the Appellant, in oral submissions was that the harm caused by the offence fell within Category 3, not Category 2. When the Recorder indicated that she thought that it was a Category 3 case, albeit at the top end of the category, he said that he would not “take it any further”. 19. He also expressly accepted on three occasions that culpability was correctly categorised as negligent, though he laid emphasis on the failure to respond adequately to the alarms triggered when the pumps failed and disclaimed any failure by the organisation to put proper systems in place. 20. During the course of Mr. Bunyan’s submissions, the Recorder put to him her principal concern about the cause of the incident and the Appellant’s responsibility for it, to which she got an unequivocal reply, as the following exchange demonstrates: “The Recorder: I think the biggest problem is the fact that you had all these warnings that the parts were not operating properly, and I think that 16 or more – I think it is more than 16 – you know, is an indication that something should have been done rather sooner. Mr. Bunyan: Well, I do not think…. The Recorder: I am not sure it makes all that much difference, but that is my view. Mr. Bunyan: No, in fairness, I do not think the company would disagree with that.” 21. On the basis of all of that material, the Recorder was, in our view, plainly entitled to conclude that, i) The Appellant’s culpability was correctly categorised as negligence. ii) The Appellant’s negligence lay in failing to replace failing pumps before September 2012 and in failing to respond timeously or at all to the pump alarms. Fresh evidence - decision 22. Mr. Honey, who did not appear for the Appellant below, seeks to challenge those findings apart from the finding about the response to the alarms. On the material before the Recorder, he argues that the only failure in the pumps was a missing ware ring and that the admitted negligence was not, as Mr. Bunyan conceded, a “failure by the organisation as a whole to take reasonable care to put in place and enforce proper systems for avoiding commission of the offence”. We reject those submissions. Nobody has suggested at any stage in the proceedings that the missing ware ring had any causative effect on the failure of the pumps. Its significance was that it demonstrated sloppiness in maintaining the pumps, an attitude consistent with the Recorder’s finding that they should have been replaced sooner. Further, the two failings identified by the Recorder did demonstrate a failure by the Appellant as a whole to take reasonable care to put in place and enforce proper systems for avoiding the commission of the offence. 23. In an effort to persuade this court to reach a different conclusion from that in effect conceded by the Appellant at the sentencing hearing, it seeks to rely on the witness statement of Nigel Membury dated 7 November 2014. The central paragraphs of his statement are 18 – 23 and 32. “18. In order to clear full rag blockages it is always necessary to attend site and physically unblock pumps. 19. In relation to Broadlayings SPS, this process had worked well previously, ensuring that blockages were cleared without any problem. There had been no particular problem with this SPS prior to this incident, as is shown by the maintenance records, which show a level of blockages which is not abnormally high and which are normally cleared without incident. 20. The is no general problem with C type pumps, as they are perfectly adequate at dealing with rag and pumping sewage, and there is no reason to seek to replace these pumps. C type pumps are widely used in thousands of SPSs across the water industry. These types of pumps are preferred as they only have one leading edge where solids can attach themselves…. 21. The blockages occurring in the period of April to September 2012 were entirely normal in terms of frequency and are not indicative of any particular problem with this SPS. The blockage rate for this SPS is not unusual. For reasons unknown, there seems to be a lot of rag, rubble and brick debris in the network in this area, which all flows into the SPS. The management regime for this SPS was appropriate for these circumstances. 22. There was no underlying problem or deficiency with the pumps at this SPS. The Crown Court findings that: (1) “The company had had a number of warnings that the pumps were breaking down”; (2) Thames Water “should have replaced the pumps” before September 2012 (transcript at 32E) and (3) “had plenty of warning that the pumps were faulty” (transcript at 33E) are unfounded. 23. On (1) it is wrong to say that the pumps were “breaking down” as the pumps at this SPS did not have any operational problems. It is an inevitable consequence of having to deal with the content of modern day sewage that pumps will from time to time become blocked by rag, but this does not mean that they were “breaking down” – the normal outcome of a reported blockage is that the blockage is cleared and the pumps are returned to full working operation quickly and without incident. On (2) there was no need to replace the pumps as there was no problem with this SPS prior to this incident. On (3) the pumps were not faulty, and were brought back to full operation once the blockages had been cleared on all of the previous occasions between April and September 2012…. 32. Action was taken following the incident to replace the existing C type pumps with N type pumps which are even less susceptible to blocking. This was done not because the C pumps required replacing, but on a precautionary basis, as a “belt and braces” approach with the aim of reducing the risk of repeat incidents in the area.” 24. We indicated at the conclusion of submissions on the admission of new evidence that we would not receive Mr. Membury’s witness statement under s.23. Our reasons for doing so can be simply stated. For the reasons which we have explained above, the case was conducted at the sentencing hearing by both sides on the basis that the Recorder could properly conclude that the pumps required replacement before September 2012. If the Appellant wished to demonstrate that that was not so, by evidence of the type given by Mr. Membury, it could and should have set it out in a basis of plea as required by B.11(a) of the Practice Direction, so that the prosecution were alerted to the need to deal with the issue. Further, it could and should have put in evidence to support its case. Had it done so, it might have been the subject of detailed inquiry and challenge by the prosecution in the light of the disputed aggravating feature cited above, not necessarily to the Appellant’s advantage. The Appellant cannot now invite this court to consider the penalty imposed on it in the light of a case which it did not advance at the sentencing hearing. 25. The facts of this case emphasise the importance, both for the parties and the sentencing court, of complying strictly with the requirements set out in the Practice Direction. It can only be in the rarest of circumstances, far removed from the facts of this case, that this court would permit an Appellant in this type of case to advance a case on appeal which was not fully deployed below. 26. Various other alleged errors in the Recorder’s sentencing remarks are identified in the Appellant’s grounds of appeal and referred to in the witness statement of Mr. Ralph. While not resiling from them, Mr. Honey did not advance any oral submission about them. We can, accordingly, deal with them shortly. Mr. Ralph challenges the prosecution case that the discharge caused the death of a significant number of macro-invertebrates (spineless creatures visible to the naked eye, such as crayfish). He says that the cause was lack of water, not pollution. If, which we doubt, this was an issue of any importance, it should have been raised at the sentencing hearing. He criticises the Recorder for mis-identifying the Chase Brook as a “specially protected body of water” and the site into which the sewage was discharged as a “very special nature site”. None of this matters at all. Sewage was discharged into the Brook before it reached the Alder Carr, a patch of marshland which was a sensitive site. He also draws attention to the fact that, according to a report prepared for the Appellant on 19 October 2012 recovery within the Chase Brook took six weeks, whereas the Recorder said that the worst of the pollution had been removed within two weeks with a complete recovery within six months. None of this could possibly have influenced the level of the fine imposed. If it was material at all, it should have been raised at the sentencing hearing. 27. The witness statement of Helen Newman adds nothing material to that of Mr. Aylard. 28. For the reasons given, we decline to receive the evidence of Mr. Ralph and Ms. Newman under s.23. Sentencing 29. This was the first case of its kind to have come before a court since the Sentencing Council’s definitive guideline came into effect. The Recorder was faced with a difficult sentencing decision, only partly informed by the contents of the guideline. The guideline proposes a step-by-step approach to calculation of a fine based upon the degree of culpability of the offender and the harm caused by the offence and upon the size of the offending organisation, assessed by reference to its turnover. Organisations are divided into four categories, micro, small, medium and large. Large organisations are identified as those with a turnover or equivalent of “£50 million and over”. The Council, however, makes it clear that the starting points and range of fines suggested do not apply to very large organisations. Step 4 of the guidance states, “Very large organisations Where a defendant company’s turnover or equivalent very greatly exceeds the threshold for large companies, it may be necessary to move outside the suggested range to achieve a proportionate sentence.” This is consistent with step 6, “Check whether the proposed fine based on turnover is proportionate to the means of the offender.” The approach to be adopted is set out in the text: “The combination of financial orders must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to improve regulatory compliance. It will be necessary to examine the financial circumstances of the organisation in the round. If an organisation has a small profit margin in relation to its turnover, downward adjustment may be needed. If it has a large profit margin, upward adjustment may be needed.” 30. The Recorder correctly recognised that the Appellant fell into the very large category of organisation: its turnover was £1.9 billion and profit for the year ending 2014, £346 million. Her solution to the problem was to multiply the starting point for a negligent Category 3 case - £60,000 for a large company – by five to £300,000 and the range - £35,000 - £150,000 – to £175,000 to £750,000. She did so by extrapolating the incremental increases between micro, small, medium and large companies set out in the guidelines. Taking into account the mitigating factors and the Appellant’s plea of guilty at first opportunity, she arrived at a figure of £250,000. She did not explain the mathematical exercise, if any, undertaken to reach that outcome, but it is reasonable to suppose, that but for the mitigating factors and prompt plea of guilty, the fine which she would have imposed would have been not less than £500,000. 31. Mr. Honey submits that, by the approach which she adopted, the Recorder has established a new category of penalties in the case of very large companies which is not sanctioned by the Sentencing Council or by statute. Mr. Berlin, for the Environment Agency, does not seek to support a mechanistic approach to the assessment of fines on very large companies. Since the hearing of the appeal, we have received written submissions from the parties as to the approach which the court might adopt. We are grateful for those submissions. Although in our conclusions which we set out below, we set out the approach that should have been taken, we have very substantial sympathy for the position in which the Recorder was placed. 32. Before we turn to our conclusions, we deal with one further criticism by Mr. Honey of the Recorder’s approach to sentencing. As we have noted, the Appellant agreed to pay for a National Trust warden for three years at a cost of £90,000. The Recorder acknowledged this by stating that, “Thames Water have given some voluntary compensation, in that they have financed a warden for three years and that compensates the public to some extent and also the National Trust for the lack of the use of the facilities for the time that they could not go to the Brook and areas nearby.” Mr. Honey submits that the Recorder mischaracterised the payment as “compensation” a word which suggested that it was monetary recompense for a civil wrong done and should have used the word “reparation”, the word used by Sweeney J in R v. Thames Water Utilities Ltd [2010] 3 AER 47 at paragraph 53. There is nothing in this point. “Reparation” is, in any event, a synonym for compensation. The Recorder did not fall into error by referring to compensation. What matters is that the payment is voluntary and goes beyond what is required to discharge a civil obligation. This the Recorder identified by the words that she used. The approach to be adopted in the case of very large commercial organisations run for profit 33. The starting point of the approach to be adopted for very large commercial organisations run for profit is the statutory provision for all offenders in ss.142, 143 and 164 of the Criminal Justice Act 2003, as summarised in paragraph 3 of R v. Sellafield Limited [2014] EWCA Crim 49 “ The general principles 3. It is important at the outset to recall the provisions which Parliament has enacted in the Criminal Justice Act 2003 (CJA 2003) in relation to the duty of the courts in sentencing, as these principles are applicable to all offenders, including companies: i) The courts must have regard in dealing with offenders to the purposes of sentencing which Parliament specified as (a) the punishment of offenders (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making or reparation by offenders to persons affected by their offences (s.142 of the CJA 2003). ii) In considering the seriousness of the offence the court must have regard to the culpability of the offender and the harm caused or which might foreseeably be caused (s.143 of the CJA 2003). iii) If a court decides on a fine it must approach the fixing of fines having regard not only to the purposes of sentencing and the seriousness of the offence, but must also take into account the criteria set out in s.164 of the CJA 2003: (1) Before fixing the amount of any fine to be imposed on an offender who is an individual, a court must inquire into his financial circumstances. (2) The amount of any fine fixed by a court must be as such as, in the opinion of the court, reflects the seriousness of the offence. (3) In fixing the amount of any fine to be imposed on an offender (whether an individual or other person), a court must take into account the circumstances of the case including, among other things, the financial circumstances of the offender so far as they are known, or appear, to the court. (4) Subsection (3) applies whether taking into account the financial circumstances of the offender has the effect of increasing or reducing the amount of the fine.” 34. As in every case, an assessment must be made of the seriousness of the offence. This is to be done be applying the guidance given in steps 3 and 4 of the Sentencing Council’s definitive guideline on environmental offences. 35. The factors taken into account in steps 5 – 11 should also be followed, save where irrelevant, for example, the proviso relating to public or charitable bodies in step 7. It is of particular importance in the case of such very large commercial organisations to take into account the financial circumstances of the offender as required by s.164 of the CJA 2003. This should ensure that the penalty imposed is not only proportionate and just, but will bring home to the management and shareholders the need to protect the environment. 36. The Court is not bound by, or even bound to start with, the ranges of fines suggested by the Sentencing Council in the cases of organisations which are merely “large”. 37. Mr. Berlin, for the Crown, suggests that an organisation should be treated as being “very large” if its turnover exceeds £150 million per year on a three–yearly average. We do not think there is any advantage to be gained by such a definition. In the case of most organisations, it will be obvious that it either is or is not very large. Doubtful cases must be resolved as and when they arise. 38. The object of the sentence is to bring home the appropriate message to the directors and shareholders of the company: Sellafield paragraph 6 and step 6 of the Guideline. Sentences imposed hitherto in a large number of cases have not been adequate to achieve that object. This Court has on two occasions observed that it would not have interfered with fines “very substantially greater” or “significantly greater” than six figure fines imposed for environmental offences: R v. Southern Water Services Limted [2014] EWCA Crim 120 paragraph 21 and R v. Day [2014] EWCA Crim 2683 paragraph 46. 39. Previous convictions will always be relevant aggravating features and in the case of some, seriously aggravating features. Relatively limited weight may be given to offences committed with low or no culpability (in the Sentencing Council’s definition in step 3); but offences which result from negligence or worse should count as significantly more serious. Repeated operational failures – suggestive of a lack of appropriate management attention to environmental obligations – fall into this category. For example, to bring the message home to the directors and shareholders of organisations which have offended negligently once or more than once before, a substantial increase in the level of fines, sufficient to have a material impact on the finances of the company as a whole, will ordinarily be appropriate. This may therefore result in fines measured in millions of pounds. 40. The court should therefore: i) In the worst cases, when great harm exemplified by Category 1 harm has been caused by deliberate action or inaction, the need to impose a just and proportionate penalty will necessitate a focus on the whole of the financial circumstances of the company. We have already outlined the approach by reference to the guideline – starting with turnover, but having regard to all the financial circumstances, including profitability. In such a case, the objectives of punishment, deterrence and the removal of gain (for example by the decision of the management not to expend sufficient resources in modernisation and improvement) must be achieved by the level of penalty imposed. This may well result in a fine equal to a substantial percentage, up to 100%, of the company’s pre-tax net profit for the year in question (or an average if there is more than one year involved), even if this results in fines in excess of £100 million. Fines of such magnitude are imposed in the financial services market for breach of regulations. In a Category 1 harm case, the imposition of such a fine is a necessary and proper consequence of the importance to be attached to environmental protection. ii) In the case of a Category 1 case resulting from recklessness, similar considerations will apply, albeit that the court will need to recognise that recklessness is a lower level of culpability than deliberate action or inaction. iii) Where the harm caused falls below Category 1, lesser, but nevertheless suitably proportionate, penalties which have regard to the financial circumstances of the organisation should be imposed. In an appropriate case, a court may well consider, having regard to the financial circumstances of the organisation, that to achieve the objectives in s.143 of the CJA 2003, the fine imposed must be measured in millions of pounds, as we have already indicated. iv) In the case of such an organisation, there must not be a mechanistic extrapolation from the levels of fine suggested at step 4 of the guideline for large companies. This is made clear by (1) the fact that by definition a very large commercial organisation’s turnover very greatly exceeds the threshold for a large company, and (2) the requirement at step 6 of the guideline to examine the financial circumstances of the organisation in the round. 41. It is axiomatic that all relevant mitigating features must be taken into account. In environmental pollution cases these will include prompt and effective measures to rectify the harm caused by the offence and to prevent its recurrence, frankness and co-operation with the authorities, the prompt payment of full compensation to those harmed by the offence, and a prompt plea of guilty. In addition, significant expense voluntarily incurred – so-called “reparation” – in recognition of the public harm done should be taken into account in the manner explained in R v. Thames Water Utilities Limited [2010] EWCA Crim 202 at paragraph 53. Clear and accepted evidence from the Chief Executive or Chairman of the main board that the main board was taking effective steps to secure substantial overall improvement in the company’s fulfilment of its environmental duties would be a significant mitigating factor. 42. In the case of a large statutory undertaker, such as the Appellant, no amount of management effort can ensure that no unauthorised discharge can ever occur. In the case of an offence which causes no harm and which occurs without fault on the part of the undertaker, it would be difficult to justify a significant difference in the level of fine imposed on two very large organisations, merely because the infrastructure and turnover of one was twice as large as that of the other. Size becomes much more important when some harm is caused by negligence or greater fault. Even in the case of a large organisation with a hitherto impeccable record, the fine must be large enough to bring the appropriate message home to the directors and shareholders and to punish them. In the case of repeat offenders, the fine should be far higher and should rise to the level necessary to ensure that the directors and shareholders of the organisation take effective measures properly to reform themselves and ensure that they fulfil their environmental obligations. Application of those principles to the facts of this case 43. The essential facts of this case have been described above. It was a case in which negligence caused localised harm. 44. The record of the offender was highly relevant. Since 1991, the Appellant has been convicted on 106 occasions of 162 environmental offences. For the purpose of determining an appropriate sentence for this offence, it would be desirable to distinguish between those past offences which resulted in little or no harm and occurred without fault on the part of the Appellant and those in which negligence caused harm. It is unfortunately not possible to state with certainty into which category of the Sentencing Council’s guideline each offence would have been put if the guideline had applied at the time. A reasonable proxy for more serious offences – those in which at least some harm was caused by negligence – is the number of occasions on which fines greater than the maximum which could have been imposed by a Magistrates’ Court for a single environmental offence until 6 April 2010 (£20,000) were imposed. From 1999 until 29 August 2014 there were 16 such occasions – just over one per year. In the four years before 29 August 2014, there were four. This record does not suggest routine disregard of environmental obligations by the Appellant, but it does leave room for substantial improvement. 45. But for the explanation given by Mr. Aylard to the Court in his witness statement of 27 August 2014, a combination of the facts of the offence and what can be extracted from the Appellant’s record would, in our view, have required the Court to take a starting point for a fine significantly into seven figures. Mr. Aylard’s explanation of what the main board has done to address the risk of environmental pollution from the Appellant’s activities did show that they took it seriously and were spending substantial sums to modernise and improve their infrastructure. That went some way to justifying a starting point as low as that impliedly selected by the Recorder. Recent offences suggest that the steps taken by the Appellant may not have been sufficient and may, in the immediate future, require substantially higher fines to be imposed for similar offences. In 2014 alone, fines of £75,000, £250,000 and £100,000 have been imposed for environmental pollution offences. If, as is likely, the first and last (like the second) represent incidents in which some harm has been caused by negligence, the Appellant’s recent record suggests that the appropriate message has not fully struck home. 46. In his written submissions Mr. Berlin suggested that the fine actually imposed by the Recorder was lenient. While we have every sympathy for the difficulty facing the Recorder, we agree that it was, even taking into account the significant mitigation afforded by Mr. Aylard’s evidence. We would have had no hesitation in upholding a very substantially higher fine. This appeal is dismissed. Concluding observation 47. Sentencing very large organisations involves complex issues as is clear from this judgment. It is for that reason that special provision is made for such cases in Crim PD XIII, listing and classification. Such cases are categorised as class 2 C cases and must therefore be tried either by a High Court Judge or by another judge only where either the Presiding Judge has released the case or the Resident judge has allocated the case to that judge. It is essential that the terms of this Practice Direction are strictly observed.	{"ConvCourtName":["Reading Magistrates’ Court"],"ConvictPleaDate":["2014-07-18"],"ConvictOffence":["Offence contrary to Regulations 38(1)(a) and 39(1) Environmental Permitting (England and Wales) Regulations 2010 (unauthorised discharge of untreated sewage)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first opportunity"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Reading Crown Court"],"Sentence":["£250,000 fine","£120 victim surcharge","£6,887.48 costs"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":["National Trust (nature reserve)"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Case summary","Friskies schedule","Maintenance records","Witness statement (Richard Aylard)"],"DefEvidTypeTrial":["Witness statement (Richard Aylard)","Oral submissions by counsel"],"PreSentReport":[],"AggFactSent":["Previous convictions for environmental offences (106 occasions of 162 offences since 1991)","Repeated pump failures prior to incident"],"MitFactSent":["Prompt and effective measures to rectify harm","Voluntary payment for National Trust warden (£90,000)","Plea of guilty at first opportunity","Cooperation with authorities"],"VicImpactStatement":[],"Appellant":["Appellant"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Recorder erred in approach to sentencing for very large companies","Recorder mischaracterised payment as compensation rather than reparation","Errors of fact in sentencing remarks"],"SentGuideWhich":["Sentencing Council’s definitive guideline on environmental offences","Criminal Justice Act 2003 ss.142, 143, 164"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Recorder’s approach was justified and supported by the facts and guidelines","Fine was lenient, not excessive","No error in Recorder’s use of 'compensation'","Appellant’s arguments not advanced at sentencing could not be raised on appeal"]}
No: 2009/2969/A6 Neutral Citation Number: [2009] EWCA Crim 1915 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 23 September 2009 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE UNDERHILL MR JUSTICE IRWIN - - - - - - - - - - - - - - - - R E G I N A v MICHAELA BRITTON - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - Mrs M Smullen appeared on behalf of the Appellant Mr R Gursoy appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: On 20th November 2008 at the Crown Court at Chelmsford, the applicant was convicted of conspiracy to pervert the course of justice. The indictment read as follows. The applicant and Paul Hendle, "between the 1st day of February 2006 and the 2nd day of August 2006, conspired together and with others unknown by falsely claiming to Essex Police and the West Midlands Police that they had been the victim of indictable offences and placed persons in jeopardy of arrest or criminal prosecution by such false allegations with intent to pervert the course of justice." The applicant was convicted after a trial lasting some four weeks, during which time the trial judge, His Honour Judge Turner QC, had ample opportunity to make an assessment of her criminality. 2. We should say that there was a considerable delay between the end of the indictment period and the trial, but that as we understand it was the responsibility of the applicant herself to the extent that she was able to convince the court on a number of occasions that she was not fit enough to attend her trial. Part of the delay was also caused, so we are told by counsel for the respondent, Mr Gursoy, by the fact that she changed her counsel. 3. The applicant was sentenced to four years' imprisonment on 22nd December 2008 with a direction under section 240 of the Criminal Justice Act 2003 that 160 days on remand should count towards the sentence. Today she has been, if we may say so, very ably represented by Mrs Smullen who did not conduct the trial. Mrs Smullen has said everything that could possibly be said to assist the applicant in this application. There is also an application for an extension of time which we grant. The application for leave to appeal has been referred to the full court by the Registrar. 4. Paul Hendle pleaded guilty to conspiracy to pervert the course of justice and was sentenced to 12 months' imprisonment, less 355 days on remand. 5. Taking the facts broadly, during a five month period in 2006 the applicant made a series of false allegations to the police. She claimed that she had been burgled, blackmailed, kidnapped on at least two occasions, raped and attacked with a knife. She further alleged that police officers were behind the various offences committed against her. A schedule, which the judge accepted, showed that the various investigations took some 7,000 hours of police time and cost some £316,000. 6. One of the false allegations involved the applicant reporting that her car had been shot at by a motor cyclist. Paul Hendle admitted that he had done this so that the police would think that the applicant had actually been threatened. He said it had been her idea. The applicant also said she had information about the police acting corruptly in relation to a murder investigation in 1994 and that she had been targeted by police officers to silence her. There is some suggestion in the papers that she was motivated by the prospects of financial gain, but Mrs Smullen submits, and we accept, that that was likely only to apply to one or two of the matters being reported to the police. 7. On 27th February she made a false allegation that her home had been burgled. On 14th April police officers received a call from the applicant's daughter. She said the applicant was in difficulty and said where her mother could be located. Armed police officers found the applicant tied up in a car. She was hysterical and said she had met the blackmailers but the police found she was still in possession of the keys to the car and her mobile phone. Her daughter was arrested at that time on suspicion of involvement with her mother in wasting police time. Indeed, the applicant was charged with wasting police time shortly thereafter. 8. We refer to some of the other incidents. The applicant reported being stabbed in the arm. She told officers who attended that she had been stopped by what appeared to be a police car, that four men had showed what appeared to be police badges and that one of them had slashed her arm with a knife. On 27th May the applicant went to a house on an isolated lane and claimed that she had been raped twice during an attack by people with a knife. Her bra was ripped, there was tape on her hands and a bandage on her arm. Her car was found nearby. On 21st June the applicant claimed she had been kidnapped. She refused to hand over her mobile phone to the police but when it was analysed it showed that she had made a large number of calls during the time she claimed to have been kidnapped, but not one of those calls had been made to the police. By now the police were carrying out surveillance on her house and her account was contradicted by CCTV evidence. 9. When she was interviewed she denied the offence. She said at the end of that interview: "You haven't helped me from the start, you haven't helped me at the end, and all you've done has made matters 50 times worse. So screw your help, screw your resources and screw your power. That is all I'm going to say." At the trial she maintained her innocence and, as we say, it took four weeks for the trial to conclude. 10. We have looked at the pre-sentence report that was prepared and that again shows not only her unwillingness to accept what had occurred but also a complete lack of remorse. 11. She has previous convictions for two offences of deception involving cheques with 63 offences taken into consideration, but that was in 1990 and could not constitute an aggravating offence in determining what is the appropriate sentence for this conspiracy. 12. The judge in his sentencing remarks said a number of things which bear repetition in this court. He said for example: "You have, in statements and in your evidence, made and persisted in thoroughly unpleasant allegations of lies, bullying, targeting, humiliation, abuse and corruption by officers both in uniform and in the CID, from constables to a chief inspector. No rank has escaped your insinuation." The judge also said: "You have duped and involved innocent members of the public as your rescuers and comforters, conning them by your tears and faux hysteria; and the result, as I have said, has been, literally, hundreds of hours of wasted police time and resources. Dozens of officers have been involved, directly and indirectly: uniformed and CID, armed officers, scenes of crime officers, helicopter pilots, police doctors, sexually trained officers, financial investigating officers, technical support officers, forensic specialists. Hours of Achieving Best Evidence interviews have been conducted. Hours of CCTV have been marshalled. There have been, literally, hours of evidence gathering, hundreds of phone calls and texts and hundreds of pages of notes and statements, all in pursuit of your fantasies. There has been a grotesquely wasteful programme of investigating, recording, photographing and sampling, all produced by your lies. This has all been carried out in a planned, premeditated, calculated and carefully executed way." 13. It is submitted on her behalf that no one was actually arrested as a result of the allegations that she made. That is right, but persons were questioned. We have already seen that her daughter was arrested and there can be no doubt that those who were the target of her allegations and others who recorded her false complaints (both lay people and police officers) would have suffered some stress as a result of what was happening. There is no doubt that the police had serious doubts about the validity of the complaints that were being made, but nonetheless, as Mrs Smullen rightly accepts, they were not able simply to treat the complaints as groundless, at least until much later on in the investigation. These were very serious allegations and had to be properly investigated. 14. Mrs Smullen is right when she says that this applicant certainly has a number of problems, but we have looked carefully at the reports about her mental health and there is nothing in those reports to suggest that she is suffering from some mental illness which caused her to believe genuinely that she had suffered the attacks of which she made complaint. Mrs Smullen seems to be suggesting that the applicant genuinely believed what she had said. We for our part cannot accept that submission. If she genuinely believed what she was saying then there would be serious mental health issues which would have been properly explored at trial. We have already mentioned the absence of remorse and we add to that the fact that she blames others for the predicament in which she finds herself. We have mentioned the delay. During that period awaiting trial she was on bail and required to live away from the Essex area. The conditions imposed on her did prevent her from using her phone and when she travelled into the nearby city she had to be accompanied. But in our judgment that should not have any impact on the sentence which was passed. 15. The pre-sentence report describes her as at low risk and in those circumstances Mrs Smullen submits the proper course now would be to suspend the sentence or to reduce the sentence. 16. We have looked at this case with considerable care. It is a very unusual case. We have looked at cases to which we have been referred: Inaam [2006] EWCA Crim. 1073 and also Walsh and Nightingale [1993] 14 Cr.App.R (S) 671. Neither of those cases give us any assistance in deciding whether the judge's sentence of four years' imprisonment was manifestly excessive. We take the view at the end of the day that this was a severe sentence but passed by a judge who had ample opportunity to see the applicant over a considerable period of time and severe as it may have been it cannot be properly described as manifestly excessive. This application is refused.	{"ConvCourtName":["Crown Court at Chelmsford"],"ConvictPleaDate":["2008-11-20"],"ConvictOffence":["Conspiracy to pervert the course of justice"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[160],"SentCourtName":["Crown Court at Chelmsford"],"Sentence":["4 years' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Female"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV evidence"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["planned, premeditated, calculated and carefully executed","wasted significant police time and resources","involved innocent members of the public"],"MitFactSent":["Offender has no relevant previous convictions"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["sentence manifestly excessive"],"SentGuideWhich":["section 240 of the Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["severe as it may have been it cannot be properly described as manifestly excessive"]}
Neutral Citation Number: [2012] EWCA Crim 994 Case No: 201004206 C5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HHJ Anthony Morris QC at the Central Criminal Court between 31 October and 23 December 2005 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/05/2012 Before : LORD JUSTICE PITCHFORD MR JUSTICE WYN WILLIAMS and MR JUSTICE SUPPERSTONE - - - - - - - - - - - - - - - - - - - - - Between : GABRIEL ALECU Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Michael Turner QC and Mr Gareth Underhill (instructed by Avantis - Solicitors ) for the Appellant Mr Jafferjee QC and Ms Wilding (instructed by London Homicide Team ) for the Respondent Hearing dates : 23 and 24 April 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : 1. The appellant was with others tried before HHJ Anthony Morris QC at the Central Criminal Court between 31 October and 23 December 2005 upon an indictment charging them with the murder of Eugen Constantin Breahna. On 23 December the appellant was convicted by a majority of 10–1. On 27 January 2006 he was sentenced to imprisonment for life. The judge imposed a minimum term of 21 years pursuant to section 269 (2) Criminal Justice Act 2003 and ordered that 361 days spent in custody on remand should count towards that term. 2. At trial the appellant was represented by Ms D Ellis QC and Ms Sidhu. He is now represented by Mr Michael Turner QC and Mr Gareth Underhill. Mr Jafferjee QC and Ms Wilding, who represented the prosecution at trial, represent the respondent in the appeal. 3. At the conclusion of the trial Zak Mayanja, Narcis Danila and Christian Zakyi were also convicted of murder. Bob Tambue and Georghe Bechian were acquitted. In July 2006, following a separate trial, Iosif Baboschi was also convicted of murder. His co-accused, Mercan, was acquitted. 4. On 20 February 2007 the appellant’s appeal against sentence was dismissed by the full court (Thomas LJ, Cox J, HHJ Wide QC). The appellant now appeals against conviction with the leave of the single judge who granted an extension of time of 4 years 7 months. The appellant seeks to rely on the “fresh” evidence of Manuel Petru Cirlan and Catalin Vasile Casaneanu and a factual misdirection by the trial judge. The single judge reserved to the full court a question whether the evidence of Duncan Brown of Disklabs might be received as fresh evidence. Agreement between experts has rendered argument upon this ground unnecessary. The appellant has abandoned a third ground of appeal which asserted that the prosecution failed to disclose the false identity and previous convictions of a prosecution witness, Ivan Marian. 5. Following the grant of leave the appellant, on 26 August 2011, waived his privilege concerning professional communications between himself, Ms Ellis QC, Ms Sidhu and his solicitors. It was then anticipated that counsel would be criticised for a failure to challenge and to seek expert evidence to contradict the prosecution mobile telephone cell-site expert, Mr Peter Brown. On 19 September 2011 Ms Ellis and Ms Sidhu submitted to the court their “Observations” on the appellant’s grounds of appeal. The prosecution case at trial 6. The prosecution could not pin down with any precision the underlying reason for the attack on the deceased man, Eugen Breahna, but it was a reasonable inference that there was a dispute between two rival groups implicated in ATM frauds. Eugen Breahna lived at 5 Latham Court, Brownlow Road, Bounds Green, London N11 (adjacent to Bounds Green underground station) with Ivan Marian, Culicov, Taranu, Cirlan and Casaneanu. Associated with this group were Radu Galatanu, Iulian Varga and Ionut Ursu. All were Romanian nationals most if not all of whom were illegal entrants. During the police investigation which followed Mr Breahna’s murder, equipment for use in ATM fraud was recovered from 5 Latham Court. After the murder, some of the occupants of 5 Latham Court fled to 58 Loxton Wharf in Bow. Similar equipment was recovered from that address. 7. We turn to the appellant’s group. The appellant and Narcis Danila are also Romanian. Danila is the appellant’s nephew. Zac Mayanja, a native of Uganda, was Danila’s close friend. Danila admitted in evidence that he was involved in ATM and “basher phone” frauds, the latter involving the use of cloned credit cards to obtain mobile phone contracts. Christian Zakyi and Maitland Cole were Zak Mayanja’s friends. Bob Tambue was a native of Zaire and a friend or acquaintance of Cole, Mayanja and Zakyi. Georghe Bechian (known as “Gino”) was an associate of the appellant. Iosif Baboschi, also Romanian and formerly a professional boxer, was an associate of the appellant. Danila gave evidence that he took his instructions in the perpetration of his ATM and basher phone frauds from Baboschi. Danila estimated that his personal profit was some £700 per week. The appellant’s group was generally located in east London, some 10 kilometres from Bounds Green. The appellant himself had a flat at 231A Barking Road, East Ham and rented another flat at 313C Eastern Avenue, Gants Hill. The exception was Bechian who lived in Stevenage. 8. The prosecution case was that the appellant’s group, led by Baboschi and the appellant, put together a gang armed with baseball bats and golf clubs to mount an attack in Bounds Green upon Ivan Marian and his group. They travelled in convoy from East Ham at about 8.30 pm on 18 January 2005 and arrived in Bounds Green shortly after 8.57 pm. Bounds Green underground station is situated at and on the north side of the junction between Bounds Green Road (the A109 which runs north west to south east through Bounds Green) and Brownlow Road (which runs southwards to the junction from the A406 road). The four-way junction is completed by Durnsford Road (the B106 which runs south west from the junction as a continuation of Brownlow Road). The junction is controlled by traffic lights. Latham Court is one of a group of buildings associated with the underground station on the north side of the junction. In a courtyard alongside the flats at the rear of the station is a car park to which access is gained from Brownlow Road along an alleyway which commences alongside the James Florist shop. In front of the shop is a bus stop. About 75 metres north of the alleyway is the junction on the nearside between Maidstone Road and Brownlow Road. The appellant’s group parked their cars in Maidstone Road. 9. There was a confrontation in the street during which Ivan Marian, Culicov and Eugene Breahna were chased along Brownlow Road to the junction, a distance of some 60 metres. Breahna turned right at the junction and sought refuge in an ambulance which happened to be parked in Bounds Green Road while attending a separate incident. Breahna was pursued into the back of the ambulance where he was beaten to death with a baseball bat and a golf club. The prosecution case was that all those who participated in the chase were guilty of Breahna’s murder, either as principals or as secondary parties. The prosecution case against the appellant was that he assisted Baboschi to put together the gang and, once at Bounds Green, directed the attack towards the fleeing men. 10. The appellant chose not to give evidence at his trial. He relied upon the contents of his interview under caution which took place on 27 and 28 January 2005. Mr Alecu’s account was that he had spent the afternoon with Bechian and another man called Viorel. Viorel wanted to purchase a car and the 3 men travelled to Stevenage in Bechian’s Mercedes Kompressor to view motorcars. The appellant claimed that during their return journey Baboschi telephoned him. Baboschi said that he was going to meet friends in Bounds Green but did not know how to get there. The appellant attempted to describe the route but Baboschi wanted the appellant to lead him to Bounds Green. The appellant asked Bechian if they could use his car and Bechian agreed. Ten minutes later, according to the appellant in interview, they met outside the appellant’s flat in East Ham. They and Baboschi travelled in convoy to Bounds Green. The appellant was by this time driving the Mercedes because Bechian said he was tired. There was possibly a third car in the convoy. They arrived in Brownlow Road and parked in Maidstone Road, approximately 100 metres from Bounds Green underground station. Mr Alecu claimed that almost as soon as he got out of the Mercedes a fight started between Baboschi and others and a group of other men who had gathered in the road. Bechian suggested that they should leave immediately and they did. 11. This account was contradicted by the evidence for the prosecution. It was clear that Iosif Baboschi had already been in Bounds Green during the evening of 18 January. His mobile telephone made and received calls between 6.11 pm (call 370) and 6.18 pm (call 381) using a cell site which served Bounds Green close to Latham Court. The prosecution submitted that Baboschi required no directions to Bounds Green as Alecu had claimed. From Bounds Green Baboschi’s telephone travelled not to East Ham but to Gants Hill. A series of telephone calls demonstrated that several of the eventual participants in the convoy were gathering in that area. Shortly after 7.00 pm the appellant, Baboschi and Danila were all using telephones served by a cell site at Eastern Avenue, Gants Hill. From Gants Hill they moved to East Ham. Between 8.20 pm and 8.30 pm telephones used by Baboschi, the appellant, Danila, Mayanja, Bechian and Tambue all used a cell site serving Barking Road, East Ham. 12. Ivan Marian gave evidence that on 18 January 2005 he was with Ionut Ursu in his Rover car. Ionut is Baboschi’s nephew. While giving Ionut a lift home they decided, Marian said, to visit the Asda store at Beckton which is close to East Ham. While Ionut was on the telephone to Baboschi, Marian was at the same time asking Ionut to give him directions. That led to raised voices. Marian took the phone from Ionut and spoke to Baboschi. Marian claimed that Baboschi agreed to meet at the Asda car park. Marian drove on to the car park. Present were Breanha, Cirlan, Taranu, Galatanu and Casaneanu. According to Marian they were present in order to go shopping. The judge invited the jury to consider whether that was the real reason for the meeting. A call had indeed been made by Baboschi to Ionut at 5.49 pm (call 346) which lasted for 3 minutes 17 seconds. At that time Baboschi’s phone was in North London. Ionut’s phone was in the East Ham area. By 6.11 pm Baboschi’s phone was, as we have said, in the Bounds Green area. 13. It was at this time that Baboschi, on the prosecution case, started to put together the team for the journey to Latham Court. He spoke to Danila at 6.36 pm (call 423) and 6.40 pm (call 430). Shortly afterwards Danila telephoned Mayanja. Mayanja subsequently made calls consistent with the recruitment of Zakyi, Tambue and Cole. After further telephone contact between Baboschi and Danila, at 7.06 pm (call 489), 7.13 pm (call 499) and 7.19 pm (call 511) Baboschi telephoned the appellant and they were connected for some 3 minutes in all. At 7.22 pm (call 517) Baboschi again phoned Danila and at 7.29 pm (call 524) Baboschi telephoned the appellant. By this time the team were beginning to assemble in the Gants Hill area. 14. In the meantime, Marian and his friends had returned to Latham Court. At 8.13 pm (call 586) Marian received a call from Baboschi (then in Gants Hill) who told him that he knew where he lived and would be coming over to “step over” him. 15. Cell site evidence demonstrated the movement of the convoy from East Ham to Bounds Green. Danila drove a BMW car. With him were Zakyi, Mayanja, Tambue and Cole. Baboschi was in a Volkswagen car driven by a man named Bobi. The convoy was led by the appellant in the Mercedes and there was probably a fourth vehicle. Bystanders described the group as numbering altogether up to 15 men. 16. The first phone to use a cell site in the Bounds Green area was in Zakyi’s possession. That call was received at 8.56 pm (call 618). At 8.57 pm (call 621) Baboschi telephoned the appellant. Both phones were using a Bounds Green cell site. At 8.58 pm (call 622) Baboschi telephoned Marian and at 8.59 pm (call 623) Marian returned the call. According to Marian they argued. Marian said he was trying to calm Baboschi down. Baboschi told him that he would be there in two minutes and he, Marian, should go outside to wait for him. Marian decided to leave the flat because it would be safer to do so. Others in the flat were aware of the looming confrontation and they too decided to leave. Marian gave evidence that he and Culicov crossed Brownlow Road and stood at a bus stop on the opposite side of the road. Breahna stood at the bus stop on the underground station side of the road outside James the florist. Varga gave evidence that he was one of the last to leave the flat. He had a car parked in the parking area to the rear of the flat. He and Radu Galatanu got into the car and as they did so, Cirlan and Casaneanu arrived and climbed in behind them (summing up transcript page 79G). Varga drove the car from the car park and down the alleyway which emerged onto Brownlow Road alongside James the florist. 17. Marian continued that immediately after he arrived at the bus stop on the far side of Brownlow Road four cars pulled up in the mouth of Maidstone Road. He thought that a fifth car arrived shortly afterwards. People got out of the cars, most of them carrying baseball bats, metal tubes and knives. Similar evidence was given by Culicov. By now Varga’s car had, on his evidence, arrived at the junction between the alleyway and Brownlow Road. He and Radu gave evidence that they saw Baboschi get out of his car followed by others. A passing motorist saw the BMW stop and the boot was opened from inside. Danila went to the boot and removed 3 baseball bats. He handed out two and kept one for himself. 18. Marian said that he went towards Baboschi and identified himself. Baboschi aimed a blow with a baseball bat at his head. It connected with Marian’s wrist. He saw that others were coming for him, he estimated 13 or 14 men. A second blow struck him on the shoulder and he ran towards the traffic lights. As he ran he again saw Breahna on the Latham Court side of the road. Culicov was also running. Culicov said that he too was struck with a baseball bat. One blow caused a cut to his head. Someone came for him with a knife which he grabbed causing a cut to his hand. He too ran towards the junction outside Bounds Green underground station. Radu Galatanu Varga’s front seat passenger, gave evidence that among those who got out of the cars was the appellant. He knew him. He was standing close behind Baboschi but Radu could not say whether he was armed. Someone kicked the car. Varga gave evidence that Baboschi aimed at something with a baseball bat. He saw the appellant and others surrounding Marian. Culicov and Marian managed to run. The appellant appeared to direct members of his gang after them by gesticulating towards them. Four or five men ran after them. As the appellant passed the car he kicked it. Varga drove to the traffic lights and crossed the junction into Durnsford Road. After some 200 to 300 metres he stopped to enable Cirlan and Casaneanu to get out of the car. He then turned the car around because he was aware of something which had been happening at the ambulance parked close to the junction on Bounds Green Road. 19. A local shop keeper Mr Mustafa Gok described a group of people running along Brownlow Road towards the junction pursued by another group of about 15 people armed with metal sticks, baseball bats and a hockey stick. One of the men being pursued was hit on the head. Mustafza Klier, driving a Citroen car, approached the lights northwards from Bounds Green Road and turned right into Brownlow Road. She saw a group of young men attack a person she later identified as Breahna in Brownlow Road. He managed to run around the corner pursued by the same group. Neil Hembley, emerging from the underground station, saw the group run around the corner into Bounds Green Road. 20. Graham Weatherill was an emergency medical technician with the London Ambulance Service. He had parked his ambulance on the Bounds Green Road side of the underground station in order to attend to the casualty of a fall in Bounds Green Court. As he returned to the rear of his ambulance Mr Breahna entered the cab through the front passenger door, flinging himself backwards to land between the front seats. Others were attacking him through the open door. Mayanja’s hand print was found on the inside of the window. Mr Breahna attempted to get away but was pulled by others into the rear of the ambulance. The group, Mr Weatherill felt 15-20 in number, then piled into the rear of the ambulance and joined in the attack with a golf club and an iron bar which looked like a baseball bat. It was, he said, “merciless”. As this was happening Mr Weatherill called for urgent police assistance. His call was timed at 9.08 pm. He later identified Mayanja and Zakyi as two of Mr Breahna’s attackers. 21. Rebecca Bowling came out of the underground station onto Brownlow Road with her friend. As they walked towards the bus stop to their left, three or four men ran past them, some of whom were carrying baseball bats. They were followed by a larger group carrying similar weapons. They were heading for Maidstone Road. Mustafa Gok gave evidence that three to five minutes after he had seen the chase passing him in the direction of Bounds Green Road, he saw them coming back again, about 15 men. They all got into cars on Maidstone Road and drove away. One of the cars was a Mercedes which he thought was a CLK. The Mercedes was the first to pull away travelling towards the traffic lights. Mr Michael Mangan was watching this incident from his flat on Brownlow Road. He saw the group running towards the cars, looked at his mobile phone and timed the event at 9.09 pm. 22. At 9.10 pm (call 638) Baboschi made a call to the appellant’s mobile phone but the connection lasted for two seconds only. His second call at 9.10 pm (call 639) was to Danila and they spoke for 41 seconds. His third call was to Danila at 9.12 pm (call 645) but the connection was for two seconds only. At 9.11 pm (call 640) the appellant’s phone was called by a number of no significance to the trial. The appellant’s phone used a cell site at Elizabeth Blackwell House (Orange cell site 13204 – 270˚) which served the area outside Bounds Green underground station. At 9.14 pm (call 650) Baboschi called the appellant again and this time the connection was for 12 seconds. At 9.16 pm (call 652) the appellant made a call to a number of no significance to the trial. The cell site evidence demonstrated that Baboschi was moving away from the scene in a generally northern direction while the appellant was moving away in a generally south-easterly direction. By 9.14 pm (call 650 and 652) the appellant’s mobile phone was using sectors 13206 and 13203 of the Elizabeth Blackwell cell site indicating that he was then at least one mile to the south-east of the scene of Mr Breahna’s murder. 23. In his interview under caution the appellant said that Bechian told him that he needed the car to himself. The appellant was dropped off and he took a mini-cab. He did not reveal his destination. 24. At 10.46 pm (call 786) Baboschi made a call to Marian. Baboschi’s phone was at this time using the Crown House cell site in Barking, not far from King Edward’s Road (an address associated with Baboschi). Marian gave evidence that he told Baboschi that two of his friends were not answering their phones and one of his friends had had his head smashed in. Baboschi replied that that did not matter “as long as everything would be alright”. Baboschi then put “Gabriel” on the phone. Gabriel told Marian that someone had taken the number of the Mercedes compressor which was worth £17,000. (Indeed at 9.28 pm a member of the public had telephoned 999 from a pay phone to report the number of the Mercedes, OE52 CFN, driven away from the scene by the appellant). “Gabriel” said that someone would have to pay up for the car as he would be out of pocket. The call was completed at 11.03 pm. Marian was not in a position to recognise the voice since he did not know Gabriel. The prosecution relied, however, upon a call made at 11.05 pm (call 803) to the appellant’s phone during which the appellant’s phone also used the Crown House cell site. The prosecution invited the inference that Baboschi and Alecu were together and that it was Gabriel Alecu speaking with Marian. 25. During the course of the prosecution case no witness had identified the appellant as one of those who chased Breahna to the ambulance. However, when Tambue gave evidence in his own defence, he said that he had followed a group which included Baboschi, Mayanja, Danila and Alecu, all of whom were armed. When he turned the corner into Bounds Green Road he saw a number of people at the side and rear of the ambulance. Then he saw Alecu and Danila exit from the rear of the ambulance. Tambue looked inside and saw Mayanja bending over Breahna complaining that he had been stabbed. Baboschi and another man climbed into the ambulance and the attack continued. When they emerged from the ambulance they ran for the cars. The appellant’s grounds of appeal 26. The appellant’s grounds of appeal are focused upon the evidence of the appellant’s participation in events at Bounds Green. In his interview he had claimed that he had left the area as soon as the fighting began in Brownlow Road. The case conducted on his behalf was based upon his instructions to counsel which were disclosed following his waiver of privilege. In his statement he said that in Brownlow Road he saw Baboschi strike “the boys” with a baseball bat. He was shocked. From behind the appellant came more men whom, he said, he did not recognise. Gino or Viorel shouted “Gabriel, come in the car”. The appellant got back in the car, turned right into Brownlow Road and at the lights turned left into Bounds Green Road heading south-eastwards towards Wood Green. The cell site evidence was not challenged on behalf of the appellant at trial because it appeared to confirm that by 9.11 pm the appellant was moving away from the scene of the murder which accorded to the appellant’s instructions. 27. Mr Michael Turner QC first identified in argument a misdirection of fact by the learned judge at pages 27G – 28A of the transcript of his summing up on 15 December 2005. The judge said: “Baboschi [call] 621 is there at 8.57 and appears to be in the area until 9.22, number 660 which is on page 37. Alecu is there, number 621 at 8.57. He is there, if you turn through … until 9.16, call 652 on page 37. It is something you may wish to consider, in the light of Alecu’s account [in interview] that he left the scene in the Mercedes Kompressor before the attack took place.” 28. In his reference to the call at 9.16 pm the judge was relying upon the evidence that the Elizabeth Blackwell House cell site served the area of Bounds Green underground station. However, at the jury’s map page 55 was a diagrammatical representation of the Elizabeth Blackwell cell site. Relevant “sectors” were 13202 (30˚), 13203 (150˚), 13204 (270˚), 13205 (330˚), and 13206 (90˚). Only the 270˚ sector of Elizabeth Blackwell House was likely to serve a mobile telephone situated outside Bounds Green underground station. Sectors 13202, 13204 and 13205 served the area generally to the north, north-east and west of the cell site. Sectors 13203 and 13206 served the area generally to the south-east and east of the cell site. Call 640 at 9.11 pm used sector 13204 (270˚), call 650 at 9.14 pm used sector 13206 (90˚), and call 652 at 9.16 pm used sector 13203 (150˚). It is a reasonable inference from an examination of the cell site map that the appellant was moving away from the scene of the killing at 9.11 pm, when his phone picked up sector 13204, and that by 9.16 pm he would have been some distance to the south of the cell site using sector 13203 (in other words, at least a mile away from the ambulance). 29. At the time the jury’s attention was drawn by the judge to the call made at 9.16 pm they were not also asked to look at the map which differentiated between the directional sectors; nor can counsel find any reference in the transcript of Mr Peter Brown’s evidence to a sector analysis of the Elizabeth Blackwell cell site. Ms Ellis QC and Ms Sidhu were not in court when the judge made his observation to the jury and Mr Alecu’s interests were being represented by other defence counsel. Mr Turner submits that the jury will or may have received the impression that the judge was inviting the conclusion that the appellant was still in the vicinity of Bounds Green underground station at 9.16 pm. The subtlety of the error was not noticed and it went uncorrected. Mr Turner submits that this was a material and important misdirection for which the judge himself was not responsible, the analysis not having been carried out during the evidence given by Mr Peter Brown, the prosecution’s expert, although the source material was available to the jury. 30. We are invited to consider the impact of this error together with the fresh evidence received via live-link with Bucharest from the witnesses Manuel Petru Cirlan and Catalin Vasile Casaneanu. Cirlan and Casaneanu were, as Varga and Galatanu said in evidence, rear seat passengers in Varga’s car. They alighted from the car in Durnsford Road. Eventually they returned to the flat in Latham Court and were still there when, at 2.30 am, the police called. They fled and were not arrested until two weeks later. They made no comment in interview. On their release they returned to Romania. We are content to proceed on the basis that their evidence was not reasonably available to either the prosecution or the defence at the time of the appellant’s trial. 31. Manuel Cirlan gave evidence via the live link that he entered the UK illegally in October 2004. Breahna was his childhood friend. He told the court that on the evening of 18 January Ivan Marian (known to Cirlan as Galateanu) was arguing with someone on the telephone in the flat. Marian told those present that the person on the phone wanted him to go outside to speak to him. Marian and his friends left. Two or three minutes later Cirlan also left. He followed down the alleyway until he emerged alongside the James the florist shop. Cirlan said that he saw his friend on the far side of the street. He looked to his left and saw a number of cars parked. Marian walked towards between 5 and 7 men who had got out of the cars. Cirlan was asked about those who had arrived and parked in Maidstone Road. He saw a Mercedes and he saw Gabriel getting out. He was standing by the car with keys in his hand just watching. There was an exchange of words between Marian and the other men. Cirlan suggested to Varga (known to Cirlan as Iulius) that he fetch the car. There was fighting and pushing between the two groups. Then they started to run in the general direction of Latham Court. The car was driven down the alleyway by Varga. At that point, said Cirlan, “Gabriel was no longer there. When the car came, he was no longer there”. Cirlan got into the car with Casaneanu. The car made a left turn. At the mouth of Maidstone Road, some 75 metres from the alleyway, Varga did a U-turn and drove back towards the traffic lights. Cirlan said that this time he saw the group of men returning from Bounds Green Road; they were running. At the same time he saw the Mercedes driving off. He estimated that he saw the Mercedes leaving about 10-20 seconds before he saw the group returning. Varga drove over the traffic lights into Durnsford Road. After about 500 metres Cirlan asked the driver to stop so that he and Casaneanu could get out. Asked about the circumstances in which he came to make his statement he said that a friend had called from the UK. Gabi’s family wanted to speak to him. Gabi’s mother and sister asked him to make a statement to Gabi’s solicitor. Cirlan was reluctant to do so. He saw his family twice and on the second occasion agreed to make a statement saying what he had seen. 32. Catalin Casaneanu also entered the UK illegally in the Autumn of 2004. He had known Breahna for a long time and was his friend. Casaneanu’s evidence was almost identical to that of Cirlan in his description of Marian’s argument over the telephone, their departure from the flat and the arrival of the Mercedes. He also said that he saw Alecu standing alongside the car with keys in his hand looking nervous and agitated. At this time Marian was on the other side of the street. Marian walked towards between 5 and 7 people who had arrived in the car. When he reached them he started fighting. Casaneanu said that he was frightened and asked Varga to go and fetch the car. When the car arrived he and Cirlan got in. As they drove from the alleyway he saw a group of men running towards the junction. Varga turned left into Brownlow Road but then did a U-turn towards the lights. He then saw the Mercedes drive off along Maidstone Road and the group running back from the underground station. He did not see Alecu in either group. In all, he said, the Mercedes was parked in Maidstone Road for 5-10 minutes. Casaneanu said that he too had been called by a friend who said that Alecu’s family wanted to speak to him. He met Alecu’s mother and sister on two occasions. Alecu’s mother was crying. He was reluctant to make a statement but on the second occasion they met he agreed to do so. 33. Mr Turner QC submitted first, that the evidence of Cirlan and Casaneanu was capable of belief; secondly, that had the jury heard this evidence it would have been relevant to two crucial issues: i) whether the appellant participated in the pursuit of the men who ran towards the underground station; and ii) whether the appellant could, as Tambue claimed, have entered the ambulance. 34. The court’s first task is to consider whether to admit the evidence. For this purpose we must decide whether the evidence is capable of belief and, if so, whether it may afford a ground for allowing the appeal ( section 23(2)(a) and (b) Criminal Appeal Act 1968) . If the court decides to admit the evidence it must, finally, decide whether the verdict of the jury is unsafe. This is a decision for the court to make having regard to the other evidence in the case. However, the court must forebear to reach its own conclusion as to the guilt of the accused and must ask only whether the verdict is safe. This process of consideration was explained by Lord Bingham of Cornhill in Pendleton [2001] UKHL 16 , [2002] 1 WLR 72 at paragraphs 18 and 19. In Dial & Another v State of Trinidad and Tobago [2005] UK PC 4, [2005] 1 WLR 1660 at paragraph 31 Lord Brown of Eton-under-Heywood summarised the effect of the authorities as follows: “31. In the Board’s view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context on the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view “by asking whether the evidence, if given at the trial, must reasonably have affected the decision of the trial jury to convict”; R v Pendleton [2002] 1 WLR 72 , 83, para. 19. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Staffords case [1974] AC 878 , 906, and confirmed by the House in R v Pendleton: “while … the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe].” ” 35. As we have noted, Varga gave evidence that he was one of the last to leave the flat. He went immediately to his car parked in Latham Court. He, Radu, Cirlan and Casaneanu all got into the car in Latham Court. This was not the evidence of Cirlan and Casaneanu. They both said that Varga was sent from the roadside to fetch the car; that they waited for Varga and, when he arrived at James the florist, they climbed in. There are, however, two curious inconsistencies between Cirlan’s account in evidence and the account contained in his witness statement dated 23 April 2009. In his statement Cirlan said that he left the flat with Casaneanu, Breahna, Varga, Radu and Taranu in order to see what was happening. They walked down the alley to the florist. To his left he saw a confrontation between Marian and a group of between 5 and 10 men. Marian was asking, “Who is Baboschi?” He continued, “He was talking to the group for 2 or 3 minutes approximately”. He then saw the arrival of 2 or 3 cars. The first was the Mercedes. He saw Gabriel get out of the Mercedes and stand next to it holding his keys. He also saw Narcis Danila get out of the driver’s door of the BMW. Then, “When the 3 cars arrived on the scene we went back to Iulian’s car because we thought there was going to be trouble … we walked back down the alleyway to the car park and got into the car.” 36. The account given by Cirlan in his statement is therefore quite different in two important respects from the account which he gave in his oral evidence. We need to consider what may have been the reasons for these inconsistencies in Cirlan’s accounts. Cirlan’s initial claim in his statement that the Mercedes and BMW did not arrive until after the first confrontation between Marian and Baboschi was, we conclude, a transparent attempt to place distance between Alecu and Danila on the one hand and Baboschi and his team on the other. The difference between the two accounts is so stark that we find it difficult to accept that the account given in the statement is mere error of recollection. Secondly, we do not understand how there can have been a difference of recollection as to the point at which Cirlan and Casaneanu entered Varga’s car. The effect of the account given in evidence is that Cirlan was present throughout on Brownlow Road. The effect of the account given in his statement is that there was an interval of time when he was walking away from Brownlow Road and could not, in that event, have seen what was happening in the street. 37. We now turn to compare Cirlan’s account with that of Casaneanu. In evidence he gave an account strikingly similar to that of Cirlan. In his witness statement, also dated 23 April 2009, appear two inconsistencies identical to those we have already identified in Cirlan’s case. In his statement Casaneanu also said that from his vantage point by James the florist he saw Marian on the far side of Brownlow Road walking towards a group of men some 30-50 metres to his left, none of whom Casaneanu recognised. He continued, “as he approached this group, 3 or 4 cars arrived. The first car was a dark coloured Mercedes”. Casaneanu said that he saw Gabriel Alecu getting out of the car looking “a bit nervous and agitated”. Then he saw the BMW and Narcis Danila alight from it. He too was agitated. Secondly, Casaneanu also said in his statement that he, Varga, Radu and Cirlan “walked back down the alley to the car park and got into the car”. We have already expressed our unwillingness to accept that Cirlan’s inconsistencies were the result of fallible memory. The knowledge that identical inconsistencies appear in the evidence of Casaneanu leads us to the conclusion that the witnesses have collaborated both at the time that their statements were made and more recently before they attended to give their evidence. We are not persuaded that the evidence we have received is capable of belief. 38. We have further cause for anxiety about the truth of the fresh evidence. We know that the Mercedes car, when it left Maidstone Road, travelled southwards along Brownlow Road to the traffic lights at the junction where Mr Alecu turned left along Bounds Green Road. Neither Varga nor Radu Galatanu, occupying the front seats of Varga’s car, claimed at trial to have seen the Mercedes leaving the area. Both Cirlan and Casaneanu said in their witness statements and in evidence that as Varga drove into Brownlow Road, they saw the Mercedes leaving. If this was so, Mr Turner argued, it makes less probable Varga’s evidence that Alecu was directing the troops or kicked out at Varga’s car or ran around the corner to the ambulance. However, both Cirlan and Casaneanu were asked in evidence in which direction the Mercedes had left the area (neither having dealt with this question in his witness statement). Both replied that the Mercedes was driven northwards along Maidstone Road. This was clearly an error. Cirlan and Casaneanu both made the same error. We do not accept that they were coincidental errors. This is further confirmation of collaboration between the witnesses before they gave their evidence. Mr Turner was driven to submit that perhaps the Mercedes had taken a circuitous route to the junction before proceeding south-eastwards along Bounds Green Road. Such a possibility is inconsistent with the instructions given to counsel by the appellant. It is also inconsistent with the thrust of the cell site evidence to which we shall return in a moment. We do not accept that these witnesses saw a Mercedes move off along Maidstone Road. If they had seen it move off they would have seen it driving into Brownlow Road towards the traffic lights. 39. We conclude that both witnesses can only have made a claim to see the Mercedes leave the area because they believed it would assist the appellant’s appeal. Contrary to their assertions that they did not know how their evidence might assist Mr Alecu’s appeal we are sure that they came prepared to identify the moment when the Mercedes moved off and that they knew exactly why that evidence might be important. We have no hesitation in concluding that they saw no such thing. In our judgment, the credibility of the evidence now given by Cirlan and Casaneanu, seven years after the death of their friend, is undermined by their false claim to the same circumstantial detail. We decline to admit the evidence under section 23 Criminal Appeal Act 1968 since we do not accept that, in its material parts, it is credible. 40. Had we admitted the evidence, we would have been driven to the conclusion that it had no effect upon the safety of the jury’s verdict. The fact that Cirlan and Casaneanu did not see Alecu directing the chase or striking Varga’s car does not, in the circumstances of a fast moving and violent incident, undermine the evidence of Varga. Even if, which we do not accept, the jury could conclude that Cirlan and Casaneanu saw the Mercedes move off several seconds before the other cars, Tambue’s evidence is not thereby undermined, for reasons which we shall describe in the context of the cell site evidence. 41. We turn to the cell site evidence in more detail. The time of the attack on Mr Breahna in the rear of Mr Weatherill’s ambulance is fixed at 9.08 pm by Mr Weatherill’s call for assistance. The attacking group was seen to be returning to its cars at 9.09 pm. While this time cannot be guaranteed because it depends for its accuracy on the reliability of Mr Mangan’s mobile telephone clock, it is consistent with the prevailing evidence as to the rapid progress of events. 42. Mr Duncan Brown, the expert instructed on behalf of the appellant, and Mr Peter Brown who gave evidence for the prosecution at trial have, at the invitation of the court, had a pre-hearing experts’ meeting with a view to reaching agreement as to the true effect of the cell site evidence. They have reached agreement and we are grateful for their work. They have saved a good deal of court time in the analysis of the prosecution evidence on the one hand and Mr Duncan Brown’s expert report on the other. Their agreement is as follows: “1. The Curtis House cell site 4867 activated at 20.57 (call 621) was a serving cell for the vicinity of Bounds Green station at the time. 2. Calls 626 and 627 (activating Barrington Court at 21.01.36 and 21.03.56) would serve the immediate vicinity of Bounds Green Station. 3. The 3 calls – 635 (21.09.40), 638 (21.10.23), and 640 (21.11.20) which activated cell 13204 at Elizabeth Blackwell House (270˚) are also consistent with being activated from the immediate vicinity of Bounds Green station, each of those calls is equally consistent with either being at the scene or moving to the east or south east of the station. 4. Call 650 (21.14.42) could not be activated from the immediate vicinity of Bounds Green Station, it being a 90˚ sector. Similarly, neither could call 652 (21.16.37) which was a 150˚ sector. The Elizabeth Blackwell mast is located around 1 mile from Bounds Green station.” 43. It follows that the true effect of the cell site evidence is consistent with the prosecution case that the appellant was seen by Varga to be directing the attackers towards the fleeing men and it is also consistent with the evidence of Tambue that he saw the appellant emerging from the ambulance while the attack on Mr Breahna was ongoing. 44. We turn finally to the appellant’s ground of appeal that the judge inadvertently misled the jury as to the impact of the cell site evidence upon the appellant’s defence. It is important in our view to have regard to the judge’s precise words. He was referring at page 28 of his summing up not to a dispute as to timing but to the effect of the admitted timing upon the appellant’s claim in interview to have left the scene before the attack. He referred to Alecu being “in the vicinity”. It is true that by 9.16 pm the Mercedes was not in the vicinity of Bounds Green underground station but it was at least a mile to the south-east of that position. Nevertheless, the case conducted on behalf of the appellant on his instructions was “that by 9.11 pm he was moving away from the murder scene”. As Ms Ellis QC states in her observations on the appellant’s grounds of appeal, this case was fully supported by the cell site evidence. We have no doubt that this would have been explained to the jury by reference to Mr Peter Brown’s evidence, and perhaps the cell site maps, during counsel’s closing speech. Tambue’s evidence was that Alecu left the ambulance before others climbed back in to complete the attack on Mr Breahna. There was, therefore, ample opportunity for the appellant to have returned to the Mercedes in order to be the first away from the scene and to be moving in a generally south-easterly direction, still using the 270˚ sector of Elizabeth Blackwell House by 9.11 pm. Secondly, the cell site evidence was consistent with the preponderance of the evidence of the independent witnesses that the group ran back to their cars and that the Mercedes was the first away. While we acknowledge the possibility that the judge’s direction was capable of misleading the jury as to the precise time at which the appellant left the scene, we conclude that it had no impact upon the safety of the verdict. The cogency of the evidence derived from (1) the admitted time of the attack (2) the observed movements of the group as a group and (3) the narrow margin of time between the departure of the Mercedes and the rest of the cars parked in Maidstone Road. 45. Quite apart from the weight of the evidence of events at Bounds Green it seems to us that the evidence of a joint enterprise to carry out an armed attack upon Marian and his friends was overwhelming. The appellant’s explanation in interview of his presence in Bounds Green and his claim to be shocked at the commencement of violence were not credible. Finally, notwithstanding the powerful effect of the evidence against him the appellant chose to remain silent at his trial. None of the incriminating evidence was contradicted or explained by the appellant himself. 46. For these reasons we conclude that it is not demonstrated that the verdict of the jury was unsafe and the appeal is dismissed.	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2005-12-23"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[361],"SentCourtName":["Central Criminal Court"],"Sentence":["Imprisonment for life with a minimum term of 21 years"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["one"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Cell site evidence","Eyewitness testimony","Forensic evidence (hand print)","Victim testimony (from ambulance technician)"],"DefEvidTypeTrial":["Defendant's interview under caution","Alibi claim"],"PreSentReport":[],"AggFactSent":["Offence committed as part of a group attack","Use of weapons (baseball bats, golf clubs)"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[5],"AppealAgainst":["Conviction unsafe"],"AppealGround":["Fresh evidence (witnesses Cirlan and Casaneanu)","Factual misdirection by trial judge regarding cell site evidence"],"SentGuideWhich":["section 269 (2) Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Fresh evidence not credible or capable of belief","Cell site evidence consistent with prosecution case","Any misdirection by judge had no impact on safety of verdict","Overwhelming evidence of joint enterprise to commit armed attack","Appellant's explanation not credible and he remained silent at trial"]}
Neutral Citation Number: [2011] EWCA Crim 73 Case No: 2010/2087/A8 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Barker QC, The Common Serjeant of London T20080738 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/02/2011 Before: LORD JUSTICE MOSES MR JUSTICE MADDISON and HIS HONOUR JUDGE SCOTT-GALL - - - - - - - - - - - - - - - - - - - - - Between: Colin Christopher Welsh Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Kim Hollis QC and Mr G Payne (instructed by Tuckers Solicitors ) for the Appellant Mr J Laidlaw QC (instructed by the Crown Prosecution Service ) for the Respondent Hearing dates: 16 th December, 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moses : 1. On 19 July 2008 the appellant stabbed Elliott Guy in the neck and killed him. The appellant pleaded guilty to manslaughter on the grounds of diminished responsibility on 28 January 2010 in the Central Criminal Court, following a substantial period during which he was unfit to plead. He was sentenced by the Common Serjeant on 16 March 2010 to imprisonment for life, with a minimum term specified of 12 years. His appeal raises the difficult issue as to whether it was correct to order a discretionary life sentence or to impose a hospital order pursuant to s.37 of the Mental Health Act 1983 , with a restriction requirement pursuant to s.41 of the 1983 Act . It is accepted that if a hospital order coupled with a restriction was not appropriate then the discretionary sentence was the correct sentence. 2. This was a dreadful offence. The appellant, now aged 43, armed himself with a knife and joined a friend’s party at a block of flats in Tufnell Park. In the early hours of 19 July 2008 his victim, Elliott Guy, aged 27, was in the toilet. The appellant kicked the bathroom door open and, for no reason, struck the deceased in the neck with the knife he had brought to the party. The knife severed Elliott Guy’s jugular vein causing massive blood loss and death shortly after. A defensive wound was seen on the deceased’s hand. When confronted immediately after, the appellant said “it wasn’t my fault” and “I didn’t shoot first”. 3. The appellant was seen in the street a short time later. He had changed his shoes. He disappeared from the flat where he was staying for 10 days and handed himself into the police in the early hours of 29 July 2008. 4. The appellant’s plea to manslaughter was accepted. There was no material dispute as to his mental condition. 5. There were before the Common Serjeant reports from psychiatrists: Dr Farnham, on behalf of the defence, Dr Parrott on behalf of the prosecution and Dr Rogers, who treated the appellant at Chase Farm Hospital. There was no dispute but that since 2002 the appellant had suffered from schizophrenia. His symptoms led him to believe that a device had been implanted in his Eustachian tube which transmitted voices making derogatory and threatening comments about him. 6. Both Dr Farnham and Dr Parrott had agreed that the appellant was not fit to plead. But on transfer from prison to Chase Farm Hospital the appellant was treated and improved to a stage when he became fit to plead in November 2009. At the hearing before the Common Serjeant on 16 March 2010 both the prosecution psychiatric expert, Dr Parrott, and Dr Rogers, agreed in their recommendation that a hospital order should be made, coupled with a restriction order. Dr Rogers gave evidence that a place was available for the defendant at Chase Farm Hospital. 7. The Common Serjeant, in a detailed and careful analysis, concluded that the combination of the appellant’s own culpability for what the judge described as an horrific and totally unprovoked killing, coupled with the need to protect public safety, necessitated a sentence of imprisonment for life. It is that submission which is impugned in the cogent and forceful submissions by Miss Hollis QC on behalf of this appellant. 8. The essence of the appeal was that the safest course to maintain protection of the public was to ensure that the appellant received both medication and treatment whilst in a secure hospital. The appellant’s abnormality of mind was such that without treatment he would lack the capacity to make an informed decision to consent to taking anti-psychotic medication. In prison he would not receive the necessary treatment and would, accordingly, not take anti-psychotic medication. He would remain a danger, both to other prisoners, prison officers and to himself, whereas, if he remained in Chase Farm Hospital, he would receive treatment and medication and his condition would substantially improve. This was not a matter of mere forecast. The contrast between his condition in prison and when in hospital was plain. Whilst in prison on remand and after sentence he did not receive treatment and, because of his mental condition, did not take medication. After he had been sentenced he returned to prison. But there his condition deteriorated and the Secretary of State was compelled to make an order removing the appellant to hospital, pursuant to s.47 of the Mental Health Act 1983 . Miss Hollis painted the dispiriting picture of this appellant being transferred from prison, where his condition was likely to deteriorate, to hospital, where it would improve, and back again repeatedly throughout the period of his sentence. 9. In support of the appeal, Dr Bartlett, the psychiatrist who is presently treating the appellant at Camlet Lodge, gave evidence as a Consultant Forensic Psychiatrist orally before this court. She reiterated that the appellant lacked capacity to consent to medication. He had made significant progress since his last admission to hospital. She confirmed that the specialist services he requires were not available in prison, where he would continue to present a danger. As she concluded in her report, the appellant has been unwell for the past eight years and is unlikely to respond to medication on his own. 10. The principles are not in issue. It is their application which is so difficult. The resolution depends on whether the defendant’s responsibility for his actions, although diminished, remains substantial. The relevant jurisprudence was summarised by the Lord Chief Justice in R v Wood [2009] EWCA Crim 651 :- “The mere fact that the case is one of manslaughter on the grounds of diminished responsibility does not preclude a sentence of imprisonment for life. In reality this sentence would be rare in such cases, usually reserved for particularly grave cases, where the defendant’s responsibility for his actions, although diminished, remains high.” (Paragraph 18) 11. This creates a question of acute difficulty. How is a judge to assess the degree of responsibility in someone who suffers from paranoid schizophrenia? A sudden outburst of ferocious violence may be followed by normal behaviour. This case provides an example: after violence explicable only by reason of the appellant’s schizophrenia he sought to conceal his responsibility by changing his shoes and disappearing for about 10 days. In helpful and frank submissions Mr Laidlaw QC, on behalf of the Crown, accepted that his rational behaviour afterwards provided no clue to his degree of responsibility at the time. 12. Yet there were significant features which to the Common Serjeant suggested a substantial of responsibility. First, this appellant had a bad record of violence before 2002, the year when it is accepted he started to suffer from schizophrenia. He was guilty of wounding as a young man in 1983, grievous bodily harm with intent in 1986, robbery in 1990, wounding in 1996 and possessing offensive weapons in 1998 and 1999. It was not suggested that he was suffering from schizophrenia at the time of those offences. It can, accordingly, be said with justification that he had within his character a propensity for violence. 13. In addition, the Common Serjeant attached significance to the fact that the appellant, who had attended the party earlier in the afternoon of the day before the killing, had returned in the early hours of the morning armed with a knife. The judge was right to conclude that the appellant must bear some responsibility for taking the knife to the party. That fact, coupled with the appellant’s previous convictions, formed a discernable factual basis for attributing substantial responsibility to this appellant for the killing. 14. The death of the victim, Elliott Guy, a young man who had recently become a father, was terrible. That does not, of itself, justify imprisonment rather than a hospital order. That, we accept, is unpalatable to the grieving members of the victim’s family. For them, there can only be a comprehensible and satisfactory solution by the imposition of a life sentence. That is entirely understandable but cannot be dispositive of the issue. But it does raise another important factor which the Common Serjeant and this court is bound to take into account: that is, public confidence in the approach of the court when choosing between a hospital order with restriction and life imprisonment. That confidence can only be satisfied by ensuring that the issue is resolved in a way which best protects the public and reflects the gravity of the offence. 15. By s.28(6)(b) ( Crime (Sentences) Act 1997 a life prisoner in respect of whom a minimum term order has been made may not be released on the direction of the parole board unless the board is satisfied that “it is no longer necessary for the protection of the public that the prisoner should be confined”. 16. By way of contrast, the First Tier Tribunal must discharge a patient absolutely if it is not satisfied that he is suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment (s.72(1)(b)(i)) and is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment (s.73(1)(a) and (b)). If it is not satisfied that he is suffering from the mental disorder we have described, but is not satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment the Tribunal is required to direct a conditional discharge (s.73(2)). Whilst we accept Dr Bartlett’s view as to the rigour with which any discharge would be considered under the mental health regime, nonetheless we must bear in mind the views of the House of Lords in R v Drew [2003] 1 WLR 1213 , 1228 (Paragraph 21):- “Defendants made subject to hospital orders, whether restricted or not, are entitled to release when the medical conditions justifying their original admissions cease to be met…further, they are liable to recall only on medical grounds. They may be a source of danger to the public even though these medical conditions are not met.” 17. In the light of our conclusions as to this appellant’s propensity for violence, even before he suffered from paranoid schizophrenia, and the gravity of the offence, we do not accept that public confidence in the resolution of this case will be maintained by making a hospital order, coupled with a restriction. We take the view that there was ample justification for the conclusion of the Common Serjeant that this appellant bears substantial responsibility for this most grievous of offences and that there is a risk he will remain a source of danger even if his condition substantially improves once he has received treatment and medication. For those reasons, this appeal is dismissed.	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2010-01-28"],"ConvictOffence":["Manslaughter (on grounds of diminished responsibility)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["Imprisonment for life, minimum term 12 years"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[43],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[27],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["offence committed with a knife","offender has previous convictions for violence","offence was unprovoked"],"MitFactSent":["offender suffered from schizophrenia","diminished responsibility"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["Should have imposed hospital order with restriction under s.37 and s.41 Mental Health Act 1983 instead of discretionary life sentence"],"SentGuideWhich":["s.37 of the Mental Health Act 1983","s.41 of the Mental Health Act 1983","s.47 of the Mental Health Act 1983","s.28(6)(b) Crime (Sentences) Act 1997"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["ample justification for substantial responsibility and risk to public; public confidence requires life sentence; risk remains even if condition improves"]}
Neutral Citation Number: [2012] EWCA Crim 1870 Case Nos. 2012/02271/A2 & 2012/02626/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 2 August 2012 B e f o r e: LORD JUSTICE GROSS MR JUSTICE GRIFFITH WILLIAMS and MR JUSTICE SWEENEY - - - - - - - - - - - - - - - - R E G I N A - v - JAMES LAWLOR CRAIG ANTHONY SMITH - - - - - - - - - - - - - - - - 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 Edie appeared on behalf of the Appellant James Lawlor Mr P Arnold appeared on behalf of the Appellant Craig Smith - - - - - - - - - - - - - - - - Judgment LORD JUSTICE GROSS: INTRODUCTION 1. On 20 February 2012 in the Crown Court at Coventry the appellant Smith (now aged 29) pleaded guilty on re-arraignment to the offence of conspiracy to commit robbery. On 15 March 2012 before His Honour Judge Carr and a jury the appellant Lawlor was convicted of the same offence, conspiracy to commit robbery. On 16 March 2012 Lawlor was sentenced to twelve years' imprisonment (less the days spent in custody on remand) and Smith was sentenced to nine years' imprisonment (less the period spent in custody on remand). The difference between the two sentences reflected Smith's plea of guilty for which he received credit (albeit in a reduced amount). Each appeals against sentence by leave of the single judge. 2. The jury were unable to agree upon a verdict in relation to a co-accused, and a retrial was ordered. 3. Before turning to the facts, we should record one regrettable feature of the appeal hearing. Both the transcript of the judge’s sentencing remarks and the Criminal Appeal Office Summary contained an error as to the amount taken in the robbery, namely that £1,008 had been taken rather than the true figure of £108,000 – a figure 100 times greater. Most unfortunately, neither Mr Edie (representing Lawlor) nor Mr Arnold (representing Smith) drew the court’s attention to this error until after the conclusion of our judgment, when Mr Edie did so. Each member of this court had been struck by the low figure but had assumed that it was a quirk of fate. At all events, the erroneous figure had served to persuade us that some if limited reduction to the sentence was appropriate. We had indeed indicated as much in our judgment. Once, belatedly, informed of the true figure and after discussion with counsel, the court rose. After fresh consideration of the matter in the light of the true figure involved, we indicated that the appeals would be dismissed. We also and in terms made it plain that the decision to dismiss the appeals (having initially been minded to allow them) did not amount to punishing the appellants for any failure on the part of their counsel – but rather to sentencing the appellants on the true factual basis. Albeit that this involved a change of view to the appellants’ detriment, we were satisfied that no injustice to the appellants was involved both (1) because the matter was corrected within minutes and (2) the appellants cannot complain of being dealt with on an accurate factual footing. The judgment which follows refers solely to the factual picture as corrected and the decision to dismiss the appeals. We have nonetheless thought it appropriate to explain the history of the matter here. We confess and record that we were deeply unhappy at the delay on the part of counsel in informing us of the true picture; this was most unfortunate. THE FACTS AND THE SENTENCE 4. The facts are these. At about 9.45pm on 10 January 2011 a burglary took place at an occupied dwelling-house in Leamington Spa. Keys to a BMW motor car and a Volkswagen Passat motor car were stolen and the vehicles were driven away from outside the property. 5. One week later, on the afternoon of 17 January 2011, the BMW was driven to a car park close to a branch of the HSBC bank in Balsall Common in the West Midlands. Lawlor drove the Passat, which had been fitted with false number plates, to the same location. There were two other men with him. Both were dressed in dark clothing and wore balaclavas. He arrived outside the bank at about 4.45pm -- fifteen minutes after it had closed. At the time the bank manager was replenishing the cash machine from the inside of the bank. This exercise was undertaken after the bank was closed for security reasons. 6. Lawlor manoeuvred the Passat forwards and then reversed into a parking space directly outside the bank. Shortly before 5pm he reversed the car at speed towards the bank and smashed the glass front of the bank. He then drove the car forward slightly and reversed back into the bank for a second time. The two masked men jumped out of the Passat and shouted at the two cashiers and the manager, who had been struck by flying debris when the car rammed into the bank. The two men grabbed cash boxes containing a total of £108,000 and got back into the Passat. By this time the BMW had been manoeuvred into a position where it was ahead of the Passat, and both cars were driven off in convoy at speed. The robbers subsequently abandoned the Passat, but the BMW and the money were never recovered. 7. Lawlor had been identified as the driver of the Passat. Later that evening he was arrested at his home address. He denied the offence in interview. 8. Smith was subsequently arrested. He pleaded guilty on the basis that he was the driver of the Passat, but the basis of plea was not accepted by either the Crown or the judge, hence the reduced credit. 9. In careful sentencing observations the judge remarked that this was an extremely well-planned offence in which a vehicle was used to attack a bank. Two cars had been stolen beforehand. Lawlor knew the branch that was targeted as he was a regular customer there. The judge (who had tried the case) concluded that he also probably knew when the cash machine would be refilled. Lawlor had driven the stolen Passat there and had had two masked accomplices with him. The BMW had been parked close to the bank and had been made available as a getaway vehicle if the Passat could not be driven after the ram-raid. The Passat was driven at speed towards the bank and the two masked men had leapt out and shouted at the staff. It was accepted that no weapons were used, but it must have been a terrifying experience for the people present. Over £108,000 was stolen and the whole operation lasted 29 seconds. Both cars were driven off. The Passat was abandoned and the BMW was never found. The whole operation showed that there had been a considerable amount of planning. That was demonstrated by the absence of fingerprint evidence, their effective radio silence at the time, and the fact that the money had not been recovered. In summary, this was a sophisticated, well-planned, professional operation with a bank as its target. It was a serious crime which had to be punished accordingly. 10. Smith had offered an unrealistic basis of plea which had not been accepted. Lawlor did not have the benefit of a guilty plea. There was no need to distinguish them as they bore equal responsibility for the conspiracy. Smith's record was worse, but for both of them the offence represented a significant increase in the level of their offending. The Crown had drawn the court's attention to R v McCaffery and McCaffery [2009] EWCA Crim 54 ; [2009] 2 Cr App R(S) 392, because the value of the property stolen was comparable, a car was used and they were lucky that no serious injury had been caused. The judge accepted that no weapons had been used (a point to which we shall return). The appropriate starting point was twelve years. Smith had indicated at a fairly early stage that he proposed to plead guilty, and so he was entitled to a 25% discount. THE GROUNDS OF APPEAL 11. The grounds of appeal, developed orally by Mr Edie for Lawlor and adopted by Mr Arnold for Smith, can be shortly summarised. On the authorities the sentence of twelve years' imprisonment imposed on Lawlor was manifestly excessive. Mr Edie referred us to a number of decisions, in particular R v Delaney [2010] EWCA Crim 988 ; [2011] 1 Cr App R(S) 16 , in which the starting point for a single ram-raid burglary was said to be in the order of seven years' imprisonment. Mr Edie's submission was that the sentence on Lawlor should have been pitched at that level or thereabouts and that insofar as the judge relied on McCaffery (in which the charge was conspiracy to rob) he had fallen into error. McCaffery was a case on a different scale. Mr Edie suggested that no weapon had been used and he raised (if somewhat tentatively) the question of the true offence with which the appellants should have been charged. 12. Mr Arnold adopted Mr Edie's oral submissions. In his written submissions he contended that the car was used only to gain entry into the premises and that no significant threats had been made to the staff. DISCUSSION 13. The nature of ram-raiding can differ. Sometimes it involves a raid in the dead of night when no one is around and when, in truth, the attack is an attack upon property with no individuals at the receiving end. On other occasions it can take place in a crowded location with numbers of people present, whether in the premises attacked or outside. Whichever form it takes and whether charged as theft, burglary or robbery, it is not easy to pigeon-hole ram-raiding within any particular guideline. 14. In R v Byrne (1995) 16 Cr App R(S) 140 the court dealt with an offence which was charged (on the particular facts of that case) as theft. In giving the judgment of the court Lord Taylor CJ said (at pages 141-142): "Counsel on behalf of the appellants have sought to suggest that this was only a case of attempted theft; it failed; it was a one-off offence; and the learned judge treated it all too seriously. In our judgment, that view cannot be sustained. This type of offending, which involves 'ram-raiding', taking vehicles belonging to other people in order to steal from a building, not just be breaking in and taking something, but by breaking down the building itself, has become prevalent and is extremely serious. The gravity can be stated in this way. First, it is almost always a composite offence: it involves the theft of other vehicles before the main theft is attempted. Secondly, it involves targeting a particular prize, and planning the offence with deliberation .... Thirdly, whatever may have been obtained by thieves by this method, or (in this case) whatever may have been attempted to be obtained, there will almost always be serious damage to property .... A further aggravating feature is that this type of offence is aimed at defeating even the best of security. It is no use the owners of buildings, the proprietors of banks or building societies seeking to apply all manner of security devices if a JCB digger is going to be driven bodily through the front window. It is a kind of military operation against whatever security precautions may be applied to any building. Finally, there is the element of breach of the peace. In the middle of the night in Herne Bay, there was an operation going on which roused people and put some of them in fear. It is an affront to civilised society; it is an outrageous offence. It transcends the ordinary type of attempted theft." Those observations remain entirely apposite with the adjustment of a JCB digger to the use of a car in a case such as this, albeit that this case falls into the robbery category, rather than the theft or burglary category. 15. Even as an offence of robbery, ram-raiding does not neatly fall within any particular guidelines, as explained in R v Hibbert [2008] EWCA Crim 1854 where Hughes LJ said this: "23. The guidelines are important and govern sentencing, but they are just that: guidelines. The category of offences described as less sophisticated commercial robberies is more appropriately targeted at the kind of corner shop robbery, which is significantly less grave than this kind of offence. Equally, this is not what is sometimes described as a Turner kind of offence, involving an armed raid on bullion vans or cash deliveries or the like. It seems to us that it is somewhere between the two. 24. But there were important and grave features of this case .... The object of the exercise was to cause as much fright to the public as was possible in order to enable the offenders to complete the theft swiftly. It is not simply a case of menace or of actual force to the victim of the robbery; it is a case of general fear and threat. In the case of both offences, that was achieved by numbers and by the use of frightening implements. Whether they are better described as tools or weapons is perhaps a moot point. They were in a sense tools. They were certainly not used to injure any person, but they would have contributed very significantly to the fear that must have been caused." In that case the court was dealing with a ram-raid on a jeweller's shop in the pedestrianised shopping centre of Banbury. There were a large number of shoppers about. One of the vehicles was used to ram the shop window by reversing into it. Three masked men had emerged from the vehicle, two with axes and one with a truncheon. They smashed the shop window and stole watches worth nearly £13,000. The truncheon had been waved menacingly by the man holding it to discourage anyone else from approaching. The precise sentencing conclusion in that case is neither here nor there. What is of significance is the observation of this court (at paragraph 25) that, following a trial, that offence would have justified a sentence of the order of ten years. 16. In McCaffery , to which the judge had been directed, the charge (as already noted) was conspiracy to rob. It was the robbery of a jewellery store. It involved the display of overwhelming force and the destruction of much property in the process. Jewellery to the value of over £100,000 had been taken (and since recovered), but a value of £1.5 million remained outstanding. This court took the view that, following a guilty plea, the appropriate sentence was ten years' imprisonment, which reflected a sentence of fifteen years' imprisonment after a trial. 17. Finally, Delaney (supra) contains a helpful review of a number of early authorities in the theft or burglary line, including Attorney General's Reference Nos 45, 46, 47, 48 and 49 of 2007 ( R v Carl Kevin Callaghan and Others ) [2007] EWCA Crim 3383 ; [2008] 1 Cr App R(S) 88 . It was in the context of rejecting a submission on behalf of the appellants in Delaney that the total sentence for a number of offences should be in the region of seven or eight years that the court cited Callaghan as suggesting a starting point in the region of, or approaching, seven years following a trial for a single ram-raid offence. 18. In R v Thomas [2011] EWCA Crim 1497 ; [2012] 1 Cr App R (S) 43, this court, presided over by Lord Judge CJ, considered sentencing levels for serious commercial robberies at top end of the sentencing range. We need not consider Thomas in detail; it suffices to underline that the court there drew attention to the relationship (not a mathematical calculation) between the level of sentences for murder and for all serious cases involving violence, so including robbery. The higher sentences for murder in recent years therefore suggested higher sentences across the entire range of offences of violence. 19. Against that background, we return to the instant case. This was manifestly serious offending. It was entirely properly and sensibly charged as conspiracy to rob. The robbery was timed, as the judge recorded, for the emptying of the cash machine. It necessarily followed that there would be individuals on the premises at the time they were attacked. Hence the robbery charge – this was not burglary in the dead of night with no one present. The offence had a number of features: (1) There was sophistication and careful planning as to the bank targeted, the timing, and the availability of the cars stolen beforehand and professionally used. (2) A number of robbers were involved. (3) Masks or disguises were worn. (4) The Passat car was used as a weapon to gain entry into the premises. We reject the submission that no weapons were used; the vehicle was the weapon. (5) As is a hallmark of such offending, the tactic is speed and shock, so numbing individuals on the receiving end or in the vicinity. Moreover, the two appellants have significant criminal records, even if not on the same scale as here. 20. The appellants deserve no sympathy whatever. Serious offending must be met by substantial sentences. The only question is whether the sentences were out of line with the authorities. It would of course be wrong to sentence on a compartmentalised basis and it is always wrong to treat sentencing as a mechanistic arithmetical exercise. Nonetheless, we feel able to discern two broad categories in the decisions to which we were referred. The first, for offences of burglary (or theft), includes cases such as Delaney (supra), which attract a sentencing starting point in the region of seven years following a trial for a single ram-raid offence. The second, for offences of robbery, produces decisions such as Hibbert (supra) and McCaffery (supra), suggesting sentences of the order of 10 – 15 years for a single such offence after a trial. In our judgment, it is the second category which is clearly pertinent here. Moreover, decisions in that second category fall to be considered in the light of the higher sentence levels contemplated in Thomas (supra). 21. In all the circumstances of the case (set out above) and bearing in mind ( inter alia ) that a sum in excess of £100,000 was involved, the Judge was entitled to sentence at a level between Hibbert and McCaffery . Although it may be right to regard the sentences of twelve years' imprisonment for Lawlor and nine years' imprisonment for Smith as being severe, we are quite unable to see them as manifestly excessive. 22. Accordingly, the appeals against sentence are dismissed. ________________________________	{"ConvCourtName":["Crown Court at Coventry"],"ConvictPleaDate":["2012-02-20","2012-03-15"],"ConvictOffence":["Conspiracy to commit robbery"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes","No"],"PleaPoint":["on re-arraignment",""],"RemandDecision":["Remanded into custody","Remanded into custody"],"RemandCustodyTime":[0,0],"SentCourtName":["Crown Court at Coventry"],"Sentence":["12 years' imprisonment (Lawlor)","9 years' imprisonment (Smith)"],"SentServe":["Single","Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[28,29],"OffJobOffence":[],"OffHomeOffence":["Fixed Address","Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Organisation"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Identification evidence","Interview denial","CCTV (implied by planning and absence of fingerprints)","Cash boxes stolen","Bank staff testimony"],"DefEvidTypeTrial":["Offender denies offence (Lawlor)","Basis of plea not accepted (Smith)"],"PreSentReport":[],"AggFactSent":["Sophisticated and well-planned offence","Vehicle used as weapon to gain entry","Masks/disguises worn","Significant value stolen (£108,000)","Multiple offenders","Targeted bank at time of cash machine refill","Significant criminal records"],"MitFactSent":["No weapons used other than vehicle","No serious injury caused","Smith pleaded guilty (25% discount)"],"VicImpactStatement":[],"Appellant":["Offender","Offender"],"CoDefAccNum":[1],"AppealAgainst":["Sentence","Sentence"],"AppealGround":["Sentence of twelve years' imprisonment imposed on Lawlor was manifestly excessive","Car was used only to gain entry and no significant threats made to staff"],"SentGuideWhich":["R v McCaffery and McCaffery [2009] EWCA Crim 54","R v Delaney [2010] EWCA Crim 988","R v Hibbert [2008] EWCA Crim 1854","R v Byrne (1995) 16 Cr App R(S) 140","R v Thomas [2011] EWCA Crim 1497"],"AppealOutcome":["Dismissed","Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Sentence was not manifestly excessive; offence was serious, sophisticated, and involved a large sum","Sentences were in line with relevant authorities for robbery"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Sentences were severe but not manifestly excessive","Judge was entitled to sentence at the level imposed given the seriousness and planning of the offence"]}
No: 200401542/A4 Neutral Citation Number: [2004] EWCA Crim 3446 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 2nd December 2004 B E F O R E: LORD JUSTICE PILL MR JUSTICE GRAY SIR IAN KENNEDY - - - - - - - R E G I N A -v- PAUL ROBERT ELLINGHAM - - - - - - - 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 C COLTART appeared on behalf of the APPELLANT MR D ROSS appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE PILL: On 10th June 2003, in the Crown Court at Ipswich, Paul Robert Ellingham pleaded guilty to an offence on indictment 196. On 5th September 2003, in the Crown Court at St Albans he pleaded guilty to an offence on indictment 206. On 17th November 2003, at this Court, he was sentenced by Field J on indictment 196, for the fraudulent evasion of duty, to two-and-a-half years' imprisonment. That has been described as the Bury St Edmunds case. On indictment 206, count 2, assisting another to retain the benefit of criminal conduct, 18 months' imprisonment consecutive, to that on 196. That has been described as the St Albans case. The total sentence was therefore one of 4 years' imprisonment. 2. On 13th February 2004, in the Crown Court at St Albans, again before Field J, a confiscation order was made on indictment 196, as a result of the conviction on indictment 196, the Bury St Edmunds case. It was in the sum of £129,756, to be paid by 12th February 2005. It was ordered that there would be 18 months' imprisonment consecutive in default. The order was made under section 71 of the Criminal Justice Act 1988 (" the 1988 Act "). This is an appeal with leave of the Single Judge against the confiscation order and that alone. 3. The facts of the St Albans case, in relation to which there is no appeal, can be stated extremely briefly and need only be mentioned because, in that case, it is submitted that the learned judge took a somewhat different approach to the test to be applied when making a confiscation order. That was a case involving the laundering of large quantities of cash through a bank account. The appellant pleaded guilty on the basis that he had been asked by a co-accused to deposit money in that account and was paid only a sum in relation to each deposit he made. He had no further interest in the matter. 4. In the Bury St Edmunds case there was evidence that on 11th March 2002 a container arrived at the port of Felixstow from China. It was examined by customs officers. It purported to contain a thousand cartons of kitchen equipment but, when checked, was found to contain about 6 million cigarettes. The duty which should have been paid on that importation was £1,120,850. 5. The appellant was involved in the importation of that package. The consignee was Vetaria Import & Export, a company with an address at a farm in Leden Road, Essex. The appellant was the sole director of that company and no point is taken upon any difference in legal personality between the appellant and the company itself. The appellant had been involved in the hiring of a storage unit and the container containing the 6 million cigarettes was delivered to that unit. The appellant had picked up the keys to the unit. He had employed two young men who were observed by a customs officer to be unloading the contents of the container into the unit. They had been asked by the appellant to unload the container. 6. The basis of the appellant's plea to the offence was stated in writing. He was not the organiser of the importation of the cigarettes, nor was he financier nor the end user. He was assisting others in organising freight forward into the United Kingdom and organising the freight for their original storage. He was aware of the importation of cigarettes and that import duty was being evaded. The defendant was promised by the organisers of the fraud a total of £10,000 to arrange the United Kingdom freight, of which he received £5,000 at or around the time he was also given monies to pay freight charges. He was to receive the balance of £5,000 following initial storage. This latter payment he did not receive. 7. When sentencing the appellant to the term of imprisonment on 17th November 2003 the judge stated: "You were the main organiser in the United Kingdom for this major smuggling operation which had been well planned. With some reluctance, I accept that you were to be paid £10,000 for the role that you played. You were not the organiser of the whole smuggling operation. There were others more involved than you, who organised the shipment to this country." 8. On the confiscation hearing it was conceded that the importation had given rise to a pecuniary advantage in the sum of £1,120,850. It was also not in issue that the level of the appellant's realisable assets was £129,756, the sum in which the order was made. 9. Mr Coltart's submission, on behalf of the appellant, is that the pecuniary advantage was not that of the appellant and that he did not obtain the benefit in the importation. The extent of the property he had obtained was the £5,000 he was actually paid. That, not the sum of over £1 million, was the sum upon which the confiscation order ought to have been based. 10. Section 71 of the 1988 Act provides, at subsection (1), as far as is material: "Where an offender is convicted, in any proceedings before the Crown Court... of an offence of a relevant description, [to which the present is one] it shall be the duty of the court [and there then follows the procedure by way of seeking a confiscation order. (1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct." The word "benefit" is defined in section 71(4) : "For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained. (5) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage." 11. The general approach to the statute was stated by the House of Lords in R v Rezvi [2002] UK HL 1. Giving the leading speech, Lord Steyn stated, at paragraph 14: "It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are therefore essential. The provisions of the 1988 Act are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises. These objectives reflect not only national but also international policy." 12. Mr Coltart submits that to make a confiscation order in the present sum was unfair to the appellant. In addition to sending him to prison and confiscating his true proceeds of crime (the sum of £5,000) the order amounted to imposing a large fine upon him. The benefit figure, within the meaning of section 71(4) , was limited to any fee paid to the appellant for looking after the drugs. This is consistent, it is submitted, with the reality of the situation. 13. In making that submission, the appellant seeks to rely upon cases decided under the drugs legislation, where the appellants had no beneficial or financial interest in the drugs involved, in particular, in relation he relies on the case of J [2001] 1 Cr App R(S) 79 (273) and R v Johannes [2002] 2 Cr App R(S) 29 (109). Upon the judge's approach to section 71 in the present case, it is submitted that drugs offenders are in a more favourable position than those who commit offences covered by section 71 . That cannot, it is submitted, have been the intention of Parliament. The relevant section of the Drugs Trafficking Act 1994, section 2(3) provides, in so far as is material: "...a person has benefited from drug trafficking if he has at any time... received any payment or other reward in connection with drug trafficking carried on by him or another person." Counsel submits that the word "benefit" is so to be construed under section 71 as to provide no greater penalty to offenders covered by that provision than drugs offenders covered by the section 2(3) of the 1994 Act. 14. It is further submitted that, in the circumstances, the Court should take into account the right now provided by the Human Rights Act 1998 , which had incorporated Article 1 of the first protocol to the European Convention on Human Rights. Article 1 provides: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." It is submitted that, upon the broad construction of section 71 on which the prosecution rely, the test of proportionality is not met. The pecuniary advantage obtained by the appellant was very small in relation to the entire value of the duty evaded. The Court, by virtue of section 3 of the Human Rights Act , should construe legislation, so far as possible in a way which is compatible with Convention rights. Those Convention rights are infringed by the imposition of a confiscation order on the basis it was. Mr Ross, for the prosecution, submits that the words "obtains" and "benefit" should be given a broad meaning. 15. In R v Patel [2000] 2 Cr App R(S) 10 there was an issue as to the amount in which an order could be made when several defendants obtained money pursuant to a criminal conspiracy. The Court stated, in its conclusions at page 16: "On the facts of this case the appellant, pursuant to the criminal conspiracy, admitted receiving in his hand a total of £51,920.89. That represented his benefit from his relevant criminal conduct. The fact that he had subsequently given some of that money to his fellow conspirator is irrelevant for the purposes of section 71 ." 16. In R v Gibbons [2003] 2 Cr App R(S) 33, the appellant was convicted of conspiring to defraud banks and credit card companies by dishonestly obtaining the redirection of mail. The total loss to the companies was in excess of £220,000. The Court, Kennedy LJ presiding, considered the relevant section. Hallett J, giving the judgment of the Court, stated at paragraph 58: "In our judgment, it is plain that Parliament intended this legislation to bite and to bite hard on criminals and to remove from them, where possible, their ill-gotten gains. The court is under a duty, under the terms of s 71, either of its volition or at the behest of the prosecution to determine the benefit obtained by an offender as the result of or in connection with the offence of which they have been convicted. In our judgment the words of s 71(4) have a deliberately wide ambit. The word 'obtains' is neither qualified nor defined. Parliament has not laid down any rules governing the way in which a court should approach its task in determining the benefit obtained as a result of or in connection with an offence. We decline to follow [counsel's] reasoning because, if we did, it would plainly thwart a clear intention of Parliament." 17. The House of Lords considered the matter in the case of R v Smith [2002] 1 WLR 54 . The appellant bought a motor vessel and allowed himself to be used by another man as shipowner and captain. The boat was used to land substantial quantities of cigarettes on which duty was not paid. The charge was of fraudulent evasion of excise duty. In the leading speech, given by Lord Rodger of Earlsferry, the effect of section 71 was considered: "23 These provisions show that, when considering the measure of the benefit obtained by an offender in terms of section 71(4) , the court is concerned simply with the value of the property to him at the time when he obtained it or, if it is greater, at the material time. In particular, where the offender has property representing in his hands the property which he obtained, the value to be considered is the value of the substitute property 'but disregarding any charging order'... It therefore makes no difference if, after he obtains it, the property is destroyed or damaged in a fire or is seized by customs officers: for confiscation order purposes the relevant value is still the value of the property to the offender when he obtained it. Subsequent events are to be ignored, in just the same way as any charging order is to be ignored under subsection (6). Such a scheme has the merit of simplicity. If in some circumstances it can operate in a penal or even draconian manner, then that may not be out of place in a scheme for stripping criminals of the benefits of their crimes." Then at paragraph 26: "If, then, the value of property obtained as a result of or in connection with the commission of an offence is simply the value of the property to the offender when he obtained it, even if it is subsequently destroyed, damaged or forfeited, one would expect the same general approach to apply in the case of pecuniary advantage. And indeed subsections (4) and (5) of section 71 of the 1988 Act produce that result. As I have already noted, the combined effect of those subsections is that the offender who has derived a pecuniary advantage from his offence is treated as a person who has obtained 'property' as a result of or in connection with the commission of the offence, the 'property' in question being a sum of money equal to the value of the pecuniary advantage. Under section 74(5) for the purposes of making a confiscation order the value of the property is its value to the offender when he obtained it. In this case the respondent derived a pecuniary advantage by evading the duty at the moment when he imported the cigarettes. The sum equalling that pecuniary advantage is treated as property obtained by the respondent at that moment. In terms of section 74(5), its value must therefore be determined at that moment, disregarding the fact that, soon after, the customs officers seized the cigarettes at Goole." We regard those statements as directly applicable to the facts of this case, the circumstances being those of the moment of importation. 18. Mr Coltart seeks to distinguish Smith on the basis that there was no basis of plea in that case. The Court in Smith was entitled to assume that the defendant was to share the profits of the illicit enterprise. This places him, it is submitted, in an entirely different position from the present appellant, who pleaded guilty on a particular basis, and whose benefit was only in the sum of £5,000. 19. We refer to one further case, rightly and helpfully brought to our attention by Mr Coltart, the case of R v Alagobola 21st January 2004 [2004] EWCA Crim 89 . That was a case where the defendant facilitated a money laundering operation. He allowed a bank account to be credited with sums and he requested the bank to transfer sums from the account elsewhere. It was held that the full sum paid into the defendant's account was the benefit received by him within the meaning of the section. 20. It was argued, as in the present case, that the marginal culpability of the defendant was such that not the full sum but only any reward he had obtained should be taken into consideration. This Court, Latham LJ presiding, rejected the submission. Pitchford J, giving the judgment of the Court, stated at paragraph 21: "It seems to us, however, that the submission is founded upon the fallacial assumption that when the appellant dealt with the money by transfer he derived thereby no benefit. On the contrary, it seems to us the appellant was now in possession of the funds in his account which he knew or suspected were the proceeds of criminal conduct. By dealing with it following the acquisition of knowledge, upon the instructions of the alleged criminal, he was, in our view, and for the purpose of onward transmission, obtaining property in connection with the commission of an offence. He was exercising the right of the holder of the account to deal with the funds within it and he was dealing with those funds with a guilty mind. Accordingly, his benefit was the value of the property so obtained. Benefit from criminal conduct does not, for the purposes of section 71 , mean personally to enjoy the fruits of criminal conduct." It appears to us clear from the authorities that the avoidance of customs duty was "deriving a pecuniary advantage" within the meaning of section 71(5) . It is not disputed that any such advantages was, "as a result of or in connection with the commission of an offence." It was the appellant who was responsible for the importation and storage of the goods, whatever reward he might eventually have been expecting, and, in our judgment, he derived a pecuniary advantage within the meaning of the subsection upon the importation. We follow the reasoning of Lord Rodger, in Smith . The pecuniary advantage having been obtained, the appellant did, within the meaning of subsection(4), obtain property as a result of or in connection with the commission of the offence. In our judgment, his participation was such that he obtained the property within the meaning of the subsection. 21. Mr Coltart concedes, that somebody derived a pecuniary advantage within the meaning of subsection (5). We reject the submission that the appellant is not covered by those provisions in relation to the entire sum avoided by way of the duty which ought to have been paid. It is suggested that the distinction between the section so construed, and the equivalent section under the Drugs Trafficking Act, means that an arbitrary taking of property is involved. The wording of the relevant sections in the two Acts is quite different. In our judgment, the meaning and relevance of the subsections to the present conduct is plain. Moreover, fortified by the statements of authority to which we have referred, we do not consider that these provisions as so applied involve any breach of the Human Rights Act 1998 and the rights conferred therein. 22. A pecuniary advantage was obtained by the avoidance by the payment of duty. By his conduct the appellant obtained property within the meaning of the section 71(4) . The fact that his financial reward in the and was small and the fact that, on the basis of his plea, it could only have been small, does not prevent the operation of the section, in our view, in the way we have described. We respectfully agree with the way the matter has been put by this Court in the judgment of Hallett J in Gibbons and, more recently, in the judgment of Pitchford J in Alagobola though Alagobola did not involve a route via section 71(5) . For the reasons we have given this appeal is dismissed. 23. MR COLTART: I am minded to ask your Lordships to grant leave to appeal your Lordships' decision to the House of Lords. That is my first application. If that fails, I wonder if your Lordships would consider a draft question which I have drafted to determine whether or not this case involves the point of law general public. 24. LORD JUSTICE PILL: We have to certify first, do we not? Have you got it in writing? 25. MR COLTART: Pass up copies of it. Mr Ross has seen it. I do not know if he has observations on terms of it. 26. LORD JUSTICE PILL: This is entirely consistent with the submissions you have made. Do you want to add anything? 27. MR COLTART: No thank you. For the purposes of the record I should read out what the question says: "If the defendant is involved in the commission of an offence which gives rise to financial gain but sentenced on the basis that (a) he had no beneficial interest in the proceeds of the offence, and (b) he received only a lesser identifiable sum for having taken part, is his benefit, for the purposes of section 71(4) Criminal Justice Act 1988 restricted to the sum referred to in B?" My Lord, if your Lordships are not minded to grant leave to appeal this case to the House of Lords, I respectfully ask your Lordships to certify this case as involving a point of law of general public importance, in the terms sought. 28. LORD JUSTICE PILL: Mr Ross? 29. MR ROSS: My Lord, I do not really have any submissions on this application. 30. LORD JUSTICE PILL: Very well. Mr Coltart, in deciding this we do have to have regard to the weight of authority, do we not? We cannot treat this as if the point has never come up before. 31. MR COLTART: I accept that of course. I stated at the outset, under the weight of authority, it was against me. 32. LORD JUSTICE PILL: House of Lords, we regard the case of Smith as relevant. 33. MR COLTART: My Lord, yes. I ask your Lordships to bear in mind the impact of the anomaly which has been identified during the course of argument. 34. LORD JUSTICE PILL: You said it was my word. What I said was I thought on your case 'anomaly' was a better word than 'arbitrary', but I am not complaining. 35. MR COLTART: That is a matter of significance. I respectfully submit and one sufficiently unclear at present in order to satisfy the test of general public importance for the purpose of this question. 36. MR JUSTICE GRAY: Your draft point of law goes further than your basis of plea. I do not think there is anything about having beneficial interest in the proceeds of the offence and your basis of plea. I mention that in case... 37. MR COLTART: His reward was limited to a fee of £5,000, then the inference would be he was not entitled to share in the wider proceeds. I accept it is not explicit on the basis of plea. 38. LORD JUSTICE PILL: We will retire. (Short Adjournment) 39. LORD JUSTICE PILL: Mr Coltart, in the light of the authorities and our view of the section, we are not prepared to certify.	{"ConvCourtName":["Crown Court at Ipswich","Crown Court at St Albans"],"ConvictPleaDate":["2003-06-10","2003-09-05"],"ConvictOffence":["Fraudulent evasion of duty","Assisting another to retain the benefit of criminal conduct"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Court of Appeal"],"Sentence":["2.5 years imprisonment (fraudulent evasion of duty)","18 months imprisonment consecutive (assisting another to retain the benefit of criminal conduct)"],"SentServe":["Consecutive"],"WhatAncillary":["Confiscation order of £129,756 with 18 months' imprisonment consecutive in default"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Basis of plea: not organiser, not financier, not end user; only received £5,000 of promised £10,000"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Confiscation order"],"AppealGround":["Confiscation order should be limited to actual benefit (£5,000) not total duty evaded (£1,120,850)"],"SentGuideWhich":["section 71 of the Criminal Justice Act 1988"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["The appellant derived a pecuniary advantage within the meaning of section 71(5); authorities confirm the full sum of duty evaded is the benefit; the law requires confiscation of the full pecuniary advantage, not just the actual reward received; no breach of Human Rights Act 1998"]}
Neutral Citation Number: [2004] EWCA Crim 3156 Case No: 2003/04399/B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 9 December 2004 Before : LORD JUSTICE KENNEDY MR JUSTICE HUGHES and MR JUSTICE SIMON - - - - - - - - - - - - - - - - - - - - - Between : R - v - JOHN FRANCIS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mark Barlow for the appellant Oliver Sells QC and Janet Weeks for the Crown Hearing dates: 22 nd November 2004 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Kennedy : 1. On 26 th June 2003 at the Central Criminal Court this appellant was convicted of six counts of rape and was sentenced to a total of 12 years imprisonment. He now appeals against conviction by leave of the single judge, who granted leave to appeal only in respect of two grounds, and referred a third ground of appeal to this court. The appellant also renews his application for leave to appeal against sentence after refusal by the single judge. Facts. 2. The appellant is a native of St Lucia who first came to the United Kingdom in 1976, and then on a more permanent basis in 1986. He says that in St Lucia he worked in government service and as a senior trade union official. He lived with a woman who we refer to only as Simone. By her he had four children two of whom died. The other two were girls, JT born in April 1984 and J born in January 1986. It is his behaviour towards that last mentioned child which forms the subject matter of the indictment in this case. 3. After the appellant came to the United Kingdom in 1986 he met and married Patricia, with whom he then lived. He had three children by her born between March 1988 and November 1990. 4. In about 1992 the appellant formed a relationship with a third woman, Lorna, by whom he had three more children between January 1994 and October 1997. 5. During that period, in late 1994, Simone brought her two children to the United Kingdom because the eldest was suffering from sickle cell anaemia. In about February 1995 Simone returned to St Lucia leaving those two children with Lorna. J, the alleged victim, was then just 9 years of age. 6. The prosecution case was that between 1995 and 1998 the appellant regularly sexually abused J at various addresses, namely the home of Patricia and the appellant, the home of Lorna, and an empty flat. There was no complaint at the time, but that, it is submitted, was because the appellant was a dominating, commercially successful and powerful man. 7. On 21 st January 1999 J’s sister, JT, was in hospital and told a nurse, Jacqueline Johnstone, that her father had been having sex with her sister. That resulted in J being seen on the following day. She confirmed that her father had been having sex with her, and there was then an interview which was video- recorded in which she said that it had happened at the various addresses with which she was associated, and that the last occasion was in August 1998. There was one occasion, she said in a second video interview, when at Patricia’s address Patricia came in to the room whilst the appellant was having sex with her and the appellant threw a towel into Patricia’s face. 8. J was medically examined by Dr Susan West who found her to be a 13 year old girl with no obvious abnormalities. The examiner could introduce two gloved fingers into the vaginal opening with no discomfort, and felt no tight residual hymenal ring. She said that her findings were consistent with an allegation of penile penetration, and with not being a virgin, but she could not assess the number of times that penetration had occurred. 9. Dr Aziz was also an experienced examiner but she did not examine the complainant. She relied on the evidence of Dr West as to what could be found, and she concluded that there had been no pre-puberty penile penetration because there were no signs of damage. 10. The initial investigations took a little time, and it was the prosecution case that the appellant, a man of good character, was using that time to set up the outline of his defence, which was that J had had sexual relations before she left St Lucia (at the age of 8½), that all of the allegations against him were lies, and that J and her sister and the three older women – Simone, Lorna and Patricia – all had reasons to tell lies about him. He was interviewed in the presence of his solicitor in April 1999, and that is basically the position which he adopted then and thereafter. The first trial. 11. The appellant stood trial at the Central Criminal Court in October to November 1999, and was convicted of six counts of rape of J. He was sentenced to 12 years imprisonment. On 18 th July 2002 this court granted him leave to appeal on limited grounds, and his appeal was allowed on 16 th December 2002. A re-trial was ordered, and it is against the decision reached at the conclusion of the re-trial that this appeal is brought. Grounds of Appeal. 12. The original grounds of appeal were drafted by leading counsel who appeared for the appellant at the re-trial, but who no longer represents him. The appellant also drafted grounds of appeal of his own. The single judge granted leave to appeal on two of the grounds drafted by counsel, namely – (1) That the trial judge was wrong not to accede to a defence submission that the prosecution particularise the counts in the indictment at the close of the prosecution case, reliance being placed on R v Rackham [1997] 2 Cr App R 222 . (2) That the trial judge was wrong not to allow Dr Aziz to be re-examined as to the size of the appellant’s semi-erect penis, which she had recorded. That was said to be relevant because she had said in cross-examination, as she had originally said in her witness statement, that the state of the hymen was consistent with penetration by things which included a smaller penis. The single judge also referred to this court the appellant’s ground of appeal concerning the commission and treatment of hearsay evidence from nurse Jacqueline Johnstone, Lorna, and the complainant’s sister JT. The appellant’s submissions. 13. Mr Barlow, who now appears on behalf of the appellant, and to whom we are indebted, has taken a realistic and sensible attitude in relation to the first ground of appeal. He recognises, as we do, that there was evidence which, at the conclusion of the prosecution case, would have enabled the prosecution to formulate counts in relation to specific incidents, such as in particular the occasion when Patricia was alleged to have entered the room, but that would have been in addition to rather than in substitution for the existing counts, because the prosecution case could not be tied to a few isolated and identifiable occasions, so in reality the appellant lost nothing by the refusal of the judge to require further particularisation. That is why Mr Barlow, as he told us, finds the first ground of appeal difficult to argue. We agree with him that it is not really arguable, and we therefore turn to ground 2. 14. We understand that at the first trial Dr Aziz produced a model to demonstrate the size of the appellant’s penis when erect in order to support her thesis that such an organ would have caused damage if inserted into the vagina of the child. It may be that those representing the appellant later came to the conclusion that the production of the model had been forensically counter-productive. We do not know, but we do know that at the second trial leading counsel for the appellant deliberately decided not to lead evidence from Dr Aziz in chief as to the measurements which she had taken of the appellant’s penis when semi-erect. Accepting the findings of Dr West, including the absence of any observations of damage, Dr Aziz concluded her examination in chief by saying “I do not think any penile penetration has taken place”. Mr Oliver Sells QC, for the Crown, then cross-examined by reference to the findings of Dr West, and referred Dr Aziz to her report, in which she had said that Dr West’s findings were consistent with the complainant having been penetrated by an object smaller than the defendant’s penis, such as a small penis, fingers or a similar sized object. It was against that background that Mr Rouch QC, for the appellant, sought to introduce in re-examination the measurements taken by Dr Aziz of the appellant’s penis. Mr Sells objected, and the judge then heard submissions and made his ruling in the absence of the jury. During the course of those submissions Mr Rouch said that he had not led the evidence in chief because of Dr West’s evidence (so clearly it was a deliberate decision not an oversight), but he contended that it became admissible in re-examination because Mr Sells had cross-examined about the size of the invading object. The judge disagreed. He ruled that if Mr Rouch wanted to introduce the evidence he should have done so in chief, and that Mr Sells had carefully cross-examined in a way that did not open the door to the introduction of the evidence in re-examination. Mr Barlow concedes that in law the stance taken by the Crown can be justified, but he invited us to consider the effect of the exclusion of the evidence that the appellant had a large penis on the safety of the conviction. He submits that if the jury had that in evidence it might have reinforced the defence argument that if J had been subjected to repeated intercourse with the appellant over a period of years as she alleged there would have been more damage, so, Mr Barlow submits, we should regard the convictions as unsafe. 15. We turn now to the third ground of appeal which Mr Barlow put at the forefront of his case and which we gave him leave to argue. It can be summarised thus – (1) In her evidence in chief Lorna said that in November 1998 she learnt from Patricia of her belief that the appellant was sexually involved with J, and she then spoke to J who broke down and said “it was all true and had been going on for years”, since just after her mother went back to St Lucia. That led Lorna to telephone the NSPCC, and it was accepted that she had done that. (2) If, as J alleged, the last act of abuse was in August 1998 (or if Patricia was right September 1998) then what was said by J to Lorna in November 1998 could be regarded as admissible on the basis that it was a recent complaint, but whatever the basis of admission the jury had to be directed as to how such evidence should be approached, and no such direction was given. In Islam [1999] 1 Cr App R 22 Buxton LJ at 39 pointed out that without an appropriate direction jurors may not realise that a complaint is not independent evidence of that which is complained of, because a witness cannot corroborate herself, and such a complaint only helps the jury to decide whether what has been said on oath is the truth. In that case the failure to give the direction resulted in the appeal being allowed. 16. As was made clear in Croad [2001] EWCA Crim 644 , it does not matter how the complaint material gets before the jury. If they have heard a previous account by the complainant which does not of itself constitute evidence then the standard warning is required. In the present case the judge did no more than tell the jury to be quite careful about “second-hand evidence, that is comments which a witness makes about which they have no first-hand knowledge”. That warning was repeated by the judge when dealing with what JT told the nurse, but it was plainly not the standard warning to which we have referred, and Mr Barlow submits that the absence of that standard warning in this case renders the conviction unsafe. The Respondent’s submissions. 17. In relation to the evidence of Dr Aziz Mr Sells submitted that a tactical decision having been taken not to lead the particular evidence in chief the judge was right to rule as he did in relation to re-examination. Furthermore there was never any doubt as to the stance being taken by Dr Aziz, namely, as the judge said when summing-up – “She had concluded that Dr West’s findings were consistent with penetration by an object smaller that the defendant’s penis, for example, smaller penis, fingers or similar objects…. What she says in her view there was no penetration pre-puberty, but she cannot exclude either a smaller penis or another object being introduced after puberty.” So the jury was not in any way misled as to the effect of the evidence. 18. Turning to ground 3 Mr Sells explained to us that before the start of the re-trial there was a discussion between counsel as to how to deal with the hearsay evidence, and in particular what the complainant and her sister were alleged to have said to others, much of which the defence wanted to introduce in order to support allegations of inconsistency. Thus the evidence of what the complainant was alleged to have said to Lorna in November 1998 was led, by the prosecution as part of the history, and, Mr Sells submitted, no “recent complaint” direction was required in relation to it. As Mr Sells points out, the trial judge invited counsel to indicate if there were any omissions or corrections to be made in relation to his summing-up, and nothing was said, so it is clear that at the time of the trial no counsel considered that a recent complaint direction was required. Our conclusion on Grounds 1 to 3. 19. For the reasons given in paragraph 13 above we are satisfied that there is no substance in the first ground of appeal. 20. As to the second ground of appeal we consider that the evidence which Mr Rouch wanted to introduce in re-examination should have been admitted. The form of cross-examination was such that in our view the material became admissible in re-examination. But even if we are wrong about that, it seems to us that in a case such as this the judge should have hesitated to exclude evidence which was potentially relevant unless he came to the conclusion that the evidence had been deliberately withheld in order to introduce it at a later stage, or that its late production would be prejudicial to the prosecution case. It is not suggested that there was justification for either of those conclusions in this case. But the fact that, in our judgment, Mr Rouch should have be allowed to lead the evidence is not decisive. What matters is whether the absence of the evidence renders the convictions unsafe, and in our judgment it does not have that effect. As Mr Sells pointed out, the jury heard the evidence of Dr Aziz, and were reminded of it in the summing-up. They knew that in her opinion the state of the complainant’s private parts was not consistent with full penetrative sexual intercourse by an adult male over a period of years, but nevertheless they decided to convict. Even without measurements the point being made by Dr Aziz was easy to grasp, and we simply do not accept that the production of measurements would have had the decisive or even any significant effect. That must have been the opinion of at leading counsel for the defence when he examined Dr Aziz in chief, and in our opinion he was right. 21. As to ground 3, the failure to assist the jury as to how to deal with the evidence of complaints, we accept that in general the appropriate warning should be given, but in this case it was accepted that by late 1998/early 1999 J was alleging to her sister as well as to Lorna that her father had been having sexual intercourse with her for some time, hence the conversation between JT and the nurse of 21 st January 1999. For sound tactical reasons defence counsel wanted the jury to know what J was then saying. It was anticipated that it would be possible, by reference to that evidence, to demonstrate inconsistency. That being the issue which the jury was invited to consider we find it difficult to envisage what would have been the impact of the usual warning in this case. If, as we believe, the warning which should have been given would not have had any real impact, then its omission cannot render the conviction unsafe, and it is not surprising that the need for the warning did not even occur to counsel or to the trial judge. This conclusion takes account of the appellant’s letter of 23 rd November 2004, and its enclosures, which was written to the court after we heard the appeal. The remaining grounds of appeal. 22. In addition to the three grounds of appeal considered above, Mr Barlow asked us to consider the written submissions that the appellant had lodged with the Criminal Appeal Office. Some of these submissions relate to the grounds upon which we were addressed by Mr Barlow. Some are new and different grounds; and we have focussed on these. 23. First, the appellant seeks to argue that there was not sufficient evidence of sexual intercourse and absence of consent to go before the Jury. In our view there plainly was and the evidence was properly set out in the course of the summing up. 24. Secondly, the appellant seeks to raise an argument that it was an error of law for the judge to direct the jury that a girl under 16 could not give her consent. We are not sure how this point arises since the judge said no more than "age would be a factor in relation to consent". 25. Thirdly, the appellant raises the issue as to whether there was a proper direction as to the possibility that he might not have realised that the J was not consenting. In our view the summing-up on this point covered the issue properly. It was of course the appellant’s case that no sexual intercourse had occurred. 26. Fourthly, the appellant argues that the introduction of J’s video evidence was impermissible under the Criminal Justice Act 1988 . There is nothing in this point. This evidence was properly admitted under the provisions of the Youth Justice and Criminal Evidence Act 1999 . 27. Fifthly, the appellant seeks to raise an argument based on the judge’s refusal to stay the prosecution as an abuse. We have considered the judge’s ruling on this point (made on 9 th June). He rejected the application on the basis that, since the basis of the application related to the absence of defence exhibits, it was unlikely that the prosecution were under a duty to retain them and that, in any event, there was no prejudice or unfairness created by the absence of the exhibits. This ruling does not give rise to any arguable grounds of appeal. 28. Sixthly, the appellant complains that his counsel did not explore with Lorna that she did not live at a particular address at the time the offences were said to have taken place at her house. In the absence of a waiver of privilege on this point, we are not satisfied that this gives rise to an arguable ground that the trial was unfair. 29. Seventhly, there is a broad criticism that the judge was unfair to the appellant in his summary of the evidence. We do not accept that this is an arguable criticism of the judge. He had given the standard direction that the facts were for the Jury and correctly identified the nature of the defence, which included a reference to the difficulty which the appellant faced in dealing with allegations which were not precisely dated. 30. Eighthly, the appellant submits that there was no sufficient evidence upon which the jury could properly convict him of particular counts which he has identified. Despite the detailed points which the appellant makes, we do not consider that this broad way of looking at the case adds anything to the arguments which we have already addressed and address below. 31. The rest of the matters of complaint we can deal with more shortly: there was no misdirection in relation to the need for unanimity; questions which might have been put to J in the course of cross-examination do not give rise to arguable grounds; there was no requirement for a Lucas direction and the judge’s guidance to the jury on how they might approach the appellant’s evidence does not properly give rise to criticism; and there was no unfairness in the jury seeing an indictment in which one of the counts was not proceeded with. Conclusion in relation to conviction. 32. We therefore conclude that there is no substance in any of the grounds of appeal against conviction which have been drawn to our attention, and the appeal against conviction is therefore dismissed. Sentence. 33. As Mr Barlow submitted, the appellant is a man who prior to these events had no previous convictions, but the offences of which he was convicted were grave, and the sentence passed upon him had to reflect the aggravating circumstances of the case. It is not even contended that the sentence falls outside the range provided for in the guideline cases relevant to offences of this kind, and the renewed application for leave to appeal against sentence is therefore dismissed.	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2003-06-26"],"ConvictOffence":["Rape"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["12 years imprisonment"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[9,12,13],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Medical expert report/testimony","Video interview","Hearsay evidence"],"DefEvidTypeTrial":["Offender denies offence","Expert report/testimony"],"PreSentReport":[],"AggFactSent":["offence committed over a period of years","abuse of a child by a parent"],"MitFactSent":["offender has no previous convictions"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["failure to require prosecution to particularise counts","exclusion of expert evidence in re-examination","failure to give standard direction on hearsay/recent complaint evidence","insufficient evidence of sexual intercourse and absence of consent","error of law regarding consent of girl under 16","improper direction on defendant's belief in consent","improper admission of video evidence","refusal to stay prosecution as abuse","counsel did not explore witness's address","unfair summary of evidence by judge","insufficient evidence for particular counts"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["no substance in any of the grounds of appeal against conviction","sentence within guideline range","no prejudice or unfairness created by absence of exhibits","judge's directions and summing up were proper","evidence properly admitted","no arguable grounds of appeal"]}
No. 2006/04101/A6 Neutral Citation Number: [2006] EWCA Crim 2924 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 7 November 2006 B e f o r e: LORD JUSTICE HUGHES MR JUSTICE HENRIQUES and MR JUSTICE FIELD - - - - - - - - - - - - - R E G I N A - v - ANDREW LAY - - - - - - - - - - - - - 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 M NEWBY appeared on behalf of THE APPELLANT MISS J CUTTS appeared on behalf of THE CROWN - - - - - - - - - - - - - J U D G M E N T Tuesday 7 November 2006 LORD JUSTICE HUGHES: 1. This is the appellant's second visit to this court in relation to a single sentence. On the last occasion this court, differently constituted, dealt with the merits of the length and principle of an extended sentence. The appellant appears before us today on a reference by the Criminal Cases Review Commission. The reference raises a significant point of general interest in relation to the passing of extended sentences consecutively with another sentence or sentences. 2. It must be remembered that there are available to trial judges, depending on the date of the offences, three different kinds of sentence, all of which are called "extended sentences", but which differ significantly. That they have the same name is unfortunate because it is apt to confuse. In historical order the first form of sentence is that provided for by section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 in relation to sexual offences committed before 30 September 1998. Whilst that is quite a long time ago, offences of that kind frequently still come to trial. That section enables the sentencer to direct that the licence which follows release shall run not to the three-quarter mark in the overall sentence, but to the end of the sentence. 3. The second type of extended sentence is that provided for by section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 . That relates to offences which are committed between 30 September 1998 and 4 April 2005. That section enables the court in the case of a violent or sexual offence to pass a sentence which is made up of a custodial term and an extended licence period. 4. Lastly, in relation to offences committed after 4 April 2005, there is now a new form of extended sentence created by section 227 of the Criminal Justice Act 2003 . That applies where the offender comes within the dangerousness provisions of Chapter 5 of that statute. It also enables the court (although in different circumstances) to pass a sentence which is made up of a custodial term and a further extension period. 5. The present case concerns an extended sentence of the second type. It is a sentence governed by section 85 of the Powers of Criminal Courts (Sentencing) Act. The appellant had pleaded guilty to two sets of sexual offences. The first amounted to seeking out through an internet chat room a very young girl. She was 12 and he knew it. He progressively corrupted her by a mixture of sexual excitement, flattery and money. He encouraged her to take indecent photographs of herself, to truant from school, to meet him clandestinely, and in due course to masturbate him and later to have sexual intercourse with him. By the time of the sexual intercourse she was just 13. That course of conduct gave rise to a series of offences of indecent assault, unlawful sexual intercourse, gross indecency and the making of indecent photographs. 6. In addition to that, the appellant was found to have on his computer 3,000 indecent images of children. They were mostly in the lower Oliver categories, but there were a significant number in categories 3, 4 and 5. The possession of those images gave rise to a second indictment containing 21 sample counts of making indecent images. The appellant had no previous convictions, but the probation report upon him was discouraging. It indicated that he minimised the offences, blamed the girl for leading him on, and described his interest in child pornography as "mere curiosity". Accordingly, he plainly represented a significant risk in the future. That was the conclusion to which the author of the report as well as the trial judge very properly came. 7. On the first indictment various concurrent sentences were imposed. The longest was four years' imprisonment. On the second indictment sentences of two years concurrent with one another were imposed, but they were made consecutive to the first indictment. Accordingly, the total was thus far six years' imprisonment. It was a paradigm case for an extended sentence. The judge, recognising that, simply said that he extended the licence period by five years. He did not identify the offences for which an extended sentence was imposed. 8. When this court heard the appeal on its merits, it upheld both the overall length of the custodial term and the five year extension of licence. It corrected the omission of the trial judge by providing that the extended sentence was imposed for two offences of indecent assault. They were sentences for which the judge's term had been four years. Accordingly, they now became extended sentences of nine years: a custodial element of four plus a five year extension period. That made the necessary technical correction without altering the substance of what the judge had, rightly, wanted to achieve. 9. At that stage no one took any point upon the existence of the sentences on the second indictment or upon the fact that those two year sentences were consecutive to the sentences on the first indictment, and thus consecutive to the extended sentence on the first indictment. That is the narrow but significant point upon which the Criminal Cases Review Commission now re-refers this case to this court. 10. This court has expressed concern in a number of cases that the practice of passing consecutive sentences, where either one or both of them is an extended sentence under section 85 , whilst it is not unlawful, may give rise to practical administrative problems. For that reason this court has suggested that where possible the practice should be avoided. Specifically, concern has been expressed that a prisoner might at the same time be both on licence and serving a consecutive determinate custodial term: see (among many others) R v Nelson [2002] 1 Cr App R(S) 565 at paragraph 23, R v Pepper [2005] EWCA Crim 1181 , and R v Phillips [2006] EWCA Crim 2145 . 11. The submission on behalf of the appellant is that the approach of those cases should be adopted. It is accepted that it would be perfectly proper for a judge who has good grounds to impose an extended sentence under section 85 , to aggregate what would otherwise be consecutive custodial terms and pass a single sentence, together with the extended licence, for one offence or for that matter for several concurrently. In the present case that would mean an extended sentence of eleven years, that is a custodial term of six years (representing four, plus two, as passed by the judge), together with an extension period of five years. That aggregation course was expressly approved by this court in R v KG [2004] EWCA Crim 2697 at paragraph 8. The Commission correctly points out that if that course were to be taken here, an eleven year extended sentence would not be possible for offences of indecent assault. That is because an extended sentence, taking its custodial and extension periods together, cannot by statute exceed the statutory maximum for the offence. In the case of indecent assault the statutory maximum is ten years. Accordingly it is submitted that in this case, although the sentence be varied by the aggregation route, it should be limited to a six year custodial term and a four (rather than five) year extension period, thus keeping the total within the available statutory maximum. It was the possibility of this happening that led the Commission to conclude that there was a real possibility that upon reference there might be a small but significant benefit to the appellant. 12. As it turns out, the reference has afforded us the opportunity to consider material which has not been available to previous courts. First and foremost is the recent decision of this court in R v Brown and Butterworth [2006] EWCA Crim 1996 . That case concerned the new-style extended sentence of the kind which we have described as the third type, that is to say a sentence under section 227 of the Criminal Justice Act 2003 , rather than, as in this case, one under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 . However, in that case this court said: "23. .... whereas an offender, the subject of an extended sentence, may not be released after serving half of the custodial term until the Parole Board is satisfied it is no longer necessary for the protection of the public to confine him, an offender serving a fixed term or determinate custodial sentence of 12 months or more will be released after serving half of his sentence (see section 244(3)(a)). It follows that if a consecutive determinate sentence is passed to an extended sentence it may be difficult to determine when the custodial element of the extended term ends and the determinate sentence begins. 24. In our judgment these difficulties do not arise if an extended sentence is made consecutive to a determinate sentence.... .... 27. .... the following points should be observed. First, consecutive extended sentences appear to provide considerable problems in determining the application of the appropriate licence period once the custodial element has been served. Secondly, similar problems will arise if a determinate sentence is made consecutive to an extended sentence. Accordingly we take the view that consecutive extended sentences and a determinate sentence consecutive to an extended sentence are, in general terms, not appropriate and should be avoided. However, we see no reason to suggest that such problems will arise if the extended sentence is made consecutive to the determinate sentence. 28. There is no reason to suppose that concurrent extended sentences raise any of the above problems, nor that an extended sentence concurrent with a determinate sentence will cause insuperable difficulties. ...." 13. We have also been provided with extracts from the Prison Service Calculation Manual. From that document it is clear that where a section 85 extended sentence is passed consecutively to a determinate sentence the practice of the prison authorities is simply to add together the two custodial terms, treat them as a single custodial term, apply the then current release provisions to that, and then add the extension period to the licence that there would otherwise be. 14. Given the decision in Brown and Butterworth and the practice of the prison authorities, the position seems to us to be this. We can see that one section 85 extended sentence consecutive to another section 85 sentence might cause difficulties because there might be doubt about which governs the release date. We suggest that consecutive extended sentences are unnecessary and should be avoided. There is no difficulty with concurrent extended sentences under section 85 , although once again unless there is a particular reason to do it we suggest that there is usually no need. We recognise that there might be a need to do it, particularly after trial, if there were a real possibility that a defendant's conviction for one offence might be vulnerable when another is not. We are unable to see any reason why the reasoning in Brown and Butterworth should not apply equally to a section 85 extended sentence, just as it does to a Criminal Justice Act 2003 extended sentence. Therefore, to make a determinate sentence consecutive to a section 85 extended sentence, with the determinate sentence to be served afterwards, ought to be avoided. But there is no difficulty with a determinate sentence to be followed by a consecutive section 85 extended sentence. We can envisage a number of situations in which it may be necessary for there to be a consecutive extended sentence. So long as regard is had to totality, a sentence consisting of a determinate sentence first, followed by a section 85 extended sentence afterwards, and to run consecutively to it, is perfectly proper. 15. In this case this court has already considered totality and has held that the judge's overall sentence was right. Accordingly, we adopt the Brown and Butterworth approach and we vary the sentence in this way. The various sentences of two years, all concurrent to one another, on the second indictment (T20027184) are to be served first. The sentences, all concurrent to one another, on the first indictment (T20030062) will be served consecutively to those on the second indictment, that is to say after them. The sentences on the first indictment (062) remain as ordered by this court on 4 September 2003, that is to say they include on counts 1 and 4 extended sentences under section 85 of nine years, consisting of a custodial term of four years and an extension period of five. On all other counts the sentences upon that indictment remain as passed by the trial judge. All sentences on that indictment (062) are concurrent to one another, but are to be served consecutively to, and after, those on indictment 7184. 16. In summary, for the assistance of those who have to grapple with these complex provisions, the position appears to us to be as follows: 1. Section 85 (a) Do not pass one extended sentence consecutive to another; (b) Concurrent extended sentences are possible, though usually unnecessary; (c) Do not pass an extended sentence followed by a consecutive determinate sentence; but (d) a determinate sentence followed by a consecutive extended sentence is proper, providing the totality is justified by the facts of the case; (e) if passing a sentence in form (d), make it absolutely clear that the court record specifies that the extended sentence is to be served second. (2) For Criminal Justice Act 2003 extended sentences, see Brown and Butterworth . (3) We have not addressed section 86 Powers of Criminal Courts (Sentencing) Act 2000 sentences, but there appears to be no reason not to apply the same principles as those which apply to section 85 . 17. For those reasons this appeal is allowed to the extent of the variation which we have explained.	{"ConvCourtName":[""],"ConvictPleaDate":[""],"ConvictOffence":["indecent assault","unlawful sexual intercourse","gross indecency","making indecent photographs","making indecent images"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["On first indictment: extended sentence of nine years (custodial term of four years and extension period of five years) for two offences of indecent assault; other sentences concurrent. On second indictment: sentences of two years concurrent with one another, to be served consecutively to the first indictment."],"SentServe":["Consecutive"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["one"],"VicSex":["All Female"],"VicAgeOffence":[12,13],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["indecent images found on computer","probation report"],"DefEvidTypeTrial":[""],"PreSentReport":["High risk of reoffending"],"AggFactSent":["offender minimised offences","blamed victim","significant number of images in higher Oliver categories"],"MitFactSent":["Offender has no relevant previous convictions"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["consecutive sentences involving extended sentence under section 85 Powers of Criminal Courts (Sentencing) Act 2000"],"SentGuideWhich":["section 85 of the Powers of Criminal Courts (Sentencing) Act 2000"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. Neutral Citation No. [2024] EWCA Crim 231 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NOS 202202589/B4 & 202202990/B4 Royal Courts of Justice Strand London WC2A 2LL Thursday, 22 February 2024 Before: LORD JUSTICE DINGEMANS MR JUSTICE WALL THE RECORDER OF NORWICH HER HONOUR JUDGE ALICE ROBINSON (Sitting as a Judge of the CACD) REX V LUCAS NDHLOVU __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ NON-COUNSEL APPLICATION _________ J U D G M E N T LORD JUSTICE DINGEMANS: Introduction 1. This is the hearing of renewed applications for leave to appeal against conviction and the hearing of an appeal against sentence for which limited leave has been granted. The appellant also applies for an extension of time in which to seek leave to appeal against conviction. This is required because he says he thought the matter was being handled by solicitors and counsel and then the Covid-19 Pandemic intervened. The applicant seeks to rely on fresh evidence from his previous girlfriend in support of his character and his defence to the underlying counts of which he was convicted. 2. The complainant in this case has the benefit of life long anonymity pursuant to the provisions of the Sexual Offences (Amendment) Act 1992 . 3. The matter arises in this way. On 10 December 2021 in the Crown Court at Leeds before Mr Recorder Patrick Palmer, the appellant who was then aged 46 was convicted of two counts of rape, contrary to section 1(1) of the Sexual Offences Act 2003 . He was acquitted of three counts of rape contrary to the Sexual Offences Act and a sexual assault. On 11 February 2022 he was sentenced to five years' imprisonment for the offending. There was a count of making indecent images of a child which was ordered to lie on the file. Leave to appeal against conviction 4. So far as the renewed application for an extension of time and leave to appeal against conviction is concerned, the appellant has made a whole series of points about the safety of his conviction. He has complained in particular about translation of texts, some of which were written in Shona, some of which were in English and needed no translation, and the significance of his being sent by the complainant a consent video about a cup of tea, which is a well-known video on consent, which the applicant has pointed out he sent to a number of his friends. The appellant seeks to rely on fresh evidence in the form of a statement from his previous girlfriend to show that he had used no violence upon her in their relationship. 5. We have looked through all of the grounds of appeal and all of the letters which the applicant has written but we are unable to identify any arguable grounds of appeal against conviction and endorse what the single judge said in relation to those matters. The appeal against sentence 6. We then turn to the issue of sentence. The Registrar identified two problems with the sentence imposed by the judge. First of all that each individual sentence for the two counts of rape of which the applicant had been convicted was not pronounced in court. The same problem had occurred in R v Whitwell [2018] EWCA Crim 2301 , [2019] 1 Cr.App.R (S) 19, which was remedied by the Court of Appeal announcing the sentence for each count. Secondly, the sentence is that which the judge has pronounced and not recorded administratively. The surcharge order of £170 was not pronounced during the sentencing remarks in open court but was just simply recorded on the court record and therefore imposed administratively. 7. We therefore take the opportunity to address those two problems. In relation to the first issue we can confirm that in relation to each count of rape the sentence was one of five years' imprisonment concurrent with each other, making the overall sentence of five years which the judge had imposed. 8. As to the second issue we can confirm that an administratively recorded sentence is not valid, and we therefore quash the victim surcharge order of £170. 9. We can confirm that we have looked carefully through the materials to identify whether there are any other errors with the sentence or whether it was manifestly excessive or otherwise unlawful but there are no such errors. In those circumstances there is no other basis for interfering with this sentence. Conclusion 10. For these short reasons we refuse the extension of time for seeking leave to appeal against conviction because there are no arguable grounds against conviction and refuse leave to appeal against conviction. We confirm the sentence of five years imprisonment on each count of rape, concurrent with each other, making an overall sentence of five years imprisonment. We quash the victim surcharge order of £170. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Crown Court at Leeds"],"ConvictPleaDate":["2021-12-10"],"ConvictOffence":["Rape (2 counts) contrary to section 1(1) of the Sexual Offences Act 2003"],"AcquitOffence":["Rape (3 counts) contrary to the Sexual Offences Act","Sexual assault"],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Leeds"],"Sentence":["5 years' imprisonment on each count of rape, concurrent (total 5 years)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[46],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Individual person"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["Fresh evidence: statement from previous girlfriend (character evidence)"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe","Appeal against sentence"],"AppealGround":["Complaints about translation of texts","Significance of consent video sent by complainant","Fresh evidence from previous girlfriend (character)","Sentence not pronounced for each count in court","Victim surcharge not pronounced in open court"],"SentGuideWhich":[],"AppealOutcome":["Refused extension of time for leave to appeal against conviction","Refused leave to appeal against conviction","Sentence confirmed","Victim surcharge order quashed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No arguable grounds of appeal against conviction","No errors with the sentence","Sentence not manifestly excessive or unlawful","Surcharge order not pronounced in open court so quashed"]}
Case No: 201000292 C1 Neutral Citation Number: [2012] EWCA Crim 837 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT His Honour Judge Cavell T20067312 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/04/2012 Before : LORD JUSTICE AIKENS MR JUSTICE FIELD and HIS HONOUR JUDGE NICHOLAS COOKE QC - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Ibrahim Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - D Cooper (instructed by Julian Young & Co ) for the Appellant A J Jackson (instructed by CPS ) for the Respondent Hearing dates : 23/02/2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Aikens : A. The Issue on the appeal and the procedural history 1. This appeal against conviction by Dahir Ibrahim concerns the admissibility of hearsay evidence of a complainant who has died after giving statements to the police but before trial. The principal statutory provisions containing the court’s powers to adduce such evidence in criminal proceedings are now set out in Chapter 2 of Part 11 of the Criminal Justice Act 2003 (“the CJA”). Those provisions and the question of their compatibility with a defendant’ rights to a fair trial under Article 6(1) and Article 6(3)(b) of the European Convention on Human Rights (“ECHR”) have received very extensive scrutiny in the decisions of a five judge division of this court and the Supreme Court in the case of R v Horncastle and others (“Horncastle”). [2010] 2 AC 373 for the report of both decisions. The Supreme Court’s decision in those cases was handed down on 9 December 2009. Both courts examined in great detail the jurisprudence of the European Court of Human Rights (“ECtHR”) on whether the introduction of hearsay evidence which could not be tested by direct questioning in the criminal process was contrary to the rights contained in Articles 6(1) and 6(3)(d) of the ECHR. Subsequently, on 15 December 2011, the Grand Chamber of the ECtHR handed down its decisions in the cases of Al-Khawaja and Tahery v the United Kingdom (“ Al-Khawaja – GC” ). [2011] ECHR 2127 The judgment of the Grand Chamber comments on the Court of Appeal’s and Supreme Court’s analysis and decision in Horncastle. So far as we are aware, the present case is the first in which this court has been asked to consider the English statutory provisions concerning the admission of hearsay evidence of a witness who has died before the trial in the light of the Grand Chamber’s judgment. 2. We have set out the relevant sections of the CJA, ie. sections 114-116, and sections 124, 125 and 126, together with section 78 of the Police and Evidence Act 1984 (“PACE”) and Articles 6(1) and 6(3) of the ECHR in an Appendix to this judgment. 3. The appellant, who is a Somali citizen now aged 26, was convicted of three counts of rape after a trial before HHJ Cavell and a jury in the Crown Court at Birmingham in July and August 2006. At the same trial the appellant was acquitted of 5 other charges of rape, one charge of attempted rape and one of unlawful wounding. The last was the subject of count 2 which is relevant to this appeal. The jury was unable to agree on verdicts in respect of four further charges of rape and one of being in possession of an offensive weapon. 4. On 14 August 2006 the appellant was sentenced to 10 years imprisonment in respect of each of the three counts of rape of which he had been convicted. The sentences were ordered to be served concurrently and time spent on remand was ordered to count towards the sentence. 5. Following his conviction the appellant was given advice by leading and junior counsel that there were no grounds of appeal. But the appellant then became aware of recent decisions in the ECtHR and the English Court of Appeal on the issue of the admissibility of hearsay statements of witnesses who, for one reason or another, did not give or could not give evidence at the trial. The appellant sought advice from new solicitors and new counsel and Grounds of Appeal were lodged on 27 November 2009. On 17 March 2010 the single judge made his order extending time in which to seek leave to appeal and granted leave to appeal the appellant’s conviction on count one on the Indictment. That count alleged that the appellant had raped Enith Walker on 20 March 2003. Enith Walker died in 2006. 6. We understand that the hearing of this appeal was delayed pending the Grand Chamber’s decision. The Grand Chamber deliberated in private on 19 May 2010 and again on 9 November 2011 before delivering its judgment on 15 December 2011. B. The Facts 7. The facts giving rise to counts 1 and 2 on the Indictment are, in outline, as follows: the appellant had come to the UK from Somalia and had obtained asylum. He lived in Smethwick. Between 2003 and late 2005 there was a “campaign of rape and violence” – in the prosecution’s phrase – against prostitutes working in the Edgbaston red light area of Birmingham. The prosecution case was that the appellant was responsible for this campaign. There were 15 counts altogether on the Indictment; 11 were allegations of rape; one of attempted rape; two of unlawful wounding and one of having an offensive weapon. There were eight complainants. The alleged rape of the deceased Enith Walker was the earliest in the series and so formed count 1 on the Indictment. 8. Enith Walker worked as a prostitute in the Edgbaston area in order to fund her addiction to heroin and crack cocaine. The prosecution case was that the appellant had raped Ms Walker in the early hours of 20 March 2003 in the area of Edgbaston reservoir. Ms Walker’s account was contained in three statements dated 7 October 2005, 27 October 2005 and 9 November 2005; that is to say some two and a half years after the alleged offences. All three statements were in the normal form pursuant to section 9 of the Criminal Justice Act 1967 and were signed by Ms Walker. 9. Ms Walker’s statement of 7 October 2005 said she was approached by a black Somali male “ over a year ago ” but she could not remember exactly when. She said that she was standing by phone boxes on Icknield Port Road. It was about 3 am or 4 am in the morning. On her account the man asked her if she was doing “business”, a price was agreed for sex and she took him to the nearby reservoir. She stated that she then told him that she would only perform oral sex and that the price would be £30. She stated that the man did not wish to use a condom and he put a knife to her throat and told her he was going to take his money back. Her statement said that he put his mouth to her throat and forced her to the ground and raped her vaginally before ejaculating over her clothing. Ms Walker’s statement said that he then demanded her clothes and he pulled off her bomber jacket, jumper and T-shirt before she ran off shouting “rape” up Icknield Port Road and onto Summerfield Crescent, when she could hear sirens and helicopters. The statement said that she hid in bushes from the police “ because I have an ASBO”. The statement then said that she ran to Gillott Road where she was stopped by police officers who knew her. However, she did not tell them what had happened and she walked off. 10. The statement of 7 October 2005 then gave a description of the “ black Somalian male ” as about 5ft 5in tall, early thirties, skinny build and with small ringlets of black, curly hair. The statement said that he had been chewing something which stank. There was a description of the knife. The statement indicated that Ms Walker had been with him for 20-25 minutes and he was so near to her that “ I could smell his Bengali breath”. 11. The statement continued by saying that Ms Walker had seen this man many times in the same area since that date. It stated that in the early part of 2004 there was another incident by a phone box in Dudley Road at about 1430 in the morning when Ms Walker was standing with a woman whom we will call Ms SES. Ms Walker recounted that she saw a black male walk past and he said “ business ”. The statement said that Ms SES “ freaked out ” saying that the man had raped her. The man said to Ms Walker “ I know you I’m gonna get you , watch ”. Ms Walker’s statement said that she recognised him as the man who had raped her. A short time later, Ms Walker recounted, she felt a hand across her mouth and a sharp point at her temple and the man said “ I told you I would get you ”. She stated that she stumbled across the road, but he followed her and said to her: “ I’m going to kill you now, you should have let me have the girl in the phonebox ”. Ms Walker managed to escape without further injury. This latter part of the statement formed the basis of Count 2 on the Indictment, which alleged that the appellant had unlawfully wounded Ms Walker between 17 – 20 February 2004, contrary to section 20 of the Offences Against the Person Act 1861. 12. The statement continued by describing the knife used in the assault incident and confirmed that it was the “ same black Somalian and knife from the rape”. The statement ended by saying “ I was scared that I would be arrested for breaching my ASBO so I didn’t want to report it to the police”. 13. It is known that on 19 February 2004 Ms Walker attended a nearby SAFE project where she would get methadone for her heroin addiction and that she made a complaint of an assault to Ms Alison Cook, a worker on the project. She did not mention that the assaulter had previously raped her. Ms Cook recorded a statement of Ms Walker about the assault incident and that was in evidence at the trial. We refer to it further below. 14. Ms Walker gave two further short statements, one dated 27 October 2005 and the other dated 9 November 2005. In the first of those she said that she knew that her attacker was Somali “ by the way he looks and the way that he talks. Somalian’s [sic] have a particular look, that’s how I know”. She also gave further details about the circumstances of the rape. She said that the attacker took her to the wall of a building near the Icknield Road entrance to the reservoir and that there was a light (on the wall of that house we presume) that came on and there was a burnt out car nearby. 15. In her third statement Ms Walker confirmed that she had attended an identification procedure on 9 November 2005 and had identified the appellant. 16. The other two counts of rape of which the appellant was convicted, (counts 13 and 14) concerned the complainant Ms SES. She gave evidence at the trial and was cross-examined. She said that in September 2005 the appellant approached her and asked for sex. They agreed a price and went to a car park where he held what she believed to be a knife to her back. He threatened to cut her. Fearing that she would be stabbed unless she complied, she performed oral sex on him. He then pushed her down and penetrated her vagina from behind. She said she did not scream at the time out of fear of being knifed, but when she ran off she rang 999. The police arrived and found her confused and she had clearly been crying. She was later examined by a doctor who found no evidence supporting or refuting an allegation of sexual assault. No semen was discovered on vaginal swabs or on her clothes. However, DNA from the appellant and from Ms SES was detected on the front inside of the appellant’s shorts. 17. In relation to count 1 the appellant accepted that he had met Ms Walker. He said that they had talked and walked to the reservoir. He said that she wanted him to pay for sex but he refused. Then she started to scream and hit him with a bottle, so he pushed her away and she ran off. 18. In relation to counts 13 and 14 the appellant agreed that Ms SES had performed oral sex on him, but he said that it was against his wishes. He denied raping her or having any vaginal sex with Ms SES. C. The Pre-Trial Review and the course of the trial to the submissions at the close of the prosecution case 19. On 20 June 2006 there was a Pre-Trial Review before HHJ Hindley QC. Counsel for the prosecution indicated that at the trial there would be an application to adduce the three statements of Ms Walker as hearsay evidence. Counsel for the defence accepted that, in principle, they were admissible under section 116 of the CJA and that if there was any argument that they should be excluded it would be that the court should exercise its power to do so under section 78 of PACE. 20. The trial then started and it seems to have been accepted by the defence that the statements of Ms Walker should be adduced as hearsay evidence. There was no submission by defence counsel to the judge, based on section 78 of PACE, that the statements of Ms Walker should not be admitted because they would have such and adverse effect on the fairness of the proceedings that the court ought not to admit them. Her three statements were read to the jury and Judge Cavell told the jury that this was permissible in the circumstances. He added that, because the witness was now dead and could not be cross-examined it meant that the defence had been deprived of a means of testing the evidence in the statements. 21. The defence wished to put before the jury a document which made points about the credibility of Ms Walker, which the defence said would have been put to her had she given oral evidence. It was eventually agreed between counsel that the jury should be given a document headed “Some Agreed Facts relevant to the Credibility of Enith Walker”. These facts are important to the present appeal. They can be summarised as follows: (1) although Ms Walker stated in her witness statement of 7 October 2005 that the reason she hid from the police on 20 March 2003 was she feared she had breached her ASBO, in fact the ASBO was not made until May 2004. (2) A complaint made to the police by Ms Walker on 8 January 2003 that she had been indecently assaulted by a man that day, which was supported by a statement she made to the police, was fabricated. She retracted the allegation the following day saying that it was made up to support an allegation by another woman. (3) Ms Walker’s statement in support of that false complaint was in the usual section 9 Criminal Justice Act 1967 format and she had signed the caption and each page of the document. (4) Ms Walker was not prosecuted for any offence arising out of the false complaint. 22. Members of the jury were each given copies of this document and it was placed in their jury bundle and they retired with their copies when they considered their verdicts. Although the transcript does not say so, it seems to us that this document must have been prepared and admitted pursuant to section 124(1) and (2) of the CJA. 23. The prosecution then called its other evidence. Ms SES gave evidence that on 21 October 2005 she was asked by police about Ms Walker and told them that she did recall seeing her upset with a cut to her eye in late 2004 and that Ms Walker had told her that she (Ms Walker) had been raped by a Somali and he had cut her. But she denied ever being in a phone box with Ms Walker. Ms Anna Toogood gave evidence that during the night of 20 March 2003 she had been asleep in her house in the area of the reservoir and that she had been awoken by a scary scream coming from the direction of the reservoir. She said that she heard a female voice crying “rape” and calling for help. Ms Toogood dialled 999. The tape was played to the jury. 24. PC Poole was one of the officers that attended the scene following the 999 call. He gave evidence that the police began to search and heard footsteps. They called out “stop, Police” and PC Poole caught up with the appellant who was trying to run away. He struggled and was handcuffed. He was searched and no weapon was found. He gave his correct name and stated that he was staying with his sister and gave her correct address. 25. WPC Baldwin also gave evidence. She said that during the police activity that night she had found Ms Walker who was very distressed and was crying. Ms Walker had grabbed WPC Baldwin, who asked her if she had been raped and she said no. Ms Walker told WPC Baldwin that there had been a disagreement about payment. Because no complaint was made no further action was taken. 26. Ms Alison Cook gave evidence that on 19 February 2004 Ms Walker told her that she had been assaulted the night before, but she did not say anything about being raped on any occasion. Ms Cook filled in a form which described the incident as related by Ms Walker in the following terms: “Asked for business earlier on night, I refused, called him a rapist as I was told he had raped two other working girls I know. Also told he carried a knife. Later that night, walking down Link Road, walking towards me, asked me for business, showed me £20, refused. Pulled me in the garden, told me he wanted a Durex. I said I had no Durex and refused to do any business. Then he backhanded me in the face. I was making a lot of noise. Someone looked out of their window and he ran off”. That account, which was signed by Ms Walker, was very different from the account given in Ms Walker’s statement of 7 October 2005, ie. 18 months later. In the later account there was no mention of the man asking for business, or of a Durex or a “backhander”. The words of the appellant that are reported in the later statement are not referred to in the earlier one. 27. Ms Cook also stated that she took photographs of Ms Walker’s eye and took her to hospital. She said that Ms Walker told her that she did not wish to report the matter to the police as she was not supposed to be in that area. Ms Cook also said that in September 2005 she heard from the police that there was a Somali male attacking prostitutes in the area and she remembered what Ms Walker had said and so spoke to her. Her evidence was that Ms Walker was wary of involving the police because she was afraid she would get into trouble for being in the reservoir area as she had an ASBO that stipulated that she was not to go there. D. Submission of No Case on counts 1 and 2 and submission under section 125(1)(b) of the CJA 28. At the close of the prosecution case on 31 July 2006 the defence submitted that the judge should either withdraw counts one and two from the jury or should direct the jury to acquit the defendant on those counts. The first submission was made on the principle of the “second limb” of the well-known case of R v Galbraith, [1981] 1 WLR 1039 viz. that the prosecution evidence on those two counts was too weak or tenuous to enable a jury, properly directed, to convict with safety. Secondly, based on section 125(1)(b) of the CJA, the defence argued that the case against the defendant depended partly on the statements of Ms Walker and they were so unconvincing that, given their importance to the case against the defendant on those counts, the jury should be directed to acquit. 29. The defence emphasised in particular the facts that (1) there was no explanation of why Ms Walker had not reported the rape at the time; (2) she had made a false complaint of indecent assault on an occasion not long before the alleged rape; (3) there had been general talk amongst prostitutes about the rapes that had occurred and a description had been given which potentially fitted the defendant; and (4) there were inconsistencies in the evidence of Ms Walker and Ms SES. On the other hand the Crown emphasised the facts that (1) the defendant had been identified at the scene of the alleged rape; (2) there was evidence from Anne Toogood that she had heard a woman scream “rape” at 2.05 am that morning; (3) there was the evidence of WPC Baldwin; (4) the defendant was apprehended at the scene and there was a struggle and he was handcuffed; (5) the “similar fact” evidence of other prostitutes, eg in relation to the defendant’s breath. 30. The judge decided that, in relation to both counts 1 and 2, these were all matters for the jury to decide and that counts 1 and 2 were connected. Therefore, he rejected both the Galbraith submission and that based on section 125(1)(b) of the CJA, saying: “ these are essentially matters to be considered by the jury and not by the judge at this stage”. Page 4F of Ruling of 31 July 2006. E. The defendant/appellant’s evidence; the summing up and the verdict. 31. The appellant gave evidence. He accepted that he had encountered Ms Walker on the night of 20 March 2003. He said that it was at a petrol station where he was buying cigarettes. He walked with her to the reservoir, but when she asked him for money for sex he realised she was a prostitute. His evidence was that he said he did not want that and she became angry, then screamed at him and hit him with a bottle. He pushed her away and she ran off. He then ran off because he thought that she was going to get someone. At first he thought that it was Ms Walker’s friends that were approaching him but then realised it was the police. He denied struggling and said he had not carried a weapon. The police took him home. He denied seeing Ms Walker at a later date. 32. The judge summed up on 7-8 August 2009. In relation to counts one and two, he explained to the jury that the law permitted a witness statement to be read when a witness had died. Transcript page 16D He pointed out that if Ms Walker had given evidence she would have been cross-examined on the contradiction between her evidence and that of Ms SES about being in the phone box together and of Ms Walker having talked about a Somali man having raped her (both denied by Ms SES) and also on the matters that were in the agreed document concerning Ms Walker’s credibility. Transcript page 16E-G. The judge read to the jury virtually all of Ms Walker’s three statements. Transcript page 17A-19E. He also referred to the agreed facts document and added “ you will bear those matters very much in mind when you come to consider how much weight you give to the credibility and the evidence of Enith Walker”. Transcript page 22H-23A. There was no specific warning to the jury about the fact that Ms Walker’s statements had not been tested in cross-examination. Nor was there a specific warning about the inconsistency in what Ms Walker had told Ms Cook about the 2004 incident and what Ms Walker had said in her statement of 7 October 2005. The judge reminded the jury of the evidence of the other witnesses relevant to counts 1 and 2 that we have already summarised above. 33. The judge also gave directions on the issue of “similar fact” evidence. In respect of counts 3 and 4 (attempted rape and unlawful wounding of Ms MC), 10 and 11 (rapes of Ms VC) and 12 (rape of Ms KG) there was no direct evidence. The prosecution case was that the jury could rely on the direct evidence of the rapes in counts 1 (Ms Walker), counts 5 and 6 (Ms CH), counts 7 and 8 (Ms SES), count 9 (Ms DD) and counts 12 and 14 (Ms SS) to assist them in being sure that the appellant had committed counts 3, 4, 10, 11 and 12 because, it was argued, the circumstances of the offences were so similar. The judge gave a proper direction on whether and when the jury could use their conclusions about the rapes where there was direct evidence to assist them on the counts where there was no direct evidence. He warned the jury about the possibility of contamination as a result of gossip between prostitutes. Transcript pages 5C-7H. He also emphasised that the fundamental rule was that each of the counts had to be considered separately. Transcript page 7H. Despite the submission made at the close of the prosecution case, it was apparently not suggested by the prosecution in its closing speech and, in any case, the judge was careful not to suggest in his summing up that evidence of the other rapes where there was direct evidence could be used to support the prosecution case in relation to count 1 involving Ms Walker. 34. The jury retired on 8 August. On 10 August the jury sent a note asking if they could see Ms Walker’s statement of 7 October 2005. The judge directed them that they could not but he re-read its contents to them. He also reminded the jury of the agreed document about Ms Walker’s credibility which they had in their jury bundle. 35. The jury returned their verdicts later that day. F. The law on the admission of hearsay statements of a deceased witness and the trial process thereafter. (1) The Criminal Justice Act 2003 Part 11 Chapter 2 36. The basic rule of the law of England and Wales in criminal trials is that witnesses giving evidence are to be examined in court at the trial. It has long been recognised as a vital principle and is sometimes called the “right of confrontation”. There have always been common law exceptions to this basic rule and some statutory exceptions also. See in particular Criminal Justice Act 1988 Part II (“the 1988 Act”) Chapter 2 of Part 11 of the CJA enacted (with some modifications) the recommendations of the Law Commission set out in its Report on Evidence in Criminal Proceedings: Hearsay and Related Topics of June 1997. Law Com No 245: Cmn 3670 The provisions in Chapter 2 of Part 11 of the CJA make some far-reaching changes to the common law on the admissibility of hearsay evidence in criminal proceedings. The broad effect of the provisions is that a previous out of court statement of a witness (whether subsequently called to give oral evidence or not at the trial) is hearsay evidence if the aim of adducing the statement in evidence is to prove the “ matters stated ” in it within the meaning of section 114(1) and 115 of the Act. Any statement not made in oral evidence in criminal proceedings is only admissible as evidence of any “ matter stated ” in it (within the meanings of sections 114 and 115 ) if one (or more) of the four conditions set out in section 114(1) is applicable. The first of those conditions is that one of the provisions of Chapter 2 of Part 11 of that Act makes that statement admissible; one of those provisions is section 116. 37. Section 116(1) )(a), (b) and (c) set out three pre-conditions for the admission of a statement note made in oral evidence in the proceedings. The evidence must be such as would be admissible if given orally in the proceedings; the person must be identified to the court’s satisfaction; and one of the conditions set out in section (2)(a)-(e) must be satisfied. It is common ground that those pre- conditions were all satisfied in the case of Ms Walker’s three statements; the last because section 116(2)(a) applied: viz. Ms Walker had died before the trial. 38. However, even if a hearsay statement falls within one of the four classes set out in section 114(1), section 114(3) stipulates that nothing in Chapter 2 of Part 11 “ affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings ”. That power to exclude is complemented by section 126(2), which specifically provides, in paragraph (a), that nothing in Chapter 2 prejudices “ any power of a court to exclude evidence under section 78” of PACE. Thus, hearsay evidence that the prosecution wishes to adduce which is, on the face of it, admissible under one of the conditions set out in section 114(1), can be excluded by the court in the exercise of its powers under section 78 of PACE. The test under that section is, of course, whether the admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. 39. As we have already noted, at the trial there was no application by the defence to exclude the witness statements of Ms Walker on section 78 grounds. (2) Horncastle in the Court of Appeal 40. In Horncastle the Court of Appeal and then the Supreme Court There were, in fact, three cases before the Court of Appeal and two before the Supreme Court. Those two were: R v Horncastle and another which concerned convictions for causing grievous bodily harm with intent contrary to s.18 of the OAPA 1861, where the complainant had died before the trial but his statement was admitted pursuant to s.116(2)(a); and R v Marquis and another which concerned convictions for kidnap. The complainant gave a statement describing the incident but then disappeared before the trial, fearing for her safety, although that had nothing to do with the defence. Her statement was admitted pursuant to s.116(2)(e). considered the question of when a court should exclude a hearsay statement made by an identified witness who had subsequently died before the trial and where the conditions set out in section 116(1) were fulfilled. We have decided that we should examine the Court of Appeal’s decision in some detail because, in giving the leading judgment in the Supreme Court, with which the other six members of the Supreme Court panel agreed, Lord Brown of Eaton-under-Heywood did add a short judgment of his own: [112]-[121]. Lord Mance and Lord Judge CJ provided, respectively, analyses of relevant Commonwealth decisions and a survey of whether evidence that Strasbourg decisions said was admitted contrary to Art 6(3)(d) would have been treated according to English domestic provisions. Lord Phillips of Worth Matravers, President, said that he endorsed the Court of Appeal’s conclusions and “ ..almost all the reasoning…”. He commended the Court of Appeal’s judgment and he said that his own should be read as “..complementary to that of the Court of Appeal, not as a substitute for it”. [13] of Lord Phillips’ judgment. 41. In the Court of Appeal the appellants in Horncastle challenged their convictions on the ground that they were based solely or to a decisive extent on the statement of the dead complainant whose evidence they had, necessarily, not been able to cross-examine. (We examine the facts more fully below) They alleged that their rights guaranteed by Article 6(1) and Article 6(3)(d) of the ECHR had been violated and their convictions were therefore unsafe. The arguments of the appellants in the three cases before the Court of Appeal and the two in the Supreme Court were based on various decision of the ECtHR, culminating in its decision, sitting as a Chamber, in Al-Khawaja and Tahery v United Kingdom. [2009] 49 EHRR 1 . (We will refer to the Chamber decision as “Al-Khawaja” as opposed to the decision in the Grand Chamber, which we will refer to as “Al-Khawaja – GC”). 42. Both the Court of Appeal and the Supreme Court dismissed the appeals. 43. The Court of Appeal started from the basic proposition that, “ in the case of unavailable witnesses, and in the case of apparently reliable hearsay, the CJA 2003 contains a crafted code intended to ensure that evidence is admitted only when it is fair that it should be”. [16]. Moreover, these statutory provisions “ represented a considered Parliamentary resolution of the proper balance to be achieved between competing interests in the light of Convention rights”. [22] 44. The Court emphasised a number of aspects of this statutory “ code”, four of which are particularly important for the present appeal. The first is that Chapter 2 of Part 11 of the CJA is concerned with identified but absent witnesses, not anonymous witnesses. [48] Secondly, the importance of section 124, which permits the admission of material which could have been put to the absent witness if he had given evidence at the trial; but which also permits the introduction of material which, if the witness had given evidence, could only have been put to him in cross-examination in circumstances where the witness’ answers would have been final. Section 124, the court said, was designed to counterbalance the absence of cross-examination of the witness in person. [16] 45. The third aspect emphasised by the court was the power given to a judge by section 125, which it described as an “ important exception to the usual rule of the law of England and Wales that the assessment of the weight of the evidence is a matter for the jury: see R v Galbraith [1981] 1 WL R 1039 ”. Fourthly, the court noted that section 126(2) preserved the general power of the court to exclude any evidence relied upon by the Crown (but not by the defendant) if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted. [16]. There is an additional power in section 126(1), but that is not relevant to this appeal. 46. The Court of Appeal next considered in detail the case law of the ECtHR (up to and including Al Kawaja) on the application of Article 6(3)(d) in cases where there had been a criminal conviction based on the evidence of witnesses who had not, for one reason or another, been present to give evidence at the trial of the defendant. It noted [52] that at paragraph 40 in its decision in Lucà v Italy, [2001] 36 EHRR 807 the ECtHR stated the general proposition, apparently equally applicable to cases of both absent witnesses and anonymous witnesses, that: “…where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provide by Article 6…”. 47. In the opinion of the Court of Appeal, however, upon an analysis of the ECtHR case law, there was no reason to treat the cases dealing with absent witnesses in the same way as those dealing with anonymous witnesses, as the passage in the Lucà case appeared to do. [53] The Court of Appeal considered that this portmanteau approach of applying the “ sole and decisive” test to the case of the absent but identified witness as well as anonymous witnesses was carried over into the ECtHR’s decision in Al – Khawaja. [52]-[53] 48. In Al-Khawaja the ECtHR heard two applications together. In the first Mr Al-Khawaja had been convicted of two counts of indecent assault on female patients. One of the victims had made a police statement but had then committed suicide for totally unrelated reasons. Her statement was admitted as evidence at his trial, pursuant to section 23 of the 1988 Act. Her evidence was supported by the fact that she had complained shortly after the incident to two friends. They gave oral evidence at the trial. Moreover, another patient, who gave oral evidence at the trial and who was cross-examined, said that she had suffered a very similar assault. Al-Khawaja was convicted. His appeal to the Court of Appeal was dismissed. [2006] 1 WLR 1078 49. In the second case Mr Tahery was convicted of wounding with intent during a street fight in the early hours of the morning between a group of Kurds and a group of Iranians. An Iranian, S, was stabbed in the back. Tahery had administered first aid to S and gone to the hospital with him. Another participant in the fracas, T, later told the police that he saw Tahery use a knife to inflict the wounds. No other witness identified Tahery as the assailant. Tahery himself at first asserted that the assault was the work of two black men, but later admitted that this allegation was untrue. At the trial T told the judge that he had been threatened. The judge excused him from giving oral evidence and his statement was read in support of the prosecution case. Tahery was convicted and his appeal against conviction was also dismissed by the Court of Appeal. [2006] EWCA Crim 529 50. In its decision in Al-Khawaja the ECtHR held that the right under Article 6(3)(d) was a minimum right that must be accorded to anyone charged with a criminal offence. [54] referring to para 37 of Al-Kawaja. The Court of Appeal in Horncastle also noted that the ECtHR concluded in both cases in Al-Khawaja that none of the counterbalancing measures or factors was sufficient to overcome the prejudice caused to the defence by the admission in that case of the absent witnesses’ statements. [54] referring to para 40 of Al-Kawaja. 51. The Court of Appeal analysed the consistency of Al-Kawaja with previous case law in the ECtHR. The Court of Appeal concluded: (1) the ECtHR case law demonstrated that the right to confront witnesses for the prosecution under Article 6(3)(d) was not an absolute one. [56]. The court stated also that the Privy Council had acknowledged this to be the position in Grant v The Queen [2007] 1AC 1 at [17](1) and (3) in the opinion of Lord Bingham of Cornhill. That was an appeal from the Court of Appeal of Jamaica. (2) In the case of evidence from an identified but absent witness, even when that was the “sole or decisive” evidence against the defendant, “counterbalancing measures” could protect the rights of the defence sufficiently, at least in cases where the hearsay evidence was “ demonstrably reliable or its reliability was capable of proper testing and assessment”. [57] Conclusion (2) was based on a number of considerations so far as criminal trial procedure in England and Wales was concerned, not least the provisions of sections 124 and 125 of the CJA and the rigorous application of the statutory conditions before hearsay evidence would be admitted. [58] 52. The Court of Appeal next analysed the difficulties in adopting a test of whether particular hearsay evidence was “sole or decisive” against a defendant as the basis for an absolute exclusion of such evidence in criminal trials. The court first of all challenged what it regarded as two false assumptions made by the ECtHR about hearsay evidence: first, that all hearsay evidence that was critical to a case was potentially unreliable in the absence of testing in open court ; and, secondly, that the fact finder could not be trusted to assess the weight of such evidence. [60] The Court of Appeal gave examples of the falsity of the first assumption, [61]-[65] and rejected the second, so far as the practice and experience of English jury trials were concerned. [66] and [76]-[78] It again emphasised the safeguards of section 125 of the CJA. [73]-[75] 53. The court ended its general survey by examining the practical difficulties of adopting a “sole or decisive” test in the case of identified but absent witnesses. In particular it questioned how, in advance of the result of a trial, it could necessarily be known what particular evidence was decisive against a defendant. [70]-[71] and [74] 54. The Court of Appeal’s general conclusion was: “…provided the provisions of the CJA 2003 are observed, there is no breach of Article 6 and in particular Article 6(3)(d) if the conviction is based solely or to a decisive degree on hearsay evidence admitted under the CJA 2003… Where the hearsay evidence is demonstrably reliable, or its reliability can properly be tested and assessed, the rights of the defence are respected, there are in the language of the ECtHR sufficient counterbalancing measures and the trial is fair”. [79] 55. The Court of Appeal then considered the particular facts in the Horncastle appeal. They are instructive, because there are certain factors which are similar to the present case. The victim of the attack, Peter Rice, was a long-term and registered alcoholic. On the day of the attack by the three defendants (of whom two were convicted and one pleaded guilty) he had been drinking all day with companions. The attack took place in the evening of 7 May 2005 in Rice’s flat, when the defendants were trying to recover stolen property that had been deposited in the flat. Rice suffered head injuries which caused a large blood clot in the surface of the brain and another small clot inside the skull. He was in hospital for a month but made a good recovery. He gave a statement to the police on 3 June 2005. Rice died in July 2006. The trial took place (at the third attempt) in November 2007. 56. The judge admitted Rice’s statement pursuant to section 116(2)(a). The other evidence relied on by the prosecution at the trial included witnesses of fact who spoke to events before and after the attack. There was also forensic evidence, including a DNA profile of Rice’s blood found on crutches belonging to one of the defendants. There was no application by the defence under section 125 at any stage after the close of the prosecution case. 57. In the Court of Appeal, as a result of the decision of the ECtHR in Al-Khawaja , it was argued that (i) the statement of Rice was the “sole or decisive” evidence against the defendants, so that, in accordance with the decision in Al-Khawaja, the admission of Rice’s statement was itself a breach of Article 6(3)(d) so that the trial was thereby unfair. In addition, (ii) there were insufficient counterbalancing safeguards to overcome the prejudice to the defence which would be caused by the admission of this untested hearsay evidence. It was noted in particular that the jury had asked to see a copy of Rice’s statement once they had retired to consider their verdicts. Accordingly, for that additional reason the trial was unfair and so the convictions were unsafe. 58. The Court of Appeal concluded, first, that there was, in fact, substantial evidence that was independent of Rice’s statement which proved that all three defendants were present in Rice’s flat and that the attack occurred in the presence of each of them. [108] However, secondly, the court accepted that Rice’s statement had been regarded by counsel, the judge and the jury as the basis, “ to a decisive degree”, on which the two appellants were convicted. [110] Thirdly, even if that was the case, that was only one factor in seeing whether the trial was unfair or not. When all the statutory safeguards in the “code” were considered in the light of the facts of this case, there was no unfairness. Indeed, “… if that statement had been excluded…or the trial stopped using the power in section 125 , there would have been a denial of justice in circumstances where the death of a key witness intervened prior to the trial”. [111]-[113]. There had been a fair trial and there was ample evidence to support the jury’s conclusion. (3) Horncastle: the judgment of the Supreme Court 59. As already noted, the judgment of the Supreme Court was given by the President, Lord Phillips of Worth Matravers. He first gave a short history of how hearsay evidence has been dealt with in criminal trials in England and Wales. Looking at the CJA provisions, he drew a distinction between two broad classes of hearsay evidence. In the first were statements of witnesses who had died, were ill, missing or absent from the trial through fear. Lord Phillips said those were examples of hearsay evidence made admissible because the evidence would otherwise be unavailable. He contrasted this with other categories of hearsay evidence that was made admissible because, “ …in the ordinary way, they are likely to be reliable”. In this class, Lord Phillips included business records and other examples. [35] He said that the CJA provided safeguards to protect a defendant against unfair prejudice as a result of the admission of hearsay evidence, over and above the general safeguards that apply to every jury trial. He summarised them. [38] Lord Phillips then surveyed hearsay in Commonwealth jurisdictions and the United States and considered criminal procedure in civil law jurisdictions. 60. Lord Phillips next analysed the Strasbourg jurisprudence on Article 6(3)(d) prior to Al-Khawaja. He pointed out that Article 6(3)(d) does not deal with the question of what procedure is appropriate where “ …it is simply not possible to comply with Article 6(3)(d); where for instance, after making a statement, the witness for the prosecution or defence has died. Fairness does not require that in such circumstances the evidence of the witness should not be admitted to the trial”. [66] Indeed, he added, the opposite might be so and the Strasbourg cases had recognised this, provided that there was justification for that course. [66]-[67] If there is justification, then, in Lord Phillip’s view, the ECtHR had been concerned with whether the process as a whole “ …has been such as to involve the danger of a miscarriage of justice”. [69] 61. However, Lord Phillips concluded that although the ECtHR had accepted that in exceptional cases a failure to comply with the strict requirements of Article 6(3)(d) would not invalidate the fairness of the trial, the court had not acknowledged this in terms. He continued: “The court might have said, in terms, that paragraph (3)(d) has no application where it is impossible to call a witness at the trial but it did not. The court might have said, in terms, that in exceptional circumstances a failure to comply with paragraph (3)(d) will not render the trial unfair, but it did not. Rather the court has used language that has tended to obscure the fact that it is, in reality and in special circumstances, countenancing a failure to comply with the requirements of paragraph (3)(d). I shall take Kostovski v The Netherlands [1989] 12 EHRR 434 as an example of the language used. The phraseology is almost standard form in cases dealing with Article 6(3)(d)”. 62. Lord Phillips then analysed statements in paragraphs 39 and 41 of Kostovski and drew three further conclusions. The first is that the ECtHR had recognised that the requirements of Article 6(3)(d) were not absolute. The second is that the ECtHR was there contrasting adversarial argument at a public hearing (whether at trial or at an earlier stage) with the position where there had been no opportunity for the defence to challenge evidence, whether at trial or at an earlier inquisitorial investigation stage. The third is to identify the danger that a repeated repetition of a principle, often in identical words, “… may lead to its being applied automatically without consideration of whether, having regard to the particular facts of the case, its application is appropriate”. [75]. 63. Lord Phillips next considered the so-called “sole or decisive” rule. He noted that, in Doorson v The Netherlands, [1996] 22 EHRR 330 the ECtHR had said, at paragraph 76 that: “Finally, it should be recalled that, even when ‘counterbalancing’ procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements”. Lord Phillips stated that this went further than previous decisions of the ECtHR had done, because it appeared to state an absolute rule that even where there was a justification for not calling a witness, to base a conviction solely or decisively on that witness’s evidence would be unfair. [77] He noted that in that case the ECtHR gave no explanation of the “sole or decisive” rule, nor had it done so in subsequent decisions, either in the case of anonymous witnesses or where a witness could not be called. [80] and [86] But he concluded that the ECtHR must have decided that in the case of a conviction based “solely or decisively” on the evidence of an anonymous witness or one not called and cross-examined (as opposed to a conviction based only partly on such evidence) it violated Article 6(3)(d), because such a conviction “ would not be safe ”. 64. Lord Phillips continued by reiterating the concerns of the Court of Appeal over the impracticality of trying to apply the “sole and decisive” test, at least in cases where it was suggested that the evidence of the absent or anonymous witness is said to be “decisive”. The trial judge would have to try and predict whether a particular statement was capable of proving “decisive” for the jury; no easy task. And, he said: “ If ‘decisive’ means capable of making the difference between a finding of guilt and innocence, then all hearsay evidence will have to be excluded”. [90] We voiced the same difficulty about the meaning of “ decisive ” during argument. We asked, by analogy, what was the “decisive” factor in the defeat of Napoleon Bonaparte at Waterloo? Wellington’s generalship; Napoleon’s own strategic errors; Marshal Ney’s caution at Quatre-Bras or his inability/failure to obey orders at Waterloo itself; the failure of Prince Jerome Bonaparte to take Hougoumont or the re-arrival of Blücher to the relief of Wellington late in the afternoon of 18 June? Historians have never agreed on the answer. 65. Finally, Lord Phillips analysed the decision in Al-Khawaja itself . He noted, first, that, at paragraph 34, the judgment had set out “ general principles applicable to both cases [viz. absent and anonymous witnesses]”. It is worthwhile repeating the passage of the ECtHR’s judgment which Lord Phillips quotes at [96] of his own judgment: “Article 6(3)(d) is an aspect of the right to fair trial guaranteed by Article 6(1), which, in principle, requires that all evidence must be produced in the presence of the accused in a public hearing with a view to adversarial argument ( Krasniki v Czech Republic). Application No 51277/99: 28 February 2006 para 75. As with the other elements of Article 6(3), it is one of the minimum rights which must be accorded to anyone who is charged with a criminal offence. As minimum rights, the provisions of Article 6(3) constitute express guarantees and cannot be read, as it was by the Court of Appeal in Sellick [2005] 1 WLR 3257 as illustrations of matters to be taken into account when considering whether a fair trial has been held (see Barberà v Spain; [1988] 11 EHRR 360 at [67]-[68] Kostovski v The Netherlands). [1989] 12 EHRR 434 at [39] ” 66. Lord Phillips stated that he found it impossible to reconcile this passage with other statements of the ECtHR that the fairness of a trial is to be assessed on a case by case basis, looking at the trial as a whole and that “ ..an inability on the part of a defendant to examine the maker of a statement that is admitted in evidence will not necessarily render the trial unfair”. [97] 67. Next, Lord Phillips quoted paragraph 36 of the ECtHR’s judgment, which itself referred to paragraph 40 of its decision in Lucà v Spain, which stated: “If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later stage, their admission in evidence will not in itself contravene Article 6(I)(3)(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had to no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6…”. 68. As Lord Phillips then pointed out, [100]-[101] neither proposition is self-evidently correct. A mere opportunity to challenge a deposition does not make its admission at the trial fair even if the maker is there to be cross-examined. The second proposition is plainly not a corollary of the first proposition. It is a rule that has resulted from the Strasbourg case law. 69. Lastly in his analysis of the decision in Al-Khawaja, Lord Phillips examined paragraph 37 of the ECtHR’s judgment. He commented [103] that the paragraph “ did not completely close the door to the possibility of ‘counterbalancing factors’ being sufficient to justify the introduction of a statement as sole or decisive evidence in [circumstances other than a refusal to testify through fear].” 70. Lord Phillips completed his survey with this conclusion: [108] “In these circumstances I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning. I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason”. 71. Lord Brown of Eaton-under-Heywood agreed with Lord Phillips and expressed the hope that the Grand Chamber of the ECtHR would “ clarify the law on hearsay evidence and recognise that our domestic legislation is compatible with Article 6”. [121] (4) The decision of the Grand Chamber in Al-Khawaja 72. The Grand Chamber consisted of 17 judges of the Court, including Sir Nicholas Bratza, who sat as the national judge in a case brought against the United Kingdom. He is the ECtHR’s current President. The judgment of the majority Judges Sajó and Karakas gave a “Joint Partly Dissenting and Partly Concurring Opinion”. Effectively they concluded that the ECtHR should maintain its previous position that “ …where a witness cannot be cross-examined and the conviction is based on hearsay as the sole or decisive evidence, the rights protected under Article 6 will be violated”, in other words, an absolute rule. In their view, contrary to the conclusion of the majority, the trial in the case of Al-Khawaja was not fair and was contrary to Article 6(1). reviews the circumstances of the two cases, the relevant domestic statutory law, practice and case law (including Horncastle) and then considered relevant comparative law. It summarises the Chamber’s decision and the submissions of the parties. From [118] the judgment sets out the Grand Chamber’s assessment. 73. The judgment first sets out some general principles. We hope we can fairly summarise these as follows: (1) the admissibility of evidence is a matter for regulation by national law and national courts. The ECtHR’s only concern is to see whether the proceedings have been conducted fairly. (2) The guarantees in Article 6(3)(d) are specific aspects of the right to a fair hearing set out in Article 6(1). The guarantees in Article 6(3)(d) have to be taken into account in any assessment of the fairness of the proceedings, but the ECtHR’s concern under Article 6(1) is to evaluate the overall fairness of the criminal proceedings. (3) The principle enshrined in Article 6(3)(d) is that all evidence against an accused must normally be produced in his presence at a public hearing “ with a view to adversarial argument” before the accused can be convicted. Exceptions to this rule are possible but must not infringe the rights of the defence. As a rule they include the right to have an adequate and proper opportunity to challenge and question a witness who is against the accused, whether this is done at the time he initially made his statement or later in the criminal proceedings. These propositions come from [118] (4) There must be good reason for the “ non-attendance” of a witness. That reason must be investigated before considering whether that person’s evidence is “sole or decisive”. [119] and [120] (5) “ When a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined [at any stage in the criminal proceedings], the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6: (the so-called “sole or decisive rule”). [119] The ECtHR characterises the admission of a witness statement in lieu of live evidence at trial in circumstances where the witness had not been examined at any prior stage as a “ measure of last resort”. [125] 74. The ECtHR then considers the history and rationale of its “sole and decisive” rule. It states the rationale in the form of an axiom that “ if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted.” [128] At this stage there is neither a definition of the “defence rights” nor any discussion of what the axiom implies, which must be that there can be acceptable restrictions on the “defence rights”. 75. The judgment next examines objections to the “sole or decisive” rule. In doing so it recognises that what it describes as English law’s “ dilutions of the strict rule against hearsay,” by virtue of the CJA (and the 1988 Act), have been accompanied by statutory safeguards. It therefore accepts that “ the central question in the present case is whether the application This is our emphasis. of these safeguards was sufficient to secure the applicants’ rights under Article 6 (1) and (3)(d) ”. [130] 76. The judgment debates the question of what is covered by the word “decisive” which the Court of Appeal and Supreme Court in Horncastle had criticised for being impossible of precision. The ECtHR states that the word, whose French equivalent is stated to be “ déterminante” Dictionnaire Hachette says of it: “ qui amène à prendre une décision; décisif.” means more than “probative”. The Court states: “Instead, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supporting evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be decisive”. [131] 77. For our part we respectfully suggest that this attempt to give the word “decisive” more precision so as to make the “sole and decisive” test more useful does not meet all the criticisms raised by both the Court of Appeal and the Supreme Court in Horncastle. In a trial with a jury in England and Wales, the judge is not the finder of fact. Even at the end of all the prosecution evidence, how is a judge able to determine whether a jury would regard a particular piece of hearsay evidence of an absent witness as passing from being “not decisive” to “decisive”? Or, to put it the other way round, how is he to assess whether other corroborative evidence is sufficiently strong to tip the balance so the relevant hearsay evidence turns from being “decisive” into “not decisive”? With great respect to the ECtHR’s statement at [134], when a judge is asked to withdraw the case from the jury on a submission of no case to answer at the close of the prosecution case, he does not test the “ strength and reliability of the evidence of the prosecution”. He only has to decide whether the prosecution must fail for lack of evidence, or because the evidence overall is of such a weak and tenuous nature that no properly directed jury could reasonably convict on the basis of it. The strength and reliability of a particular piece of evidence is a matter for the jury, not the judge. As the Court of Appeal in Horncastle pointed out, section 125 introduced, for the first time in English law, a strictly limited principle that the judge, not the jury, should assess the importance and strength of particular hearsay evidence in the context of the case against the defendant. But section 125 does not have a “sole or decisive” criterion; it is a broader test. 78. We respectfully suggest that a more useful test is used by the ECtHR when it considers the facts of Al-Khawaja itself. [154] It points out that the trial judge characterised the statement of the complainant (who had died) as: “ no statement, no count one”. The statement of the victim was thus a necessary (although not necessarily sufficient) pre-condition of bringing the case to trial; it was, in the words of one distinguished commentator “ the central piece of evidence without which the case could not proceed”. Prof JR Spencer: “Hearsay Evidence at Strasbourg: A Further Skirmish or the Final Round?” Archbold Review 16 February 2012 at page 7. The ECtHR regarded that statement as “decisive”; [154] even though there was other, strongly corroborative, evidence. The victim had complained to two friends immediately after the incident; and another witness, who was cross-examined, claimed to have suffered a very similar assault. The Court’s conclusion in that case was, effectively, that although the victim’s statement was “decisive”, it was not decisive enough to lead to an infringement of Article 6(1) or (3)(d), whereas the admission of the hearsay statement of the witness T in Tahery, which was also a “decisive” statement, did lead to an infringement. There must therefore be degrees of “decisiveness”. 79. The Court concludes [142] that there are two reasons which underpin the “sole or decisive” rule first adumbrated fully in Doorson. These are: (1) untested statements of witnesses can look cogent and compelling, but often fall apart on cross-examination, so care is needed before they can be used against defendants; (2) a defendant must not be placed in a position where he is unable to defend himself properly because he cannot challenge a hearsay statement against him. The judgment then states, somewhat curiously, “ Trial proceedings must ensure that a defendant’s Article 6 rights are not unacceptably restricted and that he or she remains able to participate effectively in the proceedings”. [142]; our emphasis. This again implies that a degree of restriction is permissible; but the degree of permissible restriction is not defined. 80. The judgment continues by saying that the ECtHR has always considered it necessary to examine the significance of the untested evidence to determine whether the defendant’s rights have been “unduly restricted”. [143] In examining the “ overall fairness of the proceedings” the ECtHR will consider “ the way in which statutory safeguards have been applied” including the way in which the proceedings have been conducted by the trial judge. [144] 81. The general conclusion on the “sole or decisive” test is set out at paragraph 147 of the ECtHR’s judgment. It is necessary to quote it in full: “The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 (1) . At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R. v. Davis (see paragraph 50 above), and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case”. 82. The judgment then examines the procedural safeguards contained in the 1988 Act and the CJA. [149]-[151] It notes: (1) the use of statements of absent witnesses has to be justified and must fall within one of the identified categories; Section 116 of the CJA (2) the effect of sections 114(3), 124, 125 and section 126(2), together with section 78 of PACE; (3) the common law requirement that the judge direct the jury on the burden (and we would add standard) of proof to be attained before they can convict and the dangers of relying on a hearsay statement. The Court concludes that those safeguards are, in principle, “ strong safeguards designed to ensure fairness’. But it remained to see how they were applied in the two cases before it. 83. The Court concluded that in Al-Khawaja’s case there were “ sufficient counterbalancing factors” to the difficulties caused to the defence by admitting the dead victim’s statement (which it characterised as “decisive”) to conclude that its admission “ did not result in a breach of Article 6(1) read in conjunction with Article 6(3)(d) of the Convention”. [158]. 84. But the Court reached the contrary conclusion in Tahery’s case. In doing so it seems to have concluded that the hearsay evidence of the witness who would not give evidence was not “ demonstrably reliable”. Yet because it was the only evidence that Tahery had stabbed the victim and it was uncorroborated, it was “decisive”. The Court rejected HM Government’s submission that the combination of (a) the judge’s conclusion that the admission of the statement would not be unfair; (b) the defendant’s ability to challenge the statement in evidence; and (c) the judge’s full and careful summing up and direction to approach the evidence given by an absent witness with care all constituted sufficient counterbalances to the handicap under which the defence laboured. The Court noted that the defendant “ was not able” to call any other witness to contradict the evidence in the hearsay statement and also the equivocal and circumstantial evidence of the victim. Overall, the Court concluded: “…there were not sufficient counterbalancing factors to compensate for the difficulties to the defence which resulted from the admission of T’s statement [so that] there has been a violation of Article 6(1) read in conjunction with Article 6(3)(d)”. (5) How can the ECtHR’s approach in Al-Khawaja – GC to hearsay evidence in criminal trials be summarised, at least so far as dead witnesses’ hearsay statements are concerned? 85. The ECtHR’s necessarily elaborate judgment is difficult to summarise, but we think that, for present purposes, the pertinent points are as follows: (1) issues of the admissibility of evidence are for national courts. (2) The ECtHR is primarily concerned, in respect of Article 6(1), with the overall fairness of the criminal proceedings concerned. (3) In such proceedings there has to be a good reason for the admission of hearsay evidence of an absent witness whose evidence is to be relied on and whose evidence has not been examined at some stage in the procedure. The admission of such hearsay evidence is a “ measure of last resort”. (4) In order to decide whether the admission of such a hearsay statement would lead to overall unfairness and a breach of Article 6(1) it is first necessary to see if the evidence is the “sole or decisive” evidence relied on for the conviction of the defendant. In this context, “decisive” means the central corpus of evidence without which the case cannot proceed. (5) If the evidence has that characteristic then its admission does not result automatically in a breach of Article 6(1) or Article 6(3)(d). (6) To decide whether that is the case, the existence and application of sufficient “ counterbalancing measures” in the trial process, including the existence and use of strong procedural safeguards, must be considered. (7) These measures will include those that permit a fair and proper assessment of the reliability of the relevant hearsay evidence to be undertaken before its admission and afterwards if it is admitted. (8) The question in each case is whether (a) the existence of these “ counterbalancing measures” and (b) their proper enforcement in the instant case, is sufficient to enable the defence to counter the handicaps it would suffer by the introduction of the untested hearsay evidence. The defendant’s Article 6 rights must not be “ unacceptably restricted”. 86. It seems to us that, at least so far as the hearsay evidence of dead witnesses is concerned, the ECtHR appears to conclude that the combined “ counterbalancing measures” of the common law, section 78 of PACE and the provisions of the CJA are in principle sufficient to make a trial fair in cases where the untested hearsay evidence sought to be admitted is the “decisive” evidence against the defendant. That seems consistent with the principle of “last resort” and means that a prosecution for a serious offence can proceed, provided the “ counterbalancing measures ” are rigorously applied. That is always going to be the acid test in any particular case. F. Are there any differences in approach between the Supreme Court in Horncastle and the ECtHR in Al-Khawaja? 87. In R(RJM) v Work and Pensions Secretary [2009] 1 AC 311 at [64] in the speech of Lord Neuberger of Abbotsbury with whom the other law lords agreed. the House of Lords stated that where the Court of Appeal considers that an earlier decision of the House of Lords, which would otherwise be binding on the Court of Appeal, may be, or even is clearly, inconsistent with a subsequent decision of the ECtHR, then, other in wholly exceptional circumstances, the Court of Appeal must faithfully follow the decision of the House of Lords. That principle continues to apply. There are no “ wholly exceptional circumstances” which might prevent this principle from applying to the present case. See Kay v Lambeth LBC [2006] 2 AC 465 at [45] for an example: ie. the effect of the passing of the Human Rights Act 1998 on a previous House of Lords’ authority. Thus, even if we were to conclude that Al-Khawaja- GC is not consistent with the approach of the Supreme Court in Horncastle, it is for the Supreme Court to decide what to do about it, not us; we have to follow the principles laid down in Horncastle. 88. It seems to us that there is a difference in approach between the Supreme Court’s decision in Horncastle and the Grand Chamber’s decision in Al-Khawaja. First and foremost, the Supreme Court declined to apply “the sole or decisive” test, at least to the two cases before it. The Grand Chamber confirmed that this test remained part of the Strasbourg jurisprudence, although it accepted that the consequence of concluding that a particular piece of untested hearsay evidence was “sole or decisive” did not automatically mean that the particular trial where that evidence was admitted was unfair. 89. This difference may be more one of form than substance, however. Thus, the Court of Appeal talked of a conviction being based “ solely or to a decisive degree on hearsay evidence admitted under the CJA” CA decision at [79] and the Supreme Court talked of the hearsay evidence being “ critical evidence”. SC decision at [108] That may not be very different from the Grand Chamber’s concept of “sole or decisive”. See the discussion leading up to [147] of the majority judgment. Next, the Court of Appeal and the Supreme Court both emphasise that when the untested hearsay evidence is “critical”, the question of whether the trial is fair will depend on three principal factors. First, the English courts accept that there has to be good reason to admit the untested hearsay evidence. To decide this under English law there must be compliance with the statutory code. CA decision at [16]; SC decision at [33] and [36]. The Grand Chamber necessarily puts this requirement on a more general basis, but it emphasised the need for “ justification ”. [120] of the majority judgment. Secondly, and we think most importantly, all three courts stipulate that there must be an enquiry as to whether that evidence can be shown to be reliable. “ Demonstrably reliable” per the CA at [79]; “ can be shown to be reliable” per the SC at [108]; [156] and in particular [160] of the G-C’s judgment, where it deliberately uses the very phrase employed by the Court of Appeal in Horncastle. Thirdly, all three courts are concerned with the extent to which there are “ counterbalancing measures ” and if so whether they have been properly applied in deciding whether to admit the “critical” untested hearsay evidence or to allow the case to proceed. In the case of England and Wales those “ counterbalancing measures ” must include all the statutory safeguards in the “code”, CA decision at [79]; SC decision at [108]; as well as a proper application of common law safeguards, such as proper directions in the summing up. The Grand Chamber emphasised the same thing at paragraph 144 and particularly in its “ general conclusion on the sole or decisive rule ” at paragraph 147, which we have quoted above. I. What is the task of this court in this case? 90. It seems to us that, consistently with the judgments of the Court of Appeal and Supreme Court in Horncastle, but, we think, in practice also consistently with the approach of the Grand Chamber in Al-Khawaja, we must deal with four questions in order to determine whether the appellant had a fair trial and so determine whether his conviction on count one is safe. The first is: was there proper justification for admitting the untested hearsay evidence in Ms Walker’s statements. Under English law, this must depend on whether the conditions of section 116(1) and (2)(a) were satisfied, although that test is also subject to the “ counterbalancing measures ” in the statutory “code” and the common law. Secondly, how important are the three untested hearsay statements of Ms Enith Walker in relation to the prosecution’s case against the appellant on count 1? Do they amount to the “central corpus of evidence without which the case could not proceed” on count one, to use Professor Spencer’s phrase. Archbold Review of 16 February 2012 page 7. Thirdly, how “demonstrably reliable” are those statements? Fourthly, were the “ counterbalancing safeguards ” inherent in the common law, the CJA and section 78 of PACE properly applied in this case so as to ensure that the appellant did have a fair trial? 91. We think, (again, we hope consistently with the approach of the Court of Appeal and the Supreme Court but, also, with that of the Grand Chamber) that all these four issues are interlocking, particularly the latter three. The more central the untested hearsay evidence, the greater the need to ensure that there is proper justification for its admission; and the greater the need to ensure that the untested hearsay evidence is reliable and to ensure that there are adequate “ counterbalancing measures ” which have been properly applied in this particular case. All three courts agreed that, ultimately, there is only a single test: did the defendant have a fair trial or not. J. The arguments of the parties 92. Ms Danielle Cooper, who both advised the appellant at the stage when leave to appeal out of time was sought and obtained as well as appearing before us, advanced four grounds of appeal. She argued them with conspicuous conciseness and clarity. Ground one is the general one, viz. that the admission of the three hearsay statements of Ms Walker pursuant to section 116(2)(a) of the CJA caused the trial of the appellant to be unfair and contrary to the appellant’s rights in Article 6(1). The three more particular grounds are: that the judge should have excluded the three statements pursuant to section 78 of PACE because the admission of that evidence had such an adverse effect on the fairness of the proceedings such that they ought not to have been admitted: ground 2. Next, at the latest by the conclusion of all the evidence in the case the judge should have stopped the case and directed the jury to return a verdict of not guilty in relation to count 1, pursuant to section 125 of the CJA: ground 3. Lastly, the judge failed adequately to direct the jury on the dangers of relying on hearsay evidence: ground 4. 93. In oral argument, Ms Cooper emphasised the importance of Ms Walker’s three statements for the prosecution’s case on count 1. Further, in her submission the first two statements, at least, were not reliable for the following reasons: (1) Ms Walker was a heroin addict. Ms Cooper pointed out that in Horncastle the Court of Appeal had described drug users as belonging to a category who might be thought to be very unreliable as witnesses. See [43] of the judgment. (2) Ms Walker had made a false complaint and had also given an untrue reason for not telling the police about the rape when seen by WPC Baldwin on the night of the alleged rape (viz. that she was subject to an ASBO). (3) There were manifest inconsistencies between her account to Ms Cook of the incident in 2004 and that set out in her 7 October 2005 statement. (4) There was no rational explanation of the 2 ½ year delay in making a statement alleging the rape by the appellant. (5) Although Ms Walker had identified the appellant on an identity procedure, that was after a well publicised civil injunction had been imposed on the appellant and a photograph of him as the man thought to be the “serial rapist” had been produced to all female sex workers in the Edgbaston area in order to minimise their risk. 94. Ms Cooper submitted that the three statements of Ms Walker should have been excluded by the court, exercising its power under section 78 of PACE, although she accepted that this had not been argued below. The statements were too unreliable and so it was unjust to admit them. She submitted that the test under section 78 and the “ interests of justice” tests in section 114(2) of the CJA that a Court had to consider before permitting hearsay evidence to be admitted pursuant to section 114(1)(d) were similar and the “check list” in section 114(2) was a useful guide when deciding whether the court should exclude hearsay evidence sought to be admitted under section 116(1)(a). 95. In the alternative, Ms Cooper submitted that the judge erred in not accepting the submission of counsel for the defence at the close of the prosecution case that there was no case to answer on count 1 or that the jury should be directed to acquit pursuant to section 125. In that regard, Ms Cooper submitted that the two tests were different, but accepted that this court had stated See: R v Joyce and Joyce [2005] EWCA Crim 1785 at [19]; R v Bennett and Turner [2008] EWCA Crim 248 at [19]-[21]. that the standard required for section 125 is not higher than that required for a submission of no case pursuant to R v Galbraith. Lastly, Ms Cooper submitted that the judge had failed to give any warning to the jury about the dangers of untested hearsay evidence and that failure was not mitigated by the reference to the agreed facts on the credibility (or lack of it) of Ms Walker’s statements. 96. For the Crown, Mr Andrew Jackson submitted that the key issue was whether Ms Walker’s statements were sufficiently reliable to be admissible. He submitted that they had to be assessed in the context of the overall evidence that was adduced by the prosecution in relation to count 1. He emphasised: (1) the appellant accepted that he had encountered Ms Walker that night and they had discussed the question of sex. (2) Therefore the suggestion of collusion as to identification was irrelevant; the issue was whether he had had vaginal intercourse without consent as Ms Walker had alleged. (3) The evidence of Ms Toogood and the 999 call. (4) the fact that the police found the appellant running away from the scene after they had responded to the 999 call and there was evidence he had struggled. (5) Ms Walker was found in the vicinity by WPC Baldwin and was upset. 97. Mr Jackson also submitted that the defence had the means available to attack the credibility of Ms Walker generally. In particular it had the agreed statement of facts, the differences between Ms Cook’s record of Ms Walker’s statement about the 2004 incident and the differences between Ms Walker’s evidence and that of Ms SES concerning the phone box. 98. Mr Jackson further submitted that although the wording of section 125 of the CJA is different from the formula of Lord Lane CJ in Galbraith, the effect is the same. It is, he submitted, inconceivable that a submission on the second limb of Galbraith would fail, but would succeed on section 125. The judge was correct to reject both submissions. 99. Lastly, Mr Jackson submitted that there were no significant omissions in the summing up of the judge. Accordingly the appellant had a fair trial and his conviction was safe. K. Discussion and conclusions 100. The first question is whether there was proper justification for admitting the untested hearsay evidence in the three statements. If Ms Walker had been alive to give oral evidence, the substance of her three statements would have been admissible as evidence that was relevant to counts 1 and 2. She was identified to the court’s satisfaction and she had died by the time of the trial. So, by virtue of the statutory conditions set out in section 116(1) and (2)(a) there was proper justification for admitting the statements as hearsay evidence, subject to the issue of sufficient “ counterbalancing measures ”. 101. The three statements of Ms Walker, and especially the first one of 7 October 2005, were very important in relation to the prosecution’s case against the appellant. We would say that they were central. Without the statement of 7 October 2005, the case against the appellant on count 1 could not have proceeded. 102. How reliable were those statements, in particular that of 7 October 2005? The first thing to note must be that the jury did not find that statement reliable so far as count 2 is concerned because they acquitted the appellant of that charge. The prosecution’s evidence on that consisted, effectively, of the statement of 7 October 2005 and the evidence from Ms Cook. (Ms SES’s evidence was derived from Ms Walker). Secondly, Ms Walker was a heroin addict and, so, to use the Court of Appeal’s words in Horncastle At [43] “… might be thought to belong to a category of the potentially very unreliable[witness]”. Thirdly, Ms Walker had demonstrated not long before the alleged rape in March 2003 that she was not reliable because she made her false allegation of a sexual assault in January 2003, which was then withdrawn a day later. Ms Walker had been prepared to make this false allegation in a section 9 CJA 1967 form of statement where she attested to its truth and claimed to understand the consequences of giving an untrue statement. Fourthly, Ms Walker claimed that the reason that she had not told WPC Baldwin about the attack was fear of being in breach of her ASBO, when she was not, in fact, subject to one at that time. Even if in October 2005 Ms Walker could not be expected to recall the date when the ASBO had been imposed, it clearly could not in fact have been the reason for not saying anything to the police as at March 2003, because she was not subject to an ASBO then. There must have been some other reason for not saying anything, despite the fact that Ms Walker was, according to WPC Baldwin, very upset when the police officer encountered her that night. Fifthly, the statement was made in October 2005 and there was no explanation whatsoever for the two and a half year delay in making it. 103. We accept that we have to balance against those matters that the facts that (a) the appellant admitted that he had encountered Ms Walker that evening; (b) Miss Toogood’s evidence of hearing a scream of “rape” supported Ms Walker’s account; and (c) the actions of the appellant when he was found by the police (running away and struggling) suggest possible foul play. 104. The question is whether, on the central issue of whether the appellant had non-consensual sexual intercourse with Ms Walker that evening, her principal statement can be “ shown to be reliable”, to use Lord Phillips’ words in Horncastle. At [108]. We are not satisfied that it can be. The only directly supporting evidence is Ms Toogood’s account of hearing a scream of “rape”. That is not enough to convince us that the statement is shown to be reliable, given the other contrary factors. 105. We are not even satisfied that the third statement, dealing with the identification, can be shown to be reliable, in the sense that this was a truly independent identification, given the publicity that had been given to the identity of the alleged rapist. 106. What is the consequence of this conclusion? In our view, if counsel for the defence had had the benefit of the judgments of the Court of Appeal and Supreme Court in Horncastle and that of the Grand Chamber in Al-Khawaja, he would have been bound to have made a submission that even though Ms Walker’s hearsay statements satisfied the conditions in section 116(1) and (2)(a), the court should exercise its power to exclude them, pursuant to section 78 of PACE. If, as we have concluded, those statements were central to the prosecution’s case on counts 1 and 2 and if, as we have concluded, they are not shown to be reliable, then we think it must follow that the admission of that untested hearsay evidence would have had such an adverse affect on the proceedings that the court ought not to have admitted the statements. If the court were to have considered all the factors set out in section 114(2) of the CJA as a kind of checklist, we think that, inevitably, the scales would have come down firmly in favour of excluding the statements. 107. We do not accept the submission that the question of reliability and the credibility of Ms Walker’s evidence should have been left to the jury. It seems to us that the clear effect of the judgments of the Court of Appeal and Supreme Court is that it is a pre-condition that the untested hearsay evidence be shown to be potentially safely reliable before it can be admitted. That is also the view of the Grand Chamber of the ECtHR. That is a matter for the judge to rule on, either at the admission stage or after the close of the prosecution case pursuant to section 125 of the CJA. 108. Further, even if that view be wrong, we have concluded that the judge should have acceded to the defence submission made pursuant to section 125 of the CJA. The judge erred in stating that the evaluation of the untested hearsay evidence of Ms Walker was a matter for the jury. First, under section 125(1)(a) the judge had a duty to decide whether the case against the appellant on count 1 was based wholly or partly on Ms Walker’s statements. It plainly was based at least partly on her statements; in fact they were central to the prosecution case. Secondly, under section 125(1)(b) the judge then had to decide whether the evidence was so “ unconvincing ” that, considering its importance to the case against the appellant on count 1, his conviction of the offence would be unsafe. 109. It seems to us that when the judge is considering whether the untested hearsay statement falls foul of section 125(1)(b), he has to have uppermost in his mind whether the statement has been shown to be reliable in the light of all the other evidence then adduced. If an untested hearsay statement is not shown to be reliable and it is a statement that is part of the central corpus of evidence without which the case on the relevant count cannot proceed, then we think that the effect of the decisions in Horncastle and Al-Khawaja – GC is that the statement is almost bound to be “unconvincing” such that a conviction based on it will be unsafe. In our view, the principal statement of Ms Walker, untested hearsay that it was, was sufficiently unconvincing that, considering its importance to the case against the appellant on count 1, his conviction on that count would be unsafe. 110. We are not convinced that the test in section 125 and that in Galbraith will necessarily be the same. When there is a submission of no case to answer, the judge does not have to satisfy himself that the relevant evidence has been shown to be reliable before leaving the case to the jury. Under Galbraith , provided the evidence gets over the threshold tests set out in that case, issues of reliability and the importance of particular pieces of evidence are quintessentially jury issues. But under section 125, given the approach of the courts in Horncastle and that of the Grand Chamber in Al-Khawaja, it seems to us that the judge is duty bound to make his assessment of reliability and importance of the hearsay evidence that has been admitted, before making his decision on whether to let the case proceed or not. 111. Therefore, in this case, we have concluded that the judge should have stopped the case in respect of count 1. Given the centrality of Ms Walker’s statements to count 1, we think that the judge would have been bound to direct the jury to acquit the appellant of that charge. 112. These conclusions means that we do not need to consider in detail Ms Cooper’s further submission on the failings of the summing up. However, we think it important to reiterate the statement made in Blackstone’s Criminal Practice (2012 Ed) para F 16.26. The learned authors emphasise the requirement that a jury be reminded that a hearsay statement admitted under Chapter 2 of Part 11 of the CJA will not (usually) have been verified on oath; it will certainly not have been tested by cross-examination. The judge should identify and point out the specific risks of relying on that evidence and should invite the jury to scrutinise it with particular care. The jury’s attention should be drawn to the context in which the statement was made and to all the other evidence in relation to it. If there are discrepancies between the hearsay statement and the evidence of other witnesses the jury’s attention should be specifically drawn to them. 113. We are, of course, very conscious that the judge in this case did not have the benefit of the Court of Appeal and Supreme Court’s judgment in Horncastle, nor that of the ECtHR’s Grand Chamber in Al-Khawaja. But nevertheless we think we should note that in his summing up the judge did not specifically invite the jury to scrutinise the evidence in the hearsay statements with particular care. The judge did not point out specifically the risks of relying on untested hearsay statements which were central to the prosecution case on count 1. The judge did not draw the jury’s attention specifically to the discrepancies between what Ms Walker had said in her October 2005 statement about the 2004 incident and what had been recorded by Ms Cook in the statement made (and signed by Ms Walker) on 19 February 2004. Nor was there a specific warning about the discrepancy between Ms Walker’s statement on the 2004 incident and Ms SES’s evidence Summing up page 37D that she had never been in a phone box with Ms Walker when there was a further allegation of rape. 114. In all these respects we have concluded that the “ counterbalancing measures ” that are contained in the provisions of Chapter 2 of Part 11 of the CJA and in the common law were not properly applied in this case. Accordingly, for all these reasons we must conclude that, in relation to count 1, the appellant did not have a fair trial and his rights under Article 6(1) were infringed. L. Disposal 115. The appellant’s conviction on count 1 is therefore unsafe. The appeal must be allowed and the conviction on count 1 must be quashed. M. Sentence on the two remaining convictions for rape. 116. As a consequence of this conclusion, we have been asked to exercise our powers under section 4 of the Criminal Appeals Act 1968 (as amended) in relation to the sentences of 10 years imprisonment imposed on the appellant in respect of each of his convictions for rape on Counts 13 and 14. These are the convictions for the oral and vaginal rape of Ms SES. The rapes occurred on the same occasion. 117. The facts, very briefly, are these: Ms SES worked as a prostitute to pay for her drug habit. In September 2005 she was approached by a man who asked her how much it would be for sex. She agreed a price and followed him to a car park where there was some conversation and the man smoked some cannabis. The man then pushed Ms SES and held her with something in her back which she could feel through her coat. She said that she thought it might have been a knife and that he later said “I will cut you”. She said that she performed oral sex on the man (wearing a condom) because she believed that she might be stabbed if she refused. She said that she asked for money and that he said that he would give her £5. She said that the man then pushed her further into the bushes and raped her vaginally from behind although only partially because she had her hand in the way to stop him. She said that he ejaculated and she did not know what had happened to the condom. She said that she did not shout or scream because she thought he might stab her and that when she walked away she dialled 999. 118. The police responded to the 999 call. Ms SES was found by the police to be very scared and crying. She was examined by a doctor later that day and there was no evidence that either supported or refuted an allegation of sexual assault. No used condom was ever found and no semen detected on vaginal swabs, her coat, tights or knickers. However DNA from the appellant and Ms SES was detected on the front inside of the appellant’s shorts. 119. It is submitted that the starting point for these offences is 5 years imprisonment concurrent for each one. It is accepted that the fact that there were two offences on the same occasion and that there was the suggestion of the threat of the use of a knife constitute aggravating features so that the starting point must be higher. As against that, however, it is said that there had been an agreement to perform sexual acts before the offences occurred. It is also emphasised that the appellant was only 19 at the time of the offences and of previous good character. 120. When the judge passed sentence he emphasised the seriousness of the offences against the victims. He concluded that the offences were “ planned and deliberate ” offences; he also concluded that the appellant had deliberately gone out armed with a knife. Now, as a result of our conclusion, we have to consider the seriousness of the two offences, on the same occasion, against a single victim, as well as the mitigating factors. 121. The starting point for a single offence of rape would be 5 years. However, these were two offences which were committed one immediately after the other. The judge was correct to emphasise the seriousness of their effect on the victim. She may have been prepared to engage in consensual sex for money but that does not mean she was prepared to undergo the ordeal she must have suffered. The threat of the knife (to which the judge specifically referred) is another aggravating factor; so also is the fact that the appellant ejaculated after the vaginal rape. Although the appellant was previously of good character and only 19 at the time of the offences, he can claim no discount, having disputed these matters at the trial. 122. We have given very careful consideration to the question of whether the sentence for the two offences of rape should be reduced from that of 10 years passed by the judge. In the end we have concluded that the sentences should not be disturbed. They are appropriate sentences in all the circumstances of the case. Appendix Criminal Justice Act 2003 (Ch 2 of Pt 11) 114 Admissibility of hearsay evidence (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if— (a) any provision of this Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible. (2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)— (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; (h) the amount of difficulty involved in challenging the statement; (i) the extent to which that difficulty would be likely to prejudice the party facing it. (3) Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings. 115 Statements and matters stated (1) In this Chapter references to a statement or to a matter stated are to be read as follows. (2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form. (3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been— (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is as stated. 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) that the relevant person is dead; (b) that the relevant person is unfit to be a witness because of his bodily or mental condition; (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken; (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. (3) For the purposes of subsection (2)(e) “fear” is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. (4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard— (a) to the statement’s contents, (b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence), (c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and (d) to any other relevant circumstances. (5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused— (a) by the person in support of whose case it is sought to give the statement in evidence, or (b) by a person acting on his behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement). 124 Credibility (1) This section applies if in criminal proceedings— (a) a statement not made in oral evidence in the proceedings is admitted as evidence of a matter stated, and (b) the maker of the statement does not give oral evidence in connection with the subject matter of the statement. (2) In such a case— (a) any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings; (b) evidence may with the court’s leave be given of any matter which (if he had given such evidence) could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; (c) evidence tending to prove that he made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that he contradicted himself. (3) If as a result of evidence admitted under this section an allegation is made against the maker of a statement, the court may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation. (4) In the case of a statement in a document which is admitted as evidence under section 117 each person who, in order for the statement to be admissible, must have supplied or received the information concerned or created or received the document or part concerned is to be treated as the maker of the statement for the purposes of subsections (1) to (3) above. 125 Stopping the case where evidence is unconvincing (1) If on a defendant’s trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that— (a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and (b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury. (2) Where— (a) a jury is directed under subsection (1) to acquit a defendant of an offence, and (b) the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence, the defendant may not be found guilty of that other offence if the court is satisfied as mentioned in subsection (1) in respect of it. (3) If— (a) a jury is required to determine under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an indictment with an offence did the act or made the omission charged, and (b) the court is satisfied as mentioned in subsection (1) above at any time after the close of the case for the prosecution that— (i) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and (ii) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the person, a finding that he did the act or made the omission 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 rehearing, discharge the jury. (4) This section does not prejudice any other power a court may have to direct a jury to acquit a person of an offence or to discharge a jury. 126 (1) ……….. (2) Nothing in this Chapter prejudices – (a) any power of a court to exclude evidence under section78 of the Police and Criminal Evidence Act 1984 (exclusion of unfair evidence) or (b) any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise). Police and Criminal Evidence Act 1984 78 Exclusion of unfair evidence. . (1)In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (2)Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. ………….. European Convention on Human Rights ARTICLE 6 Right to a fair trial (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. (3) Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and the facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.	{"ConvCourtName":["Crown Court at Birmingham"],"ConvictPleaDate":["2006-08-10"],"ConvictOffence":["Rape"],"AcquitOffence":["Rape","Attempted rape","Unlawful wounding"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Birmingham"],"Sentence":["10 years imprisonment (each of three counts of rape, concurrent)"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[19],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["8 complainants (for all counts); 1 for count 1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":["Yes-drugs"],"ProsEvidTypeTrial":["Victim testimony (hearsay statements)","Identification evidence","Corroborative witness (Ms Toogood)","Police evidence (arrest at scene)","Agreed facts on credibility"],"DefEvidTypeTrial":["Offender denies offence","Evidence of false complaint by victim","Evidence of inconsistencies in victim's account"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Threat of use of a knife","Offence against vulnerable victim","Offence committed against sex worker"],"MitFactSent":["Offender was 19 at time of offence","Offender of previous good character"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction unsafe"],"AppealGround":["Admission of hearsay evidence of deceased witness rendered trial unfair","Judge failed to exclude unreliable hearsay evidence under section 78 PACE","Judge failed to stop case under section 125 CJA","Judge failed to direct jury on dangers of hearsay evidence"],"SentGuideWhich":["section 116 of the Criminal Justice Act 2003","section 78 of the Police and Criminal Evidence Act 1984","section 125 of the Criminal Justice Act 2003"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Central hearsay evidence (deceased witness) not shown to be reliable; counterbalancing measures not properly applied; conviction unsafe"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Case No: 200300221 A3 Neutral Citation No: [2003] EWCA Crim 3110 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SNARESBROOK CROWN COURT HIS HONOUR JUDGE BING Royal Courts of Justice Strand, London, WC2A 2LL Thursday 6 th November 2003 Before : LORD JUSTICE WALLER MR JUSTICE HUGHES and DAME HEATHER STEEL DBE - - - - - - - - - - - - - - - - - - - - - Between : Derrick Davies Appellant - and - The London Borough of Waltham Forest Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Jonathan Rose (instructed by Law Mooney Lee Cook solicitors) for the Appellant Mr David Groome (instructed by the London Borough of Waltham Forest) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Waller: 1. On 23 rd November 2001 at the Crown Court at Snaresbrook before His Honour Judge Bing the appellant pleaded guilty to an indictment containing 13 counts. Counts 1-9 were of a similar nature. They all alleged that the appellant “With a view to gain and with a view to sale or distribution for sale, having possession, custody or control in the course of a business, of goods bearing a sign identical to or likely to be mistaken for a registered trade mark, without the consent of the proprietor, contrary to S92(1)(c) of the Trade Marks Act 1994 .” 2. The particulars of each of the offences on counts 1-9 asserted that different items were in the appellant’s possession with a view to sale or distribution bearing a sign identical to certain registered trade marks. Thus for example on count 1 the particulars of offence were: “Derrick Davies on 8 th December 1998 at 44a Argall Avenue, Leyton Industrial Village, London E.10. in the course of business with a view to gain for himself and without the consent of the proprietor you had in your possession, custody or control with a view to sale or distribution for sale a wristwatch bearing a sign identical to, or likely to be mistaken for, a registered trade mark, namely the Adidas mark.” Count 2 related to a blue shirt with a Hugo Boss mark; count 3 a toilet bag with a Burberry mark; count 4 a stripped pique shirt with a Fila mark; count 5 a navy blue zipped jacket with Tommy Hilfiger mark; count 6 a leather jacket with a Kickers mark; a black nylon jacket with the Ralph Lauren mark; count 8 a black nylon jacket with the Nike mark; and count 9 a wristwatch bearing a Reebok mark. Counts 10 and 11 charged offences under S92(2)(c) of the 1994 Act related to packaging material bearing a sign identical to or likely to be mistaken for certain registered trademarks. 3. Counts 12 and 13 alleged offences under S92(3)(b) of the 1994 Act and related to computer discs in the possession of the defendant designed or adapted for making copies of signs identical to or likely to be mistaken for certain registered trade marks. 4. S92 of the Trade Marks Act 1994 provides as follows: “92. - (1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor- (a) applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark, or (b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or (c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b). (2) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor- (a) applies a sign identical to, or likely to be mistaken for, a registered trade mark to material intended to be used- (i) for labelling or packaging goods, (ii) as a business paper in relation to goods, or (iii) for advertising goods, or (b) uses in the course of a business material bearing such a sign for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods, or (c) has in his possession, custody or control in the course of a business any such material with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b). (3) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor- (a) makes an article specifically designed or adapted for making copies of a sign identical to, or likely to be mistaken for, a registered trade mark, or (b) has such an article in his possession, custody or control in the course of a business, knowing or having reason to believe that it has been, or is to be, used to produce goods, or material for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods. (4) A person does not commit an offence under this section unless- (a) the goods are goods in respect of which the trade mark is registered, or (b) the trade mark has a reputation in the United Kingdom and the use of the sign takes or would take unfair advantage of, or is or would be detrimental to, the distinctive character or the repute of the trade mark. (5) It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark. (6) A person guilty of an offence under this section is liable- (a) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding ten years, or both.” 5. It will be seen that the counts did not allege in relation to the individual items the subject of counts 1-9 “the selling or letting for hire, offering or exposing for sale of goods which bear a sign” contrary to S92(1)(b). Nor (though significantly) so far as counts 10 and 11 are concerned did the counts allege under 92(2)(b) the using in the course of a business material bearing such a sign for labelling. Nor so far as the computer discs the subject of counts 12 and 13 were concerned was there alleged that any articles had contrary to S92(3)(b) been made, designed or adapted for making copies of a sign. The allegation in all cases as accepted by Mr Groom for the Crown before us was that on a particular day in all cases 8 th December 1998 (the date when the appellant’s premises were raided) the appellant had the particular items in his possession with a view to gain. 6. When sentencing the appellant on 17 th January 2002 the judge said this: “It is common ground that the indictment to which the defendant pleaded guilty is a specimen indictment. The indictment, counts 1 to 9, represent counterfeit watches; counts 2 and 4 to 8 counterfeit garments; count 3 a bag and count 11 a label. The only counts which are not specimen counts are counts 12 and 13 which fully represent the offences in relation to the computer disc. The indictment is a sample of a total of 5,429 counterfeit items, 86,000 counterfeit labels, 11,000 price stickers, some of which prices were in dollars as well as pounds. There were 140,000 counterfeit plastic bags found when the defendant’s premises were raided in December of 1998. The premises were exclusively a dishonest and illegal business devoted to counterfeiting. …..” 7. The judge then identified his approach to sentencing by reference to certain questions. The third question which he posed to himself was: “What was the actual or likely profit?” His answer to that question was (see 4b of the sentencing remarks): “The agreed basis upon which sentence should be passed is that in the period of trading, which was a period of about eighteen months from June 1997 to December 1998, the turnover was in the region of one million pounds. I conclude from that the profits would have been considerable.” He then sentenced the appellant to three and a half years concurrent on each of the counts of the indictment. There was then an offence under the Bail Act for which he passed a consecutive sentence of 6 months making 4 years in all. 8. That sentence followed a Newton hearing at which the Crown were contending that the turnover of the appellant’s business was over £1.5 million and at which a compromise was reached under which it was agreed that the judge should assess the turnover as £1million, the figure appearing in his sentencing remarks. 9. The sentence of imprisonment is not challenged on this appeal. The prosecution had served a notice under S71 of the Criminal Justice Act 1988 giving notice that the court should consider whether it was appropriate to make a confiscation order under the relevant legislation. Once a notice is served S71(1)(a) requires a court to determine first whether the offender has benefited from any relevant criminal conduct. Under subsection 1B subject to subsection 1C (which does not apply in this case) if the court determines that the offender has benefited from any relevant criminal conduct it shall then (a) determine in accordance with subsection 6 below the amount to be recovered in his case by virtue of this section and (b) make an order under this section ordering the offender to pay that amount. Subsection 1D provides: “In this Part of this Act “relevant criminal conduct….. means (subject to section 72AA(6) below) that offence taken together with any other offences of a relevant description which are either- (a) offences of which he is convicted in the same proceedings, or (b) offences which the court will be taking into consideration in determining his sentence for the offence in question.” Subsection 6 requires an order to be made by the court requiring an offender to pay either the benefit or the amount appearing to the court to be the amount that might be realised at the time the order is made whichever is the less. 10. The reference to S72AA(6) is important. Under S72AA if a notice is served pursuant to that section and provided certain conditions are satisfied the court may make assumptions that property in the possession of the defendant has resulted from criminal conduct to which the confiscation provisions will apply. These are called the extended benefit provisions. 11. The court will however only have jurisdiction under S72AA if: “(a) the prosecutor gives written notice for the purposes of subsection of 1A of section 71 above; (b) that notice contains a declaration that it is the prosecutor’s opinion that the case is one in which it is appropriate for the provisions of this section to be applied; and (c) the offender (i) is convicted in those proceedings of at least 2 qualifying offences (including the offence in question); or (ii) has been convicted of a qualifying offence on at least one previous occasion during the relevant period.” 12. Subsection 2 of 72AA provides: “In this section “qualifying offence” in relation to proceedings before the court ….. means any offence in relation to which all the following conditions are satisfied that is say (a) it is an offence to which this part of the Act applies; (b) it is an offence which was committed after the commencement of section 2 of the Proceeds of Crime Act 1995 ; and (c) that the court is satisfied that it is an offence from which the defendant has benefited.” 13. Subsection (6) of 72AA provides: “Where the assumptions specified in subsection (4) above are made in any case, the offences from which, in accordance with those assumptions, the defendant is assumed to have benefited shall be treated as if they were comprised, for the purposes of this Part of this Act, in the conduct which is to be treated in that case, as relevant criminal conduct in relation to the defendant.” 14. So far as benefit is concerned S71(4) provides that: “For the purpose of this part of this Act a person benefits from the offence if he obtains property as result of or in connection with its commission and his benefit is the value of the property so obtained.” 15. The confiscation proceedings before the judge were conducted on the basis that all the conditions by reference to which the court might have jurisdiction under S72AA had been complied with. In particular there was no contest that the court was dealing with two qualifying offences so far as the appellant’s plea of guilty was concerned. There was no contest that the court should be satisfied that the qualifying offences were ones from which the defendant had benefited. There was no contest that that benefit was a result of or in connection with the commission of the relevant offences. 16. Thus it was that the judge in giving his judgment in relation to the confiscation said at 11F: “Simply stated, the law is (1) it is for the prosecution to prove benefit. In this case, it is agreed by both sides that the benefit figure is one million pounds. That figure came about in this way. Prior to sentence, I was invited to hold a Newton hearing to determine the turnover over a period in the specimen indictment in counterfeit trading. The prosecution were contending for a figure higher than one million, the defence was arguing for a figure very much lower. After two days of evidence, the parties each invited me to pass sentence on the basis of a turnover of one million. In fact, this was the figure I would probably have arrived at myself if I had had to decide the Newton issue. Sensibly, both Mr Groom and Mr Rose have agreed, putting legal niceties to one side that one million pounds should be the benefit figure for these proceedings.” 17. Mr Rose who appeared below and appeared for the appellant on this appeal has however argued that any concession made in the court below went to jurisdiction and he should not be bound by it. He submits that on analysis of the indictment there are not two qualifying offences within S72AA in that none of the offences are ones in relation to which the appellant obtained any benefit. He submits that in relation to all counts on the indictment they simply assert that the appellant was in possession of certain items “with a view” to making a gain. He submits that it would have been possible to charge the appellant with selling or otherwise actually gaining from the sale or use of the items the subject of the counts but since the Crown did not choose so to do the position is that no benefit was obtained. 18. The Crown’s submission is that this places too narrow interpretation on the word “benefit”. The Crown stress that S71(4) provides that a person benefits from an offence if he obtains property both “as a result of” or “in connection with” its commission. 19. The Crown relied on two authorities R v David Cadman Smith [2002] 2 Cr App R(s) 144 and R v Wilkes [2003] EWCA 848. In the first the House of Lords were dealing with S71(5) and the question whether the defendant in that case had obtained a pecuniary advantage. The House of Lords ruled that in relation to a conviction for evading duty the defendant in that case had obtained a pecuniary advantage once duty had been evaded even if the goods were thereafter seized by the Customs and thus not sold by the defendant. Lord Rodger of Earlsferry commented at the end of his speech: “I am accordingly satisfied that the decision of the Court of Appeal on this point was wrong. It is worth adding that, if adopted, their interpretation would go a long way to making the confiscation provisions ineffective against smugglers. After all, there would be few, if any, cases where Customs officers will fail to seize contraband goods which they find in the hands of smugglers. The decision of the Court of Appeal would mean that any such case, for the purposes of S71(5), the smugglers would derive no pecuniary benefit from evading the excise duty and so no confiscation order could be made against them. Fortunately the terms of the legislation do not lead to that result.” 20. In Wilkes the Court of Appeal was concerned with S71(4). They followed the reasoning of the House of Lords in R v David Cadman Smith and held that a burglar who takes property from a house which is then immediately seized still obtains a benefit to the extent of the value of the property. Gross J in delivering the judgment of the court and giving the reasons for the court’s view as to the proper construction of the statutory provision said this: “(1) Section 72AA of the Act can be draconian in accordance, we think, with the intention of Parliament. As Lord Rodger observed in paragraph 23 of his speech in Smith (David Cadman) in the House of Lords: “That may not be out place in a scheme for stripping criminals of the benefits of their crime.” (2) The applicability of section 72AA of the Act is triggered by the commission of the qualifying offences; their “success” or otherwise is irrelevant. (3) Once section 72AA is triggered, and if the assumptions are made, the property to be confiscated need not be as counsel for the Crown had put in his skeleton argument, “referable to any particular piece of criminality”, let alone a “successful” outcome of triggered offences; were it otherwise the purpose of the statutory scheme could readily be defeated. (4) The provisions are compatible with convention rights because any serious or real risk of injustice can be avoided either by not making the assumptions or by disapplying them. We turn to the interpretation of S71(4). Viewed in this context we have no doubt that section 71(4) is to be interpreted as meaning what it says without any gloss. When the appellant had completed committing the trigger offences he obtained property – that he was unable to realise that property because of police intervention is irrelevant, as it would have been if the property had been destroyed by fire or in some other accident. ….. ” 21. It follows from the above authorities that the fact that the appellant in the instant case was not charged with having sold or disposed of items bearing false trademarks is not the end of the matter. The question is whether the items that bear false trademarks or which enable false trademarks to be applied to goods are “property” and whether they have been obtained in connection with the commission of the relevant offence. 22. Mr Rose suggested that to decide that these items had been obtained in connection with the offence in this case would lead to the provisions of the Criminal Justice Act 1988 being used in many circumstances where Parliament simply cannot have intended them to apply. He thus for example suggested that in relation to the evasion of duty cases Parliament cannot have intended the provisions to apply to the cigarettes bought outside the country and bought for the purpose of evading duty although loosely it could be said that such cigarettes were property obtained in connection with the commission of the offence. 23. It is unnecessary in our view to deal with the question whether the cigarettes in the evasion of duty case would be property obtained in connection with the commission of the offence of evading duty. This is not a case where the Crown rely on the obtaining of the original garment or watch or computer disc or labelling machine. This is a case in which those items have been adapted either by the application of a false trademark or by their capability to produce false marks. Their value was certainly intended to be enhanced thereby. The reality is that certainly so far as counts 1-9 were concerned these trademarks were being stolen by this appellant and applied to the items. There is very little distinction between that act and the act of the burglar who takes property from a house which is then immediately seized. 24. We accordingly also think that there is no reason to gloss the provisions of S71(4). If one asks whether the wristwatch with the Adidas mark was property obtained by this appellant in connection with the commission of the offence with which he was charged the answer appears to us to be it was. In one sense “with a view to gain” demonstrates that the property bearing the false trademark had a value which was of benefit to the appellant and thus there is no reason why S71(4) should not be construed as to apply to it. 25. Thus as it seems to us the judge did have jurisdiction. There were at least two qualifying offences. There is no dispute that if that be so having regard to the concession made below the appropriate figure for benefit is the £1million. Second Point on Appeal 26. The next point relates to whether the judge was right to hold that the appellant had a 100% interest in a property “Hillcrest” which was occupied by himself and his former wife Susan Cook. She was the registered legal owner. However the judge found that the appellant using the proceeds of his illegal operations provided 100% of the money for the purchase. 27. Mr Rose both before the judge and before us sought to rely on S74(1) and S74(10) which provide: “Definition of principal terms used 74.— (1) In this Part of this Act, "realisable property" means, subject to subsection (2) below— (a) any property held by the defendant; and (b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Part of this Act. (10) A gift (including a gift made before the commencement of this Part of this Act) is caught by this Part of this Act if— (a) it was made by the defendant at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate; and (b) the court considers it appropriate in all the circumstances to take the gift into account.” 28. It was Mr Rose’s submission before the judge and before us that S74(10) was designed to deal with precisely the situation that has occurred in this case but that by virtue of the fact that this house was purchased prior to the date of the offence in this case the house is not caught by the provisions of S74(10). 29. Mr Groome for the Crown accepted both here and below that if this house was a gift within the meaning of S74(10) then it would not be caught by virtue of the provisions of that Act having regard to the date when the property was transferred to Miss Cook. The judge looked at the matter this way: “The relevant date for the interpretation of section 74(10) must be 8 th December 1998 because that is the date on all the counts of the specimen indictment to which the defendant pleaded guilty. The defendant admitted, for the purposes of sentence, that the indictment was a specimen indictment of offences committed over a period of 18 months, beginning in June 1997. Parliament, in my judgment, cannot have intended to preclude me, in these circumstances, from looking at the true nature of the defendant’s intentions during that period. The events of that period have been the subject of intense scrutiny and cross-examination by the Crown. In my judgment, the answers given by the defendant and his mother as to what occurred at that time are relevant. The Crown rely on the answers given to submit that the evidence is not true that gifts were made. The Crown submit the intention was to disguise his assets by placing them in the name of his wife. In my judgment, the court is entitled to consider whether the evidence is true and to assess the true intentions of the parties. If, on the facts, I was to conclude that there was not a real intention on Davies’s part to make a genuine gift to his wife in the relevant period, I would be entitled to conclude that no gifts were made.” 30. It may be that the judge’s approach at the beginning of that quotation could be criticised. It was in fact not truly relevant if he was performing an exercise under S72(a)(a) whether the indictment was concerned with offences committed over a period of 18 months. Nor in one sense was it by reference to the construction of S74(10) that the point should be decided. But it is clear that he directed himself properly that the true question was whether any genuine gift to the wife had been made. He further quite rightly directed himself that if there was no question of there being a gift then the property was 100% the appellant’s and the gift provisions were of no relevance at all. 31. Mr Rose relied upon the presumption of advancement between husband and wife and on decisions which show that it is not necessarily rebutted in circumstances where the husband has placed property in his wife’s name in order to place it beyond the reach of any future creditors: see Tinker v Tinker [1970] 1 All ER 540, and generally Harwood v Harwood [1991] 2 FLR 274, and Halsbury’s Laws volume 48 at 616. 32. The presumption of advancement can be rebutted, sometimes by quite slight evidence. In many of these cases, the question will be whether there is an honest and genuine transfer intending to give the wife the beneficial interest, albeit motivated by a desire to avoid the property falling into the hands of any future creditors (as in Tinker v Tinker ) or whether the transfer is a sham with the true beneficial interest remaining with the husband. In the present case the judge examined the evidence in great detail and concluded that Miss Cook had not contributed from her own resources or from any gifts made to her to the purchase of “Hillcrest”. He found that: “the proper conclusion to draw from all the evidence is that the defendant had 100 per cent interest in Hillcrest.” 33. In our view this was a finding that was open to the judge on the evidence and there is no basis for reversing it in this court. 34. In those circumstances this appeal should be dismissed.	{"ConvCourtName":["Crown Court at Snaresbrook"],"ConvictPleaDate":["2001-11-23"],"ConvictOffence":["Possession, custody or control in the course of a business, of goods bearing a sign identical to or likely to be mistaken for a registered trade mark, without the consent of the proprietor, contrary to S92(1)(c) of the Trade Marks Act 1994 (Counts 1-9)","Offences under S92(2)(c) of the Trade Marks Act 1994 (Counts 10-11)","Offences under S92(3)(b) of the Trade Marks Act 1994 (Counts 12-13)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at Crown Court"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Snaresbrook"],"Sentence":["Three and a half years imprisonment concurrent on each count of the indictment; six months consecutive for an offence under the Bail Act (total four years)"],"SentServe":["Concurrent","Consecutive"],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Company"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Premises were exclusively a dishonest and illegal business devoted to counterfeiting","Large scale operation: 5,429 counterfeit items, 86,000 counterfeit labels, 11,000 price stickers, 140,000 counterfeit plastic bags"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Confiscation order"],"AppealGround":["No qualifying offences for confiscation order as none of the offences are ones in relation to which the appellant obtained any benefit; only possession with a view to gain, not actual gain"],"SentGuideWhich":["S92 of the Trade Marks Act 1994","S71 and S72AA of the Criminal Justice Act 1988"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["There were at least two qualifying offences; the items were property obtained in connection with the commission of the relevant offence; the judge had jurisdiction to make the confiscation order; the finding that the appellant had 100% interest in the property was open to the judge on the evidence"]}
Neutral Citation Number: [2015] EWCA Crim 1250 Case No: 201000473 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Paget Q.C. T20087292 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/07/2015 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISON (SIR BRIAN LEVESON) MR JUSTICE SINGH and MRS JUSTICE ELISABETH LAING D.B.E - - - - - - - - - - - - - - - - - - - - - Between : BABAR ALI SHAH Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - James Wood Q.C. and David Rhodes for the Appellant Oliver Glasgow for the Respondent Hearing dates : 24-25 June 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Sir Brian Leveson P : 1. On 23 December 2009, following a retrial in the Central Criminal Court before His Honour Judge Paget QC and a jury, Babar Ali Shah was convicted (by a majority of 10:2) of attempted murder, wounding with intent to do grievous bodily harm and possessing a firearm with intent to endanger life. The jury was discharged from returning a verdict in respect of an offence of causing grievous bodily harm with intent, which was an alternative to the count of attempted murder. On 25 February 2010, he was sentenced for attempted murder and possession offences to concurrent terms of imprisonment for public protection with a minimum term specified of 20 years, less 572 days spent on remand. No separate penalty was imposed in respect of the wounding offence. 2. With the leave of the single judge, granted as long ago as 26 May 2010, Mr Shah appeals against sentence. He also renews his application for leave to appeal against conviction on the single ground dismissed by the single judge and applies for leave on three further grounds which have since been drafted and re-drafted by Mr James Wood Q.C. and Mr David Rhodes (neither of whom appeared at the trial): for ease of reference, however, we shall throughout refer to Mr Shah as an appellant. The Facts 3. At about 11.25 pm on 25 July 2008, the first complainant, Mohammed Imran Sheikh, was driving his car in Greenford, West London with the second complainant, Shazad Ahmed, in the front passenger seat. Two other men were sitting in the back of the car. One of the men asked Mr Sheikh to pull over, which he did. The two men then withdrew sawn-off shotguns from a bag and the one who asked Mr Sheikh to pull over shot at him. Both complainants reached for the guns to try and divert the shots. Three shots were fired and all but one missed Mr Sheikh although the shot that struck him took the top off his thumb and lodged in his chest. 50 shotgun pellets were subsequently found in his chest, 35 of which could not be removed by surgery. Mr Ahmed was struck in the face with the butt of a gun in the ensuing struggle, suffering two cracked teeth. 4. The prosecution case was that the man who shot at Mr Sheikh was the appellant. It was said that at approximately 10.30 pm on the night of the shooting, the appellant, known to his friends as Bobby Shah, telephoned Mr Sheikh, with whom he had been acquainted for eighteen months, and asked him for a lift. Mr Sheikh agreed and met the appellant in the Greenford area. Mr Sheikh was driving a burgundy coloured Cherokee jeep, registered number YM51OUU which, it was common ground, he had bought from the appellant some time before. 5. Once together in the vehicle, they collected Mr Ahmed from his house. The appellant then asked if they could pick up a fourth man, which they did. The appellant introduced him as Hussan or Hussain. When Hussan got into the jeep, he was carrying a bag. The four men set off towards Southall in order to get something to eat when the appellant asked Mr Sheikh to pull over and the shooting occurred as we have described. 6. After the first shot, Mr Sheikh got out of the car and ran away. He said he heard a further shot and also heard the appellant shouting at Hussan to shoot Mr Ahmed in the head although both attackers had difficulty getting out of the jeep because the doors were fitted with effective child locks. Thus, Mr Ahmed was also able to get out of the car and escape; he ran to Mr Sheikh’s home which he knew was nearby. Mr Sheikh’s wife, Natasha Hare, was at home and called the police. The tape of the 999 telephone call also happened to record a conversation between Mr Ahmed and Ms Hare in Punjabi (clearly not intended to be communicated to the emergency services) which was translated, by more than one translator, for the jury. Mr Ahmed could be heard saying “Bobby and them, Bobby and that lot did it…”. The following day, he told the police that the appellant and his friend were involved. 7. Meanwhile, Mr Sheikh ran to a nearby address in Tangmere Gardens. 999 calls were made by two of the residents. Ms Hare was also contacted by them and she arrived at the address around 10 minutes later. Mr Sheikh had not named his attackers to the people at Tangmere Gardens but told his wife it was the appellant. He told the police that he knew the two suspects, but would not give any further details. He told the paramedic that he had been shot, but not by whom. Ms Hare told the police that her husband had told her that the appellant was the gunman. The next day, Mr Ahmed told the police that the appellant was involved and took them to the appellant’s home address. The appellant was arrested on 31 July 2008. The motive for the shooting remains unclear. 8. The defence case was that the appellant was not the gunman. Although in a prepared statement made on 31 July 2008 at the police station the appellant advanced an alibi that was he was at home at the time of the shooting, he later realised that he was wrong about this. In this statement, he also denied having been in the jeep to which we have referred (which was identified by its registered number) on the night of the shooting. 9. In a defence case statement signed by the appellant and served on 16 February 2009, he said that at about 8.00 pm on 25 July 2008, he went to the Greenford area with a view to borrowing a vehicle from a friend named Majid. By chance, he saw Mr Sheikh drive past and waved at him. Mr Sheikh turned around to pick him up, explaining that he had sent Majid away to the house of Mr Ahmed. Mr Sheikh gave him a lift to that house, where the appellant rejoined Majid who gave him a lift to a nearby restaurant. At the time of the shooting, the appellant said that he was in the restaurant having dinner with three acquaintances; Haider Saeed, Aslab Shah and Afzal Hussain. After dinner, the appellant and others went back to Afzal Hussain’s house where the appellant stayed until approximately 1.00 am. 10. In addition to the identification evidence of Mr Sheikh, Mr Ahmed and that which Ms Hare could say, the prosecution relied on circumstantial evidence that was said to connect the appellant to a mobile telephone which was used to call Mr Sheikh on the night of the shooting. After the shooting, Mr Sheikh’s mobile telephone was recovered from the vehicle. Billing of his phone was sought because he told the police that he had been rung by the appellant from a ‘private number’ shortly before he was shot and that he had been lured to the place where he had been shot by those calls. The billing information showed that he had been rung at 10.28 pm, 10.38 pm and 10.43 pm from a phone using a SIM card ending ‘529’. Records of that SIM card showed that it was only ever used on 25 July 2008 but that it had been operated in a handset with an IMEI number ending ‘860’. 11. Research into that particular handset revealed that it had also been used to operate a SIM card ending ‘273’. This number was used to call Mr Sheikh and four other individuals on 21 July 2008. Mr Sheikh told the police that he associated the 273 number with the appellant, that he had spoken to the appellant using this number and that the number was saved in his handset address book as “BB”. Since the telephone numbers of those individuals contacted by the 273 SIM card on 21 July 2008 were also saved in the handset memory of the mobile telephone seized from the appellant upon his arrest, the prosecution invited the jury to infer that the 273 SIM card, and therefore the 529 SIM card, were being used by him. Statements from two of those who were contacted through the 273 SIM card (whose names were Kaiser and Shoeib) were read to the jury; both admitted knowing the appellant, but neither had a recollection of the telephone call on 21 July, or who it was from, and both had other telephone numbers saved for the appellant in their mobile telephone address books. As to this aspect of the evidence, the appellant denied ever having in his possession SIM cards bearing the numbers 273 or 529. The Procedural History 12. The appellant first stood trial on 1 June 2009 before His Honour Judge Rennie. He was represented by City Law solicitors who instructed Mukhtar Hussain Q.C. and Mr Zac Miah as counsel. During the trial (prior, we were told, to the commencement of the evidence), bad character applications concerning Mr Sheikh and his wife were made pursuant to the provisions of the Criminal Justice Act 2003 : these were refused by the judge. The appellant gave evidence and one alibi witness (Syed Afzal Hussain) was called on his behalf. It appears that after the closing addresses, an application was made to discharge the jury on the grounds that the prosecution had failed to comply with disclosure requirements. One of the complaints before us was the absence of a number of attendance notes concerning the preparation for this trial and the ruling on bad character. 13. Following the discharge of the jury, the retrial was conducted by Judge Paget between 14 and 23 December 2009. No attendance notes or notes of evidence are available from that trial although we have had the benefit of substantial transcripts of evidence. The same witnesses were called to give evidence both by the Crown and the defence. 14. Following conviction, a notice of appeal settled by trial counsel was served both in relation to conviction (concerning the direction regarding disproof of alibi) and sentence. On 26 May 2010, the single judge (King J) refused leave in relation to conviction but granted leave in relation to sentence. On 2 September 2010 (some 2½ months out of time), the application for leave to appeal against conviction was renewed but, on 19 October 2010, Mr Hussein Q.C., advised the Registrar that he would be applying to withdraw. 15. On 17 December 2010, the Registrar agreed an application to transfer the representation order to new leading counsel limited to arguing the appeal against sentence. In the absence of instructions from the appellant, on 8 March 2011, the Registrar nominated Mr. James Wood Q.C to appear on the appeal against sentence which, together with the renewed application for leave to appeal against conviction, was listed for hearing on 15 July 2011. At this point, Mr Wood was acting pro bono in respect of the application for leave to appeal against conviction. 16. Prior to that hearing, at Mr Wood’s request, this date was vacated following counsel’s receipt of correspondence from the appellant raising potential further grounds of appeal against conviction concerning the conduct of his trial. On 28 July 2011, the Registrar granted an extension to the representation order for leading counsel to advise and settle further grounds of appeal. Provisional grounds were lodged on 29 February 2012; it would appear that there was a difficulty in obtaining trial documents from the appellant’s trial solicitors. At the same time counsel lodged a schedule of information to be obtained before the grounds could be perfected. 17. At a directions hearing on 26 June 2012, the full court (Sir John Thomas P, Collins and Singh JJ) directed that further transcripts be obtained and, following waiver of privilege, invited trial counsel, Mr Hussain Q.C. and Mr Miah, and City Law solicitors, Azhar Khan and Iain Jenkins, to comment on a number of questions as set by Mr Wood. Their responses prompted further questions and it was not until 23 January 2013 that final responses were received. 18. Consolidated grounds of appeal were lodged on 2 September 2013. Further directions were given on 7 November 2013 by the full Court (Sir Brian Leveson P, Royce J and Sir David Maddison) for trial counsel and solicitor representatives to give oral evidence at the hearing of the application for leave to appeal. Thereafter, Mr Wood came into possession of information which appeared to go to the credibility of Azhar Khan, the principal and director of City Law at the relevant time, who, it was said, was the subject of a police investigation. The prosecution disclosed information about various investigations into Mr Khan, including by the Solicitors Regulation Authority (“SRA”), relating to allegations of perverting the course of justice, cheating the public revenue and other offences of financial dishonesty. The prosecution conceded that Mr Khan could no longer be relied on as a witness of truth. Mr Wood subsequently sought further disclosure of material from the prosecution and SRA. 19. There was then a further directions hearing on 11 March 2015 (Sir Brian Leveson P, Singh and Jay JJ), the result of which was that, on 23 March, a request was made of the SRA to disclose to the prosecution any material in its possession which evidences conduct relating to the propensity of Azhar Khan, Iain Jenkins and Samira Bashir to engage in conduct on behalf of criminals which is contrary to the interests of their clients. Samira Bashir was at the time of the trial a paralegal at City Law with direct involvement in the defence of the appellant; she has since qualified as a solicitor. Thereafter, the prosecution was asked to disclose any further material then in its possession which is relevant to (i) the credibility of witnesses who are to be sought to be called before the Court of Appeal, and whose credibility is still relied upon (Iain Jenkins, Samira Bashir and trial counsel), and (ii) the propensity of Azhar Khan, Iain Jenkins, Samira Bashir or any other employees of City Law to engage in conduct on behalf of criminals which is contrary to the interests of their clients. This material was disclosed but, as the court foreshadowed at the directions hearing, it has not in fact provided a basis for any of the allegations that are now pursued. 20. In the event, Mr Jenkins, Ms Bashir, Mr Hussain Q.C. and his junior Mr Miah gave evidence admitted de bene esse for the purposes of the appeal. Although statements and the relevant documentation had been served so that the appellant could also do so, Mr Wood made no such application. A Form W was also submitted in relation to an alibi witness, Haider Saeed. In the event, Mr Wood made it clear that he was available should it be thought appropriate to hear him: we declined to do so. The Appellant’s Legal Representation 21. Mr Wood has proceeded on most (but not all) of the additional grounds that he has sought leave to pursue. First, he has argued that the conviction of the appellant is unsafe because he was represented by a solicitors firm which was conflicted in relation to its representation of him, and, in relation to Azhar Khan, the principal (but not so far as concerns Mr Jenkins or Ms Bashir), possibly dishonest. 22. This ground relates to Azhar Khan, the principal of the firm of solicitors whom the appellant instructed to represent him. It is advanced under several heads, the first of which involved a general attack on his honesty based upon material which had been disclosed by the prosecution together with the fact that the Crown did not rely on him as a witness of truth. The substantial quantity of material disclosed by the SRA and as a consequence of the police investigation was said only to provide the background against which the court should judge the remaining allegations as to conflict that he faced. 23. Without making any judgment about Mr Khan, unless his conduct in connection with the defence of the appellant itself could be criticised, want of honesty on its own would not be sufficient to undermine the conviction and Mr Wood does not suggest the contrary. Rather, he points to the conflict of interest consequent upon Mr Khan being a potential witness, the result of which was that it is submitted that he should not have acted for the appellant without obtaining his informed consent. He also argues that the absence of the entirety of the defence file (and, in particular, attendance notes of meetings including the single meeting at which Mr Khan attended upon his client) points to deliberate filleting of the file and, thus, impropriety. 24. The conflict is said to arise because the 273 SIM card used in the 860 handset (linked to the appellant as described above) was used to call a mobile number which acted as the out of hours number for City Law and Mr Khan’s personal number (344). The call lasted for 31 seconds and was made at 6.01 pm on 25 July. The significance of the call is that the 529 SIM (used to call Mr Sheikh at 10.28 pm, 10.38 pm and 10.43 pm) had utilised that 860 handset. The prosecution pointed to the fact that Mr Khan’s name and number were in the appellant’s mobile phone book and thus provided a link to that phone handset. 25. There is no doubt that witness statements were obtained and read from two others called by that SIM card, Mr Kaiser and Mr Shoeib, neither of whom could recollect who had made the call; further, the appellant was cross examined about this particular call. Although Mr Wood argued that this was a main plank of the prosecution case, we do not consider it such: the significant point was rather different. That was that the numbers called by the 273 SIM card for the short period it was used were all numbers which were in the phone book of the appellant’s phone: that much is clear from the full text of paragraph 48 of the prosecution opening note. 26. It appears that police officers spoke to Mr Khan about this call as long ago as 7 October 2008 when he also was unable to recollect the call or who had spoken to him. Given the similar evidence of Mr Kaiser and Mr Shoeib, that is not in the slightest surprising. No statement was taken from Mr Khan. As for the knowledge of those responsible for the appellant’s defence, the telephone evidence which identified the context of the call among the others was served on 22 January 2009. Mr Jenkins (who was emphatic that he – not Mr Khan – was responsible for and in charge of the appellant’s defence) told us that, on reviewing all the material that he was sent, he was aware of the call being part of the case; he could not remember specifically discussing it with Mr Khan but he could not imagine that they did not. Mr Hussain made it clear that if material evidence could have come from Mr Khan he would have expected to be told. 27. In reality, the only circumstance in which there was any conflict between the appellant and Mr Khan was if Mr Khan did remember the call and specifically remembered the appellant making it. Then, we have no doubt, he would have been asked to make a statement which would have been included in the prosecution papers and a clear conflict would have arisen. If he had remembered that the appellant did not make the call, the police would have been keen to record that fact and there would have been no question of conflict: he would have been an important defence witness. Even ignoring the information from the police, the inference is that he was neither. The fact that his firm was acting for the appellant was, in truth, neither here nor there: whether or not City Law acted for the appellant, Mr Khan’s number, and other numbers, were both called by the 273 SIM card during the short period it was active, and were also in the appellant’s phone book: that fact was unanswerable. 28. Mr Wood cited R v. Morris (David George) [2005] EWCA Crim 1246 as underlining the position of the solicitor in a case such as this. The facts concerned a solicitor who represented a defendant convicted of murder, despite having previously represented the suspect originally arrested on suspicion of the same murder. That suspect was subsequently told that no proceedings would be brought against him and, when the defendant was later arrested, he asked to be represented by the same solicitor. The defendant was fully informed of the solicitor’s previous clients but maintained throughout the trial that the solicitor should act for him. Part of his defence to the charge was that the original suspect and his wife were involved in the murders. 29. After he was convicted, he appealed against the conviction on the grounds that he was deprived of a fair hearing because his solicitor had a conflict of interest which had adversely influenced the presentation of his case at trial. The Court of Appeal concluded that the defendant had been deprived of the opportunity to present a defence which was likely to have been given serious consideration by the jury and that loss of opportunity meant that he did not have a fair trial. It was put in this way (at [65]): “We do not doubt that the defence of the appellant was vigorously pursued in terms of taking instructions from the appellant, keeping him informed, strenuously pursuing disclosure of documents, carefully analysing the evidence and conscientiously preparing and presenting a lengthy address to the jury. The fatal flaw was in Mr Hutchison accepting instructions from the appellant in the circumstances he did. The former relationship with Stephen and Ian Stuart Lewis and the consequences of his continuing duties to them pervaded the entire conduct of the defence. We cannot of course be certain that the defence would otherwise have been conducted in a different way with a more vigorous attack upon the Lewises and their alleged involvement, but in the circumstances the strong probability is that it would have been.” 30. In our judgment, the present case is entirely different. First, the alleged conflict falls very far short of the situation in Morris. An assertion that the director of a firm representing the appellant, who himself did not have direct responsibility for his case but received a telephone call from the alleged gunman on the night of the shooting does not even arguably lead to the conclusion that there was a conflict of interests. 31. Secondly, in Morris it was possible to identify how the case would have been different were it not for the conflict: “ there was substantial material which could have been but was not put to the Lewises and put in evidence, and serious and specific allegations which could have been put to them”: [66]. The conclusion in Morris that the convictions were unsafe was not because of the conflict alone, but because the court could identify where and how the defendant had been deprived of the opportunity to present a defence, with reference to specific evidence. The same cannot be said in this case. Mr Wood points to the examples provided by his second and third proposed grounds of appeal but such failings as might be established would provide free-standing grounds of appeal and, in any event are not linked to the alleged conflict. This is not least because they turn on decisions taken by trial counsel and, whether or not those grounds are well founded, it was not suggested before us that there was any link between their conduct of the trial and the alleged conflict of interest on the part of Mr Khan. For all these reasons, we reject the submission that there was any conflict of interest which disabled the solicitor from acting without his client’s express consent. 32. Mr Wood stopped short of formulating any wider allegations of impropriety against Mr Khan, though he suggested that it was sinister that much of the case file was apparently missing. He suggested to Ms Bashir that it had been “filleted”. We do not find the fact that parts of the file are missing to be sinister, and we reject the suggestion that it would be proper to infer that documents have been systematically removed from it. It is now many years since the trial. In the meantime, the files have gone for assessment of costs, been put into storage, and been retrieved and sent to new solicitors. No intelligible reason has been suggested to explain what parts of the file are missing, why they are missing or what they might have contained. The fact that the notes of the second trial are missing is irrelevant without a basis advanced in evidence for submitting that something of importance has been withheld. Those remaining grounds which advance criticism of the conduct of the second trial are capable of determination on their own merits. 33. We deal shortly with the remaining allegations concerning Mr Khan, the firm City Law, Mr Jenkins and Ms Bashir. In relation to Mr Khan, there is no evidence that on the one visit recorded in the Prison visits log to have been made by him, anything improper occurred. Suggestions made in writing that pressure had been put on the appellant not to mention the name ‘Raju’ or ‘Uzi Butt’ in his instructions were not pursued with oral evidence: in any event, they are contradicted by the text of the two versions of his defence case statement. Similarly, the appellant was not called to give evidence in accordance with his recent statement that there was some relationship between Mohammed Sheikh and Mr Khan and this was not pursued. Finally, although Mr Wood noted that Mr Khan’s telephone number was saved in Mr Sheikh’s mobile phone address book, that fact does not start to provide a basis to support any allegation of impropriety. 34. In any event, the evidence concerning Mr Khan is of limited, if any, relevance given that Mr Jenkins, Ms Bashir and counsel were all emphatic that he had no real involvement in the appellant’s case. The evidence from the SRA concerning him relates to matters completely unconnected to this trial. Nor does the material lend any support to a challenge to the credibility or integrity of the appellant’s representation by Iain Jenkins or Samira Bashir and there is no evidence from the appellant that any of them acted otherwise than in his best interests. 35. The submission that the appellant’s conviction is unsafe by reason of his being represented by a dishonest solicitors’ firm, or a firm that engages in conduct which is contrary to the interests of their clients, is rejected as without foundation as is the application for leave to appeal against conviction on this ground. Put simply, on full investigation, there is no merit in it. Bad Character 36. Mr Wood’s second proposed ground of appeal is that although the application to cross examine Mr Sheikh and his wife Ms Hare on the basis of their bad character had been rejected at the first trial, Mr Hussain Q.C. and Mr Miah failed in the re-trial to repeat the application in order to undermine the credibility of these two critical prosecution witnesses. Mr Wood submitted that the material went to four issues in the trial. The first was Mr Sheikh’s credibility; the second, whether Mr Sheikh was likely to have been shot by others because of his criminal activity; the third, whether he was known to the appellant (and others) as “Uzi Butt”; and, finally, the fourth, whether he was lying when he denied that last fact. 37. To support the contention that there was material which it was legitimate to deploy as bad character evidence, we were referred to unused material that Mr Sheikh has in the past been charged with robbery and assault. In the event, although there were statements supporting the allegation, the authors were clearly not prepared to support them by giving evidence in court and there was no suggestion (let alone evidence) that they had been intimidated into that stance: the result was that the prosecution offered no evidence at trial and verdicts of not guilty were entered. Secondly, there was an allegation that he had been involved in a stabbing incident and further information suggesting that his wife, Ms Hare, was aware of her husband’s criminality and had herself been suspected of being involved in a robbery. Lastly there was material which is said to support the appellant’s assertion that that Mr Sheikh was also known as Uzi Butt. 38. Mr Miah prepared a bad character application both in respect of Mohammed Sheikh and his wife for the first trial, and Mr Hussain pursued it. Although we have not seen a transcript or note of the ruling, it is undeniable that it was refused and Mr Oliver Glasgow (who appeared for the Crown in that trial) submitted that it had always been doomed to fail. Although Mr Hussain and Mr Miah asserted in a joint note (undated) that they could not recall whether a bad character application was pursued in the second trial, there is no evidence (whether from the court log or otherwise) to suggest that it was. We proceed on the premise that no such application was made, which leads Mr Wood to argue that no trial team could properly withdraw such an application without either receiving written instructions to do so, or advising fully and in writing as to the reasons for so doing. On behalf of the prosecution, Mr Glasgow submits that whatever the reasons for not pursuing the application, again, it was not an application that could succeed. 39. The issue of bad character evidence raises two separate questions. The first is whether the appellant did, in fact, instruct his lawyers to repeat the bad character application before Judge Paget in the second trial, and the second is, if he did, and those instructions were not carried out, whether that affects the safety of his conviction. Mr Wood accepts that if the application would not have succeeded, the trial process was unaffected: he submits, however, that it was bound to succeed not least because, at the second trial, Mohammed Sheikh (who was entitled to claim that he was a man of good character) asserted that he had not behaved illegally. 40. As to the circumstances in which the application was not pursued, the court heard evidence both from counsel and Ms Bashir (then the paralegal representative of the appellant’s solicitors) although not from the appellant. In short, Mr Miah had left the issue to his leader and Mr Hussain was not able to say why no application was made in the second trial: he did not have his trial notes from nearly five years earlier. Mr Hussain’s recollection was that he did not see the appellant during the course of the second trial (although there is at least one reference in the log to his being given time to obtain instructions). On this issue, he could only assume that no specific instructions had been given for the application to be made because there was no logic, otherwise, to explain why it had not been. Cross examined by Mr Wood, he agreed that it would have been a major oversight not to make the application in the absence of instructions; it would have been culpable. If he had forgotten to make the application and had been reminded by his solicitor, he would have made it. 41. Very different evidence was given by Ms Bashir about this issue. Having worked on the case, at the instruction of, and supervised by, Mr Jenkins, she attended most, if not all, of the re-trial and frequently attended the appellant and the witnesses. Although Mr Wood did not ask her about this issue, when the matter was raised, she was sure that, during the re-trial, the appellant had complained to her that Mr Hussain had not cross examined Mr Sheikh about the unused material. She said that he had been quite adamant that he wanted it in. 42. Her evidence was that she told Mr Hussain about the appellant’s concern but she did not think there had been any discussion about it. “They” (presumably counsel) “did not explain it to me ... they would do it their own way”. She told the appellant who was not content, but “wasn’t jumping in his seat”. Her evidence was that the appellant’s team were ready for the application, had dug up a lot of material, and were ready to use it to discredit Mr Sheikh. She was not clear why the application was not made; she is not sure what words were used; “it wasn’t of interest, or applicable”. She added that the prosecution had run the second trial in a different way. They had not focussed on the history between the appellant and Mr Sheikh; there was less about the history, credibility, and how the jeep had been bought. Rather, the emphasis had focused directly on the shooting. All the previous material, to the discredit the appellant, had not been deployed, so discrediting Mr Sheikh was less relevant. 43. As Mr Glasgow argued (and Mr Wood accepted) there is no professional obligation on defence counsel to retain notes of a case but the difficulty of not so doing is that it puts any court reviewing the matter in a difficult position. Mr Hussain effectively has no recollection one way or the other but makes the very forceful point that there would have been absolutely no reason not to make the application (which had been prepared and served timeously) if it had been thought sensible to do so. Ms Bashir, on the other hand, is clear that it was mentioned and cannot explain why it was not pursued. That there must have been a reason is clear (for we do not accept that Mr Hussain would deliberately have failed to pursue the application without good reason). 44. It is not necessary to examine the extent to which it is necessary for counsel to involve the defendant in the trial strategy or tactics to be deployed by the defence and in which failure to do so may provide grounds for an appeal. In the specific circumstances of this case and in the light of the evidence we have heard, we accept that this appellant should have been involved in the decision and that, had he been, he would have wanted the matter pursued. It is right, therefore, to proceed on the premise that there was a breakdown in communication of some sort and that it is therefore arguable that the application should have been, but was not, made. 45. The background is that the application at the first trial was made and refused at the start of the trial before evidence had been given; Mr Wood makes the point that it was not renewed as the evidence emerged. During the course of the second trial, however, he argues that, whatever had been said previously, Mr Sheikh then denied any involvement in criminal activities. This was reflected in the Judge’s summing up of his evidence to the jury. It is submitted that, as a result, the jury were left with a false impression as to the character of the main witness for the prosecution which cross examination as to his character, if permitted, would have undermined. 46. The critical question, therefore, is whether the application would have been successful in the second trial had it been made and, as a result, whether the convictions are thereby rendered unsafe. Mr Glasgow responds by arguing that any application would have been equally doomed to fail in the second trial (as it had before Judge Rennie). Thus, the fact that none was made can have had no adverse impact on the safety of the convictions. 47. With that introduction, we turn to the basis for the bad character application in relation to Mohammed Sheikh. The main plank of Mr Wood’s argument depends on an allegation that, on 25 July 2007, Mr Sheikh (using the name Uzi Butt) had taken part in a robbery and assault during the course of which a gun was put in the mouth of the victim, Adnan Mahboob. As part of that incident it was alleged that another man, Abrar Khalil, had been threatened and assaulted. The unused material contained statements from Mr Mahboob and Mr Khalil along with information that Mr Sheikh had been identified as the gunman by them. There was also material that a handgun had been found from under the bed by the police when Mr Sheikh’s house had been searched. 48. Although this material was available, the extent to which it was appropriate to permit its deployment was another matter. First, another man, Darryl Paul, pleaded guilty to involvement in these offences and although Mr Sheikh was prosecuted, Mr Mahboob and Mr Khalil refused to participate. They failed to attend to give evidence on the two occasions that the case was listed for trial; further, as we have recounted, there was neither complaint, nor any evidence, of witness interference. In the circumstances, we repeat that the Crown offered no evidence and Mr Sheikh was acquitted. Although Mr Sheikh admitted to the police that he had acquired what was an imitation firearm, his explanation in interview was that someone had previously tried to enter his house and so he bought it to protect himself and his family: simple possession was not an offence and he remained a man of good character. 49. The second limb of the material which Mr Wood argued should have been deployed in relation to Mr Sheikh’s bad character also comes from unused material, this time relating to Mateen Butt. There was a CRIS report that Mr Butt was attacked in his vehicle by a gang of up to 15 people on 4 June 2007 in the course of which he was stabbed. Police records also revealed an information sheet which the relevant officer found “a little difficult to interpret” that suggested that after the incident Mr Sheikh had rung Mateen Butt’s family “purporting to be a friend warning him not to get involved and to warn the victim off pursuing the matter”. Although Mr Butt positively identified other participants including Darryl Paul, there was no evidence of Mr Sheikh as having been involved and no specific evidence establishing the intelligence. As Mr Glasgow submits, the suggestion that Mr Sheikh took part in the stabbing was merely guesswork on the part of the complainant. 50. In order for this material to be admissible, s. 100(1)(b) and (3) of the Criminal Justice Act 2003 required that it have substantial probative value for which purpose the court must have regard to specified and other relevant factors. In that regard, the nature of the evidence available is obviously highly material. Thus in R v Bovell & Dowds [2005] 2 Cr App R 401 , [2005] EWCA Crim 1091 , the court had to consider the fact that a complainant in a s. 18 allegation of wounding with intent had been the subject of an investigation for an identical offence although the complaint had subsequently been withdrawn. Rose LJ (at [21]) entertained “considerable doubt as to whether the mere making of an allegation is capable of being evidence within Section 100(1)” which doubt increased given that the allegation was withdrawn. He went on (at [22]) : “It is apparent from the circumstances …. That if there was to be any question of the s. 18 allegation being admitted before the jury, it would necessarily have given rise to investigation of other subsequent matters, including the aspersions on the credibility of the victim and the fact that he had withdrawn the allegation. An excursion into those satellite matters is, as it seems to us, precisely the sort of excursion which, as we suggested in para. 12 of the judgment in Hanson , a trial judge should be discouraged from embarking upon.” 51. This observation does not stand alone. In R v Miller [2010] 2 Cr App R 19 , [2010] EWCA Crim 1153 , Pitchford LJ made it clear that one of the intended effects of s. 100 is “to eliminate kite-flying and innuendo against the character of a witness in favour of a concentration of the real issues in the case” but that in the case of a prosecutor cross examining a witness, unless in a position to prove guilt in the event of denial, the exercise should not have been embarked upon (see [20]). Similarly, in R v Braithwaite [2010] 2 Cr App R 18 , [2010] EWCA Crim 1082 , Hughes LJ put the matter in this way: “19. … The evidence of a live witness to the effect that a complainant in an assault case has on several previous occasions mounted an unprovoked attack on him, in circumstances very similar to those before the jury, would be a mere allegation if no conviction had ensued, perhaps because there was yet to be a trial. But we leave open the possibility that it might in some circumstances (assuming truth) be assessed as having substantial probative value. That, however, is not this case. 21. A defendant who asks to adduce a CRIS report to the police containing a complaint made in the past to the police by someone else who was not prepared to support it, is advancing a very different level of probative value. First, it is, at best, hearsay. Its admission would fall to be judged by reference to the conditions for the admission of hearsay and we venture to suggest that given the difficulties of the jury in assessing such evidence it would be rare for it to be judged to be of substantial probative value. Secondly, if the complainant has failed to support the allegation that robs it of a great deal of probative value. If, in addition, there has been a decision by the police or CPS not to pursue the allegation or even, as in one instance in the present case, the formal acceptance of a verdict of 'Not Guilty', the probative value is even further reduced. In the present case, in the example of U given above, the CRIS reports did not even contain any accusation by anyone identifying him as responsible for the bad character conduct alleged. The 'evidence' in this case was in truth no evidence at all that the witnesses had committed the offences in question. It might be different if hard evidence of the allegation were to become available and if that is what the applicant were to seek to adduce.” 52. In this case, the above analysis demonstrates that there was no question of the appellant being able to prove any of the allegations. In the first, although statements had been made, the complainants had refused to attend a trial and Mr Sheikh stands acquitted. Furthermore, there is no suggestion that the appellant would have been able to deploy the witnesses or otherwise make good the allegations. Possession of an imitation firearm limited to the circumstances admitted by Mr Sheikh did not advance the defence case at all. In the second, there was no more than the CRIS report. Similarly, so far as Ms Hare was concerned, the information that suggested that she “participated in crime” was solely contained within police intelligence. It would have been satellite litigation precisely of the type deprecated by the authorities. In the circumstances, we agree with Mr Glasgow’s submission that an application before Judge Paget in relation to any or all of these incidents would, as had been the case before, have been doomed to fail. 53. Under this head, we turn finally to the argument about the name ‘Uzi Butt’. The main significance of the allegation that Mohammed Sheikh was also known as Uzi Butt was that it was important for the appellant to explain why, on 31 July 2008, in a prepared written statement, which his solicitor handed to the police in his interview on that day, he not only denied the offences, but, more particularly, in relation to the jeep YM51OUU denied ever owning it, selling it or the fact that six days earlier, on 25 July 2008, he had been in it. His explanation was that he did not know Mohammed Sheikh by that name but as Uzi Butt, and that the police got Mr Ahmed’s name wrong. 54. At trial and thereafter, the appellant accepted and now accepts that he was in the jeep with Mr Sheikh that evening, and that he had sold it to him. In these circumstances, he cannot say that his denial was based on not knowing that Uzi Butt and Mr Sheikh were the same person, as he had known all along that, on 25 July 2008, he had been in the jeep that he had previously owned. In any event, the appellant could (and did) speak of Mr Sheikh as Uzi Butt and that assertion was put to him. The material which Mr Wood says should also have been available was that Adnan Mahboob had called him Uzi Butt: for the reasons set out above, there was no prospect whatsoever of that evidence being capable of being deployed. Further, while Mr Sheikh admitted using the name ‘Imran Butt’ in an interview, this would not have established that which Mr Wood sought to show. 55. It follows that the failure to take the appellant’s express instructions about the bad character application does not make the appellant’s conviction unsafe because such an application would have had no prospect of success. Further, whether or not a judge would have permitted reference to Mr Sheikh’s admission that he was known as Imran Butt, such evidence did not carry the defence forward, particularly given the limited context in which the name was said to be significant. The appellant admitted that he had been in the jeep that he had owned with Mr Sheikh and Mr Ahmed earlier that same evening. Shortly after the shooting, there was no doubt that both men had, independently, identified the gunman as “Bobby” or the appellant and Mr Sheikh had been lured to the scene by a person using a handset in which two SIM cards had recently been used. One of those cards had only been used over a very short period, and all the numbers called by that SIM card in that period were in the phone book of the appellant’s phone. Use of the name Imran Butt does not touch any of this evidence or, indeed, the appellant’s denials. Alibi 56. The third new proposed ground of appeal concerns the failure of counsel to call Haider Saeed, a second alibi witness whose name appeared in the defence case statement; he was available at court and willing to give evidence. Mr Wood argues that he should have been called or, at the very least written instructions should have been taken from the applicant confirming that he agreed to the decision not to call an alibi witness, as had occurred during the first trial. It is said that this was contrary to the instructions of the appellant who now insists that he did not consent to his case being closed without Mr Saeed being called: on the basis that Mr Wood did not seek to call the appellant, these assertions are unsupported by evidence. 57. The history is rather more nuanced than this submission suggests. At the first trial, of the two potential alibi witnesses, the appellant agreed that only Sayed Afzal Hussein should be called. The reason for this is not explained, but attendance notes reveal the solicitors’ concern that Mr Saeed could not provide a strong alibi given his difficulty in recalling the date and time that he had seen the appellant in the restaurant. What is clear, however, is that Mr Hussain and Mr Miah had specific instructions to call no witness other than Mr Hussein and the appellant signed a document to that effect. Furthermore, it was said that, as far as they were concerned, he maintained this position up to and including the second trial. 58. In reality, privilege having been waived and the file being available for the court to examine, there were very good reasons for not calling Mr Saeed. As Ms Bashir told us in her evidence, the defence team had one alibi witness who was “nice and consistent”. The whole team, by contrast, found Mr Saeed“inconsistent”, and so they were “unhappy to use him”. He would, she said, “contradict the alibi we did use”. It is undeniable that some of the versions of Mr Saeed’s statement in the file bear out this recollection, as do the attendance notes where his evidence is discussed. For example, his first statement describes the appellant arriving at Mr Saeed’s house on the evening in question in a blue Toyota, and taking Mr Saeed to the restaurant. A later version says the appellant arrived without a car, and Mr Saeed drove him to the restaurant. A further version has them arriving separately. The timings are not consistent. 59. An even more recent statement prepared by Mr Saeed for these proceedings only serves to underline concerns and provides far more extensive evidence than had been foreshadowed in any previous statement. Suffice to say that it is inconceivable that this recent material would not have been at the forefront of his mind when providing any statement in connection with this prosecution. Mr Wood advanced him as a potential witness but we declined to hear him not specifically on the grounds that he was available for the trial (which would have been circular given the case Mr Wood was mounting) but on the basis that his account was not credible. 60. Mr Wood argued that it was wrong for counsel to rely on the instructions that they had received after the first trial because the evidence called from Mr Sayed Afzal Hussein did not go well for the defence: in circumstances which do not need to be recounted, his signed written statement was put to him in re-examination and, when further cross-examined, it became clear that the times on the written statement had been changed. Because of that fact, Mr Wood submits that the basis of the decision needed to be re-visited with the appellant notwithstanding the fact that the reasons for not calling him had not changed. 61. The absence of trial notes again does not assist but we recognise that there is no evidence that counsel saw the appellant either after the alibi witness had concluded his evidence (on a Friday afternoon) when he also closed the defence case or on the following Monday morning, prior to the prosecution closing speech, when it would still have been possible to call Mr Saeed. What is clear, however, is that there is no suggestion that the appellant called to speak to his solicitors or counsel either after court on Friday or before court on Monday or used the weekend to impress upon them his concern that Mr Saeed had not been called. 62. In R v Irwin [1987] 1 W.L.R. 902, the Court of Appeal held that the appellant’s counsel was under a duty to obtain his instructions before proceeding not to call alibi witnesses at his re-trial and rejected the argument that the evidence of the alibi witnesses would have made no difference to the outcome. This, however, was in circumstances where the witnesses had been called at the first trial and the concern was that this significant change in approach was not done in consultation with the client. It was, however, underlined that the court was not saying that in every case where the question of calling alibi witnesses it is vital that the client be expressly consulted “where, for example, the matter may have been thoroughly discussed before” (see page 906A). 63. In our judgment, this is just such a case. Although frequent consultation with the client is to be encouraged, in contrast to the position in Irwin , there was no change of approach such as would have taken the appellant by surprise and the fact that the solicitors had arranged for Mr Saeed to attend does not justify the conclusion that there was. It was not unreasonable for counsel to continue with the strategy adopted in the first trial and assume that the appellant’s instructions continued, in the absence of express instructions otherwise. Further, although Mr Wood asserts that the appellant did not consent to this course of action in the second trial, he did not go so far as to say that the appellant expressed this view to his representatives. In the circumstances, this proposed ground of appeal is also rejected. Judicial Directions 64. The fourth ground of appeal, which was the sole ground considered by the single judge (who refused leave), related to what was alleged to be a failure on the part of the judge to give an appropriate direction in respect of the appellant’s alibi. In this ground, as drafted, there was also an unparticularised reference to the direction relating to adverse inferences which Mr Wood also developed in oral argument. 65. As to the alibi, Judge Paget accurately directed the jury that it was for the prosecution to prove the case and made it clear that it was not for the defendant to prove anything at any stage, providing an entirely appropriate route to verdict. When dealing with the alibi, he invited the jury to look at what evidence there was to prove the appellant’s guilt, observing that if the alibi was true “or may be true”, the appellant was not guilty, going on: “If you conclude that the alibi is a false one, again, just as with the lie about where he was in the prepared statement, it does not automatically follow that the defendant is guilty and again the reasoning is the same and you think it is logic and common sense, a defendant may put forward a false alibi out of fear, for instance, and he may still be not guilty. So your approach must be to look at the evidence against him and decide whether that evidence proves his guilty. If you find that he did lie in that prepared statement, or if you find that he has put forward a false alibi, that may help to confirm his guilty but it cannot prove the case against him on its own.” 66. Mr Hussain complained that the judge had failed to tell the jury that it was for the prosecution to disprove the alibi but, having reviewed what he had said, the judge decided not to add to his direction. It would, of course, been an easy matter to make the point but, in reality, it was abundantly clear from what the judge had already said that the appellant had to prove nothing. As the single judge observed, there is absolutely nothing to suggest that the jury were misled into supposing that the burden was on the appellant to prove it and the judge drove the jury back to looking at the evidence against the appellant (i.e. the identification and telephone evidence) in order to decide whether that evidence proved him guilty. The submission that the verdicts are unsafe because of the judge’s approach to this issue is rejected. 67. The second limb of this submission, expanded in oral argument, concerned the direction as to adverse inferences in circumstances in which the appellant told the police that he was relying on his solicitor’s advice. The judge reminded the jury of the words of the caution and said: “It is perfectly straightforward, … What it comes to is this. If you do not say where you were and you later say I was at, in this case, the restaurant in Southall, the Lahori Kuri, the jury is likely to say ‘Well why was that not mentioned at the time?’ The prosecution suggestion is that he had not had time to think up where he was, and had not had time to approach the witnesses. Well if that is right then of course it is a matter which that ( sic ) does lead to an adverse inference that you can properly draw. But, if he was acting on his solicitor’s advice, and that is the sole reason he did not mention it, and perhaps he was confused because he could not remember the day clearly at that stage, well then it would not be right to draw any adverse inference against him, but it is a matter for you to decide where the truth lies in this case.” 68. Mr Wood points to the Crown Court bench book and the requirement for a direction that if the jury did draw an adverse inference, they could not convict wholly or mainly on the strength of it. He submits that the jury should also have been directed not to draw an inference if there was any explanation for his failure and that the prosecution had to be so strong as to call for an answer. Finally, he argues that the jury should have been given a more detailed direction as to the effect of legal advice and the impact of his evidence about the name Uzi Butt (as to which the judge did proffer the explanation that he had a connection with the jeep which he had given to Uzi Butt “but he had never known his name as Mohammed Sheikh”). 69. In our judgment, there is nothing in the way in which the case was left to the jury that, in the context of this case and the issues which arose, constitutes a material misdirection let alone one that starts to undermine the safety of these convictions. The summing up was not being conducted in a vacuum but against the background of opening and closing speeches and substantial evidence. Although the judge has a responsibility to direct the jury as to the law and fairly to summarise the facts, the directions must be tailored to the case which is being tried. The critical conflict related to the positive identifications, supported to such extent as they were, by contemporaneous assertion and the telephone evidence all to be contrasted with the case advanced by the defence: the entirety of the summing up directed the jury to a consideration of the conflicts and arguments that had to be resolved and did so fairly and in such a way as ensured that the burden and standard of proof were emphasised along with a consideration of the proper approach to the sub-issues that had arisen during the trial. The renewed ground of appeal also fails. 70. In the circumstances, notwithstanding the efforts of Mr Wood and Mr Rhodes, after careful consideration, we do not consider that any of the complaints, either individually or collectively undermine the safety of these convictions. These renewed and proposed applications for leave to appeal are refused. Sentence 71. At the time of his conviction, the appellant was 36 years of age with one previous conviction for an offence of violence committed in a domestic setting for which he received a sentence of 10 months’ imprisonment. The Pre-Sentence Report noted that he continued categorically to deny the offences and described himself as being devoted to his children, a family and business man. He misused neither drugs nor alcohol. The assessment mechanism used identified a very high risk in respect of this type of offending. The risk of reconviction, however, was said to be low although the writer of the report went on: “I have no specific evidence to dispute the findings but would suggest that Mr Shah’s risk of reconviction is likely to be aggravated by his attitude towards violence and the impact it has, especially if he does nothing to address his value system and respect for human life.” 72. The judge observed that he had no idea why the appellant had acted as he had, commenting that the jury were sure that he did “and so am I”. Taking the sentence that would have been imposed had Mr Sheikh died as a sentence of life imprisonment with a minimum term of 30 years, the judge expressed the view that there was no way of knowing what sort of danger he posed many years hence and, in those circumstances, imposed a sentence of imprisonment for public protection. Given that culpability was no less than if Mr Sheikh had died, having considered the guideline issued by the Sentencing Guideline Council in relation to attempted murder, he took the view that the least appropriate determinate term would have been 40 years. Thus, the minimum tem of 20 years, less time spent on remand, was imposed. 73. Mr Wood submits that an indeterminate sentence of imprisonment for public protection was not appropriate, and that, in any event, 40 years was the wrong starting point for either an indeterminate or determinate sentence. As to the first submission, although the sentence is no longer available, at the time of this trial, s. 225(3) of the Criminal Justice Act 2003 permitted the court to impose such a sentence in identified types of case if the court was of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. Given the nature of this offence and the circumstances of its commission, such a conclusion was almost inevitable; in any event, it was certainly a conclusion which the judge who had conducted this trial, was entitled to reach. The challenge to the indeterminate sentence is refused. 74. The assessment of the appropriate minimum term, however, raises different issues. Within the guidelines, the most serious example of attempted murder includes those which, if the charge had been murder, would come within paras. 4 or 5 of Schedule 21 of the Criminal Justice Act 2003 . The former applies to murders of exceptional gravity such that a full life tariff could be appropriate, and the latter includes murders of particular gravity (including murder with a firearm) such that, as the judge held, a starting point for the minimum term of 30 years is identified. In those cases, the starting point where there is serious and long term physical or psychological harm (which it is clear the judge decided applied in this case) is a determinate term of 30 years with a sentencing range of 27-35 years. That term necessarily involves an element of protection for the public which, in a sentence of imprisonment for public protection is reflected in the fact of an indeterminate term such that release is dependent on the Parole Board being satisfied as to the absence of risk posed to public safety. 75. Taking all these features into account, and particularly reflecting that the judge had heard the trial and was in the best position to form a view as to the facts, he was entitled to reach conclusions as to the gravity of this offence. Thus, taking the aggravating and limited mitigating features into account, it was permissible for him to move towards the top of the bracket. We do not accept, however, that it was appropriate to go outside the bracket when fixing the minimum term for the indeterminate sentence, particularly given that the public risk is managed by the indeterminate element. In the circumstances, we allow the appeal against sentence, quash the minimum term of 20 years and substitute a minimum term of 17 years with time served on remand to count in relation to that term as it did in relation to the sentence passed by the judge. 76. In summary, the applications for extensions of time and leave to appeal against conviction are refused; the appeal against sentence is allowed to the extent we have identified. We do not extend the representation order to Mr Wood or Mr Rhodes beyond the limited grant; in relation to their solicitor (who has had an even more limited grant of legal aid to date), on the basis that Mr Wood has made it clear that his assistance was of very great value, we extend it only to cover his attending on counsel over the two day hearing.	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2009-12-23"],"ConvictOffence":["Attempted murder","Wounding with intent to do grievous bodily harm","Possessing a firearm with intent to endanger life"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[572],"SentCourtName":["Central Criminal Court"],"Sentence":["Imprisonment for public protection with a minimum term of 20 years (reduced to 17 years on appeal), less 572 days spent on remand"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[36],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Identification evidence","Telephone/circumstantial evidence","Victim testimony","Mobile phone records"],"DefEvidTypeTrial":["Alibi claim","Offender denies offence"],"PreSentReport":["High risk of harm","Low risk of reoffending"],"AggFactSent":["Use of a firearm","Serious and long term physical harm to victim"],"MitFactSent":["Offender has no relevant previous convictions (except one for violence in domestic setting)"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction unsafe","Appeal against sentence"],"AppealGround":["Alleged conflict of interest of solicitor","Failure to pursue bad character application","Failure to call alibi witness","Judicial misdirection on alibi and adverse inference directions","Sentence excessive"],"SentGuideWhich":["Sentencing Guideline Council in relation to attempted murder","Schedule 21 of the Criminal Justice Act 2003","s. 225(3) of the Criminal Justice Act 2003"],"AppealOutcome":["Appeal against conviction refused; appeal against sentence allowed and minimum term reduced to 17 years"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Minimum term set above guideline range; public protection already managed by indeterminate sentence"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["No conflict of interest established; bad character application would have failed; no error in not calling alibi witness; no judicial misdirection; conviction safe"]}
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IN THE COURT OF APPEAL No. 202100689 B4 CRIMINAL DIVISION [2022] EWCA Crim 1108 Royal Courts of Justice Thursday, 26 May 2022 Before: LORD JUSTICE HOLROYDE MR JUSTICE GOOSE MR JUSTICE BOURNE REGINA v GURPREET SINGH __________ 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 O POWNALL QC and MR T SINGH appeared on behalf of the Appellant. MR D MASON QC and MR A J JACKSON appeared on behalf of the Respondent. ________ JUDGMENT LORD JUSTICE HOLROYDE: 1 On 27 January 2021, after a retrial in the Crown Court at Birmingham before HHJ Drew QC and a jury, this appellant was convicted of the murder of his second wife, Sarbjit Kaur (“Sarbjit”). He was sentenced to life imprisonment with a minimum term of 19 years, less the days he had spent remanded in custody. He now appeals against his conviction by leave of the full court. 2 The facts of the case are quite complicated. We summarise them as briefly as is appropriate. 3 The appellant, a successful businessman, was first married to Amandeep Kaur (“Amandeep”). They had two children and lived in a large, detached house in Wolverhampton (“the house”). The front gates to the house were electronically operated. They could be controlled from within the house, or opened from the outside either by entering the appropriate code into a keypad or by using a fob. 4 Amandeep died in India in December 2014. The cause of her death was recorded as a brain haemorrhage. The prosecution have at no stage alleged that the appellant had killed her. 5 In 2015 the appellant married Sarbjit. She lived with him and the children at the house. She ran a business as a seamstress, working from a sewing room at the house. 6 It was the appellant's case that Amandeep's brother, Bikramjit Singh (“Bikramjit”), and his wife (“Sukhdip”), were angry with the appellant because of the speed with which he had remarried, and became hostile towards him. That hostility was said to have increased after 2016, when the appellant prevented Bikramjit and Sukhdip from having further contact with his children. 7 On the afternoon of 16 February 2020 the appellant telephoned the police to report that he had returned from work to find his wife's dead body in the sewing room. She was wearing her night clothes. The cause of her death was strangulation, probably manual. She had bruising to her arms, consistent with having been held, and had suffered blunt-force trauma to her head. Red powder, thought to be chili powder which had been used to incapacitate her, was found on her face and body and on the floor. The state of the house was suggestive of burglary. 8 In the course of the police investigation, CCTV footage recorded by a camera at a neighbouring property was recovered. From that, and other sources, the following sequence of events emerged. At 07.52 the appellant left the house to take the children to school. At 07.54 Sarbjit rang a former work colleague whom she had arranged to meet at 08.00, but received no answer because the lady concerned was still asleep. At 08.02 the appellant returned. Between 08.09 and 08.14 Sarbjit was engaged in her last active phone call. Thereafter, no calls were made from or answered by her phone. At 08.13 an unknown person wearing a parka with the hood up and carrying a bag, thought to be a woman, arrived at the property. There was an inference that she entered through the electronic gates, though they were not covered by the CCTV. At 09.01 the appellant left the house. At 09.07 the unknown woman left the house. There was no CCTV evidence of anyone entering or leaving the house from that point on until 16.04 when the appellant returned from work. 9 It was the prosecution case that the appellant, assisted by the unknown woman, had murdered his wife and then staged a burglary to provide an apparent explanation for someone else having murdered her. 10 Following the appellant's arrest for the murder of Sarbjit, Bikramjit and Sukhdip told the police that they believed the appellant had also murdered Amandeep. Bikramjit said that the appellant and Sarbjit had been having an affair for months before Amandeep's death. 11 Bikramjit also told the police that Jagjeet Uppal (“Jagjeet”) had reported to him that in 2013 the appellant had solicited Jagjeet's brother Heera Uppal (“Heera”) to murder Amandeep. It was said that Heera had had no intention of killing Amandeep, but had taken the money offered by the appellant used it to travel to India. Jagjeet confirmed this account to the police. So too did Heera, who came back to the United Kingdom in October 2018. 12 The appellant first stood trial in April 2019. The indictment contained two counts. Count 1 charged him with the murder on 16 February 2018 of Sarbjit. Count 2 charged him with soliciting Heera, in 2013, to murder Amandeep. Bikramjit and both Uppal brothers all gave evidence relating to that second count. 13 At the conclusion of the first trial the jury found the appellant not guilty on Count 2, but were unable to agree a verdict on Count 1. They were discharged, and a retrial of Count 1 was ordered. 14 At the retrial, the prosecution relied on circumstantial evidence in support of their allegation that Sarbjit had been murdered by the appellant, who had come to regret marrying Sarbjit, and his accomplice the unknown woman. The prosecution relied, amongst other things, on evidence supporting the inference that Sarbjit must have been killed soon after her 08.09 phone call, and on what was said to be the absence of any evidence that anyone else had entered the house after the appellant, and a few minutes later the unknown woman, had left. There was no evidence of any burglary, and although some rooms appeared to have been ransacked there were features which pointed to a family member being involved. Sarbjit's failure to return the unanswered calls which were made to her phone during the morning was said to be uncharacteristic. The appellant's actions during the day were said to show the laying of a false trail to exculpate himself, and he was said to have affected a show of grief after he claimed to have found Sarbjit's body. These, and other circumstances relied upon, were all disputed by the defence, who put forward alternative explanations for each of them. 15 It was made clear during the prosecution case that the defence suggested that Bikramjit was responsible, either directly or indirectly, for the murder of Sarbjit. In support of that case, Mr Pownall QC – then as now representing, together with Mr Talbir Singh, the appellant – wished to cross-examine Bikramjit, and to adduce evidence with a view to showing that Bikramjit and Sukhdip had been hostile to the appellant and had displayed their hostility in various ways. In large part the course which Mr Pownall wished to take was agreed with prosecuting counsel (then as now Mr Mason QC and Mr Jackson). The prosecution did not call either of the Uppal brothers to give evidence and did not wish to adduce any evidence-in-chief from Bikramjit, but were willing to tender him so that he could be cross-examined about the matters which were accepted as relevant. 16 In addition to those matters, however, Mr Pownall wished to cross-examine with a view to showing that Bikramjit had put the Uppal brothers up to making a false allegation against the appellant in relation to the soliciting to murder which had been alleged in the previous Count 2. He wished to refer to certain events in that regard, which the defence wanted to suggest showed a pattern of behaviour by Bikramjit at critical times. He wished to advance the case that Bikramjit had done so because he hated the appellant, and wanted to divert the attention of the police away from any investigation of Bikramjit's own role in the killing of Sarbjit. Mr Pownall also wished the appellant's acquittal on Count 2 of the first trial to be before the jury. The prosecution objected. 17 Mr Pownall applied to the judge for leave to cross-examine and to adduce evidence on this issue. He submitted, first, that he was entitled to put forward the evidence against Bikramjit because it was evidence which had to do with the alleged facts of the offence with which the appellant was charged, and so was excluded from the statutory definition of bad character evidence and admissible by virtue of s.98 of the Criminal Justice Act 2003. In the alternative, he submitted that the evidence, if it did come within the definition of bad character, was admissible by virtue of s.100(1)(a) and/or (b) of the 2003 Act. 18 For convenience, we shall from here on refer to provisions of the 2003 Act simply by reference to their section numbers. 19 The judge refused the application. He held that the bare fact that the appellant had been acquitted on Count 2 was neither relevant nor admissible at the retrial of Count 1. As for the application made in reliance on s.98, he held that the proposed evidence was not admissible under either limb of that section. In his detailed ruling he said: "Section 98(a) does not apply because this evidence does not have 'to do with the alleged facts of the offence with which the defendant is charged', that is the murder of Sarbjit. At its highest this evidence 'has to do with' a separate allegation that is to be made against Bikramjit (that he encouraged the Uppals to give false evidence) ... Section 98 (b) does not apply because the alleged misconduct (which for these purposes I am required by s.109 CJA 2003 to assume is true) was not undertaken in connection with this investigation, nor in furtherance of the prosecution of this offence; it relates to an entirely separate allegation. I appreciate that the defence have sought to try to make a connection between the two allegations, by suggesting that the false allegation of solicitation to murder was made in order to distract the police from investigating Bikramjit, but in my judgement that stretches the meaning and intention of the statute beyond breaking point." 20 As for the alternative application pursuant to s.100, the judge held that the proposed evidence was not admissible through either gateway (a) or (b). He accepted for the purpose of his ruling that the evidence could go to the issues of Bikramjit's motive for killing Sarbjit and his overall credibility and that these were issues of substantial importance. But, he said: "This evidence is not of substantial probative value in relation to those matters in issue. The content of the evidence is, so far as the defence are concerned, only tangentially relevant to the issues in the case, in that it forms the basis for making speculative allegations made against Bikramjit, in relation to a satellite issue, for which there is no evidential support. In my judgement this evidence cannot be said to have substantial probative value in relation to the case as a whole." 21 The trial proceeded. Mr Pownall of course conducted the defence case in accordance with the judge's ruling. The appellant when he gave evidence also complied with that ruling. Very early in his cross-examination however, Mr Mason asked questions about the suggested motivation of Bikramjit, and pointed out that when the appellant was first spoken to by the police, as a witness, he had said that to his knowledge Amandeep's family were not bad people, adding "They are good. I cannot blame them". That early statement was of course at odds with the assertion of Bikramjit's hostility towards the appellant, but the appellant said by way of explanation, "I had no evidence then". Mr Mason responded by asking "What is the evidence that has changed?" 22 Mr Pownall intervened and, in the absence of the jury, submitted to the judge that answering that question raised the possibility that the appellant would need to contravene the earlier ruling. The judge did not at that stage adjudicate on that submission, because the prosecution on reflection decided not to purse that line of questioning. The cross-examination then continued without further incident. 23 As Mr Pownall was approaching the end of his re-examination, he asked the judge to rule on whether he could ask the appellant to identity the evidence which had changed his view about Bikramjit and his family. Mr Pownall expected that if asked the appellant would wish, amongst other things, to refer to the false allegation made by the Uppal brothers and Bikramjit's part in that. He submitted that the appellant should be permitted to do so and should be permitted to tell the jury about the evidence given at the first trial and the acquittal on Count 2. The prosecution opposed that submission. 24 The judge refused the application. He said that on the face of it: "There is an extremely powerful argument for saying that, having asked this question, 'What has changed', the prosecution have opened up that as a route for the defence arguing that the defendant can only properly answer the question by giving him the opportunity to include all his explanation." But, the judge said, he could not see how any of this could actually assist the jury. The issue was what actual evidence there was of Bikramjit being hostile towards the appellant, not the appellant's belief as to Bikramjit's motives. The jury had already heard a substantial body of evidence of hostility between Bikramjit and the appellant. The appellant's present state of mind, based on what may have happened at the first trial, was not an issue of any substance: on the contrary, he said, it was a distraction. The judge concluded: "In those circumstances, although I am sympathetic to the defence submission that the Crown have or may have opened the way to this line of cross-examination, in my judgement, allowing re-examination which will include an examination of all those matters -- which essentially, as I say, are simply a vehicle for the defendant to express his opinion about what took place -- is, in my judgement, a distraction and it would not assist this jury and, in all the circumstances, would go behind the ruling that I made at the start of this trial, causing many of the issues and problems that I identified at the start of this trial to resurface, creating very great difficulties for this jury, acting as a significant distraction to them in resolving this case." The judge therefore ruled that Mr Pownall could not re-examine on that particular point. 25 The grounds of appeal challenge each of those rulings. They contend that the conviction is unsafe because the judge erred in ruling that questions about the bad character of Bikramjit required the leave of the court (Ground 1); in refusing to permit cross-examination of Bikramjit pursuant to s.100 (Ground 2), and in refusing the defence application to introduce material in re-examination (Ground 3). The full court refused leave to appeal on a fourth ground, and we need say no more about it. 26 We have been assisted by the written submissions and skeleton arguments on both sides and by the oral submissions of counsel, for all of which we are grateful. 27 In relation to Ground 1, Mr Pownall submits that the evidence he wished to adduce during the prosecution case was not bad character evidence as defined in the 2003 Act and so did not require leave. It was relevant and admissible on common law principles. He submits that in the very unusual circumstances of this case, both limbs of s.98 were engaged, though in oral argument he particularly relied on limb (b). In that respect he relies on the decision of this court in R v Apabhai & Ors [2011] EWCA Crim 917 as to the application of s.98(b), pointing out that in the first trial the jury were directed that if they convicted the appellant on Count 2, they could use his guilt of that offence as supporting the prosecution case on Count 1. He argues that the circumstantial evidence which the defendant wished to adduce went beyond a mere assertion that Bikramjit had caused the Uppal brothers to make a false allegation. The fact that other evidence was before the jury showing Bikramjit's hostility was not a reason for excluding this evidence. 28 On Ground 2 Mr Pownall no longer seeks to rely on s.100(a), but says that the evidence was of substantial probative value and should have been admitted under s.100(b). He relies on what he submits were striking similarities between the circumstances of Sarbjit's murder and the false allegation said to have been made by the Uppal brothers in relation to the death of Amandeep. 29 On Ground 3 Mr Pownall suggests that the offending question was given particular significance by the prosecution because it was asked at the beginning of cross-examination, and must have been thought by the prosecution to have been a question on a relevant matter. He makes clear that there is no suggestion that the prosecution would deliberately try to take advantage of the judge's ruling in order to make an unfair point, but submits that the question was ill-advised and put the appellant at an unfair disadvantage. 30 In over-arching submissions, Mr Pownall submits that the conviction is unsafe. He points out that in the first trial the jury were unable to agree upon a verdict; and he submits that the circumstantial case presented by the prosecution at the retrial was, if anything, weaker than their case at the first trial, because of the emergence of certain evidence casting doubt on the reliability of the CCTV footage as a guide to who had entered and left the house. Mr Pownall asks, rhetorically, what had changed between the first trial and the retrial to have a justifiable result that evidence which the appellant was able to deploy without objection at his first trial was prohibited at the retrial. 31 For the respondent, Mr Mason submits in essence that each of the judge's rulings was correct. He submits that the evidence which the defence wish to adduce was neither relevant nor admissible on any basis. Even if it was relevant to any issue in the case, it was not admissible either under s.98 or under s.100. He submits that the line of questioning which Mr Pownall wished to pursue was based on speculative allegations and did not have substantial probative value. He further submits that leave to re-examine was rightly refused because it would have added nothing which could assist the jury. In his written submissions Mr Mason had pointed out that Mr Pownall could have invited the judge to give a specific direction to the jury to ignore the question, but did not do so. 32 Having reflected on those submissions, our views are as follows. Ground 1 33 Section 99 of the 2003 Act abolished the common law rules governing "the admissibility of evidence of bad character in criminal proceedings". Evidence of bad character is now admissible only through the gateways permitted by s.100 in relation to persons other than the defendant and s.101 in relation to the defendant. The meaning of the evidence of bad character in this context is, however, limited by s.98, which provides: "References in this Chapter to evidence of a person’s 'bad character' are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which — (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence." 34 The effect of those provisions is that evidence of bad character (as defined) must meet strict statutory criteria before it may be admitted, whereas evidence falling within s.98(a) or (b) is admissible in accordance with common law principles. 35 The restrictions imposed by s.100 and 101 will be eroded, and their purpose impeded, if too wide an interpretation is given to paragraphs (a) and (b) of s.98: see in this regard the discussion R v Byrne & Ors [2021] EWCA Crim 107 at paras.131 to 133. Case law accordingly shows that to come within those paragraphs, the evidence concerned must not merely be relevant, but must have a close nexus with, the offence with which the defendant is charged; that is to say, the offence or offences on which a verdict or verdicts are to be returned. The cases further show that such a nexus may be established in a number of ways, including on the basis that the evidence concerned directly relates to matters contemporaneous with, or close in time to, the offence charged and closely associated with the alleged facts of that offence, or on the basis that the evidence concerned directly relates to the defendant's motive or reasoning for committing the offence charged. Where the necessary nexus cannot be shown, the evidence concerned may be admissible through one of the gateways in s.100 or s.101 provided it meets the statutory criteria for the relevant gateway. Where the evidence may be regarded as falling near the boundaries of s.98(a) and (b), judges will often consider admissibility both under those paragraphs and through one of the statutory gateways in s.100 or 101. 36 In considering Mr Pownall's submission that the judge should have admitted evidence and permitted cross-examination on the basis that it fell within s.98(a) or (b), it is important to keep in mind that the offence with which the appellant was charged was the murder of Sarbjit in February 2018. The evidence which the defence wished to adduce, however, related to the alleged fabrication by Bikramjit and the Uppal brothers of evidence purporting to show that the appellant had in 2013 solicited the murder of Amandeep. Far from relating directly to the offence with which the appellant was charged therefore, it related to what was said by the appellant to be a false allegation by others of an offence which he had not committed and with which he was no longer charged. Its indirect connection with the offence with which the appellant was charged was said to be that it provided support for the defence case that Bikramjit himself was or may have been responsible for the murder of Sarbjit, and was trying to avoid the consequences of that crime by falsely implicating the appellant in a suggested earlier crime. 37 We accept that, as R v Apabhai makes clear, the ambit of s.98(b) is not restricted to evidence of misconduct by the prosecution authorities. The evidence concerned must, however, be evidence of misconduct in connection with the investigation or prosecution of the offence with which the defendant is charged. In Apabhai the evidence was of misconduct by a co-accused who was jointly indicted with the appellant on the charge of conspiracy to defraud. The decision of the court in that case, that the judge was entitled to find that the evidence fell within s.98(b), does not in our view lend any support to this appellant's submissions relating to a very different factual context. 38 In those circumstances, we are satisfied that the judge was correct to rule that the proposed evidence did not come within s.98. For the reasons which the judge gave, it did not have to do with the alleged facts of the murder of Sarbjit and it was not evidence of misconduct in connection with the investigation of that murder. On that basis alone, Ground 1 fails. Ground 2 39 Like the judge, we approach this ground of appeal on the basis that the issues of Bikramjit's alleged motive for killing Sarbjit, and his overall credibility, are matters which were in issue in the proceedings and were of substantial importance in the context of the case as a whole. The question for this court, therefore, is whether the judge was wrong to conclude that the evidence and cross-examination which the appellant wished to go before the jury did not have substantial probative value in relation to those matters. In that regard, it was necessary for the judge to have regard to the non-exhaustive list of factors in s.100(3) and any other factors he considered relevant. 40 Like the judge, we start with the well-established principle that evidence of a previous acquittal will generally be irrelevant and inadmissible because it is no more than evidence of the opinion of the jury in the previous trial: see R v Hui Chi-Ming [1992] 1 AC 34. That decision of the Privy Council recognised that there may in a particular case be an exceptional feature which makes the evidence admissible. An example which can be drawn from the reported case law is a situation in which a witness whose evidence at an earlier trial did not persuade the jury of that defendant's guilt is now giving evidence on a related matter in the second trial. 41 Mr Pownall submits that there is an exceptional feature in this case, because the acquittal at the first trial was proof that the Uppals were lying in their evidence at that trial. The problem with that submission, as we see it, is that the acquittal of the appellant on Count 2 of the original indictment cannot in our view amount to such proof. Indeed, we think that the circumstances in which an earlier acquittal can amount to such proof will be rare. Clearly the jury in the first trial were not satisfied that the prosecution had proved to the criminal standard all the requisite ingredients of the offence charged in Count 2; but the precise basis of their verdict is unknown, and no safe inference could be drawn that the jury must have found the Uppal brothers to be liars. 42 That gives rise to a further problem for the appellant. If evidence of the acquittal was inadmissible, as we are satisfied that it was, then the remainder of the evidence and cross-examination which the defence wish to go before the jury would, in our view, have served only to invite speculation by the jury. 43 We agree with the judge's analysis that the defence application was based on a circular argument. The appellant asserted that Bikramjit had killed Sarbjit, or been involved in her death, because he was hostile to the appellant and Sarbjit; because he had killed her, he had caused the Uppal brothers to make false allegations against the appellant; and the making of those false allegations is relied upon as support for the argument that it was Bikramjit who killed Sarbjit. In order to pursue that circular argument, the defence would be requiring the jury to embark upon satellite litigation as to whether Bikramjit had caused the Uppal brothers to make false allegations. We do not use the phrase "satellite litigation" pejoratively, and we accept Mr Pownall's submission that in all the circumstances it may not have added very much to the length of the trial; but we are entirely sure that, in the absence of any solid evidential foundation on which the jury could answer that question, they would inevitably have been drawn into speculation. Mr Pownall makes submissions as to a form of direction which he suggests the judge could have given and which would have been sufficient to eliminate this risk. We are unable to agree. The jury would, moreover, have been distracted from the real issues in the case, namely whether the circumstantial evidence proved for sure that the appellant murdered Sarbjit. 44 We are also unable to accept the submission that the effect of the judge's ruling was unfair to the appellant because it prevented him from pursuing a line of evidence in the cross-examination which he had been permitted to pursue in the first trial. The short, but in our view complete, answer to that submission is that the jury at the first trial were considering Count 2, but the jury at the retrial were not. The evidence which was relevant and admissible at the retrial was, therefore, not necessarily the same as at the first trial. 45 For those reasons, Ground 2 fails. Ground 3 46 With respect to Mr Mason, we think it unfortunate that the appellant was asked the question he was in cross-examination. Mr Pownall's very proper intervention prevented the cross-examination going any further and Mr Mason sensibly decided not to pursue his point. The question which had been asked nonetheless gave rise to a strong argument by Mr Pownall that the appellant should in fairness be permitted to answer by referring to, amongst other things, the allegations which he said were falsely made against him by the Uppal brothers and his acquittal at the first trial. 47 We see no substance in the written argument on behalf of the respondent that Mr Pownall could have asked the judge to give a specific direction to the jury to ignore that ill-advised question. Mr Pownall was faced with a difficult decision as to how to deal with a situation which had arisen unexpectedly. We see no ground for criticising the approach he took, which avoided the risk of drawing attention to the question wrongly asked. In his oral submissions Mr Pownall was concerned that it may be thought that he had been at fault. We disagree. He dealt with this unexpected issue in the way which very many experienced advocates would have dealt with it. 48 We do, however, agree with the judge that the effect of varying his earlier ruling would have been to create the problems which we have mentioned in relation to Ground 2, and which had successfully been avoided as a result of the judge's earlier ruling. The jury would have been drawn into speculation about a matter in respect of which there was an assertion of belief by the appellant, but no solid evidential basis on which the jury could reach the right conclusion. 49 The judge too was placed in a difficult position. He was entitled to take the view that the appellant would not suffer any real prejudice as a result of the jury hearing the question asked but not answered. The jury had other evidence to consider on the issue of whether Bikramjit had been involved in the murder of Sarbjit and, in our view, they are likely to have understood the appellant's answer in cross-examination, "I had no evidence then," as referring to all the evidence they had heard as part of the defence case. In those circumstances, the manner in which the judge dealt with the difficulty was not unfair to the appellant and was well within the proper scope of his discretion. It does not give rise to any doubt as to the safety of the conviction. 50 Ground 3, accordingly, fails. 51 Standing back, and reflecting on the grounds of appeal collectively, it seems to us that the jury had ample evidence upon which to assess the suggestion that Bikramjit was or may have been involved in the murder of Sarbjit. They lacked only the additional strand of material relating to whether Bikramjit had put the Uppal brothers up to making a false allegation; but the appellant suffered no prejudice or unfairness as a result of that. The crucial difference between the two trials was that the appellant no longer had to defend himself against the allegation in Count 2. In circumstances where the appellant had no basis for making any affirmative allegation of murder against Bikramjit, we are satisfied that his conviction is safe. 52 For those reasons, grateful though we are for the great skill with which Mr Pownall has presented these arguments, the appeal is dismissed. _______________	{"ConvCourtName":["Crown Court at Birmingham"],"ConvictPleaDate":["2021-01-27"],"ConvictOffence":["Murder"],"AcquitOffence":["Soliciting to murder"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Birmingham"],"Sentence":["Life imprisonment with a minimum term of 19 years"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["CCTV","Victim testimony","Circumstantial evidence"],"DefEvidTypeTrial":["Offender denies offence","Alternative suspect theory"],"PreSentReport":["High risk of harm"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge wrongly excluded cross-examination and evidence about alternative suspect's alleged bad character; judge wrongly refused re-examination on same; judge wrongly ruled evidence inadmissible under s.98 and s.100 Criminal Justice Act 2003"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge correctly ruled evidence inadmissible under s.98 and s.100 CJA 2003; evidence lacked substantial probative value; would have led to speculation and satellite litigation; no unfairness or prejudice to appellant; conviction safe"]}
No. 2015/00746/A3, 2015/01921/A2 & 2015/03738/A7 Neutral Citation Number: [2015] EWCA Crim 1999 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 10 th November 2015 B e f o r e THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION ( Lady Justice Hallett DBE ) MR JUSTICE BLAKE and HER HONOUR JUDGE MAY QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - - - - R E G I N A - v - RAYMOND MARTIN MARSHALL CHRISTOPHER RAMOS SARAJ MAHMOOD HUSSAIN - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr C Jutla appeared on behalf of the Appellant Marshall and the Applicant Ramos The Applicant Hussain was not represented and was not present Mr S Heptonstall appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T Tuesday 10 th November 2015 THE VICE PRESIDENT: 1. Since section 240 A of the Criminal Justice Act 2003 (introduced by section 21 of the Criminal Justice and Immigration Act 2008 ) came into force in November 2008, it has been necessary for the sentencing court to specify the number of days that will count towards sentence in consequence of time spent on remand subject to a qualifying curfew. 2. Despite the court's best endeavours, guidance in R Hoggard [2013] EWCA Crim 1024 , [2014] 1 Cr App R(S) 42, as to the procedure to be adopted in the Crown Court, and additional guidance in R v Thorsby and Others [2015] EWCA Crim 1 , as to the procedure to be adopted in this court, is being ignored. Hence this Special Court has been convened today so as to re-affirm and re-emphasise the relevant principles. Procedure in the Magistrates / Crown Court 3. So as to ensure that the court has the fullest possible information, any court imposing a curfew with a tagging condition should use the relevant form (the record of electronic monitoring of curfew). The form should be included with the case papers and accompany them wherever the case is sent. At any subsequent sentencing hearing solicitors and/or counsel for the defendant should ask him whether he has been subject to curfew and tagging. If he says that he has, they should ascertain the details. It is also the duty of the Crown Prosecution Service to have in place a system to assist the court. The parties should then be in a position to inform the court of any issue as to time spent on a qualifying curfew. 4. With the necessary information to hand the sentencing court must take the following steps: Step1 : Add up the days spent on qualifying curfew including the first, but not the last, if on the last day the defendant was taken into custody. Step 2 : Deduct the days on which the defendant was at the same time also (i) being monitored with a tag for compliance with a curfew requirement and/or (ii) on temporary release from custody. Step 3 : Deduct the days when the defendant has broken the curfew or the tagging condition. Step 4 : Divide the result by 2. Step 5 : If necessary, round up to the nearest whole number. 5. To avoid difficulties the court in Hoggard helpfully provided a form of words for sentencers to use: "The defendant will receive full credit for half the time spent under curfew if the curfew qualified under the provisions of section 240 A. On the information before me the total period is ... days (subject to the deduct of ... days that I have directed under the Step(s) 2 and/or 3 making a total of ... days), but if this period is mistaken, this court will order an amendment of the record for the correct period to be recorded." 6. Advocates should be on the alert so that if the judge fails to use these words, they can raise the issue with him or her. If the judge does not use these words, and no one realises at the hearing, defence representatives should use their best endeavours to have the case re-listed within 56 days under the slip rule. We understand from Mr Heptonstall, who prosecuted before us today, that in most cases prisoners are informed of their sentence calculation within seven days of sentence and should be in a position to advise their representatives of any error in good time. 7. If the Hoggard formula is not used, and the 56 days have expired by the time anyone realises that an error has been made, an application must be made to this court. 8. If the Hoggard formula is used the Crown Court thereby retains jurisdiction of the matter, even after 56 days. If any amendment needs to be made it can be made administratively, provided the parties agree. We advise caution in allowing an administrative correction of the direction where the amount of time a defendant will spend in custody is significantly affected. The judge will wish to satisfy him/herself that the calculations are correct. 9. If the parties are not agreed, the court must decide. If a judge decides that it would be a disproportionate use of court time and incur unnecessary expense to hold a hearing, the issue can be resolved on the papers in the defendant's favour. The Procedure in the Court of Appeal 10. For present purposes the two relevant paragraphs of Thorsby are paragraphs 28 and 29. An applicant who applies for leave to appeal will be expected to attach to his application either his agreement with the prosecution as to the number of days credit, or the relevant documentation to support his assertion that he is entitled to X days' credit under section 240 A. It is the responsibility of the applicant's representatives, not the Court of Appeal Office, to make enquiries with the lower court and the monitoring company, and then seek the agreement of the prosecution. The applicant must then state that the calculation is agreed, or identify the nature and extent of any dispute. The court expects the Crown Prosecution Service to investigate as a matter of urgency and at a sufficiently high level. 11. Applicants (or their lawyers) will be expected to provide a witness statement explaining when and how they became aware of an error in the court's calculations or order. There should be no further unnecessary delay. 12. The advice in Thorsby could not be clearer; yet still applications are being lodged without agreement from the Crown on the number of days spent on qualifying curfew, and with no accompanying statement from the applicant's solicitor setting out why an extension of time should be granted. They are being lodged late, so that they demand an urgent response from the Court of Appeal Office. Further, some local Crown Prosecution Units are not responding to requests from the defence solicitors for an agreement. As a result, the Court of Appeal Office is spending a disproportionate amount of time and resources on correcting errors. 13. In future, if the requirements in Thorsby have not been complied with, the Criminal Appeal Office will no longer progress applications on behalf of represented applicants. The Registrar will notify the applicant's solicitor of the duty to comply with Thorsby before anything can happen. The CPS Appeals Unit has undertaken to assess the number of days. If the calculations are agreed, the single judge will be able to give leave and send the mater to the full court for a formal declaration without any need for representation. If the calculations are not agreed, the single judge may prefer simply to refer the matter to the full court for resolution, without giving leave or making a representation order. If the Registrar is satisfied that the Crown Court has used the appropriate words, allowing them to amend the days administratively, he will notify the parties that the Crown Court retains jurisdiction and that initially he intends to treat the application as ineffective. The applicant can then ask the Crown Court to re-list the matter and resolve the issue. 14. Practitioners must appreciate that they have a duty to comply with the court's requirements. If they continue to ignore those requirements there may come a time when, in the case of serious misconduct, the court will be forced to report any offender to their professional body for a failure to comply with their professional obligations and/or consider making a costs order. The liberty of the subject is at stake and this issue is not to be taken lightly. 15. We turn to the facts of the individual cases. R v Christopher Ramos 16. On 7 th April 2014 the applicant (who was disqualified from driving), took a valuable Mercedes without consent. He drove without insurance. The car was traced and police tried to stop the vehicle. The applicant drove dangerously at speeds between 30 and 80mph in a built-up area, pursued by police cars and a helicopter. He caused a moped driver to crash and to sustain injury. Following his arrest he was released on bail with a qualifying curfew. 17. On 3 rd July 2014 he was seen driving a van. He reversed at speeds in excess of 50 to 60mph, knocking over several bins and crashing into a Citroen car, causing it to mount a pavement and hit another car. Police officers on foot waved their arms to try to get the applicant to stop. He drove towards them, causing them to move out of the way, and he then drove off. The van was later found abandoned. The applicant then failed to comply with his bail conditions in respect of his tagged curfew and effectively went on the run. 18. On 23 rd July 2014 he was arrested. On 25 th July he was remanded in custody for other matters. 19. On 6 th January 2015 he pleaded guilty to various offences and was sentenced to a total of two years and three months' imprisonment. On 28 th April 2015 an application for leave to appeal against sentence was received in the Court of Appeal Office, accompanied by a short Advice from the applicant's legal representative, Mr Sharma, simply setting out dates of the time on curfew and amount of credit allegedly due. 20. The Court of Appeal Office was forced to conduct its own inquiries. On 7 th May 2015 it requested bail documents and other relevant documents from Croydon Crown Court. The Registrar then directed that the applicant's solicitor must lodge a statement and agree the number of days with the prosecution, pursuant to the judgment in Thorsby . 21. On 26 th May 2015 the matter was re-listed before the Crown Court. No one has accepted responsibility for the listing. Mr Sharma appeared for the applicant. He invited the sentencing Judge to direct that time spent on qualifying curfew should count towards the sentence. The Judge questioned whether she had the power, given that this was outside the slip rule. Mr Sharma informed her, wrongly, that the Court of Appeal had refused to deal with the matter and had sent it back to the Crown Court. He claimed that he had telephoned the office and had received no response to his inquiries. Miss Milson, who appeared for the Crown, in the belief that the Court of Appeal had refused to deal with the matter, agreed that the Crown Court Judge must have jurisdiction. The Judge asserted several times that she would only act on the basis that the matter had been sent back to her by this court. She then purported to give a direction that the advocates invited her to do: she directed that 54 days spent on a qualifying curfew should count towards the sentence (this being half of the 108 days that the applicant was said to have spent on curfew). 22. In July 2015 the applicant was released. The same month Mr Sharma confirmed by email that the sentence had been amended by the Crown Court. On 7 th September 2015 the Registrar referred the application for leave to the full court and directed that Mr Sharma provide an explanation to the court as to how the matter came to be re-listed. 23. In a witness statement dated 21 st September 2015, Mr Sharma provided a similar explanation to that he had given to the Crown Court Judge: that he had understood that the matter was to be heard in the Court of Appeal, but that he had obtained no response from the Court of Appeal Office and therefore assumed that somehow the matter had been re-listed at the Crown Court as a result of a Court of Appeal decision. 24. The court directed that Mr Sharma should attend, because this explanation was not considered adequate. Mr Sharma did not respond to that direction, and therefore the court had to issue a witness order. He attended before us this morning. He accepted that we should not have been forced to issue a witness order and he apologised for the way in which he had conducted aspects of the case. He assured us that he had not deliberately misled the court or failed in his duty. However, when pressed, he was forced to concede that his choice of words on 26 th May may have had misled the court and the prosecutor. Further, we now know that his calculations were wrong. 25. The Crown Court had no jurisdiction to make a direction under section 240 A outside the 56 days allowed for the slip rule, and in the absence of the form of words used in Thorsby . Had the advocates at the sentencing hearing raised the issue, and had these words been used, this hearing would not have been necessary. Considerable time and effort have gone into preparing the case for us; time and effort better spent elsewhere. However, having heard from Mr Sharma this morning, we have decided on this occasion to make no further order as far as costs are concerned. 26. We are left in the position that the applicant was entitled to credit for no more than one-half of 85 days – not 108. The unlawful order has resulted in his early release from prison and he has benefitted from an additional 12 days' credit. 27. Mr Heptonstall, in his customary helpful submissions, has considered and rejected a number of options. There remain two. One would involve giving leave, quashing the order and substituting the new figure of 43 days. This would mean the applicant having to return to prison and, arguably, would be beyond our powers, falling foul of section 11(3) of the Criminal Appeal Act 1968 . Section 11(3) provides that this court cannot pass a sentence that would result in a harsher sentence overall. The other option would involve giving leave, quashing the direction made by the judge and substituting for it a figure that would not lead to the applicant's return to prison. 28. Given the circumstances, in our judgment it would be disproportionate and wrong to pursue this matter any further. We shall determine the issue in the applicant's favour. 29. Accordingly, we give leave. We allow the appeal and we substitute a lawful direction under section 240 A for one-half of 108 days, namely 54 days. For the avoidance of doubt, we shall use the words in Hoggard : the appellant (as he now is) will receive full credit for half the time spent under curfew because the curfew qualified under the provisions of section 240 A. On the information before us the total period is 108 days, but if this period is mistaken, this court will order an amendment of the record for the correct period to be recorded. 30. We should add that the application for leave to appeal against sentence was far too optimistic. There was nothing excessive about the total sentence in the light of the repeated and serious nature of the applicant's offending. R v Raymond Martin Marshall 31. Marshall faced different sets of charges and this led to confusion. The first set of charges stemmed from October 2007, when he was charged and remanded into custody. In April 2008 he was bailed with a qualifying curfew. In November 2008, section 240 A came into force. In January 2009 there was a hearing. There was then a second set of charges. In June 2010 he was charged and remanded into custody. In June 2011 he was bailed with a qualifying curfew on both cases which were later joined. In March 2012 the curfew condition was removed. 32. On 7 th August 2013 Marshall was convicted of a single count of possession with intent to supply cocaine. He was surprisingly bailed yet again until sentence with a qualifying curfew. 33. On 20 th September 2013 he was sentenced to ten years' imprisonment. The judge directed that credit be given for ten days spent on remand on custody and whilst on qualifying tagged curfew. The record of qualifying curfew runs on to 25 th September. There seems to have been a failure to inform the monitoring company to cancel the tag. Pursuant to this order credit was initially given for 553 days of tagged curfew. By order of 19 th November 2013 His Honour Judge Parker QC, acting on information provided by the monitoring company Serco, directed that the number of days should be reduced to 159. 34. Marshall has been granted leave to appeal against sentence limited to the calculation under section 240 A. It is said that insufficient credit was given for days spent on tagged curfew between April 2008 and November 2008 (period one), and after 3 rd November 2008 (period two). The difference is significant: 264 effective days. 35. The single judge Warby J has dealt with the application in an extremely helpful manner. The application first came before him in May 2015, at which time it was wholly unclear how many days had been spent on tagged curfew. He gave directions for the applicant and the prosecution to address the matter. As a result, the Crown Prosecution Service investigated and, by a letter dated 2 nd June 2015, provided a schedule of the days spent on tagged curfew. It became apparent that the appellant had not been given sufficient credit. 36. In this case the judge did use the form of words set out in Thorsby and the sentence could be amended administratively. However, the figures were not agreed. Not surprisingly, the appellant maintains that he should have been given the opportunity to address the court on an issue that materially affected his sentence. 37. There can be no doubt that the court had the power to reduce the number of days: see R v Leacock [2013] EWCA Crim 1994 . However, in Leacock there was no real dispute that Leacock would not ordinarily have been entitled to the days. 38. As we have already indicated, where there is a dispute as to the days that should be allowed, particularly where it would materially affect somebody's sentence, the Crown Court should offer the defence the opportunity to be heard. In this case we have no doubt that had His Honour Judge Parker been alerted to the fact that there was a dispute, he would have called for submissions from the defence. 39. We cannot now ascertain exactly what has happened, because tape-recordings of various hearings have been destroyed. That is an example of why it is important to address these issues at the time of sentence. It looks as if the appellant was made subject to a qualifying curfew, but the tagging equipment was removed in error and not replaced until 2011. 40. The requirements of section 240 A apply where the offender's bail is "subject to a qualifying curfew condition and an electronic monitoring condition". In this case the appellant was subject at all relevant times to a qualifying curfew condition and an electronic monitoring condition. The fact that there was an administrative error and the court's order was not implemented does not alter the fact that he was subject to a qualifying curfew. He must receive the credit. 41. The appellant is therefore entitled to 456 days credit. Again, using the words in Hoggard , he will receive full credit on the information before us for the total period of 456 days, but if this period is mistaken, the court will order an amendment of the record for the correct period to be recorded. R v Saraj Mahmood Hussain 42. This case is much more straightforward, thanks to Mr Heptonstall's diligence. On 24 th October 2014 at the Burnley Crown Court the applicant was convicted of robbery and fraud. On 28 th January 2015 he was sentenced to three and a half years' imprisonment. 43. The advocates failed to draw to the Recorder's attention the fact that at the time of sentence he had been subject to a qualifying curfew condition. This was an oversight on their part. The applicant only recently become aware of the position and drew it immediately to the attention of his solicitors. His applications for an extension of time of 166 days and for leave to appeal were referred directly to this court. 44. Mr Heptonstall apologised for the prosecution’s part in the error and for the fact that this application has been required. He confirmed that Hussain was subject to a qualifying curfew for a period of 96 days. There were 14 recorded breaches of relatively short duration, Mr Heptonstall did not seek to persuade us to embark upon a factual resolution of how much reduction should be made for those breaches on the basis it would be disproportionate. He agreed that the number of days for which Hussain should be credited is 48. 45. Again, we give leave and using the words in Hoggard , on the information before us the total period that we credit under section 240 A is 48 days, but if this period is mistaken the court will order an amendment to the record for the correct period to be recorded. 46. To that extent, where necessary, leave is granted, the appeals are allowed and amendments to the directions are made in each case.	{"ConvCourtName":["Croydon Crown Court","Burnley Crown Court"],"ConvictPleaDate":["2015-01-06","2014-10-24"],"ConvictOffence":["Dangerous driving","Taking a vehicle without consent","Driving without insurance","Possession with intent to supply cocaine","Robbery","Fraud"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Croydon Crown Court","Burnley Crown Court"],"Sentence":["Two years and three months' imprisonment","Ten years' imprisonment","Three and a half years' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["Insufficient credit for days spent on qualifying curfew under section 240A"],"SentGuideWhich":["section 240A of the Criminal Justice Act 2003"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2009] EWCA Crim 880 No: 200806336/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 3rd April 2009 B e f o r e : LORD JUSTICE DYSON MR JUSTICE IRWIN MR JUSTICE SWEENEY - - - - - - - - - - - - - - R E G I N A v SIMON JPETER NASUNA - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Miss N Grahame appeared on behalf of the Applicant - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE IRWIN: On 5th March 2002 in the Crown Court at Manchester Crown Square, this applicant pleaded guilty to five counts of indecent assault on a male person. On 11th June 2002 he changed his plea to guilty of two further counts each alleging attempted rape. He was sentenced by His Honour Judge Ensor as follows: on count 1, a count of attempted rape, to an extended sentence of 10 years pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 , comprising a custodial term of 6 years' imprisonment and an extension period, that is to say an extended period of licence of 4 years. On count 2 he was sentenced to 6 years' imprisonment on attempted rape concurrently and on counts 3 and 7 of indecent assault on a male person, to sentences of 2 years' imprisonment concurrent on each count and concurrent to the other sentences passed. 2. He applies for an extension of time of 6 years and four-and-a-half months within which to apply for leave to appeal against sentence in respect of the extension period of 4 years only and for leave to appeal against sentence, this matter having been referred to the Full Court by the single judge who also granted a representation order for counsel. The application for an extension of time in which to apply recites the following considerations: the applicant was represented by a different firm of solicitors and different counsel at the original proceedings. It appears that leave to appeal was not advised by those representatives. Solicitors currently instructed were only more recently instructed in this case. In her very helpful and economical submissions to us today Miss Grahame has given us some further detail of that. The applicant in fact sought further advice from solicitors, centred on housing concerns related to the restrictions associated with the extended sentence. The firm he consulted for housing purposes passed him to their prison's law department and as a result of that route, not as a result of any deliberate delay on his part, the applicant came to get the advice which has underpinned this application. 3. The facts of the offending can be summarised as follows. The offences took place between 1st January 2001 and 8th December 2001. The applicant had become sexually attracted to boy P, the 9-year-old son of his mother's neighbours. Over a period of 3 or 4 months he had befriended the boy before engaging in sexual acts with him. 4. In his video interview the boy said that the applicant had taken him to such places as swimming baths and to the cinema and to bowling. The offences always occurred in the applicant's house where they played on computer games of various kinds. 5. This was sustained and considerable abuse, with genital contact, oral sex and mutual masturbation, and happened on a weekly basis. 6. Through boy P the applicant met boy D, also aged 9 and similarly after befriending him indecently assaulted him. That boy described some similar episodes to those which took place with boy P. 7. The grounds of appeal correctly concede that the sentences of immediate custody were proper and appropriate. The complaint is directed against the length of the extended period of licence at 4 years. It is suggested that this is too long, that insufficient reasons existed for it, that no sufficient reasons were given for it and that the risk of such a period being passed was not raised with counsel so that he could address the issue. 8. There was a report before the judge from Dr Blake, a psychiatrist, dated 2nd March 2002. It is said gives no evidence to justify such an extension period but in fact remarks positively on the applicant's close family, his behaviour on bail, his apparent honesty, genuine remorse and good insight. Dr Blake concluded that there was no psychiatrist illness and, as it is put in, advice "voiced no concerns regarding the applicant's future conduct beyond those implicit in the commission of the offences." We cannot quite agree with that characterisation of this report. Dr Blake lays some emphasis on the applicant's contrition, his good behaviour since arrest and his apparent honesty in discussion and also upon his remorse. However, he also remarks on the unusual fact that so many of the applicant's friends appear to be young boys and that he could not explain why he had acted as he had in relation to more than one young boy. That has to be set beside his account of his own sexual interests as being exclusively heterosexual and adult, with the exception of the charges, as the applicant put it. This did provide a real basis for concern about a continuing risk of offending. A rational reading of that report, in our view, is that the applicant was regretful and anxious to please but was not able to be frank about his own impulses, leaving the springs of his offending unacknowledged. That concern was reflected in the interview given by the applicant after his arrest. 9. However, it should be noted that this applicant was of previous good character. It is very likely that there was a pre-sentence report before the judge, but no copy has survived in the papers presented to this court and we are unable to assess what material there was which may have underpinned the judge's own assessment of the case. The judge naturally took a serious view of his offending and his remarks as to the reason for an extended sentence were short but to the point. He said: "...I am satisfied that the normal period of licence would not be sufficient to prevent the commission of further offences or secure your rehabilitation. I consider that you represent a danger to young boys, and the reasons why I am imposing the extended sentence." It is fair to say that the learned judge did not set out any reasoning for the length of the extension. 10. Counsel for the applicant has sought to rely to some degree of the report of how well this applicant has done whilst in prison on his parole assessment report, the prison report and the parole notification, all dating from 2005. Of course, all of these long postdate the judge's sentencing decision and could not possibly affect the propriety of his decision. 11. The applicant does rely upon the case of R v Nelson [2001] EWCA Crim 2264 , which deals with the approach required in such a case. From paragraph 19 of that report, we quote: "In all cases the court should consider whether a particular extension period can be justified on the evidence available. A long extension period should usually be based on a clear implication from the offender's criminal record or on what is said in a pre-sentence report or a psychiatric report. The objective, where possible, should be to fix the length of the extension period by reference to what can realistically be achieved within it." 12. In our judgment, there clearly was enough in the psychiatric report to justify the judge's concern and an extended period. There may well have been more in any pre-sentence report. The matter might have been more fully explained by the judge but the nature of his general concern was clear. This court in Nelson was not attempting to put a straitjacket on how such an extended period may properly be passed, the emphasis was on positive evidence to underpin the concern. 13. However, taking all matters together in this case, we consider that there is force in this application that extended period was too long. It is not an academic matter for this applicant as counsel has, again, helpfully explained, particularly given the illness of his mother and the fact that he is unable to visit her due to the restrictions concurrently operating. We consider that a proper period for extension would have been one of 2 years. So we will in due course substitute such a period for that past by the learned judge. 14. We should emphasise that, this applicant having done everything proper, we are prepared to extend time for this application to take place. But it is only in the most exceptional circumstances that a delay as long as 6 years and four-and-a-half months will be followed by the grant of leave to appeal against sentence and anyone reading this report should understand that. In this branch of litigation, as in others, there is a real need for finality. 15. However, we grant leave to appeal. We grant the appeal to the extent of quashing the 4 years extended period on the first count of attempted rape, substituting an extension period of 2 years and the appeal succeeds to that extent. We would like to say, Miss Grahame, how grateful we are to you for your careful submissions both in writing and today.	{"ConvCourtName":["Crown Court at Manchester Crown Square"],"ConvictPleaDate":["2002-03-05","2002-06-11"],"ConvictOffence":["Indecent assault on a male person","Attempted rape"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Manchester Crown Square"],"Sentence":["Count 1: Attempted rape - extended sentence of 10 years (6 years' imprisonment + 4 years extended licence)","Count 2: Attempted rape - 6 years' imprisonment concurrent","Counts 3 and 7: Indecent assault on a male person - 2 years' imprisonment concurrent on each count and concurrent to other sentences"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["2"],"VicSex":["All Male"],"VicAgeOffence":[9,9],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Video interview of victim"],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Sustained and considerable abuse","Genital contact, oral sex and mutual masturbation","Happened on a weekly basis"],"MitFactSent":["Previous good character","Apparent honesty","Genuine remorse","Good insight","Good behaviour since arrest"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Length of the extended period of licence is too long","Insufficient reasons existed for the extension period","No sufficient reasons were given for the extension period","Risk of such a period being passed was not raised with counsel"],"SentGuideWhich":["section 85 of the Powers of Criminal Courts (Sentencing) Act 2000","R v Nelson [2001] EWCA Crim 2264"],"AppealOutcome":["Allowed & Sentence Varied"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Judge did not set out any reasoning for the length of the extension","Extended period was too long given the circumstances"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202102577/A3 [2021] EWCA Crim 1673 Royal Courts of Justice Strand London WC2A 2LL Tuesday 2 November 2021 LADY JUSTICE CARR DBE MR JUSTICE JEREMY BAKER HIS HONOUR JUDGE KATZ QC (Sitting as a Judge of the CACD) REGINA V SIMON PETER MORRISEY __________ 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 P WORMALD appeared on behalf of the Appellant _________ J U D G M E N T LADY JUSTICE CARR: 1. This is an appeal against sentence limited to a single ground of appeal, namely that the sentencing judge failed to give sufficient credit for the appellant's guilty plea. We can take matters very shortly. 2. On 24 June 2021 the appellant appeared in custody before Cardiff Magistrates' Court and pleaded guilty to an offence of attempted burglary (of a non-dwelling, contrary to section 1(1) of the Criminal Attempts Act 1981 committed on the previous day, 23 June 2021. The offence was committed during the operational period of two suspended sentences that had earlier been imposed in the Crown Court. The appellant was committed to Cardiff Crown Court for sentencing, pursuant to section 14 of the Sentencing Act 2020 and paragraph 11(2), Schedule 16 Sentencing Act 2020. 3. On 22 July 2021 Mr Recorder Bull QC ("the Recorder") sentenced him on the offence of attempted burglary to 12 months' custody (after applying 25% credit for guilty plea). The suspended sentences were activated with reduced terms of seven and five months' imprisonment to run consecutively. The overall sentence was thus one of 24 months' imprisonment. 4. Section 72 of the Sentencing Code created by the Sentencing Act 2020 requires a court sentencing an offender who has pleaded guilty to take into account: "(a) the stage in the proceedings for the offence at which the offender indicated the intention to plead guilty, and (b) the circumstances in which the indication was given." 5. The Sentencing Council Guideline on Reduction in Sentence for a Guilty Plea ("the Guideline") sets out the principles to be followed in reducing the punitive aspects of a sentence by reason of a guilty plea. Clarification has been provided recently by this court in R v Plaku and others [2021] EWCA Crim 568 ; [2021] 4 WLR 82 . There, the court emphasised amongst other things (at [6]): That by section 59 of the Sentencing Code (formerly section 125 of the Coroners and Justice Act 2009) a court must follow any relevant sentencing guideline unless satisfied that it would be contrary to the interests of justice to do so; That the Guideline, like section 73 of the Sentencing Code, focuses on the time when the guilty plea is indicated, not when it is entered; That a clear distinction is deliberately drawn between the reduction in sentence available at the first stage of proceedings and the reduction available at any later stage. 6. As set out above, the appellant here indicated - and indeed entered - his guilty plea the day after the offence at his first appearance in the Magistrates' Court. There can be no question but that that was the first stage of the proceedings as identified in the guideline. He was therefore entitled to a reduction of one-third, unless the court was satisfied that it would be contrary to the interests of justice to follow the Guideline. 7. The only reason that we can identify for the Recorder's decision to allow only 25% credit was that the appellant was caught "red-handed after a chase by the police". He went on to say that he was "nevertheless" prepared to give a discount of 25 per cent. This is consistent with what Mr Wormald (who appears before us, as he appeared for the appellant below) tells us: when Mr Wormald questioned the level of credit with the Recorder, the Recorder responded by saying that the prosecution case was "overwhelming". 8. The Guideline identifies the benefits of a guilty plea as follows: That a guilty plea normally reduces the impact of the crime upon victims; That a guilty plea saves victims and witnesses from having to testify; and That a guilty plea is in the public interest in that it saves public time and money on investigations and trials. The earlier the plea the greater these benefits. 9. The Guideline states in terms that those benefits apply regardless of the strength of the evidence against an offender. Thus: "…The strength of the evidence should not be taken into account when determining the level of reduction." 10. The Recorder did not indicate that there was any basis on which to conclude that it would not be contrary to the interests of justice to follow the Guideline, nor can we identify any. 11. We therefore have no hesitation in concluding that the sentence of 12 months' imprisonment imposed was wrong in principle. It will be quashed. Based on a term of 16 months, one arrives at a sentence of 11 months' custody after credit of one-third. A sentence of 11 months' imprisonment will accordingly be substituted in its place. This may not be a very significant reduction from 12 months, but the appellant is entitled to it as a matter of principle. The proper application of the Guideline demands it. All other elements of the sentences remain in place, in particular the activation of the suspended sentences is not affected. The overall sentence is therefore now one of 11 months' custody, followed by 12 months' custody, with a total custodial period of 23 months. 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":["Cardiff Magistrates' Court"],"ConvictPleaDate":["2021-06-24"],"ConvictOffence":["Attempted burglary (of a non-dwelling, contrary to section 1(1) of the Criminal Attempts Act 1981)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Cardiff Crown Court"],"Sentence":["11 months' imprisonment for attempted burglary (after appeal)","7 months' imprisonment (activated suspended sentence)","5 months' imprisonment (activated suspended sentence)"],"SentServe":["Consecutive"],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Appellant was caught 'red-handed after a chase by the police'","Prosecution case was 'overwhelming'"],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Offence committed during the operational period of two suspended sentences"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Sentencing judge failed to give sufficient credit for the appellant's guilty plea"],"SentGuideWhich":["Sentencing Council Guideline on Reduction in Sentence for a Guilty Plea","section 14 of the Sentencing Act 2020","paragraph 11(2), Schedule 16 Sentencing Act 2020","section 72 of the Sentencing Code (Sentencing Act 2020)"],"AppealOutcome":["Allowed & Sentence Reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Recorder only allowed 25% credit for guilty plea when 33% was required by the Guideline; strength of evidence should not affect credit for guilty plea"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2015] EWCA Crim 2364 Case No: 2014/6062/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 16 June 2015 B e f o r e : LORD JUSTICE BEAN MR JUSTICE SPENCER HIS HONOUR JUDGE COOKE QC (Sitting as a Judge of the CACD) --------------------------------- R E G I N A STEVEN WILKINS --------------------------------- Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) --------------------------------- Mr R Dacre appeared on behalf of the Appellant Mr A Scott appeared on behalf of the Crown --------------------------------- J U D G M E N T (Approved) 1. LORD JUSTICE BEAN: On 14th June 2014 the appellant was serving a sentence of imprisonment at HMP North Sea Camp, an open prison. He had been there for around seven months. The prison comprised a central prison site and outlying fields. The eastern boundary of the prison was marked by gates close to a sea bank. The northern boundary was marked by gates next to a shallow ditch. There was a wooden bridge with steps allowing access to the slopes of the sea bank at the intersection of the two boundaries. There was an out of bounds sign on the eastern gate. 2. At 8 pm a roll-call was conducted and the appellant was found to be missing. He had last been seen at 5 pm that day. The police and prison officers subsequently found him in a rape seed field beyond the boundaries of the prison. He did not have permission to be there. A prison officer spoke to him shortly after his apprehension and recalled that the appellant had said that he thought he was still within the prison boundaries. He was prosecuted on the basis that he intentionally crossed beyond the prison boundary and had committed the common law offence of escape. 3. The defence case statement said that the defendant: "…..went for a walk in the Prison grounds, as was his habit, some time after 5 pm on 14th June. He sat down under some trees at the corner of the Prison's football field to smoke a cigarette. [He] fell asleep and when he awoke it was getting dark. He was aware that he must have missed the 8 pm roll call. The defendant's intention was to make his way back to his unit without being seen, so that he could present himself to an Officer there and therefore allay any suspicion that he had tried to abscond from the Prison. Rather than walk back across the football field where he feared he would be seen, he made his way along the Prison perimeter towards his unit. As he walked he saw a Prison van and hid in a crop field. He eventually gave himself up from this location. At no time did the defendant intend to escape from lawful custody. At no time did he believe that he stepped beyond the boundaries of the Prison." The case was tried before Mr Recorder Dooley and a jury. In summing-up the Recorder gave directions on escape which included the following: "What is it to escape? The word conjures up ideas of tunnelling under walls, breaking down fences, climbing walls, climbing fences, something dramatic. In fact for the purpose of this case it is nothing of the sort. A prisoner has escaped if he has put himself outside the confines of the prison where he has been in lawful custody and has done so intentionally, that is he does it deliberately knowing that he has overstepped the prison boundaries." After drawing a distinction between the intention to cross the line and the reason for crossing the line, he said this: "The motive or reason for a prisoner removing himself from custody is not a material consideration when considering whether the offence has been committed or not. It is the fact of escape coupled with the intention to do so which is at the heart of this case and it is for you to decide on the evidence whether you are sure or not sure that an escape coupled with the requisite intention took place. Does the prisoner need to know precisely where the boundary lies? In the context of an open prison quite clearly the prisoner may not know but if he in fact crosses that border with the intention of crossing it, with the intention of absenting himself permanently or temporarily, then the offence is made out. He must know of course that there is a boundary and he must intend to cross it because in so doing he is intending to remove himself from lawful custody. You need to be satisfied so that you are sure of four things. Firstly that the defendant was in custody, secondly that he knew he was in custody, thirdly that that custody was lawful, and fourthly and most importantly in the context of this case that he intentionally escaped from that lawful custody." 4. The last paragraph was a direct quotation of paragraph 21 of the judgment of this court given by David Steel J in R v Dhillon [2006] 1 Cr.App.R 15 . As the Recorder said to the jury, plainly there was no dispute and could be no dispute about the first three of the four elements of the offence identified by David Steel J. The question in this case was whether the Recorder's directions properly stated the ingredients of the fourth element, "that the defendant intentionally escaped from lawful custody." 5. Mr Dacre, the appellant's counsel, has referred us to Dhillon and to two other authorities. All are different from the present case on their facts. Dhillon concerned a prisoner who was taken to hospital for an x-ray and absconded from the x-ray department. The issue was whether he had by doing so escaped from lawful custody. Montgomery , another decision of this court [2007] EWCA Crim. 2157 , concerned a prisoner who had been released for a day's leave on what is now called "release on temporary licence" and failed to return. This court held that a failure to return from authorised leave does not constitute the offence of escape. A case on which Mr Dacre placed particular reliance was a decision of Judge Mynett QC in the Crown Court in R v Timmiss [1976] Crim.L.R 129. The defendant was stopped as a result of his erratic driving, was directed to take a breathalyser test by a police officer and was told on the test proving positive that he was to be taken into custody to Shrewsbury Police Station. While the officer was trying to move his vehicle, the defendant left the scene and went to a public house for a drink. The learned judge held that there was a case to go to the jury on the question of whether on these facts the defendant had committed the offence of escape. There was a motion to quash the indictment which he refused. The case proceeded to a trial and the judge directed the jury that they could convict the defendant if (a) he had been lawfully arrested, and (b) he had breached that custody with the deliberate intention of doing an act that was wholly inconsistent with his being in custody, as for example taking a drink, and designed only to defeat the due process of law to which he was bound to submit following a lawful arrest. This was so even though it might be that the escape was only intended to be temporary, provided his intention was to do some act while at large which would defeat or was intended to defeat and impede the criminal process, for example the destruction of evidence that might lead to his eventual conviction. 6. In his ruling refusing a motion to quash the indictment the judge had used a slightly different (but very similar) phrase, that the offence of escape could be committed where a defendant "deliberately and with the intention of evading the criminal process breached his custody." The commentary in the Criminal Law Review says this: 7. "There seems to be no suggestion that it is an ingredient of the offence that the accused should intend to remain at large permanently nor that he should escape with any particular object in view. In these respects, the direction ... might have been too favourable to the accused." Finally, Mr Dacre drew our attention to Prison Service Instruction 47/2011, which in the current edition says at paragraph 1.36: "There is no offence in law of 'absconding' from prison, only of 'escaping' either with or without the use of force. But for adjudication purposes an escape may be defined as a prisoner leaving prison custody without lawful authority by overcoming a physical security restraint such as that provided by fences, locks, bolts and bars, a secure vehicle, or handcuffs (see paragraph 1.11 for escapes from courtrooms ('dock jumpers')). An abscond is where a prisoner leaves prison custody without lawful authority but without overcoming a physical security restraint." 8. A further paragraph dealing with the prison disciplinary charge of a prisoner absenting himself from any place where he is required to be says this: 9. "1.71. This charge can apply to incidents within the establishment, or outside where the prisoner is escorted, or briefly goes outside an open prison, with the intention of returning shortly (e.g., visiting a nearby shop). But if the prisoner has no intention of returning [other provisions of the prison service instruction, namely those dealing with an escape in terms of prison adjudication language] will apply." 10. We agree with the draft of the Prison Service Instructions that the criminal law as opposed to the Prison Service internal manuals does not distinguish between absconding and escaping, in that where a prisoner leaves prison custody without lawful authority, but without overcoming a physical security restraint, that may only be an abscond in prison terminology. But it constitutes the offence of escape at common law. 11. We agree with the critical commentary in the Criminal Law Review on the terms of the direction to the jury given in the Crown Court in the case of Timmiss . We think the commentators are clearly right to say that it is not a necessary ingredient of the offence of escape that the accused should intend to remain at large permanently, nor that he should escape with any particular object in view. The phrase used by the judge "with the intention of evading the criminal process" may be a helpful one in a context of somebody who is waiting at the roadside to see what the police are going to do about a breathalyser result - we make no ruling on that because it is not the case before us. 12. But the present case is much simpler than the case of Timmiss or for that matter (n its facts) the case of Dhillon . The appellant was in lawful custody at the prison. The necessary ingredients of the offence of escape, as set out in the judgment in Dhillon , included the thought of intentional escape from custody. Where a prisoner is serving a sentence, whether in an open or closed prison, this means intentionally going beyond the boundaries of the prison knowing he was not allowed to go there. In the present case the judge's direction was entirely correct. 13. Mr Dacre sought to draw a distinction between a prisoner who crosses the boundaries of the prison intending to do something outside of the prison, such as going to see a girlfriend or going to have a drink at a public house with his friends, as opposed to the defendant in the present case who was outside the boundary for a short period with no such particular intention. We think that it is over-complicating the law to draw any such distinction. The defendant intentionally went beyond the boundaries knowing he was not allowed to go into the field. Whether he had any ulterior purpose is beside the point. It is similarly beside the point whether he intended to remain at large for hours, days or permanently. All that of course goes to the seriousness of the offence. The learned Recorder in passing a sentence of four weeks' imprisonment - of which no complaint is or could be made – observed that, as examples of the offence of escape go, this was very much at the bottom of the scale. That was a sensible view to take. 14. It may be that there are offences of such triviality in this context that no sensible prosecutor would bring the matter before the criminal courts, but we cannot say that the present case was in this category. The offence was clearly committed. The Recorder gave impeccable directions to the jury. They were entitled to find the case proved and accordingly this appeal must be dismissed.	{"ConvCourtName":["Crown Court"],"ConvictPleaDate":[""],"ConvictOffence":["Escape (common law)"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court"],"Sentence":["4 weeks' imprisonment"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Organisation"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Prison officer testimony"],"DefEvidTypeTrial":["Defendant's account/statement"],"PreSentReport":["Low risk of harm"],"AggFactSent":[""],"MitFactSent":["Offence at bottom of scale"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction"],"AppealGround":["Judge misdirected jury on ingredients of offence"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Recorder gave impeccable directions to the jury; offence clearly committed; jury entitled to find case proved"]}
No: 201703489/A3 Neutral Citation Number: [2018] EWCA Crim 835 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 6 March 2018 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE CARR DBE THE RECORDER OF GREENWICH HIS HONOUR JUDGE KINCH QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - R E G I N A v UNIVERSITY COLLEGE LONDON - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity ( Sexual Offences (Amendment) Act 1992) , or where an order has been made in relation to a young person. 1. LORD JUSTICE HOLROYDE: On 14th June 2017 in the Crown Court at Southwark, the University College London ("UCL") pleaded guilty to an offence of exposing another to a risk to health and safety, contrary to sections 3(1) and 33(1)(a) of the Health and Safety at Work Etc Act 1974. On 3rd July 2017 His Honour Judge Tomlinson sentenced UCL to pay a fine of £300,000 and to pay just under £15,000 by way of prosecution costs. UCL now appeals against that fine by leave of the single judge. 2. The circumstances giving rise to the prosecution of UCL were as follows. UCL, a body established by Royal Charter and a registered charity, is the part owner of the London Centre of Nanotechnology ("LCN"), a department which employed approximately 130 staff. Within the centre was a group called the Diamond Electronics Group which consisted of post-doctorate staff and graduate, Ph D and Masters students. The complainant, Miss Marie-Laure Hicks, was a masters student studying nanotechnology. She was engaged in research which involved the use of a bespoke piece of equipment called the lithium evaporator or lithotron. 3. The lithotron was designed in 2009 by the distinguished head of the Diamond Electronics Group. It comprised of a stainless steel chamber with two viewing ports and a sample holder within the larger chamber. The chamber would be heated up to 170 degrees Celsius to bake samples of diamond. The machinery sat on a metal frame on a metal bench. The bench had a hole which permitted access to the chamber and sample holder from underneath the bench. The chamber was connected to a vacuum pump and a compressed gas cylinder which supplied nitrogen to create a slight overpressure so as to avoid any contaminant getting into the chamber when a sample was introduced and the vacuum broken. The supply of nitrogen was controlled by a gate valve which had an on/off action and a speedy valve with a rotary action. There was a sensor on the lithotron which measured negative pressure. As we understand it, the supplying of nitrogen was a modification of the equipment which had been introduced only days before the accident occurred. 4. On 30th June 2014, Miss Hicks was working on the lithotron. She introduced a sample into the cylinder and was in the process of tightening the bolts on the sample chamber when the viewing port shattered. Glass fragments exploded outwards causing injury to the left side of her face and to her eye. Miss Hicks was taken to hospital where she stayed for four days. She had stitches to the wounds to her face. She underwent surgery to remove fragments of glass from her left eye. The lens was removed from her left eye and oil was introduced to help the retina to heal. After six months further surgery was necessary to remove the oil and attempt to repair the hole in the retina. The hole could not be repaired. Sadly, therefore, Miss Hicks has lost partial vision in her left eye. She suffers from an area of grey vision, blurred vision and double vision. This serious injury causes her problems in her work - where, for example, she has difficulty in manipulating small items because she finds it difficult to perceive depth - and in the activities of her daily life. She has difficulty estimating speed, for example if she is crossing the road and a vehicle is approaching. If she is filling a glass or other vessel with liquid she cannot see where the top of the liquid is. She has been severely limited in pursuing her hobby of skiing because she cannot see bumps or rocks in the slope ahead. In addition, she suffered the symptoms of post traumatic stress disorder for some six months after the accident and continuing anxiety thereafter. On any view this was a serious injury to a young woman blamelessly going about her work. 5. A health and safety executive investigation and an internal investigation concluded that it was likely that the chamber had over-pressurised because nitrogen was still being introduced into the chamber as it was being sealed. As a result, the pressure inside the chamber became too high and the viewing port failed because it was not strong enough to withstand the pressure. 6. UCL pleaded guilty on a written basis which was not disputed by the prosecution. Three specific breaches of health and safety were admitted. First, a failure properly to calculate and keep under review the design of the lithotron following the modification to introduce the nitrogen supply in order to ensure that the machine was strong enough to withstand any potential overpressure. Secondly, there was a failure to carry out a risk assessment on the machine following the addition of the nitrogen line. A risk assessment should have identified either that the supply of nitrogen needed to be properly controlled, so that the device did not become a pressure chamber, or that the components of the machine should have been of sufficient strength to withstand the pressure. In this regard it is striking to note that the glass in the viewing port appears to have been between 10 and 20 years old. The third breach was the failure to ensure adequate control measures to meet the risk of over-pressurisation. Had a risk assessment been carried out, then control measures to meet the risks should have been identified and implemented. In fact no control measures had been introduced and there were no operating procedures written down for students to follow. As a result they were not informed of the risk that over-pressurisation of the chamber might lead to a shattering of glass in the viewing port. It was also unclear when the supply of nitrogen should be switched off prior to or during the sealing of the chamber and in the absence of a pressure gauge there was no way to gauge when sufficient nitrogen had been introduced. 7. The learned judge heard detailed submissions as to the application of the Sentencing Council's Definitive Guideline on Sentencing for Health and Safety Offences. That guideline requires the court to consider culpability, which may fall into one of four levels, and harm, which requires a two-stage process taking into account both the likelihood of harm and the seriousness of the harm if it is suffered. The court then has to assess the turnover or equivalent of the defendant organisation. In this regard the guideline states: "Normally, only information relating to the organisation before the court will be relevant, unless it is demonstrated to the court that the resources of a linked organisation are available and can properly be taken into account." The court must then assess the appropriate penalty by reference to a table showing starting points and sentence ranges. 8. The question of the appropriate credit for UCL’s guilty plea was considered at some length. The judge ultimately decided that the appropriate fine should be reduced by 25 per cent because of that plea. He observed in his sentencing remarks that the complainant had suffered life-changing injuries involving the almost total loss of visual acuity in her left eye and other disfiguring injuries to her face. He acknowledged a number of features in the appellant's favour. The appellant had never disputed civil liability and had been supportive of Miss Hicks and solicitous for her welfare in ways that went beyond simple monetary compensation. He recognised that UCL is a prestigious organisation and not one that anyone would expect to be involved as a defendant in criminal proceedings. He accepted that it was not a case in which anyone had engaged in cost-cutting or had in any way taken a calculated risk in regard to health and safety issues. Rather, it was evident that all those involved had simply overlooked the possibility of the events occurring as they did. 9. In terms of the guideline, the judge concluded that the offence involved a medium level of culpability and level B harm. The number of persons exposed to the risk of injury was limited, but the offence had resulted in actual injury. The judge found no aggravating features. As to mitigation, he noted that there had been no previous incidents, the appellant had a good record and it had cooperated with the investigation in the way which would be expected of a responsible and caring organisation. He concluded that the resources to which he must have regard were those of UCL and not those of LCN. In summary, he found it to be a medium culpability, harm level 3 case involving a large organisation which because of its non-profit charitable status was entitled to be treated with less severity than a commercial operation. Had the appellant been a commercial organisation, the starting point would have been no less than £500,000 and very probably more. Making allowances for the appellant's charitable status, the judge reduced that starting point to £400,000 and then further reduced it by 25 per cent to reflect the guilty plea. Thus the judge arrived at the fine of £300,000. 10. This court, like the court below, has been greatly assisted by the written and oral submissions of Mr Sturman QC for the appellant and Miss Heer for the respondent. We are grateful to them both. 11. Mr Sturman accepts, as he did below, that the judge was entitled to have regard to the resources of UCL, but submits that the court should also take into account the limited resources of LCN. He also accepts, again as he did below, that the judge was entitled to find that this was an offence involving medium culpability and level 3 harm, but he submits that the fine was manifestly excessive in amount. In particular, he argues that the learned judge erred in fixing too high a starting point on the facts of the case: the relevant guideline starting point being £300,000, there was no warrant for the learned judge to have increased that figure to as high as £500,000 or more. Secondly, he submits that the learned judge was in error in failing to make a sufficient reduction because of the appellant's charitable status. Thirdly, he submits that the learned judge did not appear to have taken into account either at all or at any rate sufficiently the very much smaller turnover of the LCN as a subsidiary of UCL. In this regard Mr Sturman makes the point that although UCL in accordance with their policies have properly accepted responsibility for this offence, and will meet the financial penalty from the resources of the university as a whole, nonetheless this was an error on the part of one small subsidiary and not a university-wide or extensive failing. Fourthly, Mr Sturman submits that the learned judge made insufficient reduction for the various mitigating factors. He underlines those which we have already mentioned, but adds that in a number of ways UCL went well beyond what could reasonably be expected of them in quickly settling all civil liability, in taking a solicitous approach to the welfare of Miss Hicks and in handing over the report of their internal investigation to the Health and Safety Executive rather than seeking to claim privilege for it. 12. Mr Sturman goes on to submit that UCL does indeed have a very large turnover measured in excess of £1 billion per annum but emphasises that this turnover stems from the receipt of grants from various sources. Any surplus which may be left at the end of a particular year is not treated as a profit to be distributed, but rather as a fund to be held in reserve in case of any future adverse developments in one or more of the sources of funding. Thus although the turnover is high, argues Mr Sturman, the position of UCL is very far removed from that of a commercial organisation with a similar turnover. He reiterates his submission below that in all the circumstances of this case, having regard to where the true fault lay, it was appropriate for the learned judge not only to consider the very large resources of UCL but also to consider the much more limited resources of LCN. He reminds us that the effect of UCL meeting the financial penalty in this case will be felt, at least to a limited extent, by all departments within the university and not just by that department which was at fault. He submits that the fine should properly have been in the range £150,000 to £200,000 and not the £300,000 imposed. 13. Miss Heer for the respondent submits that the learned judge properly applied the guideline and the guidance in Thames Water Utilities Limited [2015] EWCA Crim. 960 . She adds that the learned judge also in fact followed or acted in accordance with guidance which has much more recently been given in Whirlpool UK Appliances Limited [2017] EWCA Crim. 2186 . She invites the court to conclude that the fine imposed was just and proportionate in the circumstances of the case. 14. Having reflected upon the submissions of both counsel, we have reached the following conclusions as to the application of the sentencing guideline to the circumstances of this case. 15. As to step 1 of the guideline, it is common ground that the case is one of medium culpability, in particular because it is appropriately to be regarded as falling between the descriptions in the high and low categories. As to harm, it is common ground that it is a category 3 offence because there was a medium likelihood of harm causing physical or mental impairment which has a substantial or long term effect on the sufferer's ability to carry out normal day-to-day activities or on their ability to return to work. As we have indicated, the assessment of harm under the guideline is a two-stage process. As to the second stage of that process, we agree with the learned judge that although comparatively few persons were exposed to the risk, harm was in fact caused and, we would add, was serious. That being so it is important to note that the guideline required the learned judge to consider "either moving up a harm category or substantially moving up within the category range at step 2." 16. Step 2 requires the court to identify the relevant table of penalties. The selection of the relevant table depends upon the size of the defendant organisation. Appropriate financial information was properly provided to the court both in relation to UCL and in relation to LCN. To summarise that information, the former is a very large organisation for the purposes of the guideline, whilst the latter would fall at the bottom end of the category of medium sized organisation. It is important to note that the tables showing starting points and category ranges go up to the category of large organisation. In relation to a very large organisation, the guideline indicates that "... it may be necessary to move outside the suggested range to achieve a proportionate sentence." As was explained in Thames Water Limited , the court when dealing with a very large organisation should consider, having regard to the culpability and harm involved in the offence and to the financial realities of the organisation, whether the guideline for a large organisation sufficiently meets the case, bearing in mind that an important purpose of the fine is to have a real economic impact which will bring home the need to comply with health and safety legislation. A court in such a case may conclude that it is not "necessary" to move outside the category ranges appropriate to a large organisation. 17. Although the learned judge did not state this in specific terms, we infer that he concluded that in the circumstances of the case UCL, although in fact a very large organisation, could properly be sentenced in accordance with the table of penalties appropriate to a large organisation. We draw that inference having regard to the terms in which the learned judge expressed himself first at page 32B and then at page 32G of his sentencing remarks. It may well be that the judge also took into account the reality of UCL's income at that stage. It seems to us that in the circumstances of this case the learned judge was entitled to treat the appellant as a large rather than a very large organisation. We observe, however, that that decision was, if anything, favourable to the appellant. It would have been open to him at step 2 to look simply at turnover and to treat the appellant as a very large organisation, with an appropriate adjustment to be made later in the sentencing process. 18. The relevant table in the guideline, as identified by the learned judge, shows that the starting point for sentence after a trial is a fine of £300,000 and the range of penalty is from £130,000 to £750,000. Mr Sturman argues that consideration of LCN's turnover should have caused the judge to go towards the bottom end of that range. We are unable to accept that submission. The judge, as we have indicated, had already stepped back from placing the appellant into the category of "very large organisation" and on that ground going outside the table relevant to large organisations. Moreover, as we have already indicated, the judge was required at step 1 to consider moving up a harm category or substantially moving up within the category range because of the serious harm caused. We have no doubt that the learned judge was fully entitled to conclude that after trial a sentence substantially above the guideline starting point would have been appropriate. 19. Having rightly found that there were no aggravating factors, the judge then had to consider the mitigating factors. We have summarised what the learned judge said in this regard and we have summarised Mr Sturman's submissions. We accept that the points made by Mr Sturman are matters of mitigation which do carry weight, but we are not able to accept that the learned judge failed either to take them into account or to give them sufficient weight. It must be remembered that within the appropriate range a fine of up to £750,000 could have been imposed after a trial. In our judgment, the seriousness of the harm caused to Miss Hicks merited a sentence high in that range before making reductions first to reflect the mitigation and then the guilty plea. 20. Steps 3 and 4 under the guideline require the court in a number of ways to step back from the provisional fine reached by consideration of steps 1 and 2 and if necessary to adjust that provisional fine in order to ensure that it fulfils the objectives of sentencing. At this stage of the process, the court is required to have regard to the realities of the financial position of the offender. As the Lord Chief Justice said at paragraph 40 of the judgment in Whirlpool : "Step Three in the Guideline does not provide an invitation to the court to disregard what has gone before, but to adjust any conclusion to reflect the economic realities." The decision in that case also makes it clear that the guideline does not require a strictly arithmetical approach and is sufficiently flexible to do justice in the circumstances of the individual case. 21. It seems to us that the learned judge had already taken into account the financial realities of the position of UCL, and the fact that fault lay with LCN rather than with the university as a whole, in his decision to pass a sentence within the category range appropriate to a large organisation in a case of medium culpability and harm category 3. As we have indicated, had he not taken into account those factors he would have been entitled to move to a substantially higher starting point for sentence than he did. 22. It remains to consider the reduction made by the learned judge in relation to the charitable status of the appellant. Mr Sturman submits that a reduction of 20 per cent was inadequate. It was perhaps not a generous reduction. However, this is not a case in which a fine which would otherwise be appropriate should be reduced because of its likely impact on the provision of charitable services to the needy, and we agree with Miss Heer that the judge must already have taken into account, at an earlier stage of the sentencing process, the fact that almost all UCL's income is spent on funding educational activities. Moreover, whilst the appellant of course has charitable status, the activities of LCN not only add to the academic prestige of the parent organisation, but also have at least some commercial aspect. In those circumstances, it seems to us that the reduction made by the learned judge to reflect the charitable status was within the range properly open to him. 23. We have already referred to the detailed argument below as to the credit to be given for the guilty plea. We have no doubt that the reduction of 25 per cent on this ground was again well within the range properly open to the judge. We need say no more about the remaining steps in the process set out in the guideline. 24. It follows that in our judgment the learned judge applied the sentencing guideline in a way which does not give rise to any successful ground of appeal. There is much to be said on the appellant's behalf and it is apparent from the transcript that Mr Sturman made all relevant points with considerable skill before the sentencing judge. But for the reasons which we have given, we conclude that the fine imposed was not one which was manifestly excessive. Indeed, we would wish to emphasise that in our judgment a fine at the level for which Mr Sturman has contended would have fallen well short of being adequate to meet the seriousness of this case. This appeal accordingly fails and is dismissed. 25. MISS HEER: My Lord, the prosecution were directed to attend this hearing by the single judge. In those circumstances may I apply, pursuant to section 18 of the Prosecution of Offences Act for the prosecution costs? I have a figure which my learned friend is aware of and I understand makes no submissions in respect of. It is £2,524.84. 26. LORD JUSTICE HOLROYDE: Mr Sturman? 27. MR STURMAN: They follow the event. The closest I seem to have got was a concession but it was not a very generous concession. That does not amount to a win. So the only point I make is this comes out of the general funds for the university, but it is for my Lords' discretion. 28. LORD JUSTICE HOLROYDE: Thank you both. We order the appellant to pay the costs of the respondent in the sum of £2,500. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400	{"ConvCourtName":["Crown Court at Southwark"],"ConvictPleaDate":["2017-06-14"],"ConvictOffence":["Exposing another to a risk to health and safety, contrary to sections 3(1) and 33(1)(a) of the Health and Safety at Work Etc Act 1974"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Southwark"],"Sentence":["£300,000 fine","just under £15,000 prosecution costs"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Student"],"VicHomeOffence":[],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["No previous incidents","Good record","Cooperated with investigation","Supportive of victim beyond compensation","No cost-cutting or calculated risk","Quickly settled civil liability","Handed over internal investigation report"],"VicImpactStatement":[],"Appellant":["Appellant"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Fine was manifestly excessive","Starting point for fine too high","Insufficient reduction for charitable status","Insufficient reduction for mitigating factors","Should have considered subsidiary's smaller turnover"],"SentGuideWhich":["Sentencing Council's Definitive Guideline on Sentencing for Health and Safety Offences"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge applied guideline correctly","Fine not manifestly excessive","Mitigation and financial realities considered","No error in starting point or reductions"]}
Neutral Citation Number: [2013] EWCA Crim 2287 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/12/2013 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES LADY JUSTICE RAFFERTY and MR JUSTICE HENRIQUES - - - - - - - - - - - - - - - - - - - - - Between : Regina Appellant - and - J, B, V and S Respondents - and - D Intervening Party - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Hugo Keith QC, Simon Russell-Flint QC, Andrew Trollope QC and R Gokani for the Respondents A Edis QC, S A Hales QC and F Davy for the Appellants Nicholas Purnell QC and Jonathan Barnard for D Hearing date: 10 October 2014 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: Introduction and factual background 1. In this appeal the appellants (the prosecution) challenge the ruling made by a judge of the Crown Court in relation to what the prosecution has to prove under s.1 of the Prevention of Corruption Act 1906 ( the 1906 Act ). The respondents (the defendants) are indicted with conspiracy, “corruptly to give agents” of the tax authorities of a State in the Commonwealth a substantial sum of money as an inducement to show favours to a company in relation to the calculation of tax owed by that company to the tax authorities. 2. The judge held that it was necessary for the prosecution to prove that the agents of the tax authorities did not have the consent of the tax authorities, as their employer or principal, to receive the sum of money or other consideration. 3. In making that ruling the judge followed his decision in an earlier case, where the defendant was D. In that case D is indicted for conspiracy with the chairman of a corporation in the Middle East to make corrupt payments to agents of the corporation and to accept, as agents of the corporation, an inducement for showing favour to D in relation to the supply of goods and services to the corporation. We are not concerned with the correctness of the judge’s ruling in that case as no appeal was brought against it. Those appearing in D were permitted to intervene in the appeal so as to assist the court in relation to any issues that might affect that case. 4. S.1 of the 1906 Act has been repealed by the Bribery Act 2010 . The Serious Fraud Office is, however, pursuing a number of prosecutions in respect of matters occurring prior to the coming into force of that Act , particularly in respect of the bribery of foreign officials. 5. That is because, by an amendment made to s.1 by the Anti-terrorism, Crime and Security Act 2001 , the Act was extended so that its scope included circumstances where the affairs of the principal had no connection with the United Kingdom or the agent’s functions had no connection with the United Kingdom or were carried out in a territory outside the United Kingdom. That amendment was made to comply with the obligations of the United Kingdom under the OECD convention on Combating Bribery of Foreign Public Officials and International Business Transactions. 6. As the Serious Fraud Office is pursuing these prosecutions it considered it important to clarify whether the ruling made by the judge in the present case was correct as it would affect other prosecutions. 7. In the light of the fact, therefore, that our decision in this matter will affect other prosecutions, we have confined our statement of facts to what we have set out above so that this judgment can be made public without awaiting the conclusion of the trials in the case of J and D. The issue 8. Before turning to the detail of the 1906 Act and some Commonwealth authority, it is necessary briefly to set out the nature of the issue. i) It was contended by Mr Andrew Edis QC on behalf of the prosecution that the prosecution had to prove the ingredients set out in the statute – the defendant was an agent, he accepted the consideration, that this was for the prohibited purpose and that it was done corruptly. It was for the jury, looking at all the facts, to determine whether the payment or other advantage made or accepted was made “corruptly”. There might be submissions of law on the evidence adduced in the course of the prosecution case as to whether a jury, properly directed, was entitled to find that the payment had been made or received corruptly, but it was not necessary to provide a gloss to that term. It was not necessary to show that it was contrary to the interests of his principal or that the payment had been made without the knowledge and consent of the principal. ii) On behalf of the defendants it was contended by Mr Hugo Keith QC that the term, “corruptly” connoted secrecy. As the 1906 Act had been formulated in terms of principal and agent, it must follow that a payment could not be secret if it was made with the knowledge and consent of the principal. Thus it must be for the prosecution to prove, as part of its case, the specific ingredient of lack of knowledge or informed consent by the principal; in essence the element of corruption was the doing of the act prohibited without having first made full disclosure to the principal and obtaining his informed consent. The origins of the 1906 Act 9. The history of the provisions relating to corruption before the 2010 Act are set out in the Law Commission Reports made prior to the enactment of the 2010 Act Legislating the Criminal Code (Consultation Papers 145 (1997) and 248 (1998)) and Reforming Bribery (Consultation Paper 185 (2007) and Report No. 313 (2008)). There are also two very helpful articles: Corruption in England and Wales: An Historical Analysis by Mr Fennell and Mr Thomas of the Cardiff Law School published in 1983 in 11 International Journal of Sociology and Law 167 and Bribery and Corruption by Professor David Lanham published in Essays in Honour of Professor Sir John Smith (1987). It is only necessary to set out as much of that history as is necessary to explain the arguments in the case. (i) The common law 10. At common law bribery and corruption were criminal offences. A single definition is not easy, but the general principles are set out in Russell on Crime , 12 th edition,1964, at page 381 in the following terms: “Bribery is the receiving or offering of any undue reward by or to any person whatsoever ... in order to influence his behaviour in an official situation and incline him to act contrary to the known rules of honesty and integrity.” 11. At the end of the nineteenth century and beginning of the twentieth century Parliament, without abolishing the common law offence, passed three statutes. Although the issue arises only in relation to one of these, it is necessary to refer to all three. (ii) The Public Bodies Corrupt Practices Act 1889 12. The first was The Public Bodies Corrupt Practices Act 1889. It was enacted as a result of evidence of corrupt practices adduced before a Royal Commission into a local government authority for London, the Metropolitan Board of Works. It made it an offence for anyone, “corruptly” to solicit or receive for himself or any other person “any gift, loan, fee, reward or advantage whatsoever as an inducement to or reward for or otherwise on account of any member, officer or servant of a public body” for doing or forbearing to do anything in respect of any matter with which the public body was concerned. 13. The Act defined a public body in terms of a defined category of local authorities and the local agencies that at that time were connected to local government. Bribery in commerce and central government were not within its scope. (iii) The 1906 Act 14. The second enactment was the 1906 Act . It is clear from the materials before us that the mischief at which the provision was principally aimed was criminalising the bribery of agents in commercial transactions, particularly commissions paid to the agent without the knowledge and informed consent of his principal. These were and are commonly referred to as secret commissions. 15. It was by then already well established in the courts of equity that whatever might be the view of some of those engaged in commerce, receipt of a commission not authorised by the principal was a breach of the fiduciary duties of the agent – see for example Parker v McKenna (1874) LR 10 Ch App 96 at 118 (Lord Cairns LC) and at 124 (James LJ) and the cases set out in Bowstead and Reynolds on Agency (19th edition (2013) at paragraphs 6-084 to 6-089. If an agent was remunerated by commission paid by the other party to the transaction and not his principal, this was unlawful absent informed agreement by the principal, expressly or by implication or by the custom or practice of the trade: see Great Western Insurance v Cunliffe (1874) LR 9 Ch App 525 at 529 and 537, a decision on the insurance industry where brokers, although agents of the assured, were paid not by the assured but by the underwriter. 16. Whatever might have been or may still be the commercial practice of some, the position in law was and remains clear. A vivid contemporary illustration is set out in the Law Relating to Secret Commissions and Bribes (Christmas Boxes Gratuities etc): the Prevention of Corruption Act 1906 by Albert Crew (Pitman, 1913): “In 1877, Jessel, M.R., tried an action brought by a firm of merchants at Bombay which complained that their shipping agent in Lancashire had systematically been receiving two invoices, one which he sent out to India, the other, the real invoice, which he retained. He asked if there were any answer to the charge, and the reply was that the practice was universal throughout the whole shipping trade in Lancashire, and prevalent elsewhere. “I have a mass of evidence,” counsel said. “There are a large number of most respectable people in court to give evidence in proof that the practice is universal.” Sir George Jessel replied: “You can send those respectable people home; they have come to prove an iniquitous practice, and the sooner they leave the court the better.” We might observe that from time to time some of those in commerce have chosen and still choose to ignore these very clear legal principles relating to a practice truly described as iniquitous. 17. In introducing the bill that became the 1906 Act , the then Solicitor General, Sir William Robson, stated on 3 April 1906 that it was aimed at dealing with the dishonest giving or accepting of money or other consideration to or by agents with the view of making a private profit unknown to the principal. This was entirely in accordance with the underlying law relating to the fiduciary obligations of agents established in the cases to which we have referred. 18. However, the 1906 Act not only covered commercial agents, but brought those serving under the Crown within its scope. S.1 as originally enacted, provided: “(1) If any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business; or If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business … he shall be guilty of a misdemeanour (2) For the purposes of this Act the expression “consideration” includes valuable consideration of any kind; the expression “agent” includes any person employed by or acting for another; and the expression “principal” includes an employer (3) A person serving under the Crown or under any corporation or any municipal, borough, county, or district council, or any board of guardians, is an agent within the meaning of this Act . ” 19. The mischief at which the extension to those serving under the Crown was aimed was the limited scope of those included within the Public Bodies Corrupt Practices Act 1889 (see Fennell and Thomas at page 174). The scope as regards those serving under the Crown was wide; it was held to include an additional registrar of births, deaths and marriages, even though he was not appointed or paid by the Crown: Barrett [1976] 1WLR 946. (iv) The Prevention of Corruption Act 1916 20. The third enactment was the Prevention of Corruption Act 1916 . It was passed after a scandal in the War Office where its inspectors of merchandise had accepted bribes. It provided that where a transaction was a contract or proposed contract with a Government Department or any public body, any gift received by a person in the employment of the government or public body from someone who had or wished to obtain a contract, was a payment presumed to be corrupt, unless the contrary was proved. (v) The amendment to the three statutes in 2001 21. The only further legislative provision to which it is necessary to refer is s.108 of the Anti-terrorism, Crime and Security Act 2001 which inserted into the 1906 Act a further subsection to s.1 in the following terms: “(4) for the purposes of this Act it is immaterial if – (a) the principal’s affairs or business have no connection with the United Kingdom and are conducted in a country or territory outside the United Kingdom; (b) the agent’s functions have no connection with the United Kingdom and are carried out in a country or territory outside the United Kingdom.” Corresponding changes were made to the 1889 and 1916 Acts. The issue of construction (i) The conclusion of the judge in R v D 22. The judge concluded in the earlier case of R v D : “I have come to the conclusion that the element of secrecy is an essential element in this offence and must be inherent in the word “corruptly”. Thus it is for the Crown to prove that the defendant’s principal did not know or consent to the relevant purpose” 23. It is necessary to examine this conclusion by first considering the language of the 1906 Act , second by considering whether there is anything that can be derived from the Act that shows this ingredient (as spelt out by the judge) was inherent in the word “corruptly” and lastly by considering other material and the Commonwealth authorities. (ii) The ordinary meaning of the statute 24. The issue before us is one of statutory construction. In our judgment the words are clear. It has to be shown that the payment was made corruptly and for the prohibited purpose. In R v Wellburn (1979) 69 Cr App R 254 this court made clear what is thought was meant by the term “corruptly”: “The recorder directed the jury as follows: “Corruptly is a simple English adverb and I am not going to explain it to you except to say that it does not mean dishonestly. It is a different word. It means purposefully doing an act which the law forbids as tending to corrupt. In directing the jury as he did the recorder adopted the words used by Willes J. when giving his opinion to the House of Lords in Cooper v. Slade (1858) 6 H.L.Cas. 746, which was a case concerned with the Corrupt Practices Prevention Act 1854. What Willes J. said was adopted and followed by the Court of Criminal Appeal in Smith (1960) 44 Cr.App.R. 55 ; [1960] 2 Q.B. 423 (see Lord Parker C.J. at p. 62 and p. 429 respectively) in which the indictment charged an offence under the Public Bodies Corrupt Practices Act 1889. In our judgment the recorder was right to follow the construction of the word “corruptly” which was approved in Smith (supra) . Nothing is to be gained by using variations for statutory words in ordinary usage unless the context so requires and it does not do so in the 1906 Act . A jury will have no difficulty in deciding whether an accused has corruptly accepted or obtained a gift. The mischief aimed at by the modern statutes dealing with corruption is to prevent agents and public servants being put in positions of temptation.” 25. The language of the Act does not require anything more than proof that the payment for the prohibited purpose was made corruptly. There is self-evidently no language requiring that the payment for the prohibited purpose has to be paid or received secretly and without the knowledge and informed consent of the principal. Nor is there anything in the word “corruptly” taken by itself that implies that the payment has to be secret or without the knowledge and informed consent of the principal. It is an ordinary word with an ordinary meaning and nothing in the word itself can justify engrafting the suggested ingredient onto it. (ii) The framing of the 1906 Act in terms of principal and agent 26. It is contended, however, that the court should imply the suggested ingredient if the word corruptly is placed in the context of the decision to frame the legislation in terms of principal and agent and in the context of the mischief at which the 1906 Act was aimed. 27. It is clear, as we have said, that the 1906 Act was primarily directed at commercial agents. The law was clear as we have set out at paragraph 15. Parliament could have legislated in different terms and provided for proof of a lack of informed consent, but it did not. It simply required that the payment be corruptly made or received. 28. There might well be cases where the defendant who is a commercial agent avers that his principal knew of the payment as he had made full disclosure and gave his informed consent; or the defendant might aver that he honestly believed that the agent’s principal knew and gave his informed consent to the receipt of the payment by his agent. It would in such a case be necessary when deciding whether the payment was or was not made or received corruptly for the jury to consider that evidence. However, there is no requirement that the prosecution specifically prove the lack of knowledge and informed consent of the principal separately. 29. The reason why Parliament did not make that a separate ingredient and why such an ingredient cannot be implied is clear. The 1906 Act expressly included in the definition of an agent a person serving under the Crown or a local authority. Although the informed consent of the actual principal after full disclosure would in the case of a commercial agent usually have the consequence that the payment was not made corruptly, it would not be a defence that someone in the Government Department or local authority had knowledge of a payment to its employee or agent by another party for the prohibited purpose and purported to consent to that payment. That is because such a payment to an agent or employee cannot be authorised if it is made for the prohibited purpose. If, in the present case, the prosecution proved that the payment had been made to an employee of HM Commissioners of Revenue and Customs for the prohibited purpose, it would not matter that the senior official to whom the agent or employee was responsible knew of the payment and purported to consent to it, because consent cannot be given to a payment to a public official in the UK which is made for the prohibited purpose. 30. Thus when the judge against whose ruling this appeal is brought stated that it was “the secrecy of the payments which was the wrong to which the offence was to be aimed”, he had failed to take into account the fact that the Act covered those serving under the Crown. The Act was drafted as it was so that what was necessary to prove was corruption whether the case arose in a transaction between commercial persons or in relation to a public body or the state. The informed consent of the actual principal (after full disclosure) might be relevant in cases relating to commercial agents, but not to those in public service in the UK. It therefore cannot be implied or inherent in the Act that the prosecution has to prove that the principal did not know of and did not consent to the payment. 31. When the Act was extended as we have set out at paragraph 21 above to cover agents and principals overseas the position remained the same. 32. It follows that in most cases it will generally be sufficient for the prosecution to prove the making of the payment for the prohibited purpose to the agent (or the receipt of such a payment by the agent) in circumstances where the jury can properly infer it was corrupt. Thus in the case of a commercial agent where the making of the payment for the prohibited purpose is proved, the question of whether the principal knew and gave his informed consent after full disclosure will not ordinarily arise, unless it is part of the defence case. When the consent of the principal is alleged and there is a sufficient evidential basis for it, then it will be an issue for the jury to consider when deciding whether the prosecution has proved payment was made corruptly. In cases where the principal or agent are overseas, more complex issues may arise (as may be the case in R v D) but what the prosecution has to prove remains the same. It has to prove that the payment for the prohibited purpose was made corruptly. 33. The judge in his judgment in D stated that by far the greatest assistance he had received came from the decision of the Court of Appeal in Kensington International v Republic of Congo [2007] EWCA Civ 1128 ; [2008] 1 WLR 1144 . i) In that case, the relevant issue was whether a well-known oil trading company which was alleged to have made payments to employees or representatives of the defendant government for favours in connection with contracts for the sale and purchase of oil could rely on the privilege against self-incrimination. The company could not do so under s.13 of the Fraud Act 2006 if its conduct gave rise to offences under that Act or related offences. The related offences were said to be common law bribery and offences under the 1889 and 1906 Acts. The company contended that these were not related offences for the purposes of the Fraud Act 2006 , as these offences did not involve any form of fraudulent conduct or none that involved proof of dishonesty. ii) Moore-Bick LJ giving the main judgment concluded in respect of the 1906 Act that: “Although dishonesty as such need not be proved, the word “corruptly” signifies that the circumstances in which the gift was given were such that it had a tendency to corrupt, that is, to suborn the agent to disregard his duty and act contrary to the interests of his principal, thereby causing him harm. If the agent is moved by the gift to act contrary to his principal's interests, his conduct is of the same quality as that covered by s. 4 and does in my view involve deception. It is for that reason, I think, that one finds in the authorities references to fraud in the context of bribery…” iii) He considered that offering a bribe with the intention that it be acted upon involved a form of fraudulent conduct or purpose and therefore was a related offence under the Fraud Act 2006 (see paragraph 62). He concluded at paragraph 63 that the submission of the oil trading company was wrong for two reasons: “The first is the fact that the only purpose of offering or giving a bribe is to undermine the agent's loyalty to his principal and persuade him to abandon his duty. That is the essence of the corruption and therefore any offer of a bribe can only be intended to have that corrupting effect. It also involves deception in the sense described earlier. The second is the fact that a bribe necessarily exposes the principal (or, in the case of bribery of a public official, the public) to the risk of harm, even if it does not lead to actual harm. In my view, therefore, offering or giving a bribe necessarily involves a form of fraudulent conduct or purpose [under the Fraud Act 2006 ].” iv) The judge did not explain why he found the case of such assistance. Mr Hugo Keith QC on behalf of the defendants, however, contended the case demonstrated that an element of secrecy was essential to the offence under s.1 of the 1906 Act , as the purpose of offering a bribe was to undermine the agent’s duty of loyalty. v) There is, in our view, nothing in that case which supports such a conclusion. The issue related to the bribery of an overseas government, the Republic of the Congo. The judgment of Moore-Bick LJ was an entirely conventional analysis, citing classic authorities. He applied that analysis to officials of the Congolese State who were the alleged recipients of the bribes. He said no more than that paying sums to public officials for a prohibited purpose undermined the duty and loyalty of those officials to the State. It was corrupt and involved deception or a fraudulent purpose. There was no argument to the court that the payments would not be bribes if the Congolese government knew and consented to them or that they were not made secretly. Such an argument was not made because it would self-evidently have been immaterial, as States do not consent to payments to State officials by parties seeking contracts with the State. The judgment therefore provides no support for the judge’s view or the contention advanced by Mr Keith QC. (iii) Other materials 34. The defendants relied for some of their argument on the discussions in the various Law Commission reports to which we have referred; although the discussions were no doubt of considerable assistance in the formulation of the amended statutory regime as set out in the Bribery Act 2010 , it did not materially assist the issues of construction of the 1906 Act . 35. Nor did we find of any assistance the views expressed by the then Attorney General or the OECD in relation to a proposed prosecution of BAE Systems in connection with its Saudi Arabian contracts in 2007; the investigation was discontinued. The question of whether the alleged consent of those in Saudi Arabia might mean no offence was committed did not arise for decision in the litigation R (Corner House) v SFO [2008] EWHC 714 (Admin) and [2008] UKHL60. 36. Nor, in the light of our decision on the construction of the 1906 Act , is it necessary for us to consider the prosecution’s alternative argument that the amendment to the 1906 Act in 2001 extending its scope to the bribery of foreign officials made it clear that consent did not have to be proved by the prosecution. (iv) The Commonwealth Authorities 37. The respondents relied on decisions of the Commonwealth courts on very similar Commonwealth legislation. (a) Canada 38. In Canada, s.426 of the Criminal Code under Part X entitled “Fraudulent Transactions relating to Contracts and Trade” provides: “ Secret Commissions (1) Every one commits an offence who (a) directly or indirectly, corruptly gives, offers or agrees to give or offer to an agent or to anyone for the benefit of the agent — or, being an agent, directly or indirectly, corruptly demands, accepts or offers or agrees to accept from any person, for themselves or another person — any reward, advantage or benefit of any kind as consideration for doing or not doing, or for having done or not done, any act relating to the affairs or business of the agent’s principal, or for showing or not showing favour or disfavour to any person with relation to the affairs or business of the agent’s principal;” 39. In R v Morris (1988) 64 Sask 98 (Saskatchewan Court of Appeal), R v Arnold [1991] NSJ No 166 (Supreme Court of Nova Scotia) and R v Kelly [1992] 2 SCR 170 (Supreme Court of Canada), the courts considered the provision of s.426 in the context of payments made to commercial agents. In the Saskatchewan case the court stated that if the agent was paid with the full knowledge and consent of his principal, then no offence was made out because it was not a secret commission. In the Nova Scotia case the court observed that it was the agent’s non-disclosure to his principal of the receipt of the reward that made the conduct corrupt; a full disclosure of the circumstances by the agent to the principal made his conduct non culpable and a complete defence. In that case in the majority judgment of the Supreme Court of Canada it was said that corruptly in s.426 denoted secrecy as the corrupting element of the offence; it was the failure to disclose that made it impossible for the principal to determine whether to act on the advice of the agent; it was therefore the non-disclosure that made the receipt of the commission corrupt (see pages 187-9). 40. However, as we have pointed out, these cases all relate to commercial agents. There are different provisions of the Code set out in Part IV under the heading “Corruption and Disobedience” in sections 119 and following which deal with the bribery of officials. It is perhaps therefore unsurprising that the Canadian cases on which the respondents place such reliance all arise in the context of the payment of commissions in the context of commercial agents. The UK legislation in contradistinction covers both commercial agents and public officers. (b) Australia 41. The South Australia Secret Commissions Act 1920 is worded similarly to the 1906 Act and the definition of agent includes a person serving under the Crown. In C v Johnson [1967] SASR 279, the South Australian Supreme Court considered whether a regulatory authority with power to disqualify a salesman of land for an offence involving dishonesty could disqualify him on the basis of his conviction for an offence under that Act . The regulatory authority considered that the conviction was one for dishonesty. The court held that it did. Bray CJ observed: “On normal legal principles one would expect that word [corruptly] to add something to the meaning of the section. If it were not there, for example, it might be an offence for an agent to solicit a commission from a party with whom the principal was dealing or expected to deal, even with the consent and approval of the principal” 42. In R v Turner (2001) WASCA 344 the Supreme Court of Western Australia reviewed a number of decisions of other states, including C v Johnson in determining the meaning of corruptly in similar legislation, again in the context of the bribery of a commercial agent. Burchett AUJ, giving the lead judgment observed: “In my opinion, these authorities confirm that the sections are directed at the specified conduct done with the intention (properly described as corrupt) of seducing an agent from the duty owed to his principal or of rewarding the forsaking of that duty in favour of another. Consistently with this view of the sections, they will not apply where the principal is known or believed to have assented.” 43. Both of these cases deal with commercial agents; the judges in making these observations did not have in mind the position of a public official – such as a person serving under the Crown. As the cases therefore do not grapple with the issue before us, in our view these cases are for that reason of very limited, if any, assistance. Conclusion 44. For the reasons we have set out the prosecution does not have to prove as an ingredient of the offences under s.1 of the 1906 Act that the principal did not know of the payment and did not give his informed consent. The prosecution need do no more than prove that the payment made for the prohibited purpose was made corruptly. 45. For example, in determining whether the payment was made corruptly in the case of transactions between commercial agents and principals any evidence relating to what was disclosed to the principal and what the principal knew and any informed consent may, as we have stated, be highly material to the issue of whether they acted corruptly. In such cases, the evidential inquiry may give rise to the factual issue of identifying the actual principal who is entitled to give informed consent after full disclosure. In the case of an overseas body corporate this may raise difficult factual inquiries in the light of the applicable law as determined by the judge. These are, however, all matters of evidence that may go to the issue of whether the payment for the prohibited purpose in transactions between commercial agents and commercial principals was made or received corruptly. However, by way of a contrary example, where there was a payment to a public official in the UK for the prohibited purpose, evidence as to knowledge and consent will, for the reasons we have given, not arise. What the Crown has to prove remains the same in each case – that the payment for the prohibited purpose was made corruptly; evidence as to the informed consent of the actual principal may or may not be material or highly material depending on the facts of the case. 46. The appeal is therefore allowed and the ruling of the judge set aside.	{"ConvCourtName":[""],"ConvictPleaDate":[""],"ConvictOffence":[""],"AcquitOffence":[""],"ConfessPleadGuilty":[],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":[],"WhatAncillary":[""],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Ruling on law"],"AppealGround":["The judge erred in law in holding that the prosecution must prove lack of knowledge or consent of the principal as an ingredient of the offence under s.1 of the Prevention of Corruption Act 1906"],"SentGuideWhich":["s.1 of the Prevention of Corruption Act 1906"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
Neutral Citation Number: [2023] EWCA Crim 1280 Case No: 202203784 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NEWCASTLE UPON TYNE His Honour Judge Bindloss Royal Courts of Justice Strand, London, WC2A 2LL Date: 3 November 2023 Before : LORD JUSTICE SINGH MR JUSTICE JEREMY BAKER and HER HONOUR JUDGE MUNRO KC - - - - - - - - - - - - - - - - - - - - - Between : REX Respondent - and - WILLIAM BOGIE Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Penny Hall (instructed by Armstrong Westgarth Law ) for the Appellant Matthew Hopkins (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 24 October 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10.30 a.m. on 3 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. . Lord Justice Singh : Introduction 1. This is an appeal against conviction brought with the leave of the Single Judge. The issue concerns whether admitted breaches by the police of Code of Practice D, issued under the Police and Criminal Evidence Act 1984 (“PACE”), on recognition evidence, were such that the evidence should have been excluded by the trial judge and render the convictions unsafe. 2. On 22 November 2022 in the Crown Court at Newcastle Upon Tyne the Appellant was convicted of three offences: robbery (Count 1), possession of a bladed article (Count 2) and driving whilst disqualified (Count 3). On 6 February 2023 he was sentenced by HHJ Bindloss to a total sentence of 78 months’ imprisonment, which was the sentence on Count 1, with the other sentences being made concurrent. Other appropriate orders were made, including an order that the Appellant be disqualified from driving for 51 months. 3. There were two co-defendants who were also charged with robbery (Count 1). Leanne Craggs pleaded guilty to that charge on the first day of the trial. Ryan Neil was acquitted of that charge on the direction of the judge, following a submission of no case to answer. The Facts 4. John Hogg was a delivery driver for WH Smiths. On the morning of Sunday 15 May 2022 he was making deliveries to shops in the South Tyneside area. At about 5am Mr Hogg stopped his Renault van to make a delivery of newspapers to a One Stop Shop. Just before he stopped he had noticed a Nissan Juke car travelling behind him. He said he saw a man get out and then get back in the front passenger seat, and he described the car as coming very close behind his van before backing off . 5. At the One Stop Shop Mr Hogg exited his van to deliver some newspapers. As he did this he heard someone open the Renault van driver’s side door. He returned to the van and was threatened by a male armed with a knife. The male wore a plastic mask and said to Mr Hogg, “Fuck off before you get chopped up”. The male stole the van, valued around £25,000, which had on board about £3,000 to £4,000 worth of newspapers. The Renault van and Nissan Juke were driven away from the scene in convoy , and Mr Hogg immediately reported the matter to police. The robbery was captured on CCTV although the footage only showed the robber from behind . 6. At 8.35am on 15 May the Nissan Juke was stopped by police. Leanne Craggs was the driver and Ryan Neil was the front seat passenger . Leanne Craggs’ home address was searched and a number of newspapers, along with two rubber face masks were found. Leanne Craggs’ fingerprints were discovered on the newspapers. Leanne Craggs’ and Ryan Neil’s DNA was present on the face masks. Mr Hogg confirmed that the masks were the same as the one worn by the robber . There was no forensic link from the Appellant to either the Renault Van or to the Nissan Juke. Identification Evidence relating to the Appellant 7. DC Arthur and DC Sengelow were assigned to investigate the robbery when they began work on Monday, 16 May 2022. Both officers interviewed Leanne Craggs at 5.37pm on that date. The interview led DC Arthur to go to a Morrison’s petrol station on 18 May to make further enquiries . 8. At the petrol station DC Arthur located some CCTV footage. It showed that around four hours before the robbery, at 1.13am on 15 May, Leanne Craggs had been at the petrol station with the Nissan Juke and a number of other people. In evidence DC Arthur said that he suspected one of the others to be the Appellant . He had never dealt with the Appellant in the flesh but had seen him from behind and also in photos. He said that he was 90 to 95 per cent certain that the person in the footage was the Appellant . 9. DC Arthur said that he returned to the police station, where he told his investigation team of what he had seen and that it was his belief that the Appellant was a male in the footage. The investigation team included DC Sengelow . 10. On 20 May 2022 DC Sengelow attended the petrol station with DC Arthur to view the footage. He identified one of the males present on the footage as the Appellant. In evidence he said that he had previously dealt with the Appellant face to face on two occasions in 2019, as well as seeing him in photos . 11. DC Sengelow said he downloaded the petrol station footage onto a USB stick and returned to the police station, where he reviewed the footage. He created still images from the footage. However, by the time of the trial, some of the moving footage that gave rise to the still images from 1.13am at the petrol station had been lost . This was the part of the footage that showed the male in it without his Covid mask and showed him laughing. 12. The prosecution case at trial was that the man in the petrol station footage at 1.13am was the Appellant. Because of his distinctive clothing and the link to the Nissan Juke, the prosecution said that the Appellant was the same man seen in the footage at 5am robbing Mr Hogg at knife point . 13. The defence case was that the male at the petrol station at around 1am was not the Appellant, and he had been wrongly identified by police. It was his case that the Appellant was not the person shown on the CCTV footage carrying out the robbery . The defence suggested there were at least two other potential candidates who might have been the robber. Mr Hogg had identified a person on CCTV as the robber , and Leanne Craggs had been in contact with a male called Daniel Ryan, who fitted the description of the robber . 14. When the Appellant was interviewed he made no comment. He did not give evidence at trial . 15. The issue for the jury was whether they were sure that the man seen in the distinctive clothing in the petrol station at around 1.13am was the Appellant. If they were sure that he was, they also had to be sure that he was the man seen in the later footage robbing Mr Hogg. Code of Practice D 16. The relevant code of practice under PACE is Code D on the identification of persons by police officers, which had effect from 23 February 2017. 17. Part (b) of the Code is concerned with ‘Recognition by controlled showing of films, photographs and images’. Paragraph D:3.34 explains that this part of this section applies when, for the purposes of obtaining evidence of recognition, arrangements are made for a person, including a police officer, who is not an eye-witness: (a) to view a film, photograph or any other visual medium; and (b) on the occasion of the viewing, to be asked whether they recognise anyone whose image is shown in the material as someone who is known to them. 18. Paragraph D:3.35 provides as follows: “To provide safeguards against mistaken recognition and to avoid any possibility of collusion, on the occasion of the viewing, the arrangements should ensure: (a) that the films, photographs and other images are shown on an individual basis; (b) that any person who views the material: (i) is unable to communicate with any other individual to whom the material has been, or is to be, shown; (ii) is not reminded of any photograph or description of any individual whose image is shown or given any other indication as to the identity of any such individual; (iii) is not to be told whether a previous witness has recognised any one; (c) that immediately before a person views the material, they are told that: (i) an individual who is known to them may, or may not, appear in the material they are shown and that if they do not recognise anyone, they should say so; (ii) at any point, they may ask to see a particular part of the material frozen for them to study and there is no limit on how many times they can view the whole or any part or parts of the material; and (d) that the person who views the material is not asked to make any decision as to whether they recognise anyone whose image they have seen as someone known to them until they have seen the whole of the material at least twice, unless the officer in charge of the viewing decides that because of the number of images the person has been invited to view, it would not be reasonable to ask them to view the whole of the material for a second time. A record of this decision must be included in the record that is made in accordance with paragraph 3:36.” 19. Paragraph D:3.36 provides as follows: “A record of the circumstances and conditions under which the person is given an opportunity to recognise an individual must be made and the record must include: (a) whether the person knew or was given information concerning the name or identity of any suspect; (b) what the person has been told before the viewing about the offence, the person(s) depicted in the images or the offender and by whom; (c) how and by whom the witness has asked to view the image or look at the individual; (d) whether the viewing was alone or with others and if with others, the reason for it; (e) the arrangements under which the person viewed the film or saw the individual and by whom those arrangements were made; (f) subject to paragraph 2.18, the name and rank of the officer responsible for deciding that the viewing arrangements should be made in accordance with this Part; (g) the date time and place images were viewed or further viewed or the individual was seen; (h) the times between which the images were viewed or the individual was seen;’ (i) how the viewing of images or sighting of the individual was controlled and by whom; (j) whether the person was familiar with the location shown in any images or the place where they saw the individual and if so, why; (k) whether or not, on this occasion, the person claims to recognise any image shown, or any individual seen, as being someone know to them, and if they do: (i) the reason; (ii) the words of recognition; (iii) any expression of doubt; and (iv) what features of the image or the individual triggered the recognition.” Ruling on Admissibility of Identification Evidence 20. The defence argued that the identification evidence of DC Arthur and DC Sengelow was inadmissible and ought to be excluded under section 78 of PACE. It was also argued that the still images taken from CCTV footage which was subsequently lost were inadmissible under section 78 . Counsel for the defence submitted that both officers had failed to comply with Code D, specifically paragraphs D:3.35 and D:3.36. In addition, the only footage of the male at the petrol station without a Covid face mask on had been lost. There were screenshots of the unmasked male, however they were of poorer quality than the other stills and it was not known which camera they had been taken from. They were not time marked. 21. A voir dire took place between 10 and 15 November before HHJ Bindloss, at which both DC Arthur and DC Sengelow gave evidence. On the main issue before him, the Judge ruled that: “… I have come to the view that, notwithstanding the failures to satisfy Code D3.36 on the day of the viewing, this is no mere bald assertion by these two police officers, nor is the recognition evidence inherently poor. On the information that has come to light since, the jury will have plenty of material available to them to be able to assess the accuracy, or otherwise, of the police officers’ recognition evidence. There is material to test what the police officers are saying. There is material open to Miss Hall [counsel for the defence] to cross-examine the police officers about their recognition. In addition, the jury will have the original footage and the stills, and they can compare those directly to the defendant themselves”. 22. In reaching that decision the Judge applied the recent decision of this Court in R v Yaryare and Others [2020] EWCA Crim 1314 ; [2020] 4 WLR 156 . 23. The Judge also rejected the submission that the stills should not be admitted in evidence given that the footage from which they had been taken had been lost. In reaching that decision the Judge applied the decision of the Divisional Court in R (Ebrahim) v Feltham Magistrates’ Court [2001] EWHC 130 (Admin) ; [2001] 1 WLR 1293 . Ruling on Submission of No Case to Answer 24. Following the close of the prosecution case, counsel for the defence submitted that there was no case for the Appellant to answer, on the basis that the recognition evidence was poor and there was no supporting evidence before the jury. The Judge ruled that: “I have come to the view that this recognition evidence is reasonably good. It is certainly sufficient to go before the jury. In addition, the jury have the CCTV images and the stills [so] that they can make their own comparison. Although there are a number of weaknesses, those are a matter for the jury to consider. I have looked at the trial compendium and reminded myself of the direction that should be given in recognition evidence cases like this and it lists a number of bullet points setting out the weaknesses, if there are any, and that … they should be identified for the jury and the jury should be told to keep those in mind when assessing whether a recognition is reliable or not and it is clear to me that this is one of those classic cases. The police -- two police officers have purported to recognise. The jury must make their own assessment of that. I have a duty to point out the weaknesses and direct the jury to be cautious, and I will, and the jury can safely be left, properly directed, to consider this evidence and applying the second limb in Galbraith , reminded myself [ sic ] that this is an ID case and the additional factors in Turnbull should be carefully considered. In my judgment, a jury properly directed could safely convict Mr Bogie and Miss Hall’s submission fails”. 25. As that passage makes clear, the Judge had well in mind the principles in R v Galbraith [1981] 1 WLR 1039 (Lord Lane CJ); and R v Turnbull [1977] QB 224 (Lord Widgery CJ). Summing Up 26. The Judge gave written directions to the jury, informing them of the breaches of Code D and warning them of the weaknesses in the identification evidence. He also repeated these points in his summing up. No complaint is made about the written directions or the summing up as such but it is submitted by Miss Hall that the dangers of admitting the recognition evidence of the police officers were such that no direction could cure the problem. That evidence should not have been admitted and the case should not have been allowed to go before the jury at all. Grounds of appeal 27. On behalf of the Appellant Miss Hall advances the following three grounds of appeal: (1) The Judge erred in ruling the identification evidence of both DC Arthur and DC Sengelow as admissible. The admission of this evidence casts doubt on the safety of the conviction. (2) The Judge erred in ruling the CCTV stills, taken from footage which was then lost, as admissible. The admission of this evidence also casts doubt on the safety of the conviction. (3) The Judge was wrong to allow the case to continue before the jury at the close of the prosecution case. The identification evidence was poor and there was no supporting evidence. 28. On behalf of the Appellant Miss Hall acknowledges that her central ground of appeal is Ground 1. 29. It was and is common ground that the police officers in this case failed to comply with paragraphs D:3.35 and D:3.36 of Code of Practice D. As the Single Judge observed when granting leave to appeal: (1) Both officers knew that the Appellant was a suspect for the robbery having interviewed/been made aware of the contents of the interview with the suspect Leanne Craggs. (2) Both knew that the CCTV of the Morrison’s petrol station footage was of potential importance in obtaining evidence to identify whether the Appellant was or was not present at that time. (3) Despite that DC Arthur (a) viewed the footage on his own on 18 May without making a detailed note of the circumstances of the viewing and why he could identify the Appellant from what he viewed, he having had some brief contact with the Appellant in August 2019; (b) told DC Sengelow that he had positively identified the Appellant from the footage before the latter had seen the footage for himself; (c) did not make a statement about his recognition until 20 October, some five months later, when it was known that the recognition was being challenged. (4) Further, despite (1) to (3) above, DC Sengelow viewed the CCTV evidence on 20 May and made a statement later that day but failed to mention that, prior to that viewing, he had been told by DC Arthur that DC Arthur had recognised the Appellant, and did not meet the requirements of Code D paragraph D:3.36 as to how and why recognition was made. (5) Whilst DC Sengelow did attempt to make a copy of the relevant CCTV evidence at the time, for reasons unknown a copy of the most significant part of that evidence, when the person of interest is seen without a face mask, was not either copied or retained and did not find its way into the compilation video. 30. Miss Hall also emphasises that, although Code D refers to the risk of collusion, she does not allege bad faith or intentional collusion, but submits that there are other dangers which the Code is designed to prevent, for example the danger of “confirmation bias”, which can be subconscious. 31. Miss Hall emphasises that there was simply no other supporting evidence before the jury against this Appellant. He was not forensically linked to the stolen newspapers or the rubber masks found at Leanne Craggs’ address. There was no evidence that he was associated with Leanne Craggs or Ryan Neil. He was not forensically linked to the stolen van or the Nissan Juke. There was no cell site evidence or eyewitnesses to put him at the scene. 32. Miss Hall points out that at trial the defence suggested that there were at least two other candidates for the robber. First, Mr Hogg had told police that he had seen the robber shortly after the incident. He was shown some CCTV and identified a male on that footage as the person he had seen. He said he was “positive” that that was the male who had robbed him. In fact that male was not this Appellant. Secondly, the Appellant was aware of another male, Daniel Ryan, who matched the description of the male at the petrol station. There was evidence (in the form of agreed facts) that Daniel Ryan was 6 feet 2 inches tall and of slim build. He was the partner of Kimberley Whitehead, who was present at the petrol station, and had given his address to police around the relevant time, as 2 Capulet Terrace. That is the address where Leanne Craggs was seen to attend in the Nissan Juke shortly before her arrest. 33. In respect of the evidence of DC Arthur Miss Hall says that he initially said that he had made some notes while he was at the petrol station but, when cross-examined, accepted that he had added to his notes later. Further, he told DC Sengelow that he had recognised the Appellant but no note was made about this for another five months. Thirdly, both officers were given the Appellant’s name in the handover package to them. 34. Further, Miss Hall reminds this Court that DC Arthur had only seen the Appellant once in person but this was three years earlier. The Appellant was at that time in a cell, lying on his side and facing away from DC Arthur so DC Arthur had never seen him standing or seen his face. In substance therefore he was reliant upon police intelligence. 35. Turning to the evidence of DC Sengelow, Miss Hall says that he attended the Morrison’s petrol station with DC Arthur but DC Arthur then took a phone call and so DC Sengelow viewed the CCTV footage with the manager. He had already been told by that time by DC Arthur that he had recognised the Appellant. DC Sengelow made no notes at all at that time and, when he did so later, they did not provide the detail required by Code D. Further, in the voir dire DC Sengelow appeared to say that he had viewed the footage many times but there appeared to be a record of his having done so only on one date in July and thereafter in November, which was after his second witness statement and close to the time of trial. 36. Turning to the quality of the evidence, Miss Hall points out that the police gave evidence that they had seen the man was laughing, in footage which is no longer available because it has been lost and therefore could not be seen by the jury. But they did not spot that the man had a missing tooth (which was an agreed fact at the trial). Nevertheless, Miss Hall acknowledges that she was able to point this out to the jury as tending to undermine the evidence of the police officers. 37. Miss Hall also reminds this Court that the missing footage was the only time when the man in it had removed his face mask fully but we do not know whether that was what led the police to say that they recognised this Appellant. In the footage which was before the jury, which we have viewed, the man at the Morrison’s petrol station at all times has the mask covering his mouth although it is just below the nose. The only stills of the full face are of a lower quality. 38. Miss Hall acknowledges that, if Ground 2 on this appeal stood alone, that would not be sufficient but she submits that it reinforces Ground 1. 39. Turning to Ground 3, Miss Hall submits that, although it is essentially the same argument as under Ground 1, it is different in that, by the end of the prosecution case, the jury had heard the evidence of the police officers, which was slightly different from their evidence at the voir dire . The Respondent’s submissions 40. On behalf of the Respondent Mr Hopkins submits that: (1) The Judge was right to admit the identification evidence of DC Arthur and DC Sengelow. (2) The Judge was right to admit the CCTV stills from the missing footage. (3) The Judge was right to refuse the submission of no case to answer. 41. In relation to Ground 2, Mr Hopkins submits that admitting the three still images without the moving footage from which they were taken did not have such an adverse effect on the fairness of the proceedings that it should have been excluded. He points out that the Judge rightly took into account the leading authority of Ebrahim and concluded that there was no serious prejudice to the defence because the moving footage was missing. Indeed he considered that the absence of that footage was likely to hamper the prosecution more than the defence. The defence were able to point to this as a “hole” in the prosecution case and invite the jury to conclude that the prosecution had failed to prove its case because it had lost footage which should have been put before them. 42. Turning to Ground 3, Mr Hopkins submits that, although there were two other candidates for the robber, Mr Hogg’s evidence was plainly so unreliable in the circumstances of this case that it did not undermine the recognition evidence of the officers. Mr Hogg had not seen the face of the robber because he said it was covered by a full face Halloween mask. When asked if there was any other reason beside height and build to make him “positive” it was the robber, he said that “maybe” the robber had the same pants as the man in the CCTV footage but it was clear from that footage that the robber had very different pants to the man he was pointing out. 43. In all the circumstances therefore Mr Hopkins submits that the Judge was well entitled, applying the well-known principles in Galbraith , to conclude that the submission of no case should be rejected, since this was an issue of fact which was eminently suited for determination by the jury. 44. As is common ground, the central ground on this appeal is Ground 1. On this Mr Hopkins submits that the Judge correctly directed himself as to the “key factors” for admitting recognition evidence where there has been a breach of the PACE Code, by reference to the decision of this Court in Yaryare : (1) whether there was a detailed explanation for the basis of the recognition; and (2) whether the jury were in a position to view the relevant material for themselves. 45. Mr Hopkins’ submissions are set out in detail at paragraphs 15-23 of the Respondent’s Notice, which warrant quotation in full: “15. First, a detailed explanation was given in this case during the voir dire . DC Arthur was able to say that he viewed the petrol station footage and first suspected the man was William Bogie when he walked through the door of the petrol station, then he became 90-95% sure the man was Mr Bogie as he watched more footage. He explained that the man’s height, build, hair and face allowed him to recognize Mr Bogie. He explained that he had seen Mr Bogie’s height and hair from an observation of him in a police cell in August 2019 and that he had seen bulletins with Mr Bogie’s face on subsequently and that is how he recognized the face. He said that he specifically recognized the face because of its thin appearance. He said that at one point during the footage when the man was around the refrigerated area he may have had the mask down or off but he could not be sure. 16. DC Sengelow was able to explain in evidence that he had sat across an interview table from Mr Bogie for 15 minutes in December 2019 and also walked him to a cell. He had then spent one to two hours watching the petrol station CCTV footage at the police station after he seized it and was ‘very sure’ it was Mr Bogie. He could explain that he recognized him from the height and build, the face, eyes and hair. He said it was an ‘overall general recognition’. He accepted that he had been told by DC Arthur that the man in the footage was Mr Bogie but he did not believe that had influenced his judgment. 17. These detailed explanations gave the jury a much better basis on which to assess the reliability of the recognitions than existed in the cases of Smith [ R v Smith [2008] EWCA Crim 1342 ; [2009] 1 Cr App R 36 ] and JD [ R v Deakin [2012] EWCA Crim 2637 ], where the officers were essentially making bare assertions that they recognized the offender as the defendant but could not explain why. 18. Second, the jury in this case was in a position to view the ‘relevant material’ (as the court in Yaryare put it). They could compare the man in the petrol station CCTV to the defendant in the dock and the custody photos. This was the ‘objective means’ envisaged in Smith by which the jury could test the accuracy of the officers’ recognition. 19. The jury were to have at their disposal high quality still images from the available CCTV in the petrol station showing the man with the face mask underneath his nose, revealing a large portion of his face hair and ears from multiple angles. The moving footage also lasted over five minutes. 20. There were also lower quality images from the missing petrol station CCTV where the man had pulled the mask down under his chin fully revealing his face. 21. The jury were given custody photos of the defendant taken 16 days after the robbery to allow them to compare the man in the footage with the man in the custody photo. They would also be able to observe Mr Bogie in the dock during the trial (which in the event lasted five days). 22. The jury also had a custody photo taken in December 2019 of Mr Bogie which they could use to test DC Sengelow’s ability to recognize the man in the footage from the man he interviewed in December 2019. The Court in Yaryare at para 24 specifically identified the importance of the jury being provided with a custody photo showing a defendant’s appearance the last time an officer purporting to recognize him would have seen him. The December 2019 photo showed that Mr Bogie had not changed his appearance. 23. The jury were thus able to use the CCTV footage … to assess the ability of the officers to recognize someone in it, in conjunction with everything else they knew about the circumstances of the recognitions (including the breaches of PACE).” 46. Mr Hopkins accepts that one of the more important failures in this case was that no contemporaneous note was made by the police officers as to which features had led them to recognise this Appellant in the footage. Nevertheless, Mr Hopkins submits that the recognition evidence was not inherently poor. He contrasts it with the case of Smith , where there was no recognition of the defendant’s face at all; and the case of Deakin , where there was the bare assertion of recognition. In this case, in contrast, the officers did in due course (in the voir dire ) give evidence as to the details which had led them to recognise the Appellant: for example DC Sengelow recognised the top half of the Appellant’s face, by reference to the hair colour and length of hair. Further, Mr Hopkins points out that the jury were themselves able to observe the Appellant in the dock. The decision of this Court in Yaryare confirms that it is not inherently wrong for there to be such a comparison to be made by the jury. Authority 47. As we have mentioned, in his ruling the Judge had regard to the decision of the Divisional Court in Ebrahim . In that case the Court held that, where a stay on the ground of abuse of process is sought on the basis that relevant material is no longer available, the Court should first determine whether the police or prosecutor had been under any duty to obtain and/or retain that material; but if there were no such duty there could be no question of the trial being unfair on that ground; though if there had been a breach of such a duty any unfairness resulting from it should normally be dealt with in the course of the trial; that no stay should be imposed unless the defendant showed on the balance of probabilities either that by reason of such a breach he would suffer serious prejudice to the extent that it was impossible for a fair trial to be held or that there had been such bad faith or serious fault on the part of the police or prosecution that it was not fair that the defendant should be tried. 48. In giving the judgment of the Court Brooke LJ said, at paragraph 25: “Two well-known principles are frequently invoked in this context when a court is invited to stay proceedings for abuse of process. (i) The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and prosecution, because the fairness of a trial is not all one-sided; it required that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. (ii) The trial process itself is equipped to deal with the bulk of the complaints on which the applications for a stay are founded.” 49. At paragraph 26, Brooke LJ said that the power of a Court to regulate the admissibility of evidence by the use of its powers under section 78 of PACE is one example of the inherent strength of the trial process itself to prevent unfairness. The Court’s attention can be drawn to any breaches by the police of the codes of practice under PACE, and the Court can be invited to exclude evidence where such breaches have occurred. That is of course what occurred in the present case. 50. At paragraph 27, Brooke LJ continued that it is commonplace in trials for a defendant to rely on “holes” in the prosecution case, for example a failure to take fingerprints of a failure to submit evidential material to forensic examination. He also noted that often the absence of evidence such as a video film is likely to hamper the prosecution as much as the defence. 51. Finally, at paragraph 28, Brooke LJ quoted what had been said by Lord Lane CJ in Attorney General’s Reference (No 1 of 1990) [1992] QB 630, at 644: “… no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court.” 52. In the present case, the Judge was not satisfied that there would be “serious prejudice” to the Appellant by reason of the loss of the footage from which the stills had been taken. 53. The Judge also referred to the recent decision of this Court in Yaryare , in which Fulford LJ (Vice-President of the Court of Appeal, Criminal Division) summarised the authorities in this area of law as follows, at paragraphs 87-88: “87. … whether a failure to follow Code D renders the verdict unsafe will depend on the particular facts of the case, and the court will need to consider the extent and significance of any breaches of the Code and any consequential unfairness that have been caused (see Deakin at [28]). 88. … although the impact of the breach or breaches of Code will, therefore, vary between cases, two notable strands are to be discerned from the authorities. On the one hand, there are cases such as Smith and Deakin in which no contemporaneous record was kept and the recognition evidence was inherently poor. In Smith the recognition was based on no more than his stature and his clothing ‘it’s everything, it’s not one particular thing, it’s the whole really’ but not including recognition of his face (see the judgment at [64] and [65]). In Deakin , the officer who suggested he recognised the appellant gave no details as to what features led him to this conclusion, and instead simply stated that he was in no doubt that the man in the green T-shirt was the appellant (see the judgment at [7]) having viewed the footage 3 times. On the basis that the evidence should have been excluded, the conviction in Smith would have been quashed had there not been additional material implicating the appellant and in Deakin the conviction was quashed. On the other hand, in cases such as Chaney [ R v Chaney [2009] EWCA Crim 21 ; [2009] 1 Cr App R 35 ] and Lariba [ R v Lariba [2015] EWCA Crim 478 ; [2015] Crim. L.R. 534], notwithstanding the failure to apply Code D (including in Chaney promptings by other officers that the defendant may be in the stills or CCTV footage), if a detailed explanation is given of the basis for the recognition, particularly when the jury is in a position to view the relevant material itself, it may—depending always on other factors—be fair to admit the recognition evidence.” Assessment 54. As both sides agree, the central ground on this appeal is Ground 1. We remind ourselves that this Court does not sit to re-hear the case as if it were the court of first instance. 55. The task which the trial court has to perform under section 78 of PACE is not strictly speaking an exercise of discretion because, if a court decided that admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that it ought not to admit it, it cannot logically exercise a discretion to admit it: see R v Chalkley [1998] QB 848 , at 874 (Auld LJ); R v Twigg [2019] EWCA Crim 1553 ; [2019] 1 WLR 6533 , at paras 42-43 (Singh LJ); and R v Boxall (Arthur) [2020] EWCA Crim 688 , at para 49, where it was said that the exercise of the judgment under section 78 is more properly described as “an evaluative decision ensuring there is a fair trial in accordance with Article 6 ECHR [European Convention on Human Rights]” (Spencer J). 56. Nevertheless, when considering an appeal from the decision of the trial judge, in particular when there have been breaches of the codes under PACE, this Court would have to be satisfied that no reasonable judge, having heard the evidence, could have reached the conclusion that he did: see R v Quinn [1995] 1 Cr App R 480 , at 489 (Lord Taylor CJ); and R v Dures (Thomas) [1997] 2 Cr App R 247 , at 261-262 (Rose LJ). 57. This Court will not interfere with the evaluative judgment of the trial judge simply because it might have taken a different view. Ultimately the test which this Court must apply under section 2(1) of the Criminal Appeal Act 1968 , as amended, is whether a conviction is safe or not. If it is not safe, this Court must allow the appeal; if it is safe, the Court must dismiss the appeal. 58. In the circumstances of this case we have reached the conclusion that the convictions are safe. Despite the acknowledged breaches of Code D, which were multiple and significant, this case is one, in our view, where the judge was entitled to conclude that fairness did not require the exclusion of the recognition evidence of DC Arthur and DC Sengelow. The judge’s rulings, which we have summarised above, are careful and thorough. He referred to the relevant authorities and applied the correct principles. 59. In essence we accept the Respondent’s submissions, which we have summarised above. We bear in mind in particular the following features of this case. First, although the contemporaneous notes which should have been made in detail were not made, there was evidence before the court later, at the voir dire , in which the police officers did explain the precise reasons which had led them to recognise the Appellant. This was not a case of mere assertion. Furthermore, this was evidence which the jury were able to assess for themselves by comparing the visual images which were before them. We have also viewed the still images and the video footage for ourselves. With the exception of the still images where the male in them is unmasked, they are clear and of a good quality and most of the face can be seen, as the Covid mask covers the mouth but not the nose. 60. The fact that there were breaches of Code D and the weaknesses in the evidence were pointed out to the jury by the judge in his written directions and his summing up, as were the inherent dangers in relying on identification and recognition evidence. Accordingly, we reject Ground 1. 61. As for Ground 2, Miss Hall rightly recognises that this would not be sufficient on its own for the appeal to succeed. We do not consider that it adds anything of substance to Ground 1. As we have noted above, the Judge took careful account of the principles set out by the Divisional Court in Ebrahim and was not satisfied that there had been “serious prejudice” to the Appellant by reason of the loss of the footage from which the stills had been taken. This was potentially damaging to the prosecution case as it left “holes” in their case, which the defence were able to point out to the jury. 62. Turning to Ground 3, the classic authority of this Court on how a submission of no case to answer should be treated by the trial judge is Galbraith , at page 1042 (Lord Lane CJ). If there is no evidence that the crime alleged has been committed, the judge should stop the case. Where there is some evidence that it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence, (a) where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty to stop the case; but (b) where the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability or other matters which are generally speaking within the province of the jury and where, on one possible view of the facts, there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. There will be borderline cases but these can safely be left to the discretion of the judge. 63. Applying those principles to the present case, we do not consider that the judge was required to stop the case after the close of the prosecution evidence. This was a case in which the judge could properly conclude that the issues of fact raised by the evidence were ones that should be left to the jury to determine, after the necessary warnings he had to (and did) give them. Conclusion 64. For the reasons we have given this appeal against conviction is dismissed.	{"ConvCourtName":["Crown Court at Newcastle Upon Tyne"],"ConvictPleaDate":["2022-11-22"],"ConvictOffence":["Robbery","Possession of a bladed article","Driving whilst disqualified"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Newcastle Upon Tyne"],"Sentence":["78 months’ imprisonment (Count 1)","Other sentences concurrent","Disqualified from driving for 51 months"],"SentServe":["Concurrent"],"WhatAncillary":["Disqualified from driving for 51 months"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Police recognition evidence","Stills from CCTV","Forensic evidence (for co-defendants)"],"DefEvidTypeTrial":["Offender denies offence","Alternative suspect evidence","No forensic link to appellant"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Admission of identification evidence by police officers despite breaches of Code D","Admission of CCTV stills from lost footage","Judge wrong to allow case to continue after prosecution case"],"SentGuideWhich":["Code of Practice D under Police and Criminal Evidence Act 1984","Section 78 of PACE"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge applied correct legal principles","Jury able to assess recognition evidence and compare with defendant","Breaches of Code D did not render conviction unsafe","No serious prejudice from loss of CCTV footage","Issues of fact properly left to jury"]}
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 202201164/A4 NCN: [2022] EWCA Crim 1292 Royal Courts of Justice Strand London WC2A 2LL Tuesday 9 August 2022 Before: LORD JUSTICE WARBY MRS JUSTICE O’FARRELL DBE MRS JUSTICE CUTTS DBE REGINA V VIENNA ISRAEL __________ 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 V SCULLY appeared on behalf of the Appellant _________ J U D G M E N T LORD JUSTICE WARBY: 1. This is an appeal against sentence by Vienna Israel, aged 40. On 23 March 2022 in the Crown Court at Isleworth she was sentenced to two years and eight months' imprisonment for one count of robbery to which she had earlier pleaded guilty. 2. The offence was a street robbery or mugging of a man aged 71 called Michael Farrer. It took place at about 9 am on Wednesday 27 October 2021 at an ATM outside a post office on Golborne Road, London. The complainant approached the ATM, looking round as he usually did to make sure that he was not being watched. He did not see this, but the appellant was behind him waiting to act. As he withdrew £150 from the ATM she approached him from behind and grabbed at the money. There was a scuffle lasting several seconds during which the complainant was struck in the stomach by the appellant's left elbow. He in due course released his grip on his cash and the appellant made off with it. 3. In a statement made on the day of the robbery the victim described being shaken up, having already been deaf in one ear, unsteady on his feet and on heightened alert. He spoke of anxiety such that on his way home he had been concerned that he was being followed. The incident had left him fearful of using that ATM and he had changed his habits as a result. 4. The incident had been captured on CCTV and the appellant was identifiable because in the scuffle she had dropped her mobile phone, with part of her name showing on the lock screen, and a scarf which returned a DNA match. She was arrested and interviewed on 10 January 2022 when she declined to answer police questions but gave a prepared statement saying that she could not recall the offence because of her daily drug use. 5. She had three previous convictions for possession of class B drugs and 21 other convictions for a further 48 offences between 1998, when she was aged 16, and the date of this offence. The previous offences included 28 theft, fraud and other acquisitive offences and three offences against the person. There was no previous offence of robbery. 6. The appellant's account as given to probation was that at the time of the offence she had been largely street homeless and "very bad on drugs" using about £250-worth a day, funded by thefts and sex work. She was a mother of six, all of her children having been taken into care. There was some evidence of mental health difficulties. 7. The Probation Officer's assessment was that this was a "relatively unsophisticated robbery" but one carried out with a degree of forethought. The victim's vulnerability was considered likely to have been a factor in the appellant's decision to attempt the offence. The offending was identified as an escalation given that the appellant's history disclosed mainly non-violent offending, save for an offence of grievous bodily harm at the age of 16 over 20 years earlier. Her drug use was considered the critical factor and one which would continue to spur acquisitive offending. 8. The author of the pre-sentence report assumed that the court would impose a custodial sentence. If the court wished to consider suspending that sentence the author did not feel able to put forward a realistic package of requirements. She noted that as things stood the appellant would be released street homeless with a high risk of relapse and re-offending. Her response to previous supervision had been poor with repeated failures to engage with probation leading to a number of breaches. She was in breach of a community order at the time of this offending. The author suggested that time in a structured environment to engage in treatment away from the stresses and temptations of the community might be helpful to the appellant in the long term. She would have time to work with appropriate support agencies to plan for her release from custody. 9. The sentencing judge, His Honour Judge Hammerton, was also provided with a drug rehabilitation requirement report from Turning Point. This concluded that the appellant was "using drugs problematically" but suggested that she appeared motivated to access treatment and was "appropriate" for a treatment pathway of fortnightly one-to-ones and 12 weekly plan reviews with a focus on alcohol dependency if appropriate. 10. The judge assessed the appellant's culpability as falling within Category B of the guideline. He said the force used was somewhere between very significant and minimal, the elbow in the stomach being a key factor. The harm, said the judge, was at the lower end of Category 2 given the change in lifestyle forced upon the victim. The starting point was thus one of four years with a range of between three and six. The judge identified three aggravating features: the appellant's previous convictions, her targeting of someone known to be vulnerable and the commission of the offence whilst subject to a community order. There were three mitigating factors: the conditions in custody at the time, the appellant's mental health issues and the absence of any previous robbery conviction. Taking account also of the appellant's personal mitigation, the sentence after a trial would have been one of 48 months. After full credit for her guilty plea the sentence was one of 32 months. The community order was revoked. 11. The judge's conclusions meant that he could not suspend the sentence. But he said that he had "anxiously considered" the guidelines for the imposition of custodial and community sentences and he had concluded that it would not have been appropriate to impose a community order having regard to the appellant's poor record of compliance. 12. The single judge gave the appellant leave to advance three grounds of appeal, which Mr Scully has ably argued before us today on her behalf. It is said that the sentencing judge, first, mis-categorised the culpability and secondly mis-categorised the harm with the result that the sentence was manifestly excessive. Thirdly, it is said that the sentence after reduction of plea should not have been more than two years' imprisonment and should in all the circumstances have been suspended. 13. We have reflected on these submissions, attractively presented as they were. As for culpability, the prosecution and the Probation Officer both suggested that the case fell into Category C as it involved the "threat or use of minimal force". We can see why. But like the judge we have viewed the CCTV recording and we think he was right to reject that view of the matter. We accept of course that the offence of robbery will always require some force to be used, but here the force was more prolonged than it is in the typical case of low-level street robbery which involves mere snatching with brief or no physical contact. Here there was a tussle and also the elbow in the ribs, which takes the case up to the scale. In our judgment the degree of force deployed to wrestle the cash from the victim was properly assessed as more than "minimal". It falls into Category B which covers the threat of violence by a weapon produced or not and "other cases that fall between Categories A and C." 14. That said, the force used here does fall very much at the lower end of Category B, given the modest degree of force involved and the fact that Category A involves the use of a weapon to inflict violence, or "very significant" force, or the production of a blade or real or imitation firearm to threaten violence. 15. We take a similar view of the case when it comes to harm. The Probation Officer suggested this might be in harm Category 1. The prosecution persuaded the judge that it was in Category 2. The appellant submits that it was a case in Category 3, involving "no/minimal physical or psychological harm". In support of that submission Mr Scully has referred us to the case of R v Calvo and Smith [2017] EWCA Crim 1354 where this court granted a Reference by the Attorney General. The point made is that the evidence in that case was that the victim was "very shaken" but the harm was treated as minimal. 16. Like the sentencing judge we derive no real assistance from that case. On the evidence before him in this case the judge was entitled to reject the notion that this 71-year-old victim suffered no harm at all or only minimal harm. The judge was entitled to conclude that there was some psychological impact which placed the case in harm Category 2 but at the lower end. 17. It follows that in our judgment the judge identified the correct sentencing bracket. He also correctly identified the aggravating and mitigating factors. Having done so, however, he arrived at a notional sentence after a trial which matched the category starting point. In our judgment, he fell into error at this stage. The location of the culpability and harm factors at the bottom end of each scale required an initial downward adjustment of the category starting point to the bottom of the category range. Although the aggravating features were significant, we do not think they outbalanced the mitigation. The appellant's previous offending was of lesser severity and, viewed in context, relatively old. Accordingly, the four-year notional sentence after a trial was manifestly excessive. We do not consider that in all the circumstances a sentence of more than three years would have been merited after the trial. Applying the full one-third credit for the early guilty plea, which was first indicated in the Magistrates' Court, we arrive at a sentence of two years' imprisonment. 18. We cannot however uphold the third ground of appeal, which Mr Scully did not press in his oral submissions. The judge expressly considered the imposition guidelines and the issue of whether a non-custodial option was realistic. He concluded that it was not for reasons that, if sound, inevitably hold good for the alternative option of a suspended sentence with requirements. The appellant's personal history and circumstances do attract sympathy but do not amount to strong personal mitigation. The key issue was whether there was a realistic prospect of rehabilitation. The clear view of probation was that a non-custodial sentence was impracticable and that the only realistic prospect of rehabilitation lay in treatment within the context of a custodial sentence, which we are told is now something available to the appellant. The difference between the pre-sentence report and the DRR report was stark, the pivotal issue being how realistic it was that the appellant would adhere to the DRR plan. The Probation Officer was so sceptical that she felt unable to identify any alternative to immediate custody. Those views were based on a careful review of the appellant's track record. The DRR report made no in-depth assessment of the question. Indeed it contained no acknowledgment of the appellant's lamentable history of non-compliance which, as the judge noted, included failing to turn up for an appointment at Turning Point itself. It is unclear whether the author of the DRR report was even aware of those matters. The judge's view was plainly open to him and cannot be categorised as wrong in principle. 19. For those reasons, we quash the sentence of two years and eight months' immediate imprisonment and substitute a sentence of two years' immediate imprisonment. To that extent this appeal succeeds.	{"ConvCourtName":["Crown Court at Isleworth"],"ConvictPleaDate":[""],"ConvictOffence":["Robbery"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["earliest opportunity","first indicated in the Magistrates' Court"],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Isleworth"],"Sentence":["2 years and 8 months' imprisonment (original)","2 years' imprisonment (substituted on appeal)"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Female"],"OffAgeOffence":[40],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Homeless"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[71],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["CCTV","DNA match","Victim testimony"],"DefEvidTypeTrial":["Offender denies offence (prepared statement: could not recall due to drug use)"],"PreSentReport":["High risk of reoffending"],"AggFactSent":["previous convictions","targeting of someone known to be vulnerable","commission of the offence whilst subject to a community order"],"MitFactSent":["conditions in custody at the time","mental health issues","absence of any previous robbery conviction"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["mis-categorised the culpability","mis-categorised the harm","sentence after reduction of plea should not have been more than two years' imprisonment and should have been suspended"],"SentGuideWhich":["Sentencing Council's (definitive) Guideline for Robbery"],"AppealOutcome":["Allowed and sentence reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["culpability and harm factors at the bottom end of each scale required downward adjustment; aggravating features did not outbalance mitigation; previous offending was of lesser severity and relatively old; four-year notional sentence after trial was manifestly excessive"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["judge's view on non-custodial option was open to him and not wrong in principle"]}
Neutral Citation Number: [2017] EWCA Crim 374 C ase No: 201601980 C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 22 February 2017 B e f o r e : LORD JUSTICE SIMON MR JUSTICE HOLROYDE MR JUSTICE SOOLE - - - - - - - - - - - - - - - - - - - - - R E G I N A v KARL JASON RICHTER-JOHN - - - - - - - - - - - - - - - - - - - - - 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 S Farrell QC appeared on behalf of the Applicant The Crown did not attend and was unrepresented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE HOLROYDE: This matter comes before the court on a renewed application for leave to appeal against conviction following a refusal by the single judge. 2. We are grateful to Mr Farrell QC, who was instructed in the case after the single judge had given his decision, for his written submissions and his oral submissions to the court this morning. 3. The grounds of appeal focus on the decision of the trial judge to admit in evidence two matters. First, the discovery in a warehouse in Swansea of items associated with the processing or trafficking of controlled drugs, on which were found the fingerprints of this Applicant. Secondly, evidence of the conviction of the Applicant many years ago for an offence of being concerned in the importation of cannabis. The cannabis imported on that occasion came from South Africa by air, as did the cannabis which was the subject of this trial. The quantity of the earlier matter was, however, very much less than the quantity involved in the present case. 4. Mr Farrell submits that the basis on which the first of those two categories of evidence might be admitted was wrongly identified at trial. Whether it was because of the way the matter was placed before the judge, Mr Farrell does not profess to know, but he submits that in the event, there was no proper focus, as there should have been, on the relevant provisions of the Criminal Justice Act 2003 , in particular sections 101(1) (d) and 101(3). 5. We note that the prosecution's written notice of application to adduce bad character evidence appears to have been focused on the second category of evidence and mentioned the first only tangentially. We note also that the learned judge seems to have been considering the admissibility of the first category evidence more in the context of a defence application to exclude than in the context of a prosecution application to admit. 6. Mr Farrell goes on to submit that absent the two categories of contentious evidence, the remaining prosecution evidence against this Applicant was very weak. Thus, he submits, particular care was required on the part of the learned judge to identify the precise basis on which evidence of bad character might be admissible so as to be able to make a proper assessment of whether its probative value outweighed its prejudicial effect. 7. We are persuaded that these grounds are arguable and we therefore allow the application and grant leave to appeal. 8. LORD JUSTICE SIMON: Thank you very much. 9. MR FARRELL: Thank you very much, my Lords. 10. LORD JUSTICE SIMON: I think we probably need to direct a transcript of the argument leading up to the ruling on 26 January 2016. 11. MR FARRELL: Could I just check? (Pause) 12. I do not think we do have that. Certainly if we do not have it, we certainly need it. 13. LORD JUSTICE SIMON: We do need it. How long will it take to get that, six weeks? 14. MR FARRELL: Six weeks. Yes, I am sure. 15. LORD JUSTICE SIMON: Then you need an extension of time. I think it is implicit that we grant that. 16. MR FARRELL: Thank you very much indeed. 17. LORD JUSTICE SIMON: We will direct there should be a Respondent's skeleton. We have a respondent's notice, but I think there should be a Respondent's skeleton dealing with the particular points that you have raised and addressed by my Lord's judgment. 18. MR FARRELL: Yes. I will make sure that I send a copy of my skeleton argument to prosecuting counsel, so I will e-mail it to him. (Pause) 19. LORD JUSTICE SIMON: If you could send your skeleton in the next week, then we will allow a further three weeks for the prosecution respondent's notice. 20. MR FARRELL: Sorry. So I am to send my current skeleton to the prosecution? 21. LORD JUSTICE SIMON: Yes. 22. MR FARRELL: Well, I will do that today -- 23. LORD JUSTICE SIMON: Yes, so be it. 24. MR FARRELL: -- when I get back to chambers. Thank you very much indeed. 25. LORD JUSTICE SIMON: Very good. Anything else? 26. MR FARRELL: No thank you. 27. LORD JUSTICE SIMON: Thank you for your submissions. 28. MR FARRELL: Thank you very much, my Lords.	{"ConvCourtName":[""],"ConvictPleaDate":[""],"ConvictOffence":[""],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Organisation"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Fingerprint evidence","Previous conviction evidence"],"DefEvidTypeTrial":[""],"PreSentReport":["High risk of harm"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Improper admission of bad character evidence under Criminal Justice Act 2003 sections 101(1)(d) and 101(3)"],"SentGuideWhich":["Criminal Justice Act 2003 sections 101(1)(d) and 101(3)"],"AppealOutcome":["Leave to appeal granted"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
Case No: 200703961/B4 Neutral Citation Number: [2008] EWCA Crim 1455 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 4th June 2008 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE TEARE MR JUSTICE KING - - - - - - - - - - - - - - - - - - - - - R E G I N A v HERBERT MEDZISO CHINGANGA - - - - - - - - - - - - - - - - - - - - - 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 D Bunting appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE THOMAS: Nearly these years ago, on 9th June 2005 at the Crown Court at Liverpool before His Honour Judge Lewis and a jury, the appellant was convicted of entering the United Kingdom without an immigration document contrary to section 2(1) of the Asylym and Immigration (Treatment of Claimants) Act 2004. He was sentenced to a term of imprisonment of six months less time on remand. 1. His application for leave to appeal and an extension of time was refused by the single judge. He did so in these terms: "I considered the papers in your case and your grounds of appeal. I do not consider that the point raised is such as to cast doubt on the safety of your conviction and your application is well over a year late. I refuse you an extension of time." 2. The applicant renews his application for leave to appeal through counsel. We shall say at the outset that we regard the view of the learned single judge as entirely correct. This is an unmeritorious renewed application. Had the appellant been in custody we would have considered exercising our powers to direct that time should not count. 3. The facts are very simple. On 20th April 2005 the applicant attended the asylum screening unit in Liverpool and applied for asylum. He was not in possession of a valid passport and said he would not be able to produce one in three days. He told the officer that he had arrived in the United Kingdom via Gatwick Airport four days beforehand. He was arrested and taken to St Anne Street police station. In interview later that evening he said he had fled Zimbabwe and had entered the United Kingdom with the assistance of an agent called Oscar. He had used a forged passport which he had handed back to Oscar following his arrival. Oscar had completed all the relevant paperwork and once they were in the United Kingdom asked him to give him back the passport. He did so and they went their separate ways. He had never owned a valid passport. The prosecution case was a simple one - he had failed to produce a valid immigration document. The defence case was that the applicant was dependent on the agent who brought him to the United Kingdom and to whom he gave back the passport on arrival. He had a reasonable excuse under section 2 of the Act for failing to produce an appropriate immigration document within three days. 4. In a little more detail, it was the defence case, according to the evidence given by the applicant, that shortly before his arrival in the United Kingdom he had been kidnapped in Zimbabwe by men from the Central Intelligence Organisation. They questioned him about his brother, who worked for the British Army, beat him up and kept him over night. When they released him the next day they threatened to come back for him. He informed his brother what had happened and he warned him that if he did not leave Zimbabwe his life would be at risk. He was put in touch with an agent who arranged his passport and travel documentation. He left the country on a false passport. He had then given back the passport to that agent as we have described. 5. The present immigration status of the applicant is that his asylum application has been refused. His appeal has been refused. His request for reconsideration has been refused. He is now appealing to the Civil Division of this court against the decision of the AIT in that respect. 6. As we have already observed, this is a renewed application at least one year out of time. It is made on the basis that the judge misdirected the jury in relation to section 2(4) of the Act which provides: "It is a defence for a person charged with an offence under subsection (1) -- ... (c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1), (d) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or (e) to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document." 7. The meaning of that section was considered by this court, a constitution presided over by the President of the Queen's Bench Division, in R v Mohammed and R v Osman [2007] EWCA Crim 2332 . The judgment of the President contains a very careful review of the subsection and makes clear the way in which the sections operate together at paragraph 24 and 26 and as applied to the facts of the case in paragraphs 36 and 38. The appeals in that case were allowed on basis that the jury were not directed to consider whether each appellant's excuse for failing to produce the false document used to gain entry to the United Kingdom may have been reasonable. The court came to the view, reading the sections together, that if someone came to this country without a valid immigration document, but which they could not produce, they would have a defence if they proved that they had a reasonable excuse for not being in possession of the document. 8. That is the way in which the learned judge directed the jury. It has been submitted to us that the judge made some sort of mistake. We simply do not understand the submission and can only conclude that counsel has unfortunately misread the decision in Mohammed and Osman . The judge directed the jury exactly in accordance with the defence case, namely that his excuse for not producing the forged document was that it was reasonable for him to have handed it back to Oscar. No doubt Oscar had required it back because the document might have disclosed how it had been obtained, or he may have wanted to use it on another occasion. 9. The judge fairly and squarely put that issue to the jury. He fairly, squarely and correctly directed them in accordance with what the Court of Appeal has since said; the application is wholly without merit. 10. Even if there had been anything in the point, we would have considered the question whether there had been a substantial injustice in this case in accordance with the test as set out again in another decision of the President - Cottrell [2007] EWCA Crim 2016 . Having regard to the factors set out in this case, it is clear that the applicant had a very fair trial. It is clear that the jury disbelieved what was said and he has served his sentence. The judge put the issue fairly and squarely before them and told them that if they accepted his explanation of what had happened they should acquit. In our view, as we have already said, this renewed application is without merit and it is refused.	{"ConvCourtName":["Crown Court at Liverpool"],"ConvictPleaDate":["2005-06-09"],"ConvictOffence":["Entering the United Kingdom without an immigration document contrary to section 2(1) of the Asylum and Immigration (Treatment of Claimants) Act 2004"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Liverpool"],"Sentence":["Six months imprisonment less time on remand"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["Evidence given by the applicant"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge misdirected the jury in relation to section 2(4) of the Act"],"SentGuideWhich":["section 2(1) and 2(4) of the Asylum and Immigration (Treatment of Claimants) Act 2004"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["The judge directed the jury correctly and fairly in accordance with the law; the application is wholly without merit; the applicant had a fair trial; the jury disbelieved the applicant's explanation; the renewed application is refused."]}
Neutral Citation Number: [2011] EWCA Crim 2587 Case No: 201002901/D3-201002902/D3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 28th June 2011 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE RYDER MR JUSTICE CALVERT-SMITH - - - - - - - - - - - - - - - - - - - - - R E G I N A v SEBASTIAN MATEZA PEDRO MATEZA - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr D Jameson appeared on behalf of the Appellant S Mateza Mr L McNulty appeared on behalf of the Appellant P Mateza Mr D Brock appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE THOMAS: On 5th September 2009 a 16-year-old woman, Charis Tomaszewska, was attacked in Chiswick, London. Undoubtedly she was shot in the stomach. It was her case that she had been dragged by a group of young men into some bushes, beaten up and then shot. Her case was that this was a revenge attack for reasons which she explained. 2. The two appellants, Sebastian and Pedro Mateza, who appeal by leave of the single judge, were arrested and, together with some others, were tried in the Crown Court at Isleworth before Her Honour Judge Molyneaux and a jury on a number of offences, including an offence under section 18 and firearms offences. There was one other count in the indictment to which it will be necessary to refer at slightly greater length. 3. The Crown's case was, as we have indicated, that this was a pre-arranged revenge attack. 4. The two appellants denied involvement. Sebastian had an alibi, as we should explain. 5. They were convicted of the offence under section 18 and the firearms offences. 6. The issues which arise on the appeal are two. First, whether the judge should have admitted a text message which Pedro wanted to adduce in evidence and second whether the judge was correct, in the circumstances of the case, to leave the matter to the jury. 7. The evidence 8. It is necessary, first, to set out the evidence. It is important to emphasise at the outset that there was essentially no forensic evidence against any of those that were tried and in particular against the two appellants. Much of the case, indeed it is contended by Mr Jameson and Mr McNulty who appear on behalf of the two appellants, that the whole case depended upon the evidence of the complainant. 9. Her evidence was broadly as follows. She had been in a relationship with Sebastian. It was a somewhat volatile relationship and they had broken up in April 2009. That was common ground. It was also common ground in very early September 2009, shortly before the shooting, that Sebastian was beaten up as he left the complainant's house. 10. The evidence of the complainant can be summarised as follows. First, she had understood that Sebastian believed that she had set him up for the beating. On 4th September 2009 she was telephoned by Sebastian when she was visiting a friend. He asked to meet him on the Chiswick High Road. She agreed to do so. Sebastian was there with his brother, Pedro. He suggested they go back to his brother's flat to smoke some cannabis. As they were on their way, they met four other males. She did not recognise them all. She only recognised one of the co-defendants, Daniel Kongo. The other three were the other defendants in the case. She was then attacked. She was hit and kicked by Pedro first. Then Sebastian held a gun to her head. He hit her with it. He was then handed another weapon (an air rifle) and heard someone shouting in slang "fire it". She was then shot. They continued the attack. It stopped when police sirens were heard. They all moved away. 11. There were many inconsistencies in her evidence to which we will return. There were two further incidents relating to her evidence, one which included the admitted fabrication by her of evidence to which we will need to refer. 12. In addition to her evidence, evidence was called from residents who described an attack taking place. There are two features which are important about their evidence. First, they did not identify anyone but did identify a group of people attacking someone. Secondly, they phoned the police. 13. When the police arrived they found the complainant. At the scene she named two of the attackers as Sebastian and Pedro. Significantly, and it is easiest to see this by reference to the cartography of the area, five males were stopped by the police about 150 yards from the scene of where the complainant had been shot. One of those was Pedro, the other was Kongo and three others who were charged and tried. 14. The police also found at the scene where she had been shot an air rifle which was concealed fairly badly under some ivy which was growing in the communal garden of the flats where Pedro and Sebastian lived. Secondly, in a bag, two starter pistols were found, one unconverted and one converted. Ammunition was also found. 15. The complainant was taken to hospital. A gunshot wound penetrating her stomach was found and there was an X-ray which showed a pellet had lodged in her body but no one found it. She was detained in hospital for some three days when she was released. An ABE interview was then conducted. 16. Evidence was called from a senior consultant at the hospital to give evidence, by reference to the notes that had been taken. Their significance to the defence was that they indicated very little by way of bruising, which was said to be inconsistent with the account to which we have referred that was given by the complainant of her being beaten up apart from being shot. 17. In interview, Pedro admitted he had met the complainant when he saw four others. He saw an altercation between the complainant and those. He left to go to his flat. He heard screams and he went to see what was happening, but he had nothing to do with the attack. Sebastian claimed he was at a cinema in Kingston in the course of his interview. 18. At the conclusion of the Crown's evidence the judge, as we have said, heard submissions of no case to answer. One of the defendants, Marcus Aco, to whom we shall return, was successful. The judge directed a verdict of not guilty. That having happened it appears that the other defendants, including the two appellants, made similar submissions but the judge rejected those and held there was a case to go to the jury. 19. After that ruling none of the defendants gave evidence. The judge summed the case up to the jury and, as is relevant to this appeal, the two appellants were convicted as was Kongo. We do not think it necessary to describe in outline the facts of this case in any greater detail and can turn to the two issues raised in the appeal. Text Messages 20. The first of the issues, as we have indicated, related to a text message. Mr McNulty, who has appeared before us today, and has provided us with a thorough and extremely helpful skeleton argument set out the circumstances in which he advanced the case for the admission of the text message. That was a text message found on Daniel Kongo's phone received by Daniel Kongo on 3rd September 2009 from an unknown sender. It said: "I've got straps for sale." Meaning in every day parlance, that he had guns for sale. It is right to point out, as Mr Brock has done so on behalf of the Crown, that the disclosure of this evidence was at a very late stage. Although the point had not been made before on behalf of Pedro, the point was taken on behalf of Pedro by Mr McNulty that this was evidence that Kongo was interested in buying guns. It was relevant and important because it suggested on Pedro's account of the four people he had met that they might be going to a place where there were a gun transaction was going to take place, or guns were concealed or something of the kind. It was his case that the guns at the location that were found had nothing to do with the attack alleged by the complainant, by Sebastian and Pedro; it was all to do with the four people he had encountered. When he applied to put this text message in, perhaps unsurprisingly, it was opposed vigorously by counsel on behalf of the Kongo. 21. The judge declined to admit the evidence. She relied on the decision of this court in R v Leonard [2009] EWCA 1251. She held that it was not an implied assertion of his interest but simply an offer of guns. Secondly, it was a random message from an unknown person. 22. We do not think it necessary to analyse the judge's reasoning any further because she was relying on the decision in Leonard . That was a case which was one of a number of cases relating to the hearsay provisions relating to text messages that were reviewed by the court in R v Twist [2011] EWCA Crim 1143 , a judgment handed down by this court in April 2011. The judgment contains a comprehensive analysis of the hearsay provisions of the Criminal Justice Act 2003 . It made clear to everyone that the Act set out a wholly new definition of hearsay evidence and a statutory code for dealing with it. It was therefore not helpful to go behind it to the earlier cases or to refer to phrases such as "implied assertions". 23. It was accepted by counsel for the Crown and put forward by Mr McNulty that the analysis carried out in Twist was the analysis that we should adopt. We agree with that. It seems to us for the future it is entirely unnecessary for any court to look at cases earlier than Twist because Twist sets out all of the relevant considerations and the correct approach. It is therefore unnecessary for us, in the light of the submissions made and our view of the case, to set out any further reasons why we consider that Twist is the case to be followed. We cannot in any way improve upon that analysis, but would merely commend it to the courts of the future. 24. Adopting that analysis as relevant to this case, we ask ourselves four questions. First: what is the relevant matter to be proved? It is clear in this case that the relevant matter Mr McNulty wished to have proved on behalf of his client was that Kongo was a man interested in purchasing guns. The second question we asked: is there a statement of that matter in the text? The answer is "no", the hearsay provisions are therefore not relevant. The fact that the hearsay provisions are not relevant does not mean that the evidence is not relevant. One has to ask oneself the third question: is it relevant evidence? On the case being advanced by Mr McNulty it seems to us that to the explanation that he wished to put forward it was relevant to show that Kongo was interested in purchasing guns. 25. The fourth question that we have so ask is: could that conclusion that he was interested in buying guns be derived from the text? We find that a question on the material before us more difficult to answer. We do not know, for example, whether this was one of a few texts that Kongo had kept on his phone. If, for example, he received a large number of texts and had retained this one relating to the offer of guns, it seems that it would therefore be strong evidence that he might be interested in buying guns. But on its own, and without knowing much more, it is very difficult for us to assess, on the evidence before us, whether this was some evidence that was right to go before the jury, or alternatively, whether it really just was one of a random messages, which could have been no value at all to the matter which Mr McNulty's client sought to prove. 26. We therefore turn on that basis to consider whether the ruling of the judge, which on that basis would have been wrong, affects the safety of the conviction. It seems to us that looking at the whole of the other evidence in the case, assuming for these purposes that there was a case to answer because this, in our judgment, makes no real difference to that issue, would it have made a difference? In our judgment it would not. As we shall explain in due course, there was evidence from the complainant and, as we shall consider in a moment, and the question for us is whether there was other evidence to support that: was it in relation to the particular case that Mr McNulty was putting forward on behalf of Pedro of any real materiality that there might be an interest in Kongo wanting to acquire a weapon. 27. We cannot think it could do so. It was obvious to us that if Kongo had been interested in acquiring guns this would have been some evidence that he might well have been prepared to take part in an attack involving guns, but it is fanciful to suggest, given the circumstances in which the air rifle and the two starter guns were found, that this was some sort of transaction that Pedro happened to stumble on. As we shall explain when we turn to analyse the case, we cannot see that any view could have been taken of this defence as was put by others at trial than it was fanciful in the extreme. Was there a case to answer? 28. We therefore turn to consider the second ground: was there a case to answer? As we have already indicated, the submission that was made was that the complainant was not merely an inconsistent witness, not merely a lying witness, but a witness who had gone so far as to be prepared to fabricate evidence. Therefore the case was put to us, very forcibly by Mr Jameson and Mr McNulty, who provided skeleton arguments which were comprehensive and who added to their submissions orally today with great succinctness, that this was unlike almost any other case because the judge had found she had fabricated a part of the evidence. 29. The inconsistencies can be summarised under a number of headings. First, the complainant had given different reasons for the attack. She had said one thing at the scene, she had given a different account at her ABE interview and on 15th October she had given a different account of the reasons of the attack. Secondly, as to the roles of each defendant, she had given inconsistent accounts of what they had done. We accept that that is the case in relation to the others though she appears to be more consistent in relation to Pedro, Sebastian and Kongo. Thirdly, reliance is placed on the medical evidence. As we have indicated, a senior consultant was called. She explained that when young doctors at a hospital received someone with a gunshot wound, they would wish to deal with that and not record in any detail in the notes what bruises she may have suffered. However, it has to be accepted that although the complainant said she had bruises, there were no notes of them apart from some reference to tenderness and bruising to the leg. Against that, it has to be noted that the DVD evidence of her ABE interview, when played to the jury showed some evidence of some bruising which the complainant pointed out. There were no photographs of that. So in respect of the medical evidence one can say, as in respect of the other two headings, that there was some evidence of inconsistency. 30. One next turns to the complainant's character. She had a caution and reprimand for shoplifting in 2006. She had convictions for the robbery of two mobile phones in each of 2007 and 2008. In 2009, she had a conviction for shop theft and later in 2009, prior to the trial, a conviction under section 5 for a public order offence relating to an argument with a ticket inspector. Whereas the last may not have been relevant to her honesty, she plainly was involved in offences of dishonesty prior to that. So the second matter raised, in addition to the inconsistency, is that one had a witness who plainly had committed offences of dishonesty. 31. However, much more significant and at the heart of their submissions was the third separate matter on which they relied, namely the fabrication of evidence. One of the counts in the indictment, count 8, charged Pedro and one of the other defendants Stephen Bunga with intimidation of the complainant. That charge arose from the complaint she had made about Pedro and Stephen Bunga shouting threats at her in the vicinity of Homebase in Richmond on 15th October 2009. 32. For reasons that it is not necessary to explain, after the complainant had given evidence, it transpired that she had fabricated a page on Facebook to explain away an inconsistent account that she had given to a friend about what happened on 15th October. There can be no doubt at all on the evidence before the court that the judge was right to conclude that she had fabricated the evidence of the Facebook page, in relation to that incident and the seriousness of it was aggravated by the fact that she had done so during the course of the trial. The judge, in consequence, directed an acquittal in respect of count 8 in the indictment and found, as we have endeavoured to summarise, the complainant was guilty of fabrication. 33. The last matter, the fourth matter under these separate headings, was an incident that occurred on 11th March 2010 during the trial. During a break the complainant left court with her father and the officer in the case. She saw Sebastian's girlfriend and shouted at her that she was going to beat her up. The officer in the case gave evidence of this. The complainant’s account was that she was talking to her father and had said something to her father. It is submitted, and the judge it appears accepted this, that this was yet another lie. 34. So to summarise the part of the case advanced on behalf of Pedro and Sebastian there were not only the three inconsistencies to which we have referred, but her dishonesty (shown by her previous convictions), the fabrication, and finally, the lie in relation to events at the court. 35. With that catalogue of matters counsel for the two brothers next relied on what happened to one of the defendants to whom we have referred, Marcus Aco. As we have indicated the judge accepted a submission of no case to answer. 36. It appears that in the course of the complainant's evidence that when she was cross-examined she said that she had been kicked by Aco but he was somewhat reluctant. It also appears that one of the neighbours had given evidence that that she saw one of the participants in the attack had not got off his bike. It appeared that that was Aco. Unfortunately we do not have a copy of the judge's ruling as to why she accepted the submission of no case to answer against Aco, but what is powerfully argued by Mr Jameson and by Mr McNulty is that, as evidence had been given by the complainant of participation, namely he had kicked, even though reluctantly, and even if there was plainly evidence of the identity, how could the judge let Aco out of the case and find that there was no case to answer, on any other basis than it was the judge's view that the complainant could not be relied upon. 37. The answer Mr Brock, who has appeared for the Crown and been greatest of assistance to us, can be summarised: well, one has to look at the judge's ruling in terms of the neighbour's evidence that Aco had not got off his bike and therefore the case against him was not as strong a case as against the others. Furthermore, the question that was put to the complainant, which had elicited the answer to which we have referred, had been put by his own counsel. However, whatever may be the real reasons for the judge's ruling it is a factor we have to take into account. 38. So we turn to consider the case on the basis that her evidence was of central importance, and that her evidence must be put into the categorisation of not being simply unreliable but that of a witness who had fabricated matters; we must also take into account the position of Marcus Aco. 39. As against that we have to weigh up whether there was support for her account. First of all, there can be no doubt she was shot and shot by an air rifle. Secondly, that shooting took place in the communal gardens of the place where both Pedro and Sebastian lived. Thirdly, as we have already set out, the air rifle and two pistols were found at the scene. Fourthly, that five of the defendants, including Pedro, were found within 150 yards, very shortly after the attack. Fifthly, the neighbours saw a group of five attacking her. Sixth, as against Pedro there was not only the evidence of his presence by being found by the police but his own admission of being near the scene at the time, prior to the attack. Seventhly, there was the evidence that the Crown had adduced before the jury that the explanation put forward by Sebastian that he had been in the cinema did not provide an alibi, as there was time for him to get back and participant in the attack. 40. Sitting here, we do not have the benefit, which the learned trial judge had of seeing the witness, the complainant. We do however have the benefit of the analysis we have endeavoured to give in this judgment. 41. It seems to us that this was a case where it could be said that there was evidence to support the centrality of the account given by the complainant. The real factor, which no doubt caused the trial judge great anguish, was the fabrication of the evidence in relation to the Facebook entry. But nonetheless, it was, in our judgment, bearing in mind the certain matters to which we have referred that gave independent support to the attack, a matter very much for the trial judge to weigh up the two competing considerations which we have set out. 42. It would not, in all the circumstances, we think, be right for us to come to a different conclusion in relation to that issue, where she had the benefit that we do not have, of having seen the complainant. It seems to us therefore it was open to the trial judge to reach the decision she did and we cannot conclude that her judgment on that matter was either wrong in principle or outside the ambit of decision-making open to a trial judge. 43. But that is not the end of our consideration. We must, and we are directed by statute, to consider the safety of the conviction. We have had to ask ourselves the question: were all these issues therefore put properly before the jury, so the jury could weigh up, on the one hand, the account and what supported it and on the other, the lie, the complainant's bad character, the fabrication of one piece of evidence and the inconsistencies. There can be no doubt at all that all these matters were very carefully laid before the jury by the trial judge. They can have been under no doubt whatsoever about the view the trial judge had taken of the claimant and the very, very great caution that the jury had to follow. 44. But even that is not enough. We also have to satisfy ourselves by a review of the entirety of the evidence, that there was evidence on which the jury could properly and safely convict these two defendants. We have, with the great assistance of counsel, both in their written submissions to us and the very helpful oral submissions that we have heard today, carefully reviewed the evidence. 45. At the end of the day, we have come to the view that the conviction is safe. There was powerful supporting evidence, principally those seven items we have enumerated, which show that there was strong independent evidence to support the account that the complainant had given that two of those who attacked her had been the two appellants before us today. 46. Despite therefore the powerful and attractive way in which Mr Jameson and Mr McNulty have put the argument to us, we have reached the conclusion that this was a safe conviction and in those circumstances the appeal is to be dismissed.	{"ConvCourtName":["Crown Court at Isleworth"],"ConvictPleaDate":[],"ConvictOffence":["Offence under section 18","Firearms offences"],"AcquitOffence":["Intimidation of the complainant"],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[16],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Medical evidence","Police evidence","Physical evidence (weapons found)","Neighbour testimony"],"DefEvidTypeTrial":["Offender denies offence","Alibi claim","Inconsistencies in victim's account","Victim's bad character"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge should have admitted text message evidence","Judge was wrong to leave case to jury given complainant's fabrication and inconsistencies"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["There was sufficient independent evidence to support the complainant's account","All issues were properly put before the jury","Conviction is safe despite complainant's fabrication and inconsistencies"]}
Neutral Citation Number: [2016] EWCA Crim 1841 Case No: 201505475B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM Mr Justice Nicol T20157629 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/12/2016 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE OPENSHAW and MR JUSTICE MALES - - - - - - - - - - - - - - - - - - - - - Between : HADIZA BAWA-GARBA Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Zoe Johnson QC and Julian Woodbridge (instructed by RadcliffesLeBrasseur, London ) for the Appellant Andrew Thomas QC and Matthew Corbett-Jones (instructed by Crown Prosecution Service ) for the Respondent Hearing date : 29 November 2016 - - - - - - - - - - - - - - - - - - - - - Judgment Approved Sir Brian Leveson P : 1. On 4 November 2015, in the Crown Court at Nottingham before Nicol J and a jury, Dr Hadiza Bawa-Garba was convicted of manslaughter (by gross negligence). On 14 December 2015, she was sentenced to a term of two years’ imprisonment the operation of which was suspended for two years. She was also ordered to pay £25,000 towards the costs of the prosecution. A nurse on duty at the time (Isabel Amaro) was also convicted of the same offence; the ward sister (Theresa Taylor) was acquitted. 2. Dr Bawa-Garba now renews her application for leave to appeal against conviction after refusal by the single judge (Edis J). In the event, the Crown were directed to attend on the basis that, if leave was granted, the case would be considered on the basis that it constituted the hearing of the appeal. The Facts 3. Dr Bawa-Garba is a junior doctor specialising in paediatrics. In February 2011, she had recently returned to practice as a Registrar at the Leicester Royal Infirmary Hospital after 14 months of maternity leave. She was employed in the Children’s Assessment Unit of the hospital (“the Unit”) which was an admissions unit comprising of 15 places (beds and chairs) which would receive patients from Accident and Emergency or from direct referrals by a GP. Its purpose was to assess, diagnose and (if appropriate) then treat children, or to admit them onto a ward or to the Paediatric Intensive Care Unit as necessary. 4. The case concerns the care and treatment received by Jack Adcock, a six year old boy (born on 15 July 2004) who was diagnosed from birth with Downs Syndrome (Trisomy 21). As a baby, he was treated for a bowel abnormality and a “hole in the heart” which required surgery as a result of which he required long-term medication called enalapril and he was more susceptible to coughs, colds and resulting breathlessness. In the past Jack had required antibiotics for throat and chest infections, including one hospital admission for pneumonia. However, he was well supported by a close family, local doctors and learning support assistants and he was a thriving little boy, who attended a mainstream pre-school nursery and then a local primary school. He enjoyed playing with his younger sister and was a popular and energetic child. 5. On Friday 18 February 2011, Jack’s mother, Nicola Adcock, together with his grandmother, took Jack to see his GP, Dr Dhillon. Jack had been very unwell throughout the night and had not been himself the day before at school. The GP was also very concerned and he decided that Jack should be admitted to hospital immediately. Jack presented with dehydration caused by vomiting and diarrhoea and his breathing was shallow and his lips were slightly blue. 6. When Jack arrived and was admitted to the Unit at about 10.15 am, he was unresponsive and limp. He was seen by Sister Taylor, who immediately asked that he be assessed by the applicant, then the most senior junior doctor on duty. For the following 8-9 hours, he was in the Unit, under the care of three members of staff; at about 7.00 pm, he was transferred to a ward. During his time at the Unit, he was initially treated for acute gastro-enteritis (a stomach bug) and dehydration. After an x-ray he was subsequently treated for a chest infection (pneumonia) with antibiotics. The responsible staff were Dr Bawa-Garba and her two co-accused. 7. In fact, when Jack was admitted to hospital, he was suffering from pneumonia (a Group A Streptococcal infection, also referred to as a “GAS” infection) which caused his body to go into septic shock. The sepsis resulted in organ failure and, at 7.45 pm, caused his heart to fail. Despite efforts to resuscitate him (which were initially hampered by the mistaken belief that Jack was a child in the “do not resuscitate” or DNR category), at 9.20 pm, Jack died. 8. It was accepted that even on his admission to hospital, Jack was at risk of death from this condition (quantified as being in the range 4-20.8%). The expert evidence, however, revealed the clinical signs of septic shock which were present in Jack (cold peripheries, slow capillary relief time, breathlessness and cyanosis, lethargy and unresponsiveness). In addition, raised temperature, diarrhoea and breathlessness all pointed to infection being the cause. 9. The cause of death given after the post mortem was systemic sepsis complicating a streptococcal lower respiratory infection (pneumonia) combined with Down’s syndrome and the repaired hole in the heart. In those circumstances, the case for the Crown was that all three members of staff contributed to, or caused Jack’s death, by serious neglect which fell so far below the standard of care expected by competent professionals that it amounted to the criminal offence of gross negligence manslaughter. 10. In respect of Dr Bawa-Garba, the Crown relied on the evidence of Dr Simon Nadel, a consultant in paediatric intensive care. He considered that when Jack, as a seriously ill child, was referred to her by the nursing staff, Dr Bawa-Garba had responded, in part, appropriately in her initial assessment. His original view was that her preliminary diagnosis of gastro-enteritis was negligent but he later changed that opinion on the basis that the misdiagnosis did not amount to negligence until the point she received the results of the initial blood tests, which would have provided clear evidence that Jack was in shock. As to the position at that time, however, Dr Nadel’s evidence was that any competent junior doctor would have realised that condition. His conclusion was that had Jack subsequently been properly diagnosed and treated, he would not have died at the time and in the circumstances which he did. 11. To prove gross negligence, the Crown therefore relied on Dr Bawa-Garba’s treatment of Jack in light of those clinical findings and the obvious continuing deterioration in his condition which she failed to properly reassess and her failure to seek advice from a consultant at any stage. Although it was never suggested as causative, the Crown pointed to her attitude as demonstrated by the error as to whether a DNR (‘do not resuscitate’) notice applied to Jack. 12. In somewhat greater detail, the particular failings on which the prosecution case rested were, first, what was said to be Dr Bawa-Garba’s initial and hasty assessment of Jack (at about 10.45-11 am) after receiving the results of blood tests which ignored obvious clinical findings and symptoms, namely: i) a history of diarrhoea and vomiting for about 12 hours; ii) a patient who was lethargic and unresponsive; iii) a young child who did not flinch when a cannula was inserted (to administer fluids); iv) raised body temperature (fever) but cold hands and feet; v) poor perfusion of the skin (a test which sees how long it takes the skin to return to its normal colour when pressed); vi) blood gas reading showing he was acidotic (had a high measure of acid in his blood indicative of shock); vii) significant lactate reading from the same blood gas test, which was extremely high (a key warning sign of a critical illness); viii) the fact that all this was in a patient with a history which made him particularly vulnerable. 13. The second set of failings on which the prosecution rested related to subsequent consultations and the proper reassessment of Jack’s condition. More particularly, these were that Dr Bawa-Garba: i) did not properly review a chest x-ray taken at 12.01 pm which would have confirmed pneumonia much earlier; ii) at 12.12 pm, did not obtain enough blood from Jack to properly repeat the blood gas test and that the results she did obtain were, in any event, clearly abnormal but she then failed to act upon them; iii) failed to make proper clinical notes recording times of treatments and assessments; iv) failed to ensure that Jack was given appropriate antibiotics timeously (more particularly, until four hours after the x-ray); v) failed to obtain the results from the blood tests she ordered on her initial examination until about 4.15 pm and then failed properly to act on the obvious clinical findings and markedly increased test results. These results indicated both infection and organ failure from septic shock (CRP measurement of proteins in the blood indicative of infection, along with creatinine and urea measurements both indicative of kidney failure). 14. Furthermore, at 4.30 pm, when the senior consultant, Dr Stephen O’Riordan arrived on the ward for the normal staff/shift handover, Dr Bawa-Garba failed to raise any concerns other than flagging the high level of CRP and diagnosis of pneumonia. She said Jack had been much improved and was bouncing about. At 6.30 pm, she spoke to the consultant a second time but did not raise any concerns. 15. Before parting from the history, two further details need to be added, neither of which caused Jack’s death. First, having been transferred to a ward (Ward 28) and, thus, out of Dr Bawa-Garba’s care, Jack received what had been his usual dose of enalapril (for his unrelated conditions) from his mother shortly before he fatally collapsed. This was entirely understandable and known to the medical staff on the ward. In fact, Dr Bawa-Garba had deliberately not prescribed enalapril as she was aware (accurately) that it could lower blood pressure, particularly in a dehydrated child. It was agreed at trial that enalapril should not have been given and may have contributed to Jack’s death although it did not cause his death. 16. The second detail is that for a short while, Dr Bawa-Garba had a mistaken belief that Jack was a child for whom a decision had been made not to resuscitate: this was because she mistook Jack’s mother for the mother of another child. Although this was said to be indicative of the degree of attention or care that Jack was receiving, it was underlined that this had no material or causative impact. 17. The case advanced on behalf of Dr Bawa-Garba was that she was not at any stage guilty of gross negligence. Reliance was placed on the following details. i) Dr Bawa-Garba had taken a full history of the patient and carried out the necessary tests on his admission; ii) At 11.30-11.45 am, Jack was showing signs of improvement as a result of having been given fluids (although it was agreed that this improvement had not been documented). There were also clinical signs of improvement from the second blood gas results which were available at 12.12 pm; Jack had been sitting up and laughing during the x-ray and reacted to having his finger pricked. iii) Dr Bawa-Garba was correct to be cautious about introducing too much fluid into Jack because of his heart condition. iv) A failure in the hospital’s electronic computer system that day meant that although she had ordered blood tests at about 10.45am, she did not receive the blood test results from the hospital laboratory in the normal way and she was without the assistance of a senior house officer as a consequence. The results were delayed despite her best endeavours to obtain them. She finally received them at about 4.15pm. v) Dr Bawa-Garba had flagged up the increased CRP infection markers in Jack’s blood to the consultant, Dr O’Riordan, together with the patient’s history and treatment at the handover meeting at 4.30pm. The consultant had overall responsibility for Jack vi) A shortage of permanent nurses meant that agency nurses (who included Nurse Amaro) were being used more extensively. vii) Nurse Amaro had failed properly to observe the patient and to communicate Jack’s deterioration to her, particularly as Dr Bawa-Garba was heavily involved in treating other children between 12 and 3pm (including a baby that needed a lumbar puncture). The nurse also turned off the oxygen saturation monitoring equipment without telling Dr Bawa-Garba and, at 3 pm, when Jack was looking better, the nurse did not tell her about Jack’s high temperature 40 minutes earlier or the extensive changing of the nappies. viii) Dr Bawa-Garba had prescribed antibiotics for Jack at 3pm as soon as she saw the x-ray (which she agreed she should have seen earlier), but the Nurses failed to inform her that the x-rays were ready previously and then failed to administer the antibiotics until much after she had prescribed them (an hour later). ix) At 7 pm, the decision to transfer Jack to Ward 28 was not hers and she bore no responsibility for the administration of enalapril: x) The mistaken belief that Jack was a “DNR” was made towards the end of her 12/13 hour double shift and was very quickly corrected. It was agreed that her actions in attending with the resuscitation team and communicating this made no difference, although that incident would have been highly traumatic for Jack’s family. 18. Dr Bawa-Garba gave evidence in her own defence and relied on her previous good character including positive character evidence. She had worked a double shift that day (12/13 hours straight) without any breaks and had been doing her clinical best, despite the demands placed upon her. She also called supportive expert evidence (from Dr Samuels) to the effect that septic shock was difficult to diagnose and Jack’s was a complicated case in which the symptoms were subtle and they were not all present. Finally, as intervening events, reliance was placed on the conduct of Nurse Amaro (including the delay in administering the antibiotics she prescribed), the problems with the computer system and the administration of the enalapril. The Approach of the Trial Judge 19. The essential issue that has arisen in the case concerned causation. Early on in his directions of law, Nicol J said: “Each defendant will be guilty of the offence only if her gross negligence caused or significantly contributed to Jack’s death. … In one sense, Jack died because of the infection which had spread through his body. ... What the prosecution has to show is that the negligence of the defendant whose case you are considering at least significantly contributed to Jack’s death. You have heard that even if everything that the Crown say ought to have been done for Jack had been done, he might not ultimately have survived but the Crown will have satisfied this element of the offence if they have made you sure that Jack died significantly sooner because of the negligence of the defendant whose case you are considering. Once again, how big a contribution has to be in order to qualify as significant is left to your good sense, although it must be more than trivial or minimal. So if you decide that the defendant in question was grossly negligent in her care of Jack, you must ask yourselves whether the defendant’s failure to treat him in a proper way significantly contributed to Jack’s death or led to him dying significantly sooner than he would otherwise have done.” 20. As for the administration of enalapril, the judge left to the jury whether that was or may have been the sole cause of death (on the basis that if it was, no defendant was guilty) and went on: “Likewise, the Crown would have failed to prove the case against any of the defendants if the effect of the enalapril was or may have been so dominant that any acts or omissions of the defendants did not make a significant contribution to Jack dying as and when he did. But if you are still sure that the defendant whose case you are considering was grossly negligent and that her negligence did significantly contribute to Jack’s death or timing, then it would be immaterial that the enalapril may also have played a part, even a significant part, in Jack’s death or its timing.” 21. He dealt with what was described as “the point of no return” i.e. the time after which Jack was more likely to die than to survive and, thus, after which the jury could not be sure that any gross negligence was causative of death. He described Dr Nadel’s evidence that he could not be sure that Jack had not passed the point of no return at 3.00, 4.00 or 5.00 pm because he had no information to work from apart from the lack of oxygen saturation reading after 2.30 which was why it was so important to continually reassess what the clinical situation was. 22. Dealing with the prosecution and defence cases on this issue, he summarised: “The prosecution say that while Jack was seriously ill on his arrival he had a real chance of survival and probably would have survived if he had been properly treated. At the very least, they say you can be sure he would not have died when and in the circumstances that he did if he had been properly treated by Dr Bawa-Garba. … … The prosecution accept that it is for you to decide whether the timing and circumstances of Jack’s death were or may have been inevitable at some earlier point in the day [than when he was transferred to Ward 28] but they submit the negligence of Dr Bawa-Garba prior to that point did significantly contribute to the timing and manner of Jack’s death. … [The defence case is that Dr Bawa-Garba] accepts that she did not spot signs of renal failure but if by then Jack had passed the point of no return, neither this nor any subsequent negligence could have played a significant part in Jack’s death or its timing. The DNR incident was a mistake but it made no contribution to Jack’s death. It is argued on her behalf that you cannot be sure that Jack had not passed the point of no return at some stage even earlier than 4.00 pm. Again, if that be right, no subsequent negligence, if that is what you find it was, could be causative of Jack’s death.” The Appeal 23. Zoe Johnson QC for Dr Bawa-Garba argues that it was an error in law to direct the jury that the prosecution had proved its case if the jury were sure that Jack died significantly sooner because of the negligence of the defendant. That was so particularly because the phrase “significantly sooner” was never explained to the jury in the context of septic shock and those omissions. Rather, she argues, the jury had to be sure that the treatment would have saved or significantly prolonged Jack’s life. Thus, the test was inverted and should have required the jury to be sure that there would have been significant prolongation of Jack’s life if the treatment contended for had been given. It was not sufficient to show that there was an opportunity lost which might have prolonged life. 24. Andrew Thomas QC for the Crown submits that the direction of law was legally correct and that, in all material respects, the direction was to precisely the same effect as that which Ms Johnson advances. To be sure that Jack died significantly sooner because of gross negligence is the same as being sure that competent treatment would have saved or significantly prolonged his life. 25. Before dealing with the merits of the argument, it is worth addressing a preliminary point taken by Mr Thomas to the effect that the direction had been discussed and agreed with counsel before it was delivered. Entirely sensibly in a case of this complexity, Nicol J not only shared his directions of law with counsel (which is usually essential) but also his summary of the issues and facts. It is a course which, in appropriate cases, we encourage and it is important to underline that agreement does not prevent counsel from later arguing that the direction (even one which might have been agreed) is wrong. Where the law mandates specific directions of law, counsels’ agreement cannot alter the position and render a verdict safe that is, in fact, unsafe. 26. Agreement is not, however, unimportant because if counsel on both sides are content that what the judge intends to say reflects the law as it applied to the issues that had been disclosed by the case, a good reason will have to be advanced for the change in mind and where a direction is discretionary, the fact that it has been agreed (which could be for many forensic reasons) might be determinative (cf. R v Hunter [2015] EWCA Crim 631 at [98]). Thus, in this case, Ms Johnson did raise one aspect of causation (namely whether the jury should be given more assistance about what was meant by the word ‘significantly’) with the judge. When the judge observed that he had included the phrase that it had to “be more than trivial or minimal” and said that to elaborate might make the matter become complex and unhelpful, Ms Johnson did not disagree. In particular, she did not press an alternative formulation. Having said that, the proper formulation of the necessary causative link was essential and we therefore pass to the merits of the argument. 27. Both sides made reference to the relevant authorities which it is worth shortly reviewing. In R v Morby (1882) 8 QBD 571 a father, due to his religious views, did not employ a doctor to treat his son, who later died of small pox. The medical evidence at trial had been that proper medical attention might have saved or prolonged the child’s life, and would have increased his chance of recovery, but might have been of no avail. Following a conviction for manslaughter, the case was referred to the Queen’s Bench Division, as a Crown Case Reserved. Quashing the conviction, Lord Coleridge CJ explained: “It is not enough to show neglect of reasonable means for preserving or prolonging the child's life, but to convict of manslaughter it must be shown that the neglect had the effect of shortening life. The medical witness called for the prosecution gave his evidence clearly and well, and under a high sense of his duty and responsibility, and what he stated was, that in his opinion the chances of life would have been increased by having medical advice, that life might possibly have been prolonged thereby, or, indeed, might probably have been, but that he could not say that it would, or indeed that it would probably, have been prolonged thereby. In order to sustain the conviction affirmative proof is required.” 28. Similarly, in R v Sinclair (1998) WL 1044437, 21 August 1998 where breach was alleged to arise out of omission to act in a case where there has been evidence of a decreasing chance of survival as time passed, the court was concerned that there was no investigation as to the extent to which the expert was capable of excluding an acceleration of death that was no more than de minimis . In the course of his judgment, however, Rose LJ referred (at page 15) to the perception that the judge had of the evidence and his summary to living “appreciably longer” and to life being cut “appreciably shorter” without suggesting that there was any difference between the two. 29. Although a coronial case, it is also worth referring to R(Khan) v West Hertfordshire Coroner [2002] EWHC 302 (Admin) because Richards J (as he then was) there seeks to illustrate that causation can be established without showing that the deceased would have survived. He went on (at [43(ii)]): “But that is because it can be established by showing in the alternative that death, although inevitable, was hastened by the conduct in question. … the case [ R(Dawson) v Coroner for East Riding and Kingston upon Hull [2001] EWHC 352 Admin ] does not support the proposition that causation can be established simply by showing that there was an opportunity to render care. It must be shown to the requisite standard of proof that care would have been rendered and that it would have saved or prolonged life.” Thus, as with Rose LJ, Richards J uses the formulation “death, although inevitable, was hastened” synonymously with “care … would have saved or prolonged life”. 30. If the jury found that death occurred significantly sooner because Jack did not receive the necessary treatment, it is an inescapable corollary that proper treatment would have prolonged, that is to say, lengthened life. In our judgment, that is not in any way a different or alternative test: the two concepts are not inverse but merely different sides of the same coin. 31. The second submission identified by Ms Johnson in relation to the direction on causation is that the judge should have explained to the jury what he meant by the phrase “significantly sooner”: this was the point that Ms Johnson raised when the direction was discussed. She also argues that it was incumbent on the judge to direct the jury that it was not sufficient for the Crown to show that there was an opportunity lost which might have prolonged life. 32. In our judgment, there is no point at which Nicol J limited his direction to lost opportunity. He was emphatic that the jury had to be sure “that Jack died significantly sooner” because of the negligence (by which it is clear he meant gross negligence) of the defendant whose case was being considered. As for an explanation of the phrase “significantly”, the judge did explain that how big a contribution had to be in order to qualify as significant was left to the good sense of the jury, adding “although it must be more than trivial or minimal”. We agree with the observation of Nicol J in argument that further definition would have been confusing and unnecessary. This is the same approach as that adopted by the Supreme Court in relation to the word “substantial” in the context of diminished responsibility: see R v Golds [2016] UKSC 61 at [42] and [43(1)]. 33. The third submission in relation to causation concerned the administration of enalapril. The judge said that the prosecution would have failed to prove its case if the effect of that drug was or may have been so dominant that any acts or omissions of the defendants did not make a significant contribution to Jack dying as and when he did. Although he did not (and did not need to) spell this out, the converse must have been obvious: a defendant would only be guilty if her acts or omissions did make a significant contribution to Jack dying as and when he did. Far from being unhelpful, this direction correctly reflected the position and provided a good example which the jury could use to decide of what they were sure in relation to causation. 34. A fourth submission, developed orally, was that the judge had failed to direct the jury that if “the point of no return” had been reached at any given time, later negligence could not be causative and that he had failed also to explain this direction by reference to the facts of the case, in particular the evidence of Dr Nadel that he could not be sure that this point had not been reached as early as 2.30 pm. However, in the light of the direction on this issue which we have set out above, this submission is untenable. 35. Finally, although not the subject of elaboration in oral submissions, Ms Johnson expressed concern about the analogy which the judge provided of the unlawful shooting of a mortally wounded prisoner. This analogy was a useful example of how a new cause may supervene to extinguish the causative potency of what had gone before and also explains how the jury must concentrate on the death which occurred and not another death which might have occurred. It is not and was not intended to be a complete explanation of the law but its inclusion cannot be faulted; even if it not entirely apposite, its enunciation could not affect the safety of the conviction. 36. In the circumstances, we reject the challenge to the way in which the jury were directed as to causation. A further ground (relating to the direction on gross negligence and, in particular, the state of mind of the Dr Bawa-Garba at the time of the act/omission) was not pursued. We raised with Ms Johnson whether the recent decision in R v Sellu [2016] EWCA Crim 1716 had affected the position but she rightly recognised that the judge had correctly directed the jury that the prosecution had to show that what a defendant did or didn’t do was “truly, exceptionally bad”. Suffice to say that this jury was (and all juries considering this offence should be) left in no doubt as to the truly exceptional degree of negligence which must be established if it is to be made out. Conclusion 37. In common with the single judge (who provided a masterly analysis of the case), although its importance both to Jack’s family and to Dr Bawa-Garba has led us to consider the application in detail, we have come to the clear conclusion that none of the grounds of appeal are, in fact, arguable. In the circumstances, this renewed application for leave to appeal is refused.	{"ConvCourtName":["Crown Court at Nottingham"],"ConvictPleaDate":["2015-11-04"],"ConvictOffence":["Manslaughter (by gross negligence)"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Nottingham"],"Sentence":["2 years imprisonment suspended for 2 years","\u0000a325,000 costs order"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Female"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Male"],"VicAgeOffence":[6],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Learning/developmental"],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Expert report/testimony","Medical records","Witness testimony"],"DefEvidTypeTrial":["Offender denies offence","Expert report/testimony","Character evidence"],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":["Offender has no relevant previous convictions","Offender worked a double shift without breaks","Offender showed genuine remorse","Offender had positive character evidence"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Error in law in jury direction on causation","Jury not properly directed on meaning of 'significantly sooner'","Jury not properly directed on lost opportunity","Jury not properly directed on 'point of no return'"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Jury was properly directed on causation","No error in law in the directions","No arguable grounds of appeal"]}
NCN: [2019] EWCA (Crim) 1628 No: 201901626 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 4 September 2019 B e f o r e : LORD JUSTICE SIMON MRS JUSTICE McGOWAN DBE MR JUSTICE FREEDMAN R E G I N A v JOSHUA CHARLES IAN DE-BANKS 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. Ms N Hartford-Bell appeared on behalf of the Appellant J U D G M E N T LORD JUSTICE SIMON: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. On 8 March 2019 the appellant pleaded guilty to two sexual offences in the Crown Court at Oxford. There was a hearing on 29 March when the facts were opened and a discussion about the terms of a sexual harm prevention order to be imposed. On 3 April he was sentenced by His Honour Judge Ross on count 2, sexual communication with a child contrary to section 15 A of the Sexual Offences Act 2003 , to a term of 8 months' imprisonment suspended for 24 months, with specified requirements. On count 5, causing or inciting a child to engage in sexual activity, contrary to section 10 of the Sexual Offences Act 2003 , to a term of 24 months' imprisonment suspended for 24 months with requirements. The sentences were ordered to be served concurrently and so the overall term was a custodial term of 24 months suspended for 24 months. The sentence was expressed as a term of imprisonment, but since the appellant was 20 at the date of conviction, the sentence should have been expressed as detention in a young offender institution. That should be corrected and we shall so order. In addition the appellant was made the subject of an SHPO. 3. He appeals against the sentence, including the terms of the SHPO, with the leave of the single judge. 4. On 16 September 2018 the mother of the victim, JW, (who at the time was 15) contacted her local police force because her son had left home after taking 16 paracetamol tablets. Police located JW and described him as being withdrawn and refusing to engage with them. He was sectioned under the Mental Health Act and taken to hospital where he received support from the NHS Child and Adolescent Mental Health Service (CAMHS). Whilst there JW spoke to the CAMHS Unit and later opened up to police officers about the fact that he was chatting to a male called "Josh". Police officers advised JW to stop communicating with Josh but at the time they were unclear if he understood that advice. At that stage it was not possible to identify the appellant as the other party to the communications, which were of a sexual nature. 5. On 19 September officers from the South Yorkshire Police spoke again with JW (with his mother present) and the officers explained to him their concerns over contact with Josh. JW did not want the police to take any action. 6. After some further work between the family, South Yorkshire Police and Thames Valley Police, supported by JW's mother, the police identified the appellant and he was issued with a Child Abduction Warning Notice ("CAWN") on 17 October 2018. The notice notified the appellant that in the light of JW's age he was not to have any contact with him either directly or indirectly. The appellant signed the CAWN and no further action was taken. 7. On 19 December 2018 the appellant was arrested at his home and a house search was carried out. Various items including a mobile phone were seized. A phone had been found hidden in a sock among other clothes in the washing machine. The contents were subsequently downloaded and police found a number of sexual messages between the appellant and a male named "Jack". At that time it was not known who this named person was. The number was searched with the local police systems but it did not come up with any matches. 8. The messages on the download consisted of the appellant saying things like: "I'll fuck you if you want me to" and "Do you want to wank?". The messages also contained exchanges of graphic photographs of erect penises in images close to ejaculation. 9. On 28 January 2019 the appellant called the police stating that he was cutting his wrists, and officers attended. He was on bail at the time with conditions not to contact anybody under the age of 18 and the officers noted that he was acting strangely with his mobile phone. They asked the appellant if they could look at it and he agreed. They saw recent messages exchanged between the appellant and "Jackie" together with a phone number. The messages exchanged were of a sexual nature and the pair had exchanged pictures of their penises. The appellant told the officers that "Jackie" was an adult. The number was later identified as belonging to JW. It followed that the appellant had breached his CAWN and had committed further offences of inciting a child and sexual communication with a child. 10. On 4 February 2019 the appellant was arrested again. He was interviewed and told the police that "Jack" was a male called Lewis Roper, that he was over 18 and worked at British Airways as a flight attendant. He thought he was 22 years old and lived somewhere in London near the airport. He also claimed to have seen him driving. The appellant went on to say that he had first met Jack about 2 years ago on Facebook as he was a friend's ex. Around that time he saw Jack's Facebook status saying he felt down so he messaged him to see if he was okay. He said that he did not like to see people upset or sad and wanted to cheer him up. He described their relationship as being close and they would help each other when needed. About 6 months ago he said they started exchanging sexual pictures of each other masturbating and ejaculating along with sexually explicit conversations. He said that sometimes he would be aroused by the messages and the pictures he received and sometimes masturbated himself after he received them. He said on occasions they would video call each other through WhatsApp and would masturbate together. He described Jack as being good and kind hearted and he could relate to him as they both suffered mentally, but described Jack as ‘being in a better place’ than him. 11. The appellant was asked about the CAWN issued in October in relation to JW. He remembered receiving it and that it meant that he was not to have contact with him until he was 16 years old. He denied having any contact with him since it was issued. He said he did not breach the CAWN and was not aware of anyone sending messages on his behalf, but said his phone was not being protected and he sometimes left it charging at his mum's and aunt's house. 12. He was asked if Lewis Roper was JW and he denied that this was so, and again denied having any contact with JW since the CAWN had been issued. When he was told the phone number for Jack in his phone had been linked to JW he asked for a break in the interview and to speak to his solicitor. The interview was paused and when he resumed he answered "no comment" to questions put to him. 13. The appellant was aged 20 at the date of conviction and sentence. He had six previous court appearances for eight offences between 2015 and 2017. In May 2015 he had received an 8-month referral order for possession of a bladed article in a public place and using threatening and abusive words. Within a matter of weeks in June and July 2015 he was again found in possession of a bladed article. 14. In January 2016 he was made the subject of a supervision requirement for an offence under section 127(1) (a) of the Communications Act 2003 . In April 2017, he was fined for damaging property and in October and December 2017 he was in breach of a non-molestation order imposed under the Family Law Act 1996 for which he was sentenced to 16 weeks' youth detention suspended for 12 months. 15. A pre-sentence report recorded that the victim of the communication offence was his sister whom he had threatened to stab after sending her a photograph of a knife. The breaches of the non-molestation order involved his sister. He was assessed as posing a high risk of serious harm to children, the risk being higher to vulnerable individuals and as a high risk of re-offending. During his most recent supervision order his attendance had been positive, but the work undertaken had been adversely affected by his chaotic presentation. The author had significant concerns about his risk and ability fully to engage with a community based sanction. 16. This was a matter that plainly affected the Judge's view of the matter. If a community-based sentence were to be imposed the report recommended a 24-month community order with a requirement to attend a Horizan Programme designed for sexual offenders, 35 days' rehabilitation activity requirement and an unpaid work requirement. 17. In passing sentence the Judge noted that the background had been hard to understand when the case had been before the court on 29 March. Some of the dates were wrong and it was unclear whether or not the offences had been committed while on bail or during the currency of a suspended sentence. It transpired that the suspended sentence to which he was subject had come to an end the day before he began his communications with JW. The Judge did not think that was accidental. 18. The Judge referred to the Sentencing Council Guidelines in relation to offences under section 10 of the Sexual Offences Act 2003 . He accepted that it was category 3, the lowest level in terms of harm. The issue was in relation to his culpability. 19. There was not a huge age disparity, but there was a limited degree of grooming. The most significant aspect however, which brought the case firmly and squarely within Category 3A, was that the sexual images of JW were recorded and retained. There was no doubt about that; and the fact that the activity took place by way of digital communication made no difference. 20. The starting point for a category 3A offence was a term of 26 weeks, with a range between a high level community order and 3 years' custody. However, the Judge concluded that the appellant had caused severe harm to JW. 21. It was clear, in the Judge's view, on the bases of the available material that the result of the appellant's communication with him had caused JW to change his behaviour, fleeing from home, taking an overdose and subsequently being admitted to psychiatric care under the Mental Health Act order. We should note at this point that the grounds of appeal advanced by Ms Hartford-Bell take sharp issue with this statement of fact. The Judge added that there also seemed to have been some offending after the appellant had received the CAWN. It was not that he was offending on bail but some analogy could be drawn. It was an aggravating feature that although not subject to a suspended sentence at the time, he had begun his offending in relation to JW the very day after that suspended sentence came to an end. The Judge accepted that it was not an easy sentencing exercise and he accepted that the appellant's age and lack of maturity had an impact on his responsibility. The Probation Service regarded him as being at a high risk of re-offending and a medium risk of causing serious harm to others. They also had significant concerns about the risk he posed and his ability fully to engage with a community based sanction. He had lied in interview and had not entered pleas until the indictment was put to him. His credit for plea was therefore 25%. The Judge concluded that after trial, despite his age and the sentence would be discounted for that, the sentence would have been 32 months' imprisonment. With 25% credit the sentence on count 5 would be reduced to 24 months. This sentence would be suspended for two reasons: first, having served 7 weeks in custody the appellant knew what it was like; second, the length of the period that would be served on licence if there were an immediate custodial sentence would be insufficient to complete the Horizon Sexual Offending Programme for which there was considerable evidence of success. The court understood the concerns of the Probation Service as to his engagement with that programme but concluded that the sentence should be suspended with requirements: first, every month the court would receive a progress report on his engagement and he would attend the court for a revue; second if there were any sign that he was failing to engage and the order was not working or if he missed any appointments the court would be sending him immediately back to custody to serve the sentence that had been suspended. In the Judge's view this was the most effective sentence on count 5 because it was the most likely to provide long-term protection. On count 2 there would be a concurrent sentence of 8 months likewise suspended. By virtue of the nature of the sentence he would be subject to supervision by the Probation Service for the next 2 years. During that 2-year period he would reside as directed by his supervising officer. He would attend and successfully complete the Horizan Programme for sex offenders. He was required to register as a sex offender. He would undertake unpaid work for the community for 200 hours. The Judge ended his remarks by saying that he was a sex offender and it was time that he acknowledged that. He felt more sorry for himself than for others and needed to remember that JW took his overdose because of what he did. Of that the court was not in doubt. 22. The court had earlier made a SHPO until further order as amended following discussions. If he failed to comply with any of the conditions (and that meant a single missed appointment for unpaid work or the Horizan Programme or supervision) then he would be brought back to court for sentence and he would go into custody. The court covered the supervision aspect by way of a 35-day rehabilitation activity requirement. The court set a date for his first appearance for review of 7 May 2019. 23. In the grounds of appeal Ms Hartford-Bell makes essentially two points. First, she submits that the Judge repeatedly approached the sentencing on a false basis to the discredit of the appellant. The second, in any event, insufficient account was taken of the appellant's personal mitigation. The fact that he was a vulnerable and immature young man with many disadvantages in his background, under the care of the Social Services. In addition, Ms Hartford-Bell submitted that the sentence of imprisonment was wrong in principle and manifestly excessive in length. She submitted that it was not a category 3A offence and she drew attention to the particular circumstances of the offender with his troubled background. 24. Finally and in any event, she submitted that no SHPO should have been made and/or, if made, it should not have been in the terms that it was. She further argued that it was too long and without limit and its terms were not necessary to protect the public from serious sexual harm from the appellant. 25. In our view it is clear that the Judge erred in a significant respect when passing sentence. He regarded it as material and such as to make the offending more serious that the appellant's crimes had caused JW to change his behaviour, flee from home, take an overdose and subsequently be admitted to psychiatric care under the Mental Health Act order. This was however to misunderstand the chronology. The indictment charged the appellant on both counts with conduct spanning 1st December 2018 and 4 February 2019. The factual matters relied on by the judge occurred in September 2018 before the CAWN was issued in October. What the Judge regarded as a most significant aggravating circumstance was not. 26. Nevertheless, in our view the Judge was entitled to view the offending as falling within category 3A. The appellant had been warned and had disregarded the warning. There was an element of grooming and the sexual images of JW had been retained. The starting point for such an offence was a term of 26 weeks' custody. The previous convictions were aggravating circumstances but his vulnerability and immaturity were mitigating factors. 27. In our view, the sentence of 24 months suspended for 24 months was not an appropriate sentence in the circumstances. The offending should have led to an overall sentence of 12 months before credit for the plea and with credit of 25% to a term of 9 months. Accordingly, we quash the sentence of 24 months and substitute a sentence of 9 months' detention suspended for 18 months. The unpaid work requirement will be reduced from 200 hours to 100 hours however the other conditions will remain unaffected. 28. So far as the SHPO is concerned, the nature of the offending required that JW should be protected from himself however willing or unwilling he was to engage with the appellant. No point was taken at the time as to any of the terms and the general assertion that its terms were not necessary was not sustained. Nevertheless, we regard it as necessary to make it clear, if it was not clear from its terms, and there was certainly ambiguity created by the judge's observation, that it is limited to a period of 10 years and is not without limit. 29. To that extent, the appeal will be allowed.	{"ConvCourtName":["Crown Court at Oxford"],"ConvictPleaDate":["2019-03-08"],"ConvictOffence":["Sexual communication with a child contrary to section 15A of the Sexual Offences Act 2003","Causing or inciting a child to engage in sexual activity contrary to section 10 of the Sexual Offences Act 2003"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[49],"SentCourtName":["Crown Court at Oxford"],"Sentence":["8 months' imprisonment suspended for 24 months (count 2)","24 months' imprisonment suspended for 24 months (count 5)","Sexual Harm Prevention Order (SHPO)"],"SentServe":["Concurrent"],"WhatAncillary":["Sexual Harm Prevention Order (SHPO)","Sex offender registration","Unpaid work requirement (200 hours)","Horizan Programme for sex offenders","35-day rehabilitation activity requirement","Supervision by Probation Service for 2 years"],"OffSex":["All Male"],"OffAgeOffence":[20],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[15],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Mobile phone messages","Photographic evidence","Police testimony","Victim testimony"],"DefEvidTypeTrial":["Offender denies offence","Claimed victim was adult","No comment interview"],"PreSentReport":["High risk of harm","High risk of reoffending"],"AggFactSent":["Previous convictions","Offending began day after suspended sentence ended","Element of grooming","Sexual images of victim recorded and retained","Disregarded Child Abduction Warning Notice (CAWN)"],"MitFactSent":["Offender's age and lack of maturity","Vulnerability and immaturity","Troubled background","Under care of Social Services"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["Judge approached sentencing on a false basis","Insufficient account taken of personal mitigation","Sentence wrong in principle and manifestly excessive","Not a category 3A offence","SHPO should not have been made or was too long"],"SentGuideWhich":["Sentencing Council Guidelines for section 10 of the Sexual Offences Act 2003"],"AppealOutcome":["Allowed in part","Sentence of 24 months quashed and substituted with 9 months' detention suspended for 18 months","Unpaid work requirement reduced to 100 hours","SHPO limited to 10 years"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Judge erred in treating victim's overdose and psychiatric admission as aggravating when it predated the charged conduct","Sentence of 24 months was not appropriate; should have been 12 months before credit, 9 months after"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
No: 2004/0105/C3 Neutral Citation Number: [2004] EWCA Crim 2901 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 9 November 2004 B E F O R E: LORD JUSTICE CLARKE MR JUSTICE DOUGLAS BROWN MR JUSTICE GIBBS - - - - - - - R E G I N A -v- E.W. - - - - - - - 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 CROZIER appeared on behalf of the APPELLANT MR D OSBORNE appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE CLARKE: This is the judgment of the court. 2. On 1st December 2003, in the Crown Court at Plymouth, before Mr Recorder Mott QC, the appellant was convicted by majority verdicts of one count of buggery, on which he was convicted by a majority of 11 to 1; one count of indecent assault on a female, on which he was convicted by a majority of 10 to 2; and three counts of indecent assault on a male, on each of which he was convicted by a majority of 11 to 1. The jury acquitted him of two further counts of indecent assault on a female (counts 1 and 3). On 12th February 2004 he was sentenced to six years' imprisonment for buggery which had been count 4 on the indictment, two years' imprisonment consecutive for indecent assault on a female which had been count 2 on the indictment, and three years' imprisonment concurrent for indecent assault on a male which had been counts 5 to 7 on the indictment. The total sentence was eight years' imprisonment. The Recorder made an order under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 extending the appellant's licence period to the whole of his sentence. He also made an order disqualifying him from working with children under section 28 of the Criminal Justice and Court Services Act 2000 . Having been convicted of a sexual offence to which Part 1 of the Sexual Offenders Act 1997 applies, the appellant was also directed to comply with the provisions of section 2 of the Act, namely notification to the police indefinitely. 3. He appeals against his conviction by leave of the full court, May LJ, Eady and Hughes JJ, after refusal by the single judge, Holland J. The court adjourned his appeal against sentence, in respect of which leave had been granted by the single judge, to the court hearing the appeal against conviction. 4. The Recorder rejected an application, which was made at the outset of the trial, that the proceedings be stayed as an abuse of process on the basis that the appellant could not receive a fair trial in view of the delay. A similar application was rejected during the trial itself following the Recorder's earlier ruling. The Recorder also rejected a defence submission of no case to answer in respect of the counts relating to the female victim. The first two grounds of appeal relate to the rejection of those applications. There are, however, four grounds of appeal in all. 5. The complainant in counts 1 to 3, whom we shall call S, was the youngest of three children born to MP (Marianne). S was born on 20th September 1964. Her siblings, a brother C and sister J, had been born in 1947 and 1953 respectively. The complainant in counts 4 to 7, whom we shall call M, was J's son. He was born on 11th May 1967. He was initially placed into foster care until about 1974 or 1975. He then spent about a year in Crawley with J and his father. He went to live with Marianne and the appellant in 1976, although not on a full-time basis until 1977 or 1978. 6. At the time of the majority of the allegations, Marianne was running a guest house in Newquay which C had purchased in May 1972. The appellant was staying there. He eventually married Marianne in 1976. They later divorced. Unfortunately Marianne died in 1999. 7. Count 1, on which the appellant was acquitted, was alleged to have occurred when S was aged 7 or 8 years old. The alleged assault involved the appellant placing his hand down her pants and putting a finger inside her vagina when she was sleeping in the same room as the appellant and her mother. There was an issue about the dates because S dated it to the summer season of 1972 or 1973 and the appellant stated that he did not move into the guest house until the autumn of 1973, at which time he was not involved romantically with Marianne. J had also given some evidential support to the complainant regarding the date of the appellant's involvement with her mother. 8. Count 2, on which the appellant was convicted, was a specimen count. S said that the appellant had taken her to the bathroom of the Elliott Hotel, where he was working, for a bath because the guest house only had showers. In her statement she said that that happened on three or four occasions, whereas in evidence she said that it was on a weekly basis until she was 11 years old. She alleged that the appellant would stand her in the bath, soap her from top to bottom and then place his soapy finger inside her vagina saying that she should be clean both inside and out. The complainant thought she was about five or six years old when this occurred but was unsure. She had not been in Newquay very long. In interview the appellant told police that there was only one occasion when Marianne had asked him to take S for a bath. He had rubbed her down with soap, she had washed herself and he had dried her with a towel, including her "private area". He said in interview that that had occurred when she was five or six, but he said in evidence that it had occurred in September 1974 when S would have been about 10 years old. 9. Count 3, on which the appellant was acquitted, was a specimen count relating to further digital penetration in the bedroom until S started her periods at the age of 11. 10. Count 4, which was the count of buggery on which the appellant was convicted, was alleged to have taken place in the winter of 1978/1979 when M had a cough. At this point he was staying more or less permanently in Newquay. The appellant offered to look after him and keep him warm and placed him in the double bed that he (the appellant) and Marianne normally used. After about five to 10 minutes the appellant also got into bed and began talking about sex and masturbation. The appellant told him the fact that he (the appellant) was circumcised (which he was) had no effect on his ability to masturbate or his enjoyment from it. He placed M's hand on his own penis and rubbed it up and down. He then did the same to M's penis. Next he pulled M's pants down, rubbed spit on his anus and penetrated him with his penis a little from behind which hurt him. M said something and the appellant stopped. The appellant told M that if he told Marianne he would be sent back to his father and nobody would believe him. 11. Counts 5 to 7 were counts of indecent assault on M in respect of which the appellant was also convicted. Count 5 dated to the same winter. The appellant entered M's room and played with M's penis and testicles before masturbating himself to a climax. Count 6 had taken place in Fistral Court Pentire, to which the family moved following the sale of the guest house in late 1979. M had been watching television in his room when the appellant entered, told him to remove his trousers and then fondled his backside and put a finger into his anus. Count 7 took place in Pentire Crescent to which the family moved in the spring of 1980. The appellant had shaken M awake, fondled his penis and testicles and then pushed his own erect penis against M's mouth. M said "No" quite loudly and the appellant swore and left. M thereafter fixed a bolt to his door to keep the appellant out. 12. The defence case was shortly as follows. The appellant was 65 years old at the time of the trial and of good character. He had moved into the guest house in late 1973 or early 1974. At that time he and Marianne were just friends. They married in 1976. At that time S was the only child living at the address. At the end of 1976 or 1977 Marianne suggested that M live with them. The appellant did not object but said he would play no part in looking after M. He lived apart from the household from 1981 because there was no room for him in the new accommodation. He described the marriage as one of convenience. Following his move, S continued to visit him and he produced photographs of her said to have been taken at his flat to show there was no animosity. He denied the allegations brought by S. He had never shared a room with her. He had never touched her sexually. He had only washed her on one occasion in the summer of 1974. He washed her back, wrapped her in a towel and lifted her out of the bath. He considered her to be arrogant and they were never close. He knew no reason why she should bring the allegations. In addition he produced a bundle of photographs to show that the complainants did not appear to be part of a dysfunctional family living in fear. He described M as equally distant. The appellant did not even know where he slept. M seemed to be sexually aware from an early age. On one occasion he had grabbed a Mr Luxon, who had since died, by the crotch and said "tassel soup" which was an expression used by the family to denote the penis. The appellant could not recall any occasion when M had a cough. He could think of no reason why M should bring the allegations. 13. The defence called a number of witnesses, including J, who gave evidence that the appellant had got on well with her brother's son who had been the same age as M. Character evidence was also read, as was a preliminary medical report that an examination of M at this stage would be unlikely to produce any relevant evidence. 14. The grounds of appeal against conviction are these: 1. The judge erred in refusing to stay the proceedings as an abuse of process. 2. The judge erred in rejecting a submission of no case to answer in respect of counts 1 to 3. 3. The judge misdirected the jury in relation to count 2. 4. The case falls into the category of residual cases where it is in the interests of justice to set the conviction aside - see R v B [2003] EWCA Crim. 319 . 15. In refusing leave to appeal against conviction, the single judge observed to the appellant: "I have given careful attention to all the points well made by your counsel but I cannot regard your conviction as arguably unsafe. The trial judge was right as to his rulings; his summing-up was full and fair; and the jury's verdicts reflected full appreciation of the issues, hence the acquittals on counts 1 and 3." However, as already indicated, the full court subsequently granted leave to appeal. We understand that the full court simply said that grounds 1 and 4 were more arguable than grounds 2 and 3 but that they would permit all the grounds to be argued before the full court, which would have the assistance of counsel for the respondent. 16. Ground 1 . Mr Crozier submits that the Recorder should have stayed the proceedings against the appellant either at the outset or during the trial. The Recorder refused to do so on two occasions when applications were made to him by Mr Crozier to that effect. The Recorder directed himself by reference to the test in Attorney General's Reference No 1 of 1990 [1992] QB 60 , where Lord Lane CJ, giving the judgment of the court, said that judges should be assiduous to ensure that there really was evidence of serious prejudice to the extent that a fair trial could not be held before finding that the defendant had discharged on the balance of probabilities the burden of proof that lay on him before any power of the sort involved could be used. Mr Crozier submits that so formulated the test infringes appellant's right to a fair trial under Article 6 of the European Convention of Human Rights (the Convention). He submits that once the issue has been raised it must be for the Crown to satisfy the court that a fair trial is possible. 17. We were referred in this connection, not only to Attorney General's Reference No 1 of 1990 , which has long been regarded as the leading case in this area, but in particular to the decision of this court comprising Lord Woolf, CJ, Jackson and Elias JJ, in R v B . Mr Crozier relies on a number of aspects of that case. The case does not, however, support the submission that the test should now be treated as different from that expounded by Lord Lane. The court in B observed that the appellant did not challenge the test. It referred to two other decisions, R v Dutton [1994] Crim.L.R 910 and R v Jenkins [1999] Crim.L.R 411. The court nevertheless gave consideration to the appropriate test. Lord Woolf said this at paragraphs 18 and 19: "18. Pausing at this point, it might be thought that some other test might be applied other than the one which was applied in this case which is accepted to be appropriate. However, the passage of time in this jurisdiction has never been a ground in itself for the staying of the prosecution. Just as the courts do not close the door to allowing appeals out of time if new evidence is forthcoming to show that someone who is innocent has been convicted, so if the prosecution decides that there is a case to go before the jury, the courts do not in the ordinary way consider it right to interfere with the prosecution process as long as (and this is an important qualification) a fair trial is possible. The question of who is to be believed in a case of this nature is very much an issue for the jury and not for the judge. The judge has the responsibility for giving the jury appropriate warnings demanded by the circumstances. 19. On the whole, the best time to assess whether a case is fit to be left to the jury is not before the trial has started but at the end of the trial when a judge is in a position to take into account the actual evidence presented to the jury by the prosecution and by the defence. As far as we are aware no application was made to this judge to rule again at the end of the trial. We certainly do not criticise those who were involved in the case for that. If the judge had been minded to take a different view to that he had indicated on the application for a stay, we are confident that he would have made that clear to counsel, and counsel, no doubt appreciating that, were not going to make an unnecessary application. Accordingly, we are satisfied that no complaint can be made about the judge's decision to allow the case to go to the jury for a verdict." The court certainly had in mind the right of every defendant to a fair trial, both at common law and under Article 6 of the Convention, which is of course now part of our law. 18. In considering whether a fair trial is still possible, notwithstanding the delay, the judge must consider all the circumstances of the case and must have regard to the directions which he or she will give in the summing-up. He must also bear in mind that, as Lord Woolf put it in paragraph 18 of judgment in B , the question of who is to be believed is very much an issue for the jury and not for the judge. In that case the court held that the judge could not be criticised either for not staying the proceedings or for the way he directed the jury, but quashed the conviction in the exercise of what Lord Woolf describes as "a residual discretion to set aside a conviction if we feel it is unsafe or unfair to allow it to stand" even where the trial process itself cannot be faulted. He said this in paragraph 27: "It is a discretion which must be exercised in limited circumstances and with caution. When we exercise that discretion we must be conscious that we are not only involved in deciding where justice lies for the appellant. We must do justice to the prosecution, whose task it is to see the guilty are brought to justice. We must also do justice to the victim. In this case we are particularly conscious of the position of the victim. If she is right, she was treated in a most disgraceful way by someone whom she should have been entitled to trust: her stepfather. For years, for understandable reasons, as we have already indicated, she felt unable to make public what had happened. She is entitled to justice as well. But we also have to do justice to the appellant. At the heart of our criminal justice system is the principle that while it is important that justice is done to the prosecution and justice is done to the victim, in the final analysis the fact remains that it is even more important that an injustice is not done to a defendant. It is central to the way we administer justice in this country that although it may mean that some guilty people go unpunished, it is more important that the innocent are not wrongly convicted." 19. This court has always recognised that it has the power and indeed the duty to quash a conviction if it has, as it used to be put, a lurking doubt as to the safety of the conviction. Mr Crozier submits that this case is the same as B where the court ultimately expressed its reasons thus: "28. In this case it has to be recognised that because of the delay that occurred, in our judgment the appellant was put in an impossible position to defend himself. He was not, as Mr Jenkins says with force, able to conduct any proper cross-examination of the complainant. There was no material he could put to the complainant to suggest that she had said that something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes that were given to the doctors which showed that she had changed her account. All that the appellant could do was to say that he had not committed the acts alleged against him. Mr Jenkins says that to say to a jury, when faced with allegations of the sort that were made here, "I have not done it" is virtually no defence at all. 29. We have looked at all the circumstances of this case. We have sought to act in accordance with the principles we have set out earlier. In the end we have come to the conclusion that this is one of those residual cases where in the interests of justice we must set aside this conviction. That may be an injustice to the victim. It may be an injustice to the public in the sense that a guilty person is not going to suffer any further punishment than he has. But, nonetheless, having regard to the lapse of time, the very limited evidence that was available in this case, we have come to the conclusion that it is our duty to allow this appeal. Accordingly, we quash the conviction." 20. In so submitting, Mr Crozier correctly recognises that no period of delay of itself gives rise to a presumption that a fair trial is not possible and quite properly refers to R v Hooper [2003] EWCA Crim. 2427 , where Rose LJ, giving the judgment of a differently constituted division of this court, comprising himself, McCombe and Cox JJ, said at paragraph 70 that: "... the length of delay is but one of the factors to be considered in the exercise of the trial judge's discretion as to whether or not to grant a stay." Rose LJ added this in paragraphs 73 and 74: "73. It is also to be noted that, in B , there was but a single complainant. It is also to be noted that the defence in that case was that she was confused and may therefore have been mistaken in her recollection. As is apparent from what we have already said, there are 15 complainants in the present case, and the defence is not confusion but lies. 74. Furthermore the Lord Chief Justice, in paragraph 26 of the judgment said: 'One thing is clear: the jury saw the witnesses and we have not. Therefore they were in a better position to judge where the truth lay than this court. Furthermore, the trial process depends upon our confidence in the jury system. We have to have confidence that they made the appropriate allowance here for delay.' There is, in our judgment, nothing in B to sustain this appellant's appeal." 21. The thrust of that reasoning is, as we see it, that each case depends upon its own facts. We should further observe that in paragraph 76, Rose LJ said this: "76. The test in relation to delay, as Mr Dunkels rightly points out, is that enunciated by Lord Lane CJ in Attorney-General's Reference No 1 of 1990 95 Cr App R 296 at 303 Lord Lane said: 'In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay. In answer to the second question posed by the Attorney-General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict.' That approach is still the law, as was made plain by Lord Woolf CJ in the judgment which he gave in Attorney-General's Reference No 2 of 2001 [2001] EWCA Crim 1568 , at paragraphs 16 and following." 22. It appears to us that ultimately the question for the judge on any application for a stay in a case of this kind is essentially whether in all the circumstances of the case a fair trial is possible notwithstanding the delay. 23. We think that there is force in Mr Crozier's point which was not taken in either B or Hooper , that once the issue has been raised it must be for the Crown to satisfy the court that a fair trial is still possible. Nevertheless it must be for the defendant to raise the issue and to identify those respects in which he says that a fair trial is not possible. We are not persuaded that this approach is in substance different from that adopted in Attorney General's Reference No 1 of 1990. The Recorder himself had this point in mind. He held, in our view correctly, that in this case it made no difference to his decision whether he approached the case on the basis of a legal burden of proof on the balance of probabilities lying on the defendant, or simply as an evidential burden on the defendant. 24. Before considering the question whether this case falls within the same category of case as B , we should consider the trial process. In refusing to stay the proceedings both at the outset and after the complainants had given evidence, the Recorder took account of the directions he would give to the jury. It is important to note that Mr Crozier correctly acknowledges that subject to one point, which forms the basis of ground 3, the summing-up was a model of fairness and clarity. He also recognises that the other rulings made in the course of the trial were unexceptionable. 25. In making his first ruling the Recorder identified the points of prejudice relied upon on behalf of the appellant. They included these. The alleged offences were very old, taking place between September 1971 and December 1980. The appellant's wife at the time, who was of course the mother of one complainant and the grandmother of the other, had died and was therefore not available to give evidence. In relation to most counts it was very difficult to know precisely when they occurred and, even in relation to the count of buggery, where the date was, as the Recorder put it, reasonably specific, it could not be checked to this extent: that the appellant was working away from home on a number of occasions. All enquiries through hotels where he had worked and through the Inland Revenue had drawn a blank. It was now impossible to obtain medical evidence which might have corroborated the allegations or otherwise. When S first spoke to the police in 1999 no notes were taken at her request. On the other hand, there was some photographic evidence upon which the appellant was able to rely. There was character evidence and the principal protagonists, the two complainants and the appellant, were available to give evidence. 26. Having correctly directed himself in principle, the Recorder said this at page 3: "The matter is clear enough at this stage for me to decide what I should do on paper. My conclusion is that I should not stop this trial. This is not a case where there is any particular matter where evidence might have been available at some stage which would have clinched the matter one way or the other. It is not now available. This is a case where there are difficulties raised by the length of time since the alleged incidents and which will affect both parties. Those sorts of problems tend to arise inevitably in cases of this sort involving historic allegations of sexual abuse. I can see nothing on paper in this case which takes this beyond the normal allegation and into one where at this stage I should stop the trial on the grounds of abuse of process. The quality of the evidence, which is a different matter, can be judged during the course of the trial. And in considering any submissions, if they become appropriate at the end of the prosecution case, I will have to bear in mind the difficulties that arise. But that is something for a later stage and not for mow. At this stage it seems to me that there is no basis for stopping the trial." He added that he had been specifically referred both to the case of B and indeed to the case of Hooper , in which we note that Mr Mott QC appeared on behalf of the Crown. 27. As indicated earlier, the Recorder revisited the matter on a later application on behalf of the appellant. He again asked himself whether the appellant could have a fair trial. He said at page 2B: "In particular, because in a large number of respects, and especially as to the allegations by M, there is such a lack of material that no proper cross-examination could be mounted and no proper defence put forward, save for a bare denial. Of course these cases of historic abuse are of great concern, and it is right that I should look at the overall picture, and not just assessing the overall picture, not just assessing the quality of the witnesses. But in the end I must consider whether these are features which can properly and safely be left to a jury so that they can take them into account, assess them and the strength of them with the aid of a proper direction as to the effect of delay, and whether they can at the end of that come to a safe conclusion; in particular whether it would be safe in any circumstances for them to convict on these counts or any of them. It is, in the end, a question of general assessment. My conclusion is that this is a case where the details are sufficient -- albeit there be a very long lapse of time, albeit the dates are very broad -- the details of the allegations by M, the detail of the first incident and the general nature of the incidents alleged by S, are such that it is possible for the jury to consider them and for the defendant to deal with them, as long as the jury have well in mind and are firmly directed upon the difficulties caused by delay. I am firmly of the view that this is not a proper case for judicial intervention, and in a country dependent upon jury trial, this is a matter that can and should properly go to the jury to decide." The Recorder was right to regard this as a question of general assessment. It was essentially a matter for his assessment and not for the assessment of this court. This court will only interfere if he erred in principle or made a decision which was plainly wrong, or if it is one of that exceptional class of case identifed in B . As ever, the Recorder's decision involved balancing the considerations on either side. He again took account of the fact that Marianne had died and that she could not therefore give evidence either for the prosecution or the defence. He also took account of the fact that it was difficult for the appellant to check relevant dates and that there was no medical evidence. 28. In our judgment the most compelling point advanced by Mr Crozier is based on the fact that Marianne died in 1999. Mr Crozier submits that her absence was a serious blow or potential blow to the defence case. The Recorder said in his first ruling: "This is not a case where there is any particular matter where evidence might have been available at some stage which would have clinched the matter one way or the other." Mr Crozier submits that the Recorder was wrong so to hold. He relies in particular upon Marianne's absence. He submits that the importance of her evidence can be seen from the evidence of J, who was S's sister and M's mother. He makes these submissions. M linked a recurrence of bed wetting and urinating behind furniture to his abuse by the appellant. J said that the problem had started when he was living with her after coming out of care and before M had moved down to Newquay, which equated to at least two years prior to the alleged start of the abuse, and that it had improved progressively up to the time M reached 13. M said that after the abuse had started he had become wary and withdrawn in the appellant's presence. J had noticed none of this and indeed had bought the appellant presents as a thank you for looking after him. The allegation of buggery was said to have occurred after the appellant had either volunteered or been asked to share a bed with M because he was or appeared to be ill. He said that he had been taken back to the appellant's room, which was away from other occupied bedrooms. J said in evidence that she recalled such an incident but put it much earlier in time, well before any of the alleged abuse of M had commenced. She also said that M had remained with the appellant in the room he was sleeping in and that he had not gone back to the appellant's bedroom. M and J both said that they only recalled one incident of this bed sharing having occurred. While J's account did not tally with the appellant's denial that he had ever shared a bed with M, it undermined M's account in that it suggested it may have been an entirely innocent event upon which his memory was based. 29. J's evidence was in many respects helpful to the appellant and was of course before the jury. However, Mr Crozier submits that the problem with J's evidence alone was that she was only in Newquay from time to time, whereas Marianne was there throughout. Mr Crozier submits that it is more likely than not that Marianne's evidence would have assisted the appellant. 30. In this regard, in the course of his very helpful oral submissions, Mr Crozier placed reliance upon what the appellant had said in interview. Mr Crozier's original recollection was that before he had appreciated that Marianne had died, the appellant had said that Marianne would bear out what he said. In fact, a perusal of the records of the interview shows, as Mr Crozier entirely properly recognised, that in his first interview, when he was being asked about the one occasion at the Elliott Hotel which he recalled, while denying that anything untoward occurred, he asked whether Marianne was aware of the allegations and was informed for the first time that she had died. At his second interview, when it was suggested that the complainant had mentioned what happened to Marianne, he simply said: "Marianne would have cut my head off." However that may be, Mr Crozier submits that the Recorder belittled the potential evidence and thus erred in principle. However, we do not think that it is a fair reading of his ruling. It appears to us that on a fair reading of his ruling the Recorder was not saying that Marianne's evidence might not have been of assistance to the appellant, but only that the evidence did not show that her evidence would have "clinched" the matter in his favour. Mr Osborne submits that it is a matter of speculation whether Marianne would have been able to assist the prosecution or defence. While we accept Mr Crozier's submission that her evidence may well have been of assistance to the appellant, we cannot say that it is more probable than not, and in any event we think it most unlikely that her evidence would have been decisive. It would undoubtedly have been relevant, as indeed J's evidence was, but we see no reason to conclude that the Recorder did not have in mind the likelihood of her giving relevant evidence which might have been of assistance to the appellant. 31. As to the absence of medical evidence, again it is pure speculation whose case such evidence would have assisted. We recognise that this again is a relevant factor, but it is commonplace that there is no available medical evidence, even where the period of delay is a fraction of the period of delay in this case. These were all matters to weigh in the balance. By the time the Recorder came to consider the second application, he had heard the evidence of both complainants, which we have of course not done. In our judgment the Recorder did not err in principle in refusing to stay the proceedings. He formed the view that the issues were essentially matters for the jury to decide. The jury would have the benefit of hearing evidence from the complainants, from the appellant himself and from J. In addition, as already indicated, some character evidence was available and there was photographic evidence. 32. Mr Crozier very fairly accepts that the photographic evidence was of particular value to the defence in challenging the evidence of S. He submits, however, that there was no similar evidence to assist the defence case in relation to M's allegation. Moreover, as indicated earlier, when he made his decision the Recorder was aware that he would be able to give appropriate directions to the jury. As the Attorney General's Reference No 1 of 1990 shows, that is an important consideration. The significance of it can be seen from the directions which the Recorder in fact gave in this case in the course of a conspicuously fair summing-up. 33. The direction included the following. One . The first relates to the evidence of J, relied upon by the defence. The Recorder said this between pages 8A and D: "Michael spoke of no complaint in words, but did give evidence, you will remember, that he began wetting himself again after the abuse started. There is some independent evidence about him wetting himself, but not independent support of what he says, that it was linked in time to the abuse he now complains of. Indeed J, his mother, in effect contradicted him, saying he was at his worst at about the age of eight, and that it had got much better by the time he was 11, when he says this abuse started. The defence indeed rely on that as undermining M's evidence, and you must judge this as you judge all the evidence. But there is certainly no independent support for the prosecution from this assertion that comes from him alone. So treat both matters simply as part of their stories, not as an independent assistance." Somewhat later, the Recorder pointed to differences between the evidence of the appellant and J as to the timing of events which was relevant to counts 1. The Recorder observed that if the appellant was right about the timing, including when the appellant's romantic attachment to Marianne began, count 1 must fail. It will be recalled that count 1 did fail. Two . The Recorder gave a standard good character direction at page 8D to 9C. Three . As to delay, the Recorder said this between page 9C and 10F, in a passage in which we have corrected what appear to us to be obvious errors of transcription: "There is another matter in relation to the evidence which has been properly stressed before you as important in considering the defence case, and that is delay. You are now concerned with events which are said to have taken place a very long time ago. You must appreciate that because of this there may be a danger of real prejudice to a defendant, and that possibility should be in your mind when you decide whether the prosecution has made you sure of the defendant's guilt. It is not a case of allocating fault to one side or the other; indeed the reasons for the delay have not been investigated by the defence, and no criticism has been made by them of S or M on that account. But the very fact of delay, whatever the reason, means that you need to make allowance for the fact that with the passage of time memories will fade. Witnesses, whoever they may be, cannot be expected to remember with crystal clarity events which occurred very many years ago. Sometimes the passage of time may even play tricks on memories. You should take all of that into account. Also make allowance for the fact that from the defendant's point of view, the longer the time since an alleged incident, the more difficult it may be for him to answer it. For example, has the passage of time here deprived him of the opportunity to obtain useful evidence from others in support of his denials? You may like to imagine what it would be like to have to answer questions about events in your life which are said to have taken place up to 30 years ago in order to appreciate the problems which may be caused by delay. So even though the delay in this case has not been criticised, and may even be understandable, if you decide that because of the delay the defendant has been placed at a real disadvantage in putting forward his case, you need to take that into account in his favour when deciding if the prosecution has made you sure of his guilt. Specifically, let me remind you at this stage and in this context. It has been pointed out that the most important additional witness who was living throughout the period concerned was Marianne, and she died in early 1999. In addition, other potential witnesses, neighbours and friends who could have spoken of the defendant's relationship with the children and of this drinking habits -- both features which have figured in this case to some extent -- have disappeared or died. It is now impossible precisely to tie down some of the dates, particularly relating to M's early visits to Cornwall and his presence in the household. It is far too late, as you have heard, to get any useful medical evidence to show whether or not Michael was subjected to buggery. As a result, it is said the defendant cannot now mount the sort of positive defence if the trial had taken place say 20 years ago. You will have to bear that very much in mind throughout." In that passage the Recorder specifically drew the jury's attention to the particular points of possible difficulty for the appellant and directed them that they must take each into consideration in deciding whether they were sure of the appellant's guilt. In our judgment he was entitled to leave those questions to the jury to decide. Four . The judge drew attention to the inconsistencies in S's evidence as to what happened at the Elliott Hotel. The appellant was able to say that he only once took her to the hotel and gave her a bath and that, subject to the point made in ground 3, to which we will return in a moment, he was able to say that that occurred in 1974. It appears to us to be very likely indeed that the jury convicted the appellant on count 2 on the basis that there was only one incident of digital penetration in the summer of 1974. The Recorder was in our judgment correct to sentence the appellant on count 2 on that narrow basis. We return to count 2 in a moment in the context of ground 2. Five . In relation in particular the count 3, which related to alleged behaviour in the bedroom, the appellant was able to point to a number of photographs, albeit taken in 1979 and later, which did not appear to show, as the Recorder put it "a dysfunctional family with children living in fear." It will be recalled that the appellant was acquitted on count 3. Six . As to M, the Recorder summed up the evidence in detail. M's evidence did not suffer from the same inconsistencies as that of S. He was able to give clear evidence of one incident of buggery in the winter of 1978/9. Moreover, M recalled the appellant saying to him that he was circumcised. It is common ground that M was in fact circumcised and the Recorder correctly pointed out to the jury that if the appellant was right about the nature of his relationship with M and his family, it was not such that M would have had cause to see to the appellant's penis. That was no doubt a further factor which led the Recorder to conclude that the allegations relating to the appellant could safely be left to the jury. 34. We have reached the conclusion that the Recorder was entitled to hold that the appellant could have a fair trial notwithstanding the delay. We see no basis upon which we could properly interfere with the exercise of his discretion not to stay the proceedings either at the outset or after he had heard S and M give evidence. In these circumstances we have reached the clear conclusion that ground 1 fails. 35. Ground 2 . Mr Crozier takes a specific point in relation to ground 2, which was expanded in the light of the evidence of S. Count 2 initially related to the period between 20th September 1972 and 19th September 1973. S had originally said in her police statement that the abuse had occurred on three or four occasions in total and count 2 of the indictment was formulated on that basis. However, in the course of her evidence, although S did not change her evidence as to the substance of what she said the appellant did, she said that he did it weekly over a period of some three years. The Recorder permitted count 2 to be amended to reflect that period of three years, so that it extended from 20th September 1972 to 19th September 1975 -- that is between S's eighth and eleventh birthdays. Mr Crozier submitted to the Recorder that he should rule that the appellant had no case to answer on counts 1 to 3, especially if count 2 was expanded in that way. The Recorder rejected the submission on the footing that the evidence was sufficient to leave to the jury. Mr Crozier submits that the Recorder was wrong so to hold, on the footing both that S had proved to be a most unreliable witness and that it was difficult if not impossible for the appellant to defend himself because of the passage of time. However, given our decision on grounds 1 and 2, we have reached the conclusion that the judge was entitled to leave counts 1 to 3 to the jury. In any event, no doubt because of the way that S changed her evidence as to the frequency of the alleged offences, and in the light of Mr Crozier's cross-examination based on material such as the photographs, the appellant was acquitted of counts 1 and 3. As to count 2, we have no doubt that the appellant was convicted on the basis that he inserted his finger in S's vagina on the one occasion on which he admitted taking her to the Elliott Hotel to have a bath. There was undoubtedly sufficient evidence to leave the case to the jury on that basis. 36. Ground 3 . The third ground is that the appellant should have directed the jury more specifically with regard to the date of the occasion at the Elliott Hotel, to which we have just referred. The Recorder summed it up as follows at page 14A to 15A: "The prosecution draw attention to that saying that is odd, because certainly if it was September 1974, which is what the defendant says, this is a girl who was then almost ten years of age. The defendant says there was nothing strange about this, although on his account he was then still a lodger. There was no romantic relationship between him and Marianne, and he is taking a girl whom he described as very grown up, whom he had little to do with and whom he had no particular affection for, and then instead of just leaving her to get on with it and perhaps standing by the door or outside the door, he soaked and dried her more as if she were a five or six year old as he was describing her in that first interview. You have to consider what you make of that. Remember, as the defence pointed out, that it was a matter that he volunteered to the police, wanting to deal with it at a fairly early stage in that first interview. Against that, remember the point is made by the defence that S initially had said in her signed statement in 2002 that this happened only about three times in all; not every week. She now says it happened every week really until she was 11. Of course, if the defendant is right, it could only have happened during the first part of the summer season of 1974 at the Elliot Hotel, because about six weeks before the end of that summer season, he moved from there to work at the Sandridge Hotel instead, and that facility would have stopped, so there would only have been a few weeks, comparatively few weeks, when it could have taken place. At any rate, the defence point to that difference between what S said in her statement and what she said in evidence as some indication that she is not telling the truth, or is at least unreliable as to facts. You must make your judgment on that. Remember that as to count 2 you must be sure that there was at least one such incident in the bathroom at the Elliott Hotel, some time in the period between September 1972 to September 1975, before you can convict. You do not need to give a verdict one way or another as to how often it took place if you are sure that it took place at least once." 37. It is submitted that before the jury could accept the point made by the Crown, which Mr Crozier conceded in argument to be based on telling, even devastating, cross-examination to the effect that the appellant's own evidence was surprising in the case of a girl of 10 years of age, the Recorder should have directed the jury that they must be sure that the incident did in fact occur in 1974 when it is common ground that S was 10, and not when she was much younger, say five to six, as the appellant first said in interview. Although the point was forcefully put by Mr Crozier, it was not one that struck him when he was listening to the summing-up or indeed when he first drafted the grounds. We do not criticise him in any way for that. Although the appellant had initially said in interview that he thought the incident occurred when S was five or six, by the time he gave evidence he was able to say that it was in 1974. Although timing is always difficult in an old case, there was a good deal of support for that evidence. As the judge observed on the previous page of his summing-up, J said that she first met the appellant when he and her mother Marianne visited her in Crawley which she could put in the autumn of 1972. The appellant said no, he moved into the guest house only in the autumn of 1973 and the visit to Crawley was in the autumn of 1973. As we indicated earlier, the Recorder observed that if the appellant was right about that, count 1 must fail, whereas if J and S were right about that the position would be different. Count 1 did fail. 38. In our judgment the judge sufficiently made it clear to the jury that the point made by the Crown depended on their concluding that the incident occurred in 1974. The point only arose, he said: "if it was in September 1974." In our judgment the Recorder put that point fairly to the jury. 39. The Recorder also highlighted the differences between S's statement and her evidence and observed that if the appellant's evidence was correct the abuse at the Elliott Hotel could only have occurred in the first part of the summer of 1974 because about six months before the end of the summer season he moved to another hotel. That is another example of the fair and balanced way the Recorder summed the matter up to the jury. In these circumstances, ground 3 fails. 40. Ground 4 . Here Mr Crozier repeats the substance of the points he made under grounds 1 and 2 and submits that this is a case just like B , where as Lord Woolf put it the defendant could do more than say to the jury "I have not done it" which is no defence at all. However, as Hooper makes clear, each case depends on its own circumstances. Here there was a sharp conflict of evidence between the appellant and each of the complainants. The jury's acquittals on counts 1 and 3 shows the care they took. They convicted on count 2 on the narrow basis that we have described, accepting the appellant's evidence that there was one occasion at the Elliott Hotel, but preferring S's evidence that he went further on that occasion than he was prepared to admit. As to M, M's evidence was consistent throughout. He gave a clear account of the buggery alleged in count 4. The jury may have been struck by the conversation about circumcision in circumstances where the appellant was in fact circumcised, whereas M could not have known that if the appellant's evidence was true. 41. These were essentially matters for the jury. Given our conclusion that there was no failing in the trial process, we have reached the conclusion that there is no proper basis on the facts of this case upon which we could hold that these convictions are unsafe. It follows that the appeal against conviction fails. 42. Sentence . As we have indicated, the appellant was sentenced to a total of eight years' imprisonment. Mr Crozier advances three grounds of appeal: first, that the totality of the sentence is manifestly excessive having regard to the level of offending and the authorities; second, that the Recorder failed to give the appellant sufficient credit for his age, hitherto good character and his low risk of reoffending -- see Millberry [2003] 2 Cr.App.R (S); and third, that the Recorder should not have sentenced the appellant to consecutive sentences on count 2, two years, and count 4, six years; rather he should have scaled down the overall length on each count in accordance with the principles of totality -- see Attorney General's reference No 19 of 1992 (1992) 14 Cr.App.R (S) 330. 43. In passing sentence, the Recorder observed that the appellant had committed offences against young members of his household to whom he was in a position of trust. S was the daughter of the person with whom he was lodging and M was his step-grandson. He threatened the latter with being sent back to his father, who was in a volatile relationship with his mother, and told him he would not be believed. M was vulnerable and the appellant's behaviour compounded his problems. The appellant's victims had had to live with their memories for 25 years. The Recorder took into account the appellant's good character but said that that could only make a limited difference to sentence, as it was his standing in the community that enabled him to commit the offences and keep them quiet for so long. The delay in bringing the case could not assist the appellant as it arose from his threat to his grandson. A guilty plea would have reduced his sentence by up to a third. The Recorder took into account the totality of the sentence, the appellant's good character, his age and medical condition and the age of the offences, but the offences were a gross breach of trust. He said that had the offences been more recent and the appellant a much fitter man the total sentence imposed would have been considerably longer. 44. Mr Crozier relies in particular upon the fact that apart from these convictions the appellant is a man of good character and in any event that he has not committed any offences since 1980, nearly a quarter of a century ago. He is now a man of 66 and is not in good health. The pre-sentence report does not suggest that there is a high risk of reoffending. He submits that in the light of the cases, including not only Millberry but in particular Smith (1991) 13 Cr.App.R (S) 461 and Sullivan [1999] 1 Cr.App.R (S) 89, a total sentence of eight years is manifestly excessive. 45. We agree. We do not accept that it was not appropriate to pass consecutive sentences on counts 2 and 4, count 2 on the one hand and the remaining counts on the other, given that the victims were entirely different people. However, we have reached the conclusion that having regard to the age of the appellant, his good character over many years, his health and the nature of the offending, the sentences could and should have been shorter. We have regard to the contents of the pre-sentence report. 46. Given the basis upon which we are sure the jury convicted the appellant on count 2, namely one sole incident, and his acquittals on the other counts relating to S, and bearing in mind the principle of totality, we think that the sentence on count 2 should be reduced to a sentence of one year's imprisonment. As to count 4, we have reached the conclusion that a sentence of five years' imprisonment would have been sufficient. We cannot properly reduce it below that, especially given the fact that the appellant is not entitled to credit for a plea. 47. It follows that the sentence of eight years is quashed and substituted by a total sentence of six years' imprisonment, one year on count 2 and five years consecutive on count 4. The sentences on counts 5 to 7 remain the same and are concurrent. To that extent the appeal against sentence succeeds.	{"ConvCourtName":["Crown Court at Plymouth"],"ConvictPleaDate":["2003-12-01"],"ConvictOffence":["Buggery","Indecent assault on a female","Indecent assault on a male"],"AcquitOffence":["Indecent assault on a female"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Plymouth"],"Sentence":["6 years imprisonment (count 4, buggery)","2 years imprisonment consecutive (count 2, indecent assault on a female)","3 years imprisonment concurrent (counts 5-7, indecent assault on a male)","Total: 8 years imprisonment (original)","Substituted: 1 year imprisonment (count 2)","5 years imprisonment (count 4) consecutive","Total: 6 years imprisonment (substituted)"],"SentServe":["Consecutive","Concurrent"],"WhatAncillary":["Order under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 extending licence period to whole sentence","Order disqualifying from working with children under section 28 of the Criminal Justice and Court Services Act 2000","Notification to police indefinitely under section 2 of the Sexual Offenders Act 1997"],"OffSex":["All Male"],"OffAgeOffence":[65],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Relative"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["Mixed"],"VicAgeOffence":[10,11],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Complainant testimony","Photographic evidence","Character evidence"],"DefEvidTypeTrial":["Offender denies offence","Character evidence","Photographic evidence"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Offences against young members of household to whom offender was in a position of trust","Threatened victim to prevent disclosure","Victims had to live with memories for 25 years","Gross breach of trust"],"MitFactSent":["Offender of good character","No offences since 1980","Age (66 at sentence)","Not in good health","Delay in bringing case"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe","Sentence is unduly excessive"],"AppealGround":["Judge erred in refusing to stay proceedings as abuse of process","Judge erred in rejecting submission of no case to answer","Judge misdirected jury in relation to count 2","Residual case where interests of justice require conviction to be set aside","Totality of sentence manifestly excessive","Insufficient credit for age, good character, low risk of reoffending","Consecutive sentences inappropriate"],"SentGuideWhich":["section 86 of the Powers of Criminal Courts (Sentencing) Act 2000","section 28 of the Criminal Justice and Court Services Act 2000","section 2 of the Sexual Offenders Act 1997","Millberry [2003] 2 Cr.App.R (S)","Attorney General's reference No 19 of 1992 (1992) 14 Cr.App.R (S) 330","Smith (1991) 13 Cr.App.R (S) 461","Sullivan [1999] 1 Cr.App.R (S) 89"],"AppealOutcome":["Appeal against conviction dismissed","Appeal against sentence allowed and sentence reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Age of appellant","Good character over many years","Health","Nature of offending","Pre-sentence report: low risk of reoffending","Principle of totality"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No failing in trial process","Issues were for the jury","Recorder entitled to hold fair trial possible","No proper basis to hold convictions unsafe"]}
Neutral Citation Number: [2018] EWCA Crim 1374 Case No: 201800582 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 8 June 2018 B e f o r e : LORD JUSTICE SIMON MR JUSTICE GOOSE THE RECORDER OF AMERSHAM - HER HONOUR JUDGE CUTTS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHRISTOPHER FLETCHER - - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - - Mr H McKee appeared on behalf of the Appellant J U D G M E N T (Approved) 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. 1. MR JUSTICE GOOSE: On 22 January 2018, the appellant, Christopher Fletcher, who is aged 40, was sentenced in the Crown Court at Stoke-on-Trent to imprisonment for 8 years and 2 months. He had pleaded guilty to drugs offences on two indictments. On the first indictment, T20160268, the appellant pleaded guilty to possessing a controlled drug of class A with intent, crack cocaine, contrary to section 5(3) of the Misuse of Drugs Act 1971, being count 1; and of a similar offence in relation to heroin, being count 2. On the second indictment, T20170452, the appellant pleaded guilty to a further offence of possession of a controlled drug of class A with intent, heroin, also contrary to section 5(3) of the Misuse of Drugs Act 1971. 2. He was sentenced to 4 years' imprisonment on each of the offences with those offences on the first indictment running concurrently with each other but consecutive to the offence on the second indictment. In addition, the appellant was sentenced after his plea to failing to surrender to custody, for which he received a consecutive sentence of 2 months' imprisonment, making 8 years and 2 months in all. 3. The appellant appeals with leave from the single judge upon grounds that the total sentence was manifestly excessive because the appellant was a drug addict whose supply of drugs was in order to fund his own habit and to buy alcohol for himself. Secondly, the nature and extent of the dealing was such that despite the aggravating features, the starting point for sentence should have been at a lower range. Thirdly, insufficient account was given to the principle of totality when making the sentences consecutive. No criticism is made of the consecutive sentence for the failing to surrender to custody offence. 4. The facts of these offences can be started shortly. On 16 March 2016, the appellant was arrested in a public house in Burselm, Stoke-on Trent and found to be in possession of 3.05 grams of crack cocaine with a street value of £320 and 18.7 grams of heroin with a street value of £1,060. He was also in possession of £495 in cash. 5. After his arrest, he was granted bail to attend court for his trial in November 2016 but failed to attend and remained at large for 13 months. 6. On 20 December 2017, the police attended at an address in Bank Street, Rookery to execute a search warrant. There they found the appellant in the rear bedroom. He was in possession of 21 grams of heroin with a street value of £2,100, together with measuring scales and dealer bags. 7. The appellant has 12 previous convictions for 35 offences, which include a conviction for possession of a controlled drug of class A with intent to supply on 24 February 2012 for which he was sentenced to imprisonment for 39 months. 8. In sentencing the appellant, His Honour Judge Glenn, the Honorary Recorder of Stoke-on-Trent, accepted the appellant's basis of plea in relation to the first indictment, namely that he had stolen the drugs and cash from his own drugs supplier, but that he admitted that he was to supply some of the drugs to others. The judge correctly found that such a basis offered little by way the mitigation. The appellant was sentenced on the basis that he was a street dealer and that he had played a significant role in the offences because he was motivated by financial or other advantage. 9. The guideline for supplying or offering to supply a controlled drug of class A under the drugs offences definitive guideline provided a starting point for these offences of 4 years and 6 months' custody, with a sentencing range of 3 years 6 months to 7 years. 10. The judge identified the appellant's previous conviction for a similar offence as being a seriously aggravating factor of the seriousness of these offences. Further, given that the second indictment comprised a further offence while on bail, the judge imposed consecutive sentencing between the two indictments. 11. A discount for pleading guilty was applied of 10 per cent in respect of the first indictment, when the appellant had failed to surrender for trial but pleaded guilty after his further arrest; and 25 per cent in respect of the second indictment. 12. The sentence for each of the two counts on the first indictment was 5 years' imprisonment reduced to four and a half years with a discount for pleading guilty of 10 per cent. On the second indictment, committed when the appellant was not only on bail but also had absconded and avoided his trial, the sentence was 6 years' imprisonment reduced to four and a half years for the plea discount of 25 per cent. Both sentences were then reduced to 4 years' imprisonment each to reflect the totality principle, discounting the consecutive total sentence by one year. 13. On behalf of the appellant, it is argued that the judge should, despite the aggravating features of the offences, have adopted a starting point at a lower range than he did. 14. However, we are satisfied that the judge correctly identified the culpability and the harm of these offences within the guideline so as to reach the appropriate starting point for class A drugs with intent to supply. There were significant aggravating features, which required an upward adjustment from the starting point, and in circumstances in which the appellant was on bail when he committed the offence in the second indictment, consecutive sentencing was justified. 15. It is further argued on behalf of the appellant that there should have been a greater reduction in sentence when applying the totality principle. The judge obviously took into account the principle when expressly reducing the sentences on each indictment by 6 months, which when making those sentences consecutive applied a 1 year discount to the total sentence. Such a discount was entirely within the judicial discretion of the judge when imposing sentence. 16. Having considered the submissions made on behalf of the appellant with care, we are not persuaded that the sentence of 8 years and 2 months' imprisonment for this appellant's offending was manifestly excessive or wrong in principle. Having committed a similar offence in 2012 for which he received a significant prison sentence, this further offending, some of which while being on bail, cannot be criticised. 17. In the circumstances, we dismiss this appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.	{"ConvCourtName":["Crown Court at Stoke-on-Trent"],"ConvictPleaDate":["2018-01-22"],"ConvictOffence":["Possession of a controlled drug of class A with intent (crack cocaine), contrary to section 5(3) of the Misuse of Drugs Act 1971","Possession of a controlled drug of class A with intent (heroin), contrary to section 5(3) of the Misuse of Drugs Act 1971","Possession of a controlled drug of class A with intent (heroin), contrary to section 5(3) of the Misuse of Drugs Act 1971","Failing to surrender to custody"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Stoke-on-Trent"],"Sentence":["4 years imprisonment (count 1, first indictment)","4 years imprisonment (count 2, first indictment)","4 years imprisonment (second indictment)","2 months imprisonment (failing to surrender to custody)"],"SentServe":["Consecutive","Concurrently"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[40],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Previous conviction for similar offence","Offence committed while on bail"],"MitFactSent":["Basis of plea: drugs and cash stolen from own supplier","Discount for guilty plea"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is manifestly excessive"],"AppealGround":["Appellant was a drug addict whose supply was to fund own habit and buy alcohol","Nature and extent of dealing should have led to lower starting point","Insufficient account given to totality principle"],"SentGuideWhich":["Drugs offences definitive guideline for supplying or offering to supply a controlled drug of class A"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge correctly identified culpability and harm within guideline","Significant aggravating features justified upward adjustment","Consecutive sentencing justified as offence committed while on bail","Judge took into account totality principle and applied appropriate discount","Sentence not manifestly excessive or wrong in principle"]}

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