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You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2009] EWCA Crim 276 Case No: 200706590/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 28th January 2009 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE BEAN HIS HONOUR JUDGE PAGET QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ABBAS HUSSAIN KHANANI - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr S Csoka appeared on behalf of the Appellant Mr A Bird appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: On 23rd November 2007 at Kingston-upon-Thames Crown Court before Her Honour Judge Matthews QC, Abbas Hussain Khanani and his son, Ameer Khanani, were each convicted of entering into a money laundering arrangement, contrary to section 328 of the Proceeds of Crime Act 2002 . Each was given leave to appeal against conviction by the single judge on limited grounds. Mr Khanani (Junior) has not pursued his appeal and we are therefore concerned only with the appeal of Mr Khanani (Senior). That appeal has proceeded on a single issue but to see how the issue arises it is necessary to give some more general account of the prosecution's case. 2. In a nutshell, the prosecution case was that the appellant and his son were responsible for the United Kingdom operation of a Hawala banking network and that they utilised that arrangement to facilitate the acquisition of criminal funds on behalf of the appellant's principal in Pakistan. There is nothing unlawful or irregular in itself about a Hawala banking system. The judge and jury were assisted by admissions made by both parties about the nature of such a system. We quote from the admissions: "Hawala is a method by which funds can be transferred between people or companies, often across international boundaries. A particular Hawala system will generally be built upon links based upon family, tribe or ethnicity. Transfers of Hawala funds are facilitated through an informal system operated by active Hawalader Brokers, who execute swaps of value or transfers between themselves to settle debts, thus reducing the amount of administrative records and avoiding local controls. The system is built both upon trust and on a history of success. In 2005 the Court of Appeal in Hussain and Ali [2005] EWCA Crim 87 21 & 22 paragraphs described the detail of the process as follows: '21. Hawala banking is an arrangement by which individuals (or intermediaries who have collected money from individuals) deposit money, usually in the form of modest amounts of cash, with a Hawalader in, for example, the UK to be remitted to beneficiaries abroad, commonly in the country from which the remitters' family originate, for example Pakistan. The UK Hawalader will have a Hawala contact in Pakistan who will pay a sum in rupees, at a rate of exchange which may have been agreed with the remitter in advance. The payment will commonly be made more quickly, more cheaply and with less formality than any corresponding service that might be available through the medium of the commercial banks. There is commonly a family relationship between the UK Hawalader and his contact in Pakistan which enables the transaction to be completed with a greater reliance on trust than is necessary in other commercial financial dealings. 22. For ordinary Hawala there must be records to show the identities of the individuals from whom the money had originally been collected in the UK and of those to whom it was ultimately to be paid in Pakistan.' It is not inconsistent with the Hawala process that a Hawaladar or his agent in the UK should collect a stock of cash from different customers and use it to compete entirely separate transactions on behalf of a Pakistani Hawaladar. Hawala banking represents (for the customer) an alternative to the use of the conventional banking system, but a Hawala banker in the UK is subject to exactly the same legal obligations as a conventional banker." 3. The case against the appellant was that very large sums of cash were collected, generally by the appellant's son in an unorthodox way and for which the appellant and his son did not keep proper records. 4. During the weeks leading up to the search of the appellant's premises there were surveillance activities, as a result of which the appellant's son could be seen going about by car and collecting what the prosecution said were transfers of cash in the street or outside an underground station, in peculiar circumstances, that is to say, that the transfers were carried out swiftly and without the monies being counted or a receipt given. 5. On 31st August 2004 customs officers searched the home address from which this business was conducted. The appellant himself was at this stage in Pakistan having flown there a few days earlier. Cash books and ledgers were found. The records were mainly in the appellant's handwriting. 6. The records, which did not go back before 2004, had some striking features about them. The true names of many depositors were not recorded. The amounts recorded as received were in many cases shown as 1 per cent of the true amount which could be deduced from other documents. There was, for instance, an entry recording £1049.20 but which from other evidence could be shown to relate to a receipt of £104,920. On the day before the police search, officers had observed a Dutch national, named Floor, enter the United Kingdom from Amsterdam. He flew into Heathrow and checked into a hotel. He checked out of the hotel on the following morning and took a taxi to Leyton Underground station. There he met the appellant's son, who was in a Fiat car. Floor put a brown holdall on the back seat of the car. At that point both men were arrested. The holdall contained £140,000 in bank notes. Floor was granted bail but later absconded. Although the appellant himself was out of the country, the prosecution relied on this incident not only against the appellant's son but also more generally as showing the nature of the business at that time. If the £140,000 was honest money, there were much simpler ways for it to have been moved than by Floor flying to England, taking a taxi to East London and handing it over in a holdall to the appellant's son outside an Underground station. 7. As an indication of the scale of the appellant's activities, over £2 million in cash was received in a 2-month period from the beginning of July to the end of August 2004. The money received by the appellant was not banked but kept in cash at his home. At the time of the police search the cash found there amounted to over £90,000. 8. The prosecution's case was that these features taken together provided ample material from which a jury might properly infer that the appellant was providing a service to criminals in possession of large sums of cash who wanted it processed in a way which obscured their identity and left no documentary trail that would lead back to them. 9. The sole issue pursued on this appeal concerns the dates within which the offence charged under section 328 was alleged to have been committed. Whereas in many cases juries are told that precise dates in an indictment are immaterial, that was not the case here. For the appellant to be guilty as charged, the offence must have been committed not earlier than the indictment period, because this was the effect of the statutory instrument bringing the relevant section into force. If the conduct which constituted the offence had begun prior to the indictment period, it would not have been criminal and therefore prosecution for it would contravene the principle against imposing retrospective criminal liability. 10. The offence is defined as follows: "A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person." The way in which the prosecution presented its case was that the relevant "other person" for the purposes of this case was the appellant's principal in Karachi. But the prosecution did not have to prove any mens rea on the part of that other person. Under section 328 one may have an arrangement between an agent, A, and principal, P, which in the mind of P is at all times lawful, but which at some stage is used by A to facilitate the acquisition on behalf of P of property which is criminal and is known or suspected by A to be criminal. If so, at that point A becomes guilty of an offence under the section, albeit that P is not guilty. It all seems rather technical but this flows from the various ingredients of the offence. 11. The judge in due course gave the jury written directions in which she correctly directed the jury that an offence would be committed under the section if and when three separate elements all requiring to be proved were established. Those three elements were these: first, there must be money which the jury was sure represented the proceeds of crime, directly or indirectly and in whole or in part. Secondly, the defendant must enter into or become concerned in an arrangement in relation to that money, namely one which he knew or suspected would facilitate its acquisition, use, control or retention. Thirdly, the jury had to be satisfied that the defendant knew or suspected that the money represented the proceeds of crime. No offence would be committed unless and until all three ingredients were established. One could therefore have an arrangement which was initially intended to be lawful, and which remained lawful in the mind of P, but under which A committed an offence contrary to section 328 by utilising that arrangement for the acquisition on P's behalf of property which was criminal and he knew to be criminal. At that stage he would then become concerned in an arrangement prohibited by the section. 12. The appellant gave evidence to the effect that in 2001 to 2002 he entered into an arrangement with a respected businessman who carried out a money exchange business in Karachi, and that thereafter the money collecting that he did in the United Kingdom was done pursuant to that arrangement and for the benefit of that principal. The appellant denied any suspicion at any stage that the monies which he was instrumental in receiving and passing on had a criminal source. The jury plainly disbelieved him on that. He also maintained that the nature of his arrangement with his Pakistani principal was the same throughout the material period. The judge summarising his evidence on this point said as follows: "He told you that once the system had started it didn't operate differently between 2002 and 2004, though, he said, by 2004 the operation was less active and the amounts that were going through were smaller. He said, 'From the time I started this arrangement with Altaf Khananai I never had any suspicions. He had been introduced by someone I knew. He was a credible businessman. The company of Khanani and Khalia enjoyed an excellent reputation and I thought the cash came from the money service bureaux and I had no reason to doubt this. I never considered or wondered if it came from crime.'" 13. After the appellant had given his evidence Mr Csoka, who appeared for the appellant below as he has done before this court, submitted that the judge ought to withdraw the case from the jury because on that evidence the arrangement, whatever it had been, had begun before the indictment period, which itself was from 23rd February 2003 to 1st September 2004. Therefore, if the prosecution were right in their arguments about the nature of the arrangement, the offence under section 328 predated the indictment period and predated the time when such an arrangement became criminal. The judge rejected that submission. Mr Csoka has renewed it before this court. 14. In our judgment the argument contains a fallacy. As already stressed, the offence could only be committed when the prosecution were able to show that all the necessary ingredients of that offence were established. They therefore had to show that there was an arrangement under which the transfer of criminal property was being facilitated by the defendant. Their case for showing that criminal property was being processed during the indictment period was based on the evidence to which we have referred, that is to say, that there was ledger evidence showing receipts of substantial sums of cash and there was surveillance evidence showing the unusual way in which some of those cash transfers were being made. That was the basis for the prosecution establishing the first ingredient, namely that criminal property was being processed. 15. During the period before the indictment there was no such evidence. None was available to the prosecution because when they conducted their search, the records which they found did not go back to any such earlier period. It may well be that the arrangement made between the appellant and his Pakistani principal ante dated the indictment period, but it by no means follows that criminal property was being processed under it. As to that, there simply was no evidence other than the broad assertion by the appellant that the nature of the arrangement was the same. But this was not, we stress, a case in which the appellant himself was putting forward material to show the receipt of criminal property at an earlier date. Quite the reverse. Moreover, even if the jury were to disbelieve the appellant's evidence about being in honest receipt of substantial sums, prior to the indictment date, that did not mean that there was evidence that he had received criminal sums prior to the indictment date. As Scrutton LJ we believe once commented, if a man says that he did not go to Paris and is disbelieved, that is no evidence that he went to Paris. 16. Mr Csoka went further. He submitted that in this case it was positively incumbent on the prosecution to prove that the appellant had not been guilty of criminal conduct prior to the indictment period. He accepted in his submissions that there was no evidence upon which the jury could have made a positive decision when the appellant first received criminal property. All that the prosecution evidence went to show was that he had received criminal property during the indictment period. He submitted that in such circumstances it was incumbent on the prosecution positively to prove that he had not received criminal property prior to that date. No authority was cited to support that proposition, which we consider to be wrong in principle and would place upon the prosecution a burden which would in practical terms be impossible to discharge. 17. Finally, Mr Csoka criticised the way in which the judge summed-up this issue to the jury. In our judgment, there is no substance in that criticism and accordingly this appeal is dismissed. 18. MR BIRD: My Lords know that there is an earlier judgment of this court on the interlocutory appeal. There was a ruling given then in relation to publicity. Now there is going to be no more trial for the Khananis, it seems that the ruling on publicity can be lifted. 19. LORD JUSTICE TOULSON: Have you anything to say about that, Mr Csoka? 20. MR CSOKA: No, my Lord. 21. LORD JUSTICE TOULSON: We agree.

```yaml citation: '[2009] EWCA Crim 276' date: '2009-01-28' judges: - LORD JUSTICE TOULSON - MR JUSTICE BEAN - HIS HONOUR JUDGE PAGET QC ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No. 2008/06690/C2 & 2008/06688/C2 Neutral Citation Number: [2011] EWCA Crim 3111 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 13 December 2011 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE SWEENEY and MR JUSTICE SINGH - - - - - - - - - - - - - - R E G I N A - v - JOHN HAASE PAUL BENNETT - - - - - - - - - - - - - - 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 Jones QC appeared on behalf of the Appellant John Haase and the Applicant Paul Bennett Mr D Atkinson appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T Tuesday 13 December 2011 THE LORD CHIEF JUSTICE: 1. On 19 November 2008, in the Crown Court at Southwark, before Cooke J and a jury, John Haase and Paul Bennett were convicted of conspiracy to pervert the course of public justice. Haase was sentenced to 22 years' imprisonment and Bennett to 20 years' imprisonment. Appropriate orders were made in relation to any time spent in custody on remand. 2. On the same date Deborah Haase (John Haase's wife) and Sharon Knowles were convicted of the same conspiracy. Paul Thompson, although acquitted of the conspiracy, was convicted of possession of firearms without lawful authority. Knowles was sentenced to five years' imprisonment, Deborah Haase to four years' imprisonment, and Paul Thompson to four years' imprisonment. A further conspirator, Hennigan, had earlier pleaded guilty. He was sentenced to 30 months' imprisonment. Due allowance was made for his guilty plea and his lesser role in the conspiracy. These four, Deborah Haase, Sharon Knowles, Paul Thompson and Hennigan were foot soldiers of the conspiracy. John Haase and Paul Bennett were its leaders. 3. Knowles and Haase appealed against sentence with the leave of the single judge. Thompson's application for leave to appeal against sentence was referred directly to the full court, and leave was granted. The appeals of all three were dismissed. Applications by John Haase and Hennigan were refused by the single judge and were not then renewed. Bennett renewed his application following refusal by the single judge and then abandoned it. John Haase now appeals against sentence with the leave of the full court which granted the necessary extension of time. Bennett seeks, through new solicitors, to have his abandonment of an appeal against sentence to be treated as a nullity. For convenience only we shall describe both John Haase and Paul Bennett as "the appellants", although in the result Bennett remains an applicant whose application has been refused. 4. In the judgment dismissing the appeals by Knowles, Deborah Haase and Thompson, the court observed that this was an "elaborate, unusual (if not unique) conspiracy" and that it was not possible to exaggerate its seriousness. 5. The objective of the conspiracy was to enable John Haase and Bennett to escape the level of sentence which would have been appropriate following their convictions for involvement in very substantial drug dealing on an international basis. There was a carefully organised pretence that they had given genuine assistance to the authorities which merited a substantial discount from what would otherwise have been the appropriate sentence for their involvement in the drug dealing conspiracy. 6. They were arrested in July 1993 following a major investigation into the importation of Class A drugs into the country. They were the United Kingdom end of an international drugs smuggling operation which had its origins in Turkey. The evidence against them was very strong. They decided that they would plead guilty, but that the guilty pleas would be tendered in the context of the criminal conspiracy of which they were to be convicted in November 2008. The conspirators decided that mitigation would be advanced to the sentencing judge on the basis that the two defendants (as they then were) could provide, and had provided, information of great value to the police and investigating authorities of major criminal activity by other criminals. They became registered as police informers. 7. Steps were taken to delay the proceedings against them so that the information which they purported to provide could be investigated. 8. Between October 1993 and August 1995 a substantial amount of apparently true information relating to apparent criminal activities by others was provided. Among that information the whereabouts of firearms and related explosive materials was made available. Indeed, no less than 28 substantial firearms' seizures were made on the basis of the information. As the judgment dealing with the appeals of Knowles, Deborah Haase and Thompson made clear, this was all a charade. 9. The appellants had made arrangements (via, among other things, the use of their mobile phones while in custody) for the firearms to be procured and placed in apparently secret hiding places. They then arranged for the whereabouts of the firearms to be disclosed to the authorities so that it would look as though genuine intelligence was being provided by the police informers. In its earlier judgment the court described the conspiracy in these terms: "9. .... It was a major conspiracy of its kind. Over the months seizures were made of firearms which included sub-machine guns, assault rifles, handguns and shotguns. The most important seizure of firearms included 9mm automatic pistols that were found in Holyhead. The purpose was to make it look as though they were destined to be sent to the Republic of Ireland at an extremely sensitive time during the peace process. .... Among other serious elements of the offence, a handgun was smuggled into Her Majesty's Prison Manchester and attributed to a prisoner who was facing a murder trial." In addition to their apparent efforts to enable the police to seize firearms and weapons, the appellants provided significant information about a number of professional criminals who operated in the Merseyside area. 10. All this information was treated as if it were genuine, provided by police informants who were doing their best to assist the investigating authorities in the hope that the extent of their co-operation and assistance would be taken into account when the judge came to sentence them for their involvement in the drug trafficking operation. In truth, it was the appellants who had made arrangements by the use of their mobile phones to ensure that firearms were found in places where they indicated to the investigating authorities they would be found. In other words, although it looked as if genuine intelligence was being provided, it was not. As to their information about professional crime in the Merseyside area, by the time the information was provided it was of some, but very limited, use. The appellants never intended that it should be anything more. 11. The case was listed for plea. The appellants pleaded guilty. The appropriate sentence for the offences they had committed was eighteen years' imprisonment. That was the sentence imposed in open court. The judge, His Honour Judge Lynch, was provided, in camera, with evidence which underlined the valuable information which the two appellants had provided. However, had the sentence pronounced in court reflected the significant discount which would have been merited if the information provided by the appellants had been genuine, it would have revealed to the criminal fraternity that they had provided real assistance to the authorities. That would never do. 12. To resolve the problem, with the agreement of counsel acting for the appellants, the judge imposed the sentences of eighteen years' imprisonment and deliberately made no allowance in his sentencing decision for the assistance he believed that the appellants had provided. But he indicated that in due course he would notify the Home Office, on the basis of the information provided, of the sentence that he would have imposed. That sentence would have been five years' imprisonment. 13. In due course, when that information was provided to the Home Office, the Secretary of State for the Home Department exercised the Royal Prerogative and the appellants were then dealt with as if a sentence of five years' imprisonment had been imposed rather than one of eighteen years' imprisonment. 14. Judge Lynch gave evidence at the trial in 2008. He explained that he was very impressed with the information given to him about the gun caches, the weapon seizures and the other matters, particularly in the light of what was then an increasing level of gun crime in Merseyside during the 1990s. On the basis that the information the appellants had provided was genuine, he had acted within well-established principles when he indicated that if the material had been genuine, the appropriate level of sentence would have been five years' imprisonment. 15. In the end the sentence was treated as one of five years' imprisonment. Subject to appropriate discounts in accordance with the statutory regimes then in force, that was the period that the appellants served in custody. In short, following the sentencing hearing in August 1995, they were released from custody in July 1996. The conspiracy we have described had succeeded. The sentence of eighteen years' imprisonment, which was fully justified and for which no discount was appropriate on the basis of assistance to the authorities because none had been given, was reduced by thirteen years. 16. The two appellant returned to Merseyside. Haase became involved in further criminal activities. In February 2001 he was sentenced to thirteen years' imprisonment for possession of a firearm and money laundering. 17. The early release of the appellants caused considerable concern. In February 2004 Haase provided Peter Kilfoyle MP with an affidavit in which he admitted misleading the judge during the hearing in 1995. However, when he was later interviewed by the police he began by making no comment. In a subsequent interview he denied that the sentencing judge had been misled. He asserted that the information provided was genuine and that he had effectively made up the contents of the affidavit given to Mr Kilfoyle. 18. In 2008 Cooke J took the view that the offence of which the appellants and the co-conspirators were convicted was unique, sophisticated and very serious; it struck at the basis of the entire system of justice. He concluded that this was a deliberate plan to deceive the sentencing court by exploiting the informant system. The appellant Haase was the main organiser. Bennett was younger and marginally less involved than Haase. In assessing sentence, the judge expressly took account of the amount of reduction in sentence achieved by the conspiracy (ie the thirteen years). 19. Mr Alun Jones QC, in support of Haase's appeal against sentence and acting on behalf of Bennett in his application, accepted that Haase's conviction for such a grave offence merited a long sentence. Nevertheless, he submitted that a sentence of 22 years' imprisonment, which took effect towards the end of the sentence of thirteen years' imprisonment imposed in 2001 is excessive -- certainly if looked at as a total sentence of 35 years' imprisonment imposed on the basis of the offences before the court in 1995, 2001 and 2008. He also suggested that the sentence was wrong in principle. He submitted that the sentence fell within the maximum sentence available following conviction for the particular conspiracy of which the appellants were convicted. However, he contended that it exceeded, or failed sufficiently to attend to the maximum sentence of ten years' imprisonment permitted for offences of conspiracy to defraud by virtue of section 12(3) of the Criminal Justice Act 1987 , as well as the maximum terms available for perjury (seven years) and other offences of dishonesty and fraud (fourteen years). He also suggested that the sentence of 22 years' imprisonment constituted a breach of Article 5 of the European Convention on Human Rights; alternatively, it was based on too much uncertainty because there is no clear point by reference to statute or authority or practice to indicate that such a sentence might be imposed or would be appropriate. Accordingly, the sentence fell within the impermissible ambit of arbitrariness. 20. In developing his interesting argument, Mr Jones submitted that in the context of the facts of the case the conspiracy to pervert the course of justice was a conspiracy to defraud. For present purposes, as we indicted when the appeal began, we approached his submission on the basis that was accepted by the court which considered the application for leave to appeal against conviction. In giving the judgment of the court on that occasion, Moses LJ observed: "Mr Jones is undoubtedly right in pointing out that it is possible to complete a conspiracy to defraud by cheating and deceiving public officials in the exercise of their public functions so that they carry out their duty in a way that, but for the deception, they would not. That that is a correct principle is made good in the decision of the court in R v Vreones [1890] 1 QB 360 . The decision of the court was followed in cases such as Scott v Metropolitan Police Commissioner [1975] AC 819 . It is not, in order to make good conspiracy to defraud a public official, necessary to prove an intent to cause or to risk economic loss, and that conspiracy to pervert the administration of public justice will in almost every case include a conspiracy to defraud is well established. It will not of course include any conspiracy to defraud in a case such as witness intimidation." 21. Mr Jones submitted that on this basis the offence amounted to, and could have been indicted as, conspiracy to defraud. If so, the maximum term of ten years' imprisonment would have applied. He drew attention to a decision of this court in R v Bright [2008] 2 Cr App R(S) 102, where the Court of Appeal held that it might sometimes be appropriate for an offender who has been convicted of an offence which fell within the definition of a different offence with a lower maximum sentence to be sentenced as if that lower maximum applied. Mr Jones provided, in writing, a number of examples. He went on to submit that the principle applied with further force where the offence charged was a residual common law offence in which the appropriate maximum penalty had never been directly considered by Parliament. He suggested that the general policy in relation to sentencing is that an inchoate offence should not be punishable by a greater penalty than the completed offence. For this purpose he drew attention to the maximum sentence provided by statute in relation to obtaining property by fraud or dishonesty, and the seven year maximum for perjury or for conspiracy to commit perjury. 22. From all this, Mr Jones sensibly accepted that the conduct of the appellant went further than an agreement to give a false account to a court because it included an agreement to deceive those who investigated the original offence, and other authorities, including the Home Secretary and those responsible at the Home Office for advising the Home Secretary. Nevertheless, he argued that all these matters helped to give an indication of the appropriate parameters in which the sentencing decision had to be reached. 23. The difficulty with Mr Jones' careful submission is readily identified and can be briefly analysed. The appellants were charged with, and convicted of, conspiracy to pervert the course of public justice. Even if they might have been charged with conspiracy to defraud, we have not the slightest doubt that on the facts of the instant case the conspiracy with which they were charged, and of which they were ultimately convicted, was entirely justified. It was the offence which they had committed. It was the charge which most appropriately fitted the facts and the overall criminality that was involved. For that offence, properly brought, the maximum sentence is life imprisonment. That is entirely certain. Parliament has not chosen to change this maximum sentence. The court therefore had to fix a sentence to reflect the criminality involved in this offence in the context of a maximum sentence of life imprisonment. 24. It assessing these matters it is worth emphasising that the criminality here was not merely the sophisticated conspiracy by professional criminals which led investigating officers and, on the basis of their assessment, the sentencing judge and ultimately the Secretary of State, to believe that a major discount from the appropriate sentence had been earned by the appellants. The criminality went much further. The conspiracy, run by the appellants from prison, depended on accomplices who were outside the prison to obtain possession of and then travel with firearms to different locations to deposit them where the police would eventually find them on the basis of the information fed to the police by the appellants (who will have been fed the information to give to the police by the accomplices who had deposited the guns). The handling of such a weapon on each occasion was in itself a serious offence which merited a significant sentence of imprisonment. In short, the criminality on which the achievement of the objective of the conspiracy depended was itself extremely serious, independent of the perversion of the course of justice. The conspiracy offence alleged against the appellants therefore encapsulated very grave criminality indeed. 25. We have considered Mr Jones' submission that the effect of the sentence of 22 years' imprisonment being ordered to run consecutively to the sentence imposed in 2001, with the appellant Haase now aged 62, meant that the overall sentence was one of 35 years' imprisonment. If that is so, and given that the custodial element of the sentence of thirteen years' imprisonment imposed in 2001 had nearly come to an end, the overall sentence reflects the reality that the appellants had got away with their crimes for a very long time. 26. The starting point in a case like this is to ensure that a defendant will be wholly deprived of the benefit of his crime. In this case an eighteen year sentence was replaced by a five year sentence. The benefit had been thirteen years. To that starting point for their involvement the accomplices, who did not benefit in the slightest from the reduction in the appellants' sentences (save indirectly in the case of Haase's wife) and who were the foot soldiers in this conspiracy, were sentenced to five, five and four years' imprisonment respectively. On appeal those sentences were not, and for the reasons given in the judgment could not, be reduced. That part of their sentence which reflected the conspiracy was rightly fixed at a high level. For the appellants, who were the leaders of the conspiracy, it was inevitable that higher sentences should be imposed than the sentences imposed on their foot soldier accomplices. Indeed, it is worth reflecting that if the judge had not had the total sentence in mind, he might very well have taken the view that on this part of the case (ignoring the advantage gained by the appellants in the sentencing decision in 1995) and reflecting on this part of their criminality, the sentences might very well have been longer. The difference between nine years on Haase and less on Bennett, contrasted with the sentences of five, five and four years on Knowles, Deborah Haase and Thompson respectively, would otherwise have been strange and insufficient. 27. In the end the sentences reflect depriving the appellants of the benefit which they had secured by their conduct, a further sentence sufficient to reflect their criminality in the organisation and the running of the conspiracy, and to deter others from becoming involved in conspiracies of this kind. In our judgment, notwithstanding the careful submission made by Mr Jones, the sentences on the two appellants are not open to criticism. They are certainly not open to the criticism that in the circumstances they are excessive. 28. Accordingly, the appeal of Haase will be dismissed, and the application by Bennett to have his abandonment treated as a nullity will be refused.

```yaml citation: '[2011] EWCA Crim 3111' date: '2011-12-13' judges: - MR JUSTICE SWEENEY - MR JUSTICE SINGH ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2014] EWCA Crim 804 Case No: 201302913 C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BRISTOL HHJ Ford QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/05/2014 Before: LORD JUSTICE BEATSON MR JUSTICE HOLROYDE and MRS JUSTICE CARR - - - - - - - - - - - - - - - - - - - - - Between: Louise Jane Cox Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Christopher Quinlan QC (instructed by Richard Griffiths and Co ) for the Appellant Michael Fitton QC (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 8 April 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Beatson: 1. At the conclusion of the hearing of this appeal on 8 April 2014 we informed the parties that the appeal would be dismissed for reasons to be given in a judgment that would be handed down. We now give that judgment. 2. On 16 May 2013 in the Crown Court at Bristol after a trial before His Honour Judge Ford QC, the Hon. Recorder of Bristol, and a jury, the appellant, now aged 49, was convicted of the murder of Ian Graham and sentenced to life imprisonment with a minimum term of 14 years imprisonment. She appeals against her conviction by leave of the single judge. 3. The sole issue before this court is whether the learned judge erred in admitting evidence of her bad character in the form of: a 1992 conviction (on a guilty plea) for inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 ; a June 2002 conviction (on a guilty plea) for using threatening words or behaviour and possessing an offensive weapon contrary, respectively, to section 4 of the Public Order Act 1986 and section 1 of the Prevention of Crime Act 1953 ; and the circumstances under which the appellant was (by consent) bound over in 2010 for an alleged breach of the peace. 4. It is submitted by Mr Quinlan QC on behalf of the appellant that this evidence did not fall within gateway (d) of section 101(1) of the Criminal Justice Act 2003 and, in any event, should have been excluded pursuant to section 101(3) because its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The facts 5. The appellant and the deceased, Ian Graham, who was aged 51, were both heavy drinkers. They formed a relationship in the middle of 2012. It was difficult, stormy and complex. They drank heavily together, she stayed at the deceased’s bedsit flat occasionally, and they had sexual contact and exchanged text messages which were sometimes abusive and very unpleasant. Some of the texts were affectionate, but others were aggressive or what the judge described as “playing mind-games”. 6. On the evening of Monday 19 November and in the early hours of Tuesday 20 November 2012, the deceased, the appellant and Ian Hungerford, a friend of the deceased, had been eating, drinking and watching television in the deceased’s bedsit. In the early hours of the morning of Tuesday 20 November 2012 an ambulance crew attended the deceased’s bedsit in response to a telephone call by the appellant and Ian Hungerford to the emergency services. Police also attended. The deceased was found on a bed covered in blood. There was extensive blood staining on the bed and nearby walls and floor. The deceased was transferred to hospital by ambulance, and was pronounced dead at 5:27am. It was common ground that the appellant was responsible for the stabbing. 7. It is clear that considerable quantities of alcohol had been consumed by all three. The evidence of the pathologist was that the deceased’s blood alcohol level was almost four times the drink-driving limit. A urine sample taken from the appellant seven hours after the stabbing, at 11:40am on 20 November, was found to contain 191mgs of alcohol per 100mls of urine. The doctor said that a back calculation was not possible but it was likely that the level would have been higher at the time of the stabbing. 8. At the trial, the evidence of Mr Beaumont, a forensic scientist, based on the location of the arterial blood stains and other blood staining, was that the deceased had been stabbed in the bedroom area at the far side of the bedsit, furthest away from the entrance door. To get to it from the entrance door, one had to walk past a kitchen area and a living area with a bed base and a table. The trail of blood showed that the deceased walked from the bedroom area towards the living area and the bed base closer to the entrance door. There was heavy staining on the table and on the wall behind the table. The appellant’s clothing was examined and Mr Beaumont’s evidence was that her top was bloodstained in a manner that was, in his opinion, consistent with her having stabbed the deceased standing upright and close to him when blood was projected from his left side onto her clothing. 9. By the time the ambulance crew and the police arrived the appellant had left the bedsit. Ian Hungerford had told her to leave. One of the officers who went to search for her found her at the railway station with two plastic bags and a black drawstring bag. One of the officers who remained in the bedsit found a knife with blood on its blade on a work surface in the kitchen area. 10. The defence case was that the appellant had acted in lawful self-defence after the deceased attacked her, gripped her tightly round the neck and held her against a wall. She said that she somehow broke loose. She could have left the flat altogether at that stage. But instead she stopped at the kitchen area. She picked up a knife from the kitchen drawer and returned to the bedroom area holding it down by her right side with the blade downwards. By the time of trial it was her case that she had returned because she did not want to leave without her handbag which was in the bedroom area. She told the deceased to move out of the way. She was scared. He laughed and said “you’re not fucking having your bag” (summing up 28D – G). She tried to barge past him holding the knife by her side, but he slammed her against the wall and again took her by the neck. She thought he was also holding her arm. She stated that the grip around her neck was hard and her head kept going blank and she thought she was going to die. She tried to reach her bag but was unsuccessful and raised the knife and stabbed him. She thought she was being strangled to death and he would stop if she used the knife. She had no recollection of stabbing him for a second time. Her case was thus that, thinking she was going to be strangled to death, she used the knife in self-defence. 11. The prosecution case was that the appellant had acted in anger or was motivated by a desire for revenge and intended to kill or cause really serious bodily harm. Its case was that if, as the appellant maintained, she had been attacked in the bedroom area and held by the deceased round the neck but somehow got away, she went to the kitchen area, which was on the way to the entrance hall and door. But she then chose to take a knife from a kitchen drawer, and chose to go back to the bedroom area where she faced the deceased, raised the knife which she had been holding with the blade coming from the bottom of her fist, and stabbed him. 12. It is common ground that the trial judge accurately summarised the issues in this case at the beginning of his summing-up (4B – C) as “why did she get a knife?; why did she take the knife across the room?; and why did she use it?” Although it was not part of the defence case, the judge also left to the jury the partial defence of loss of control: summing-up, 47C – 48B. 13. The court heard evidence from the officers who attended, and from Ian Hungerford. His evidence was that at some stage he had gone to the bathroom to telephone his girlfriend and when he returned he saw the deceased in a crouched position, his neck pulsing with blood. The appellant was behind the deceased. Mr Hungerford said he had heard nothing of the incident and had not been aware of any argument between the deceased and the appellant that night. The pathologist’s evidence was that only moderate force would have been necessary to cause the injuries to the deceased. 14. Evidence was also given of bruising to the appellant’s cheek, her chin, the right side of her neck, her left elbow, and fingertip bruises to her left wrist. She attributed a bruise on her arm and that on her neck to the deceased, and told a crime scene investigator who examined her that the latter had been caused when he had picked her up by the throat and neck. The pathologist said that poor quality photographs of red mottled bruises were consistent with the appellant’s neck having been grabbed. The bruising to her arms could have been the result of being grabbed. 15. PC Manning, who found the appellant at the railway station, said that she talked constantly while being driven to the police station. He later wrote down the essence of what she had said, which included “is he dead? Yeah, I hope he dies of his injuries…I wanted to do him for murder, not fucking attempted murder…I wanted to murder the bloke…”, “…when I stuck that knife in that bloke, man, man loved every minute of it”, and “I hope he dies. Is he dead? ... I wanted to murder the bloke”: see summing-up 37 – 38. She, however, also asked why the officer was writing it down and stated that she had not meant what she said and that she hoped he didn’t die: see summing-up 39A. The jury was shown CCTV recordings of the appellant during the booking-in procedure at the police station and later while in the cells. When in the custody area, the appellant had said “He stalked me and tonight I just lost the plot. He started on me. He whacked me one and I pulled out and stabbed him …”. The jury also had a schedule setting out the text of the text messages the deceased and the appellant sent to each other between 31 October and the night of the fatal stabbing. 16. The appellant’s first interview was at 23:22 on 20 November. She did not answer questions in this, but gave her account by means of two prepared statements signed at 23:07 on 20 November and 13:23 on 21 November. In the first of these she described her relationship with the deceased and gave an account of the events of the night of 19 November and the early hours of 20 November which was broadly consistent with the account given in her defence statement, a document that was not placed before the jury. In summary, she accepted stabbing the deceased but asserted that she did so in self-defence. She stated that when she ran to the kitchen she “grabbed a knife from the drawer to defend myself as I was sure he was going to hurt me again. I believed he was going to come after me and strangle me again and I thought I might die. Within seconds he was in my face again. I am not sure precisely where this was”. In her second prepared statement the appellant asserted that the deceased had sexually assaulted her on two occasions, the second of which was just hours before the fatal incident. As a result, another doctor examined her on 21 November at 9:18pm. He noted a bruise on her right breast and one on her right upper thigh, but after a vaginal and anal examination, he found no injury to confirm or rebut her account of sexual assault. 17. The account the appellant gave at trial differed in a number of respects from that given in the prepared statements. In particular, she did not mention in the prepared statements that before she stabbed the deceased she had been trying to retrieve her bags which were close to the bedside drawers. She also did not say that the deceased had gripped her around the neck at the time that she stabbed him: see summing-up 18A – C. Her failure to mention these facts in her statements was the subject of a section 34 “adverse inference” direction by the judge. 18. The only other evidence called in support of the appellant concerned the deceased’s bad character. His criminal record was adduced by agreement. The full particulars behind his last conviction, for assault upon a former partner, DP, was proved by the defence reading as agreed evidence the relevant parts of DP’s witness statements and calling DP’s sister. DP’s evidence was of serious verbal abuse and physical violence to her over a period. It ended after the deceased attempted to force her to cut her wrists and she telephoned her sister who attended the flat and found DP on her hands and knees, her face black and blue with cuts to her neck and hands. She was taken to hospital. Admission of the evidence of the appellant’s bad character 19. The prosecution’s application to adduce evidence of the appellant’s bad character had two elements. One, pursuant to section 101(1)(g) was on the basis that the appellant had made an attack on the character of the deceased. It was agreed in principle subject to a ruling as to which convictions were to be admitted. The second element was the application pursuant to section 101(1)(d) of the 2003 Act to adduce evidence of the circumstances behind the two convictions and the binding-over to which we have referred. 20. The prosecution submitted that these incidents showed that three times in the past 21 years the appellant, when in dispute with another, had used, produced or sought a knife for an unlawful purpose. The prosecution submitted that this evidence had a real capacity to cast light on her account in relation to the fatal events and the issues at the heart of the case. As to the section 20 offence, the judge proceeded on the basis of the account of it given by the appellant in interview, which in these proceedings she accepted was truthful. Her account was that she had a heated argument with a friend at the friend’s house after they had been out drinking, and during the argument the friend attacked and punched her. She then returned home and shortly afterwards the friend banged repeatedly on her door. The appellant came to the door with a knife in her hand. She said she did not remember getting the knife, which had come from the kitchen, but that she had it to protect herself. When she answered the door, the friend grabbed her by the throat and pushed her back. She did not remember what then happened but the friend sustained a number of wounds which the appellant accepted she had inflicted. She accepted she used the knife repeatedly and caused the injuries, but that she had not meant to do it and that her mind had gone blank: see ruling, volume 1, page 5A – D. 21. The 2002 incident which led to the conviction for using threatening words and behaviour and possessing an offensive weapon occurred at a public house where the appellant was part of a group which was behaving in a disorderly way. When the landlord asked them to leave the appellant produced a kitchen knife and said “I’m going to stab you, you Paki”. The landlord restrained her using a bar stool to push her to the floor. After the police arrived, the appellant said “I’ll come back and kill you, you Paki bastard”. A witness said he saw the appellant with a knife in her hand. She was loud and aggressive and holding a knife at low level. The knife was not used in a threatening manner but was present. The appellant said she had taken a vegetable knife with her when she went out because she was scared but she was not sure of the cause of her fear. She remembered her first drink but thereafter her mind went blank and she asserted that she had no memory of what occurred. 22. The circumstances of the 2010 incident were that police were called to the scene of a dispute between the appellant and a neighbour of hers. The appellant told the police that the neighbour had shouted abuse at her and said he was going to stab her and slit her throat. The officer said that the appellant looked for a knife, saying “I’ll stab him, I will cut his throat, believe me”. In the opinion of the officer, the appellant was intoxicated. The officer found a vegetable knife in the appellant’s bed. 23. Mr Quinlan submitted that these three matters did not establish a relevant propensity within section 101(1)(d) and 103 of the Criminal Justice Act 2003 . This was because neither individually nor cumulatively did the matters make it more likely that the appellant was guilty of murdering the deceased and that, if it did, its admission would have such an adverse effect on the fairness of the trial that the court, pursuant to section 101(3) ought not to admit it. 24. The judge’s ruling admitting the evidence was made after most of the prosecution evidence had been heard by the jury. Its material parts are: “…The matters upon which the prosecution seeks to rely are relevant to important matters in issue between the defendant and the prosecution. The matters have the capacity to demonstrate that when in drink the defendant has a tendency to produce, or seek to produce, a knife for unlawful purposes when she is in dispute with others. The first conviction demonstrates the use of a kitchen knife when in drink and force used in excess of reasonable self-defence. …One of the important matters in issue was whether the defendant was acting in lawful self-defence [when she stabbed Ian Graham with a kitchen knife] or whether she used grossly disproportionate in stabbing [him]. In the case of the second conviction the defendant, who had been drinking, in the course of a dispute with Mr Kabrow , produced a knife and threatened to stab him. The incident behind the binding-over demonstrates that on a third occasion when in drink and in dispute with another the defendant looked for a knife and expressed an intention to use it offensively to stab her neighbour. All these matters have the capacity to assist with the relevant issue of whether, when the defendant collected the knife before the fatal stabbing, she had a defensive or offensive intent. Further the fact, if the jury so find, that the defendant has acted in these ways in the past is probative of the issue whether when she inflicted the fatal wound she had lost her self-control, a defence which the defence will submit should be left to the jury. The jury would be entitled to evaluate any claim of loss of control in the knowledge that the defendant had intentionally used or produced or attempted to produce knives during disputes on three previous occasions. … The fact that there are three previous incidents spread over a significant period persuades me that the passage of time does not render unfair the admission of the evidence of these incidents, nor does the fact that the first conviction is spent. Had the first matter stood on its own, I would have reached a different conclusion.” 25. As to excluding the evidence pursuant to section 101(3) , the judge rejected the submission that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. He stated that he was confident that a correctly directed jury would use the bad character evidence legitimately in its consideration of the critical issues. 26. The judge considered whether there would be injustice because there would be significant satellite litigation diverting attention from the issues in the trial because there was no agreement as to what had happened in the second and third incidents, but concluded that there would not. In relation to the second incident, while there were some differences in the accounts of the publican and the witness, both agreed that the appellant produced a knife and was behaving aggressively. The particulars of the facts behind this conviction put before the jury were confined to agreed facts, and care was taken to exclude the references to “Paki”. In the case of the incident leading to the binding-over, the account of the police officer was not disputed. 27. The judge’s direction to the jury on the defendant’s bad character reflected his ruling. He stated (summing up 15D – G): “You are entitled to have regard to the defendant’s bad character as revealed by her previous convictions when deciding whether her description of the attack upon her by Ian Graham is truthful. You know that she pleaded guilty to those matters. Whether and to what extent her bad character assists you in the process is for you to judge. There is a second way in which two of the defendant’s convictions: inflicting grievous bodily harm on 9 November 1992; and possession of an [offensive] weapon, threatening behaviour on 20 June 2001; and the circumstances behind her being bound over on 4 June 2012 may assist you. The defendant’s case is that Ian Graham was the aggressor and that she acted in self-defence. In deciding whether her account is or may be true, you are entitled to have regard to her past behaviour in relation to these three matters.” After summarising the three incidents and the prosecution’s submission that they suggested that, when drinking and/or when angry, she had a propensity to use or threaten unlawful violence with knives which made it more likely that she was acting aggressively rather than defensively when she stabbed Ian Graham, the judge directed them (summing up 17C – D) first to consider whether the evidence established such a propensity. He continued “if you are sure that it does, then you may have regard to it when deciding whether the defendant attacked Ian Graham unlawfully and whether she was in control of her mental faculties when she did so.” He stated that the defence asked that they took into account the dates of the earlier matter, and the fact that in relation to the latter two incidents the appellant did not stab anyone with the knife, and that because she pleaded guilty to the first two matters and acknowledged that she should be bound over, no relevant propensity was established and, even if it was, they should pay no regard to it. 28. The judge made it clear that only if the jury were sure that the evidence a propensity might they have regard to it, and stated that whether it provided assistance to them, and if so its importance, was for them. He also directed them (summing up 17F) that the bad character evidence was only part of the evidence in the case. It alone could not prove guilt, and if the jury concluded that the appellant “when angry, has a propensity to use knives unlawfully and aggressively against or towards others, that did not of itself mean that she acted unlawfully in stabbing Ian Graham” and even if she did act unlawfully, such propensity did not establish that she intended to kill or cause really serious harm. He directed them that, in order to decide this, they must assess all the evidence concerning the events before, during and after the stabbing. Loss of control 29. Although the appellant did not expressly rely on the partial defence of loss of control but on the defence of self defence, the judge left the issue of loss of self control for the consideration of the jury and directed them on it. He did so because of the evidence before the jury. When cross-examined by the prosecution on her statement that she had lost the plot (see [15] above), he put it to her that she had not lost her self control, but had deliberately turned back to the bedroom area. In re-examination she was asked whether she felt in control at the moment the deceased was holding her by the throat, and said “No. I was scared. I was panicking”. The judge considered that, in the light of these matters, he had to leave the issue to them. Mr Fitton QC stated that the judge thought that, in the light of the evidence, without a direction on loss of self-control, the jury might be confused. 30. There is no criticism of the judge’s direction on loss of control: see summing up 47C – G. He had earlier (summing up 12C-D) stated that the appellant “would have lost her self control if her ability to restrain herself was so overwhelmed by emotion that she was unable to control the impulse to stab Ian Graham with a knife”. He directed them as to the need for a qualifying trigger for the loss of self-control. He directed them (summing up 12H – 13B) that in this case there were two possible qualifying triggers, either of which would suffice. The first was that her loss of self control was attributable to her fear of serious violence from Ian Graham. The second was that her loss of self control “was attributable to a thing said or done and/or said which (a) constituted circumstances of an extremely grave character; and (b) caused [her] to have a justifiable sense of being seriously wronged”. He then set out the circumstances which, if established in evidence, were of potential relevance in considering whether one or more qualifying triggers were present. The circumstances were Ian Graham’s attacking the appellant and gripping her tightly around the neck, his actions or words, including his sexually assaulting her, making unflattering comments and comparisons, and refusing to let her have access to her bag. Analysis 31. Mr Quinlan’s first submission was that the judge erred in concluding that the circumstances of the two convictions and the incident leading to the binding-over were capable of establishing a tendency on the part of the appellant, a propensity, to produce or seek to produce a knife for unlawful purposes. Secondly, he submitted that, if they were capable of establishing a propensity, the propensity was not relevant, and in any event did not assist on the appellant’s state of mind at the time she picked the knife up or when she used it, which were the crucial issues in this case. He also submitted that the evidence ought not to have been admitted because of its effect on the fairness of the proceedings. He did not suggest that, if the evidence was properly admissible, the judge’s bad character direction (at summing up 15A -17G) was open to criticism. 32. In relation to the 1992 conviction, Mr Quinlan relied, in particular, on two matters. First, it pre-dated the fatal incident by 20 years and was a spent conviction. Secondly, it could not be probative of an offensive intent in the present case because it was accepted that in 1992 the appellant was attacked and used the knife in that context, namely to defend herself. 33. Mr Quinlan submitted the 2002 incident was also an old incident, ten years before the fatal incident. Moreover, the appellant did not use the knife to inflict injury and there was no evidence that she attempted to do so. There was therefore no question as to whether, on that occasion, the knife was deployed or used in excess of reasonable self-defence. 34. As far as the 2010 binding-over is concerned, Mr Quinlan submitted that the appellant never had a knife in her possession. It therefore followed that there was no unlawful use of a knife and there was no question of it being used in excess of reasonable self-defence. 35. At the heart of Mr Quinlan’s submissions is the fact that it was not in issue at the appellant’s trial that she used the knife. He maintained that the earlier convictions and the binding-over therefore do not assist on the question of whether she acted with offensive intent when she picked up the knife from the kitchen, nor are they probative of her intent. He also submitted they are not capable of rebutting a defence of loss of control because the circumstances of the incidents leading to the convictions showed behaviour by a person who had lost control. 36. On the effect of admitting the evidence on the fairness of the proceedings, Mr Quinlan argued there was a particular adverse effect on fairness in respect of the matter that was twenty years old, where the appellant had admitted that the use of the knife was in excessive self-defence. He also submitted that these matters did not assist the prosecution on the issue of the appellant’s loss of control because her evidence was that she “lost her temper” on those occasions and the fact that she did does not undermine any claim of loss of control in this case. 37. The appellant’s convictions were clearly admissible under section 101(1)(g) in view of her extensive attack on the character of the deceased. But they were also admitted as evidence capable of demonstrating that she has a tendency to produce or to seek to produce a knife for unlawful purposes when she is in dispute with others and the direction on bad character dealt with this aspect of the evidence. Mr Quinlan submitted that, because there is no dispute that the appellant picked up and used the knife, the relevance of the three incidents is as to her intent, and that, because there is no dispute that she picked up the knife, they do not assist on the question of whether she acted with offensive intent. 38. We reject Mr Quinlan’s submission that these convictions are not relevant to an important matter in issue between the appellant and the prosecution. We consider that he has formulated the issue too narrowly. Bearing in mind what happened in the bedsit on the fatal night, we consider that the important matters in issue between the defence and the prosecution included whether the appellant lost her temper in the course of a row, whether she acted in retaliation for a wrong done to her, and the reason she got a knife, took it across the room, and used it. We consider that the three previous incidents were highly relevant to the jury when considering the appellant’s account of why, having got away from the deceased, she turned to go back to him with the knife rather than leaving the bedsit. 39. The first of the incidents, although some twenty years ago, involved her, when in drink, picking up a kitchen knife before she opened the door and then using it with force beyond what was reasonable self-defence. The second incident also involved the production of a knife when in drink and threats to stab the publican. She did not have an opportunity to use the knife because the publican used a bar stool to push her to the floor. The evidence of this incident is capable of demonstrating an intention on her part to use a knife aggressively. The third incident, although not involving the use of a knife because she was stopped by the police, is capable of being evidence showing an intent to find and use a knife aggressively against her neighbour. 40. The three incidents involving the use of a knife or the desired use of a knife cumulatively amount to evidence from which it was open to the jury to conclude, as the judge directed (summing up 17F), that the appellant, “when angry has a propensity to use knives unlawfully and aggressively against or towards others”. They show she was quick to take up a knife when angered or threatened. The evidence was thus relevant to what it is common ground are the three issues in this case, which (see [10] above) were identified by the judge. 41. Mr Fitton stated that, in the context of the case where the appellant did not seek to advance the “loss of plot” explanation, the loss of control direction read oddly. The judge’s decision to leave loss of control to the jury cannot be criticised. Whether or not Mr Fitton’s observation that, in the context of the facts and the appellant’s case, the direction read oddly is correct, we accept his submission that it mattered little. 42. We also reject the submission that this evidence should have been excluded pursuant to section 101(3) . The condition for the duty of the court not to admit evidence under section 101(1)(d) in sub-section (3) is that it appear to the court that 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. In this case, in the course of making his decision, the judge considered and evaluated the relevant factors, including the age of the first incident, and whether there was a danger of the jury being diverted from the issues in the trial. He was fully entitled to come to the conclusion that he did. And on any view it cannot be said that he exercised his discretion under section 101(3) in a manner that was outside the range open to a reasonable decision-maker . 43. On the facts of this case, it is, moreover, possible to say more than this. The evidence of the three incidents here is not such as would divert the attention of the court into satellite issues because the essential factual matters in those incidents were, for the reasons given by the judge, not in dispute. Secondly, although the third incident, which led to the acceptance of a caution, was clearly far less serious than the first two incidents, it cannot sensibly be suggested that the incidents overall are trivial. Moreover, in the light of all the other evidence in the case which we have summarised and refer to again below, it cannot be suggested, and was not suggested, that the evidence about the three incidents was being deployed to bolster an otherwise weak case (see Hanson [2005] EWCA Crim 824 at [4]). 44. There was, in any event, powerful evidence against the appellant which means that, in our view, the verdict of the jury is entirely safe. We refer in particular to the significant remarks made by the appellant as to her state of mind to the police officer when he arrested and in the police station: see the summary at [13] above. Her account in her prepared statement that when she grabbed the knife she was sure the deceased was going to come after her again and within seconds he was “in her face” differed from her account at trial, where she said she took the knife over to the bedroom area to “scare” the deceased, but had not showed it to him: see [10] above. In her statements she said she wanted to leave the flat and go home, but did not mention making any attempt to reach her handbag before the first occasion that she maintained the deceased grabbed her neck: see [16] – [17] above. 45. It was for these reasons that we considered that the judge had not erred in his approach to the admissibility and admission of the three convictions and their circumstances, and that the appeal against conviction failed.

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No: 2008/02442/A5 and 2008/02616/A5 Neutral Citation Number: [2008] EWCA Crim 1249 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 23rd May 2008 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE JACK MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - R E G I N A -v- M KM - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr H Barton appeared on behalf of the Applicant M Mr J Lasker appeared on behalf of the Applicant KM - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE JACK: On 4th March 2008 at the Crown Court at Burnley, the applicants, M and KM, each pleaded guilty to an offence of assault contrary to section 47 of the Offences Against the Person Act 1861 . KM also pleaded guilty to an offence of theft. On 30th April 2008 M was sentenced to a 12-month detention and training order, and KM was sentenced to ten months' detention in a young offender institution, with three months concurrent on the theft. Their applications for leave to appeal against sentence have been referred to the court by the Registrar. We grant them leave. 2. The offences were committed on a 16-year-old girl named A. Late on 2nd November 2007, while she was waiting for an taxi to take her home after a night out, A was abused verbally by M and then attacked by her. She was punched a number of time, fell to the pavement and was punched some more and kicked. KM joined in the punching. 3. Photographs of A show that she had a number of small cuts and scratches to her face, and bruising and swelling. She also suffered was headaches. She was put through a very unpleasant experience, which she will not easily put behind her, but no serious injury was caused. She had dropped her handbag and KM took various items from it, including cash, a mobile phone and a valued photograph of A's deceased mother, before the two girls made off. 4. M was born on 29th March 1993, and so was 14 at the time of the attack and was still just 14 when she entered her plea. On 5th February 2007 she had been made subject to a 4-month referral order for an offence of battery. On 10th December 2007 and on 28th January 2008, each after the present offence, she had received two reparation orders for disorderly conduct. In addition, on 8th July 2004 she had been remanded for an offence of battery and likewise on 5th June 2006. So when she came up for sentence she had committed six offences, with three offences of battery prior to the offence for which she was being sentenced. 5. KM was born on 27th March 1988. She was 19 at the time of the offences. On 20th January 2004 she had received an absolute discharge for an offence of criminal damage. On 21st April 2004 a referral order of three months had been made in respect of a further offence of criminal damage. That order was extended for three months on 13th September 2004, by reason of offences of battery and criminal damage. She had been warned for battery on 7th July 2003, and reprimanded for a non-dwelling house burglary and handling on 26th August 2003. 6. The pre-sentence report on M recommended a 12-month supervision order with a 3-month curfew order. It stated that the risk of harm from the offending which she posed could be reduced by her participating in a structured programme of supervision, with the aim of addressing her misuse of alcohol and developing her thinking skills. It said that she regretted her involvement in the offences, but sought to see herself as the victim and to paint A as the aggressor. 7. The report on KM recommended a community order with a requirement of supervision. It said her consumption of alcohol was of concern and was the reason behind her offending. In her case she had expressed regret for her actions and had shown some empathy with her victim. 8. In passing sentence the Recorder first dealt at some length with the facts. He referred to the guideline on assault. He stated that A was a vulnerable victim because of her age, and was deliberately targeted as such. We are not clear what he meant by "targeted as such", for M was 14 and the attack was not premeditated or planned. The Recorder pointed to there being two assailants and that the attack was sustained, notwithstanding the pleas of A that it stop. It involved kicks to the head by M. There was then the theft by KM. The Recorder stated that M should be entitled to credit for plea, not at the earliest stage, but at the plea and case management hearing when she had offered to plead to section 47 . KM was only entitled to credit for a plea entered on the day of trial. The Recorder referred to the difficulties both girls had had in being excluded from mainstream schools, and in KM's case her being taken into care and, as was said in the pre-sentence report, then going off the rails. KM had, however, kept out of trouble since 2004 and now had a young child. 9. The Recorder held that he was not obliged to treat either as a dangerous offender. He held that the assault passed the custody threshold. He said that, having regard to the guidelines, in M's case had she been an adult a sentence of 30 months would have been appropriate, with a reduction of 25 per cent for plea. He said that given her age, the appropriate starting point was a detention and training order of 18 months and he arrived at 12 months after allowance for plea. 10. The Recorder sentenced KM on the basis that she had joined in and sustained the attack and stolen the bag. He concluded the appropriate sentence would have been 12 months after a trial, and so made an order for detention of ten months, with three months to run concurrently for the theft. He treated the theft as an aggravating feature of the assault. 11. In sentencing M, the Recorder did not state that he found her to be a persistent offender, which was a requirement before he could make a detention and training order under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 . We are satisfied, however, that he was entitled to make that finding. We are told that he had not raised this with counsel prior to sentencing. It would have been appropriate for him to do so. 12. It is submitted to us on behalf of M that a custodial sentence was manifestly excessive, bearing in mind in particular her age. We do not agree. We consider that a detention and training order was appropriate in this case, bearing in mind her previous offences and this sustained attack involving kicking. However, we think that by reason of her age a shorter period was appropriate. There will be substituted an order of six months. 13. We also consider that the order of ten months on KM was longer than appropriate. It is conceded in her case that custody cannot itself be criticised. We think that that concession was rightly made. She was substantially older. She played the minor role in the assault and she committed the theft. Her plea was late. Balancing those factors, in her case we substitute an order of six months' detention on the assault. The concurrent sentence of three months on the theft will remain. 14. THE ASSOCIATE: By reason of M's age, would your Lordships be minded to make reporting restrictions? 15. LORD JUSTICE HOOPER: The judge refused to order the disclosure of her name? 16. MR BARTON: Yes. 17. LORD JUSTICE HOOPER: He was going to, and then you persuaded him not to. 18. MR BARTON: That is right. 19. LORD JUSTICE HOOPER: So we continue the order. Her name is not to be published. 20. MR BARTON: Thank you. ______________________________

```yaml citation: '[2008] EWCA Crim 1249' date: '2008-05-23' judges: - LORD JUSTICE HOOPER - MR JUSTICE JACK - MR JUSTICE GRIFFITH WILLIAMS ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 2003/6248/C3 & 2004/1376/C3 Neutral Citation Number: [2004] EWCA Crim 2715 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 27 October 2004 B E F O R E: LORD JUSTICE CLARKE MR JUSTICE GIBBS MR JUSTICE STANLEY BURNTON - - - - - - - R E G I N A -v- LESLIE JAMES MOULDON - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR A BODNAR appeared on behalf of the APPLICANT - - - - - - - J U D G M E N T 1. MR JUSTICE STANLEY BURNTON: On 6th December 2002 at Newcastle Crown Court, before His Honour Judge Whitburn and a jury, the applicant was convicted by a majority of a single count of conspiracy to supply a class A controlled drug (MDMA) to another in contravention of section 4(1) of the Misuse of Drugs Act 1971 . On 24th January 2003 before the same judge he was sentenced to 16 years' imprisonment. 2. On 30th January 2004, before the same judge, a confiscation order was made against him under section 2 of the Drug Trafficking Act 1994 in the sum of £667,000 to be paid within six months, with three years' imprisonment consecutive in default. On 23rd February the confiscation order was revised up to the sum of £750,000. 3. He applies for leave to renew his application for leave to appeal against conviction and sentence. He was not represented for that purpose before us. He further seeks leave to appeal the confiscation order, the Registrar having referred this application to the full court. On that application he was represented by counsel, Mr Bodnar. 4. The brief facts of the case were that in March 2001 the Northumbria Police mounted an undercover operation to target the suppliers of illegal drugs. A shop known as Ace Hardware Store was used as a front. The store was fitted with covert audio and video recording equipment and staffed by undercover police officers who let it be known that they were open to offers to purchase drugs. The police also had access to a flat in nearby Middle Street for some of the transactions. 5. Undercover officers made contact with Edward Wilson from whom they purchased quantities of drugs on various occasions beginning in October 2001. An undercover officer referred to as "Omar" was taken to Wilson's flat by Knowles on 17th October 2001 where he purchased amphetamines and discussed with Wilson the purchase of 5,000 ecstasy tablets. Wilson said he needed to "speak to (his) man". 6. On the following day, two calls were made from a mobile telephone later recovered from Wilson's flat to a mobile telephone subsequently seized by the police from the applicant's home at the time of his arrest. 7. On 19th October, Wilson delivered 1,000 ecstasy tablets to an undercover officer called "Sohail". Sohail later contacted Wilson to say he could take another 4,000 tablets. Wilson said he would "Ring (his) man and see what he says". Less than 30 minutes later a call was placed from the mobile telephone later found in Wilson's home to the mobile telephone later found at the applicant's home address. Two minutes after that call Wilson called Sohail to confirm the deal. Wilson supplied 5,000 tablets to Sohail later that day. He was driven to the meeting point by Wood. 8. Over the following week there were discussions with Sohail and Wilson as to the supply of a further 5,000 tablets. Wilson supplied these on 7th November at a cost of £6,000. 9. Thereafter undercover officers entered discussions with Wilson for the supply of 15,000 ecstasy tablets. There were a number of telephone calls during this period between the mobile phone later found at Wilson's address and that later found at the applicant's address. During a discussion with Sohail on 6th December, in which Sohail expressed concern as to whether the quantity he wanted was available, Wilson made a call to this applicant's telephone. That telephone call was not in dispute. In the short call he said: "Kid is Edward still there? He is, that's all I wanted to know, I'll be in touch", following which he confirmed that 15,000 tablets would be available for purchase. 10. On 18th December, Wilson suggested that the meeting place for the transaction might be at his mate's pub, which was more like a hotel, although in the event this was not the arrangement. That was of some relevance as the applicant owned a pub known as the Ship Inn and it was suggested by the prosecution that that was the venue Wilson was referring to. 11. On 19th December Wilson arrived at the hardware store carrying a large black holdall which contained three heat sealed packs each containing around 10,000 ecstasy tablets, with a street value of around £100,000. The officers paid £27,000 for the drugs. As he left the store, a call was made from a mobile later found at his home to the mobile later found at the applicant's home. An Audi motorcar seen parked nearby was registered to the applicant. CCTV footage revealed an Audi motorcar leaving the parking area as Wilson walked away. 12. Later the same day Wilson, driven by Wood, met undercover officers and supplied them with amphetamine and ecstasy. 13. Following this applicant's arrest, police found 30 ecstasy tablets bearing the same logo as that on the tablets supplied by Wilson to officers on 19th December in a kitchen drawer at the applicant's home address. A mobile phone was also seized. A large black holdall was found in the cellar at the Ship Inn of which the applicant was the owner. 14. The prosecution case was that the applicant had supplied to Wilson the quantities of ecstasy which Wilson supplied to the undercover officers. The prosecution alleged that he could be directly related to the transactions on 19th October and 7th November by the itemised calls from the mobile telephone found at Wilson's home address to the mobile telephone found at the applicant's home address. 15. It was the Crown's case that the applicant transported Wilson and the drugs to the hardware store in his Audi motorcar on 19th December and that the distinctive markings on the black holdall found in the cellar of the Ship Inn showed it to be identical to that used by Wilson to carry the drugs on that occasion. The Crown relied on evidence from the Dutch manufacturers of the holdall that such holdalls were not actively sold by them in this country. 16. In interview the applicant denied any involvement in a conspiracy to supply class A drugs. He knew Wilson because he drank in his pub. He gave him a lift to the hardware store on 19th December but knew nothing of the drugs. Wilson tended to telephone him when he was drunk to discuss arrangements concerning the pub pool team. The ecstasy tablets found in the kitchen drawer had been handed in at his pub a few days before. He had no knowledge of the holdall found in the cellar at the Ship Inn and it was not his. 17. The defence case was that the applicant was not involved in any conspiracy to supply ecstasy. Wilson had supplied large quantities of cocaine and amphetamine to the undercover officers. Wood drove Wilson to the meeting point for two such transactions. There was no suggestion that the applicant was the ultimate supplier of these drugs and the defence maintained that if Wilson was being supplied with these drugs by other individuals the jury could not be sure that it was the applicant who had supplied the ecstasy to him. Itemised telephone records showed that Wilson had made telephone calls to Wood and to a man named Lawson during the relevant period, both of whom had convictions for drug matters. It was clear that Wilson was using at least one other mobile telephone at the relevant time for which the itemised calls were not available. 18. The applicant gave evidence and denied any involvement in supplying the ecstasy. His evidence as to the telephone calls was summed up by the judge. His evidence as to the circumstances in which he gave Wilson a lift to the hardware store on 19th December was similarly fairly set out by the judge in the summing-up. His evidence as to the holdall was also summed up. He gave evidence as to the holdall and there was also evidence from Michelle Wilson as to the ecstasy tablets found in the Ship Inn. 19. A man called Edward Leyton also gave evidence. He said that he was a customer at the Ship Inn and knew Wilson. Wilson may have telephoned him at the pub, but he would not have been there during the daytime. 20. The proposed ground of appeal against conviction is that the judge's summing-up was biased against the applicant, in particular that the judge referred to coincidences explained by the applicant in derogatory terms. So far as that is concerned we have carefully considered the summing-up. In our judgment none of the comments made by the judge went beyond those he was entitled to make on the evidence before him. There is no sensible argument that this conviction is unsafe by reason of any derogatory remarks or other prejudice that might arguably be engendered by the terms of the summing-up. It follows that the renewed application for leave to appeal against conviction is refused. 21. So far as sentence is concerned, the applicant had two previous serious convictions for drug offences, albeit they related to class B drugs. The judge said he was quite satisfied that the applicant was the main supplier of ecstasy to Wilson. As the telephone calls demonstrated, he had supplied at least 11,000 other tablets in addition to the 30,000 supplied to Wilson on 19th December. Heat sealed packages in which the drugs had been supplied clearly came almost directly from the manufacture into his possession. Given that the judge found and was entitled to find that the applicant was a large scale dealer in class A drugs, namely ecstasy, and was close to the source of supply, a substantial sentence of imprisonment was inevitable and indeed that is accepted in the grounds settled by counsel. A sentence of 14 years' imprisonment could not be the subject of any complaint. Here the sentence was one of 16 years' imprisonment. However, that addition was in our judgment well justified by the previous convictions of this applicant. In those circumstances, there is no arguable appeal against the sentence of imprisonment and the application for leave to appeal against that sentence is similarly refused. 22. We turn to the confiscation order. The application for leave to appeal against the confiscation order seeks to raise a question of principle as to the application of the relevant provisions of the Drug Trafficking Act 1994 . The applicant had, on the findings which the judge made and which it is accepted he was entitled to make, acquired a number of properties with cash which the judge was entitled to find, certainly to assume, had been derived from his drug dealing. In the case of all or most of those properties the purchase price had been financed not only from cash derived from the drug dealing, or assumed to be from the drug dealing, but also from loans made by banks and other financial institutions. The submission made on behalf of the applicant in essence is that where that occurs the benefit derived from the drug dealing of the applicant is not the property itself but a proportion of the property represented by the deposit which may be explained or may be assumed to be derived from the proceeds of drug dealing. For example, if £5,000 in cash is supplied to a property purchased for £100,000 and a mortgage of £95,000 is taken and the property doubles in value, the benefit value as at the date of the confiscation order to be taken by the applicant, in his submission, is not £105,000, being the value of the equity in the property, but £5,000 doubled to £10,000. 23. In our judgment that submission is based on a fundamental fallacy, namely that what is acquired in the circumstances to which we have just referred is an interest of £5,000, rather than the equity in the property subject to the mortgage. In our judgment the Act requires that relevant property be valued as at the date of the confiscation order, subject to any charges, but it is the property which is valued rather than the deposit placed on the property by a defendant. 24. We arrive at that result through two possible loops, both of which have exactly the same result. For present purposes we turn first to section 4 of the 1994 Act . Sub section (1 ) provides: "For the purpose of this Act - (a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Act ) in connection with drug trafficking carried on by him or another person are his proceeds of drug trafficking; and (b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards." Sub section (2 ) provides: "Subject to sub sections (4 ) and (5) below, the Court shall, for the purpose - (a) of determining whether the defendant has benefited from drug trafficking, and (b) if he has, of assessing the value of his proceeds of drug trafficking, make the required assumptions. (3) The required assumptions are- (a) that any property appearing to the court- (i) to have been held by the defendant at any time since his conviction, or (ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him, was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him; (b) that any expenditure of his since the beginning of that period was met out of the payments received by him in connection with drug trafficking carried on by him; and (c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it." It is undisputed that the various properties which constituted the realisable property of the applicant at the date on the confiscation order were properties which had been transferred to him at a time subsequent to the beginning of the period of six years ending with the proceedings instituted against him referred to in section 4 (3(a(ii). It follows that the court was required to make the assumption stipulating section 4 , namely those properties had been received by him as a payment or reward in connection with drug trafficking carried on by him. The words "in connection with" are of wide input. They do not necessarily require there to be an immediate and direct connection with drug trafficking. In our judgment, where it is shown that a defendant has with cash which are the proceeds of drug trafficking put that money into property that is acquired property with it, section 3(a) requires that the property so required to be regarded as a payment or reward in connection with the drug trafficking carried on by the defendant. 25. The assumption is a rebuttable assumption. It is rebuttable in the circumstances referred to in section 4(4) . That provides: "The court shall not make any required assumption in relation to any particular property or expenditure if- (a) that assumption is shown to be incorrect in the defendant's case; or (b) the court is satisfied that there would be a serious risk of injustice in the defendant's case if the assumption were to be made; and where, by virtue of this subsection, the court does not make one or more of the required assumptions, it shall state its reasons." In the present case the applicant was unable to establish that the assumption was incorrect. It might have been shown to be incorrect because a property had been purchased by him from monies made quite legitimately. It might have been shown to have been incorrect if the property were a genuine gift or the result of a request made by relative. He was unable to do anything of that kind. The assumption therefore remained good unless section 4(4) (b) applied. Section 4(4) (b) applies if the court is satisfied that there would be a serious risk of injustice if the assumption were to be made. In circumstances where the value of the property in the hands of the defendant exceeds the cash investment he made in it, because the value of that property has risen, we see nothing unjust or even arguably unjust in the value of the property being taken to be the payment or reward of the defendant made in connection with drug trafficking. It has frequently been said that the legislation is draconian. Its object is to deprive those involved in drug trafficking of the benefit of drug trafficking and in a case such as that which we are considering, where a deposit has been made of cash monies in order to buy a property, we see nothing unjust or arguably unjust and no risk of injustice if the property which is acquired, which we remember is not the deposit but the equity in the property if there is a mortgage, is taken to be the reward of drug trafficking. It is accepted that if the assumptions do apply and the property is assumed and therefore taken to be a payment or reward in connection with drug trafficking, the property is to be valued as at the date of the proceedings resulting in the confiscation order. That is what the judge did. In our judgment it is neither unjust nor surprising that where a property is bought with a relatively low down payment and a high mortgage and it increases in value, the benefit to the defendant is a sum which may be a multiple of the original deposit. That is because, subject to any interest payments, any mortgage remains unchanged by increases in market values, whereas the defendant has acquired the equity in the property, that is to say he has the property subject only to the mortgage. That appears to us to be plain on the wording of section 4 and having regard to the draconian purposes of the Act . 26. A similar result may be reached by applying the provisions of section 7. If cash which is assumed to be the rewards of drug trafficking is used to purchase a property then that property represents directly or indirectly the reward. Section 7(3) provides: "Subject to section 8(2) of this Act , if at the material time [the material time relating to confiscation proceedings] the recipient [that is to say the recipient of the properties -- in this case the applicant] holds- (a) the property which he received (not being cash), or (b) property which, in whole or in part, directly or indirectly represents in his hands the property which he received, the value referred to in sub section (2 )(b) above is the value to him at the material time of the property mentioned in paragraph (a) above or, as the case may be, of the property mentioned in paragraph (b) above so far as it represents the property which he received, but disregarding in either case any charging order." No question of charging orders arise in the present case. The real properties acquired with cash which were assumed to be and properly assumed to be the proceeds of drug trafficking, directly or indirectly represent that cash -- that is to say the property which was originally received by the recipient referred to in subsection (3)(b) of section 7 is the cash, and the property applied with it directly or indirectly represents it for the purposes of the Act . If that is so, then the property falls to be valued as at its market value, subject of course to any charging order and it would also be necessary to take into account any outstanding charges or mortgages. That is what the judge did in the case of each relevant property. 27. Our attention has been focused on the Old School Lane project which was the last and most important of the acquisitions made by the applicant. That was a property which was developed. The applicant contributed a relatively small sum, some £40,000 on the judge's findings, to the acquisition of that property. It was acquired and developed by a partnership in which the applicant had a fifty per cent interest. After completion of the development the profit from the partnership was something approaching £1 million and the defendant's fifty per cent of that was some £400,000. The £1 million and the £400,000 were arrived at after deduction of all charges. In our judgment the judge's calculation is precisely that which we would have expected to be made under the provisions of the Act . The fact that the original contribution of the applicant was a relatively small sum and his profit a large sum in no way makes the application of the assumptions in the Act and the requirements of the Act unjust, creates no risk of injustice, nor shows that the assumptions are inaccurate. To the contrary, it is in the public interest that those who traffic in drugs should be deprived of their benefit from drug trafficking viewed in the largest possible way. As we have already observed, this legislation is draconian and intended to be such. 28. It was put to us in favour of Mr Bodnar's submissions that the Crown's interpretation of the Act and that adapted by the judge in this case would lead to bankruptcy of an applicant which is neither a matter stipulated nor intended by the Act . That again is a misapprehension. Whatever may be the calculation of a defendant's benefit from drug trafficking, a confiscation order is limited by the extent of his realisable property and since it is limited to his realisable property, no question arises of a confiscation order being made in a sum which is greater than the value of property available for its satisfaction. Indeed, there are provisions in the Act for reducing the amount of a confiscation order in circumstances where unexpectedly the value of property in practice is not that which a court assumed it to be or found it to be when the confiscation order was made. 29. In our judgment the working of the provisions of the Act are quite clear. The Act has always been applied in the manner we have described and although Mr Bodnar's submissions were worthy of consideration in terms of time, in our judgment they raised no arguable point of appeal. The confiscation order was rightly made and this application is therefore refused. 30. MR BODNAR: My Lord, a couple of things very briefly. My Lord said that the confiscation was revised upwards to £750,000. In fact what happened was the order of £667,000 represents the applicant's realisable assets. The learned judge made a benefit finding of at least £750,000. 31. LORD JUSTICE CLARKE: He revised that to £750,000. 32. MR BODNAR: The order itself remained the same. 33. LORD JUSTICE CLARKE: Thank you. 34. MR BODNAR: The second point, very briefly, is that the order has been somewhat in abeyance awaiting this hearing. Could I invite your Lordships to extend the time for payment by three months, to permit I think the technical---- 35. LORD JUSTICE CLARKE: By three months? Yes, we will do that. Yes. 36. MR BODNAR: The final point is I have in mind a very broad definition in connection with -- I do not know if it is possible to ask for a certificate on a leave application. If it is I will do it in writing. 37. LORD JUSTICE CLARKE: It think it is very unlikely. If it is you had better do it in writing. Thank you very much.

```yaml citation: '[2004] EWCA Crim 2715' date: '2004-10-27' judges: - LORD JUSTICE CLARKE - MR JUSTICE GIBBS - MR JUSTICE STANLEY BURNTON ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2009] EWCA Crim 1799 Case No: 200806053 A9 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 12th May 2009 B e f o r e : LORD JUSTICE TOULSON MRS JUSTICE SHARP DBE HIS HONOUR JUDGE WADSWORTH QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ANTHONY JAMES BIDMEAD - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr S Smith QC appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. JUDGE WADSWORTH: This appellant was sentenced by Judge Hamilton at the Crown Court in Derby to imprisonment for public protection with a minimum custodial term of five years in respect of offences of sexual activity with a child, and also to an 18 month extended sentence concurrent for possessing indecent photographs of a child or young person. This appeal is made out of time by leave of the single judge and is limited to the question of the appropriate minimum term on the sentence of imprisonment for public protection. 2. The appellant was of course also the subject of a Sexual Offences Prevention Order for an indefinite term and was disqualified from working with children. No appeal lies in respect of those matters. 3. His co-accused was a man of similar age who received a total sentence of six years' imprisonment, which this court reduced to a four year determinate sentence, and it was, as Mr Smith has rightly told us, that decision of this court which led to this application being made and granted out of time. 4. The appellant and his co-accused were homosexual partners living in a house where there was a room which they called the "Egyptian Room" with an adjoining hot tub and sauna, and it was clear that various parts of the house had been converted and were being used for homosexual activities. 5. On the joint indictment with his co-defendant this defendant pleaded guilty on counts 4, 6, 8 and 10 to sexual activity with a child, and on counts 12 and 13 to possessing indecent photographs of a child. The child, named J, was 14 at the time of the offence. He was a young man who had had an unhappy and difficult life at home and had been asked to leave by his mother. He had gone to stay with other young men in the neighbourhood, who soon introduced him to the appellant. J then moved into the house with the appellant and his co-accused and stayed there for some four months in the course of 2006. It is clear that he fell under the controlling influence of the appellant and began to engage regularly in consensual sexual activity. This resulted in the two specimen counts on the indictment, counts 4 and 6, relating to acts of oral sexual intercourse. The young man said that it happened too regularly to be able to give an exact account, but that it was sometimes three times a day, that it happened on about ten separate occasions, and one of those was a three-some with the appellant and his co-accused. 6. Counts 8 and 10 on the indictment alleged anal penetration of the child by the appellant. Again, these were specimen counts in that it was alleged that this had happened on more than four occasions. 7. When the police searched the house they recovered a home made video showing two boys or young men engaged in oral and anal intercourse with the appellant and the co-accused. It appeared from the video that that activity was consensual. It was that matter which led to the counts of possessing indecent photographs. 8. The appellant is a man of nine previous convictions with a history of sexual offences against children and of violence dating back some 20 years. These convictions included indecent assaults on males under the age of 14 and the age of 16 years, buggery (as it was then called) and gross indecency with a child and unlawful sexual intercourse with a young female. 9. The appeal before this court relates only to the tariff element of the sentence, which it is submitted is manifestly excessive in that it must be based on a notional determinate sentence of ten years following a plea of guilty, which indicates a 15 year term had the sentence been imposed after trial. 10. Leave to appeal out of time was sought and given following the decision to reduce the sentence on the appellant's co-accused, Clinch. 11. We have had the benefit of considering the judgment of that court and seeing the pre-sentence reports in relation both to the appellant and his co-accused. When both parties were sentenced, the learned judge described the appellant as "clearly the most involved in this particular series of offences". He also described the appellant as drawn to young people who were particularly vulnerable young people who came from broken homes and as a manipulative man who would in due course try to manipulate the Parole Board when the time for review came. In sentencing, the judge noted that a previous offence had been in relation to a 14 year old boy and explained that in this present case, had there been a conviction after trial, sentences would have been consecutive and would have exceeded 14 years. The reason given for the consecutive sentence was that the judge regarded the appellant's house as deliberately set up to what he described as "almost a sort of honey trap for young children". The appellant is described as having total control over the boy concerned in this case and it is clear that the judge worked on the basis that he was discounting from a notional total of 15 years. 12. So far as concerns the co-defendant Clinch, he was a man of good character, found to be under the influence of the appellant. He was described by the judge as being simply interested in his own sexual gratification, but nevertheless of former good character and not a serious danger or serious risk. For that reason there was no imprisonment for public protection in his case but a term of six years after giving credit for plea. This court held in relation to Clinch that the starting point of nine years without discount for a plea of guilty was too long, and we are invited to use that as something of a bench mark for the starting point of 15 years in the case before us. 13. As the court said in Clinch's case, the breadth of the suggested sentencing range in the definitive guidelines is great and reflects the fact that each case turns very much on its own facts. Nevertheless, we do receive assistance from the indication that the appropriate starting point for the co-accused was one of four years after a plea of guilty. On that basis we have come to the view that the appropriate sentence upon this defendant, had it been a determinate sentence after trial, would have been one of the order of 12 years. Giving the normal discount on a plea that would be one of eight years, so that the minimum period to be served on a sentence of imprisonment for public protection becomes one of four years rather than the five years pronounced by the trial judge. To that extent this appeal is allowed, but we stress in so doing that that four years is a minimum term and the amount of time eventually served will be a matter for review as appropriate. All other orders to stand.

```yaml citation: '[2009] EWCA Crim 1799' date: '2009-05-12' judges: - LORD JUSTICE TOULSON - MRS JUSTICE SHARP DBE - HIS HONOUR JUDGE WADSWORTH QC ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200400511/B4 Neutral Citation Number: [2004] EWCA Crim 2831 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 3rd November 2004 B E F O R E: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MRS JUSTICE HALLETT DBE MRS JUSTICE DOBBS - - - - - - - R E G I N A -v- GLEN ADAWAY - - - - - - - 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 W MAYALL appeared on behalf of the APPELLANT MR P COOPER appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 18th December 2003 at Reading Crown Court, following a trial of several days before His Honour Judge Playford QC, the appellant was convicted on two counts of supplying goods with a false trade description contrary to section 1(1) (b) of the Trade Descriptions Act 1968 , that was count 1, which related to roof vents, and count 2, which related to the roof of a conservatory. The jury acquitted on count 3, which related to the sides of the conservatory. The appellant was fined £250 on each of the two counts on which he had been convicted. 2. He appeals against conviction by leave of the single judge. 3. There was a co-accused, Mrs Adaway, the appellant's wife. She was acquitted on all three counts. The judge ordered that her costs be paid by the prosecution. 4. The circumstances were that Mr and Mrs Adaway traded as a partnership called Quality Direct. They agreed to supply and install a conservatory at the home in Woodley in Wokingham of a Mr Byatt, who became the complainant. The contract provided that there should be two roof vents and sides of Pilkington K glass, but there was a dispute between the parties as to whether the roof itself should also be of K glass. Mr Byatt said "yes", the appellant and his wife said "no". 5. The conservatory, which cost £18,000, was erected in early 2002. On completion there were no vents in the roof, the roof was not of K glass and nor were the sides. The appellant had agreed that there should be two roof vents and K glass in the sides. He said he had made a mistake when ordering the components from the supplier. But he did not believe that the contract provided for the roof to be made of K glass. If it did, then he was mistaken about that. The appellant offered to replace the glass in the sides with K glass, or to compensate Mr Byatt for the mistake and for the lack of roof vents. Mr Byatt refused that offer and went, as he was entitled to, to the Trading Standards Office. Eventually, on a basis to which in a moment we will come, that Office recommended the initiation of a prosecution of the appellant and his wife at the suit of the Wokingham District Council. 6. It was the prosecution case that the conservatory was supplied without two opening roof vents and that the sides and roof were not of K glass. The written descriptions supplied were false. It was the defence case that the appellant had accepted that the conservatory should have two roof vents and K glass in the sides, but he had taken all reasonable precautions and exercised all due diligence in preventing the mistake and he relied on the statutory defence available to him in those respects by virtue of section 24 of the Trade Descriptions Act. The appellant did not accept that there had been an agreement for the roof to be of K glass; but, as we have said, he said that, if he had failed to notice that requirement, that was a mistake which he had made. 7. Three grounds of appeal are advanced on behalf of the appellant. The first is that the judge was wrong in refusing to stay the proceedings as an abuse of process. The second is that the verdicts of the jury in acquitting on count 3, but convicting on counts 1 and 2, were inconsistent and inexplicably so. The third ground is critical in one respect of the summing-up in relation to the possibility of mistake. If the first ground is well founded, it will not be necessary to consider the second and third grounds. 8. The submission which Mr Mayall makes in relation to the first ground is simply this. The judge had not merely the power, but the duty, to stop this prosecution if it were oppressive. Mr Mayall accepted that the onus was on the defence to show at the outset, when the submission was made, that the prosecution was oppressive. Mr Mayall submits that that was done evidentially, because no criterion to justify the prosecution in the prosecuting authority's Public Protection Enforcement Policy was established. To those criteria we shall, in a moment, return. 9. Mr Mayall submits that there was, on the material before the judge, nothing other than bare assertion on behalf of the prosecution authority that the prosecution fell within the terms of the Policy document. At this point it is convenient to refer to the terms of that Policy document. Paragraph 7.1 is in these terms: "There are two issues to determine. The first is what level of enforcement action to take. The second is that, if the first decision is to take formal enforcement action, then is that action viable and appropriate. There are two stages in determining whether formal enforcement action is viable and appropriate: - Stage 1: The evidential test, - Stage 2: The public interest test." That sort of approach is familiar from the Code for Crown Prosecutors issued by the Crown Prosecution Service. 10. However, there is in this Policy document a further paragraph of particular present significance. It is in these terms, so far as they are presently material: "Prosecution 7.2. In order to take forward prosecution, the individual or organisation must meet one or more of the following criteria: - Engaged in fraudulent activity, - Deliberately or persistently breached legal obligations." 11. The submission made by Mr Mayall is that there was no evidence of fraud, either at the outset, or in due course, although both Mr and Mrs Adaway were cross-examined on the basis that they had behaved fraudulently. Furthermore, submits Mr Mayall, there was no evidence of deliberate or persistent misconduct, although the prosecution asserted that that was their case. Mr Mayall submits that the judge should not, in making the ruling rejecting the application for a stay, have adopted the "wait and see process" which it appears he may have done. 12. At that point it is convenient to rehearse certain passages from the judge's ruling rejecting the stay which was given on 1st September 2003. At page 3B there is a reference to a Mr Mitchell. It is to be noted that Mr Mitchell was never called to give evidence before the jury. The judge, having referred to the making of the complaint by Mr Byatt to the Newbury Trading Standards Office, said this: "... Mr Mitchell saw the conservatory and thought that was a matter which should be resolved without recourse to the criminal law although he is recorded as telling the Byatts that 'he had had previous problems with Quality Direct' and that 'they had had a fair amount of court experience,' matters which have not been elaborated before me as yet." 13. The judge went on to refer to a visit by Mr Mitchell to the premises where the conservatory had been erected where, apparently: "... he was persuaded by Mr Byatt to change his mind." In consequence the matter was passed to the Wokingham District Council and the present prosecution was instituted. The learned judge was referred to a passage in the judgment of Phillips LJ, as he then was, in Shropshire County Council v Simon Dudley Limited [1996] Trading Law Reports 69, at page 82, where Phillips LJ said: "Trading standards officers must exercise discretion when deciding whether or not a particular case warrants the intervention of the criminal law ... The Trade Descriptions Act is essentially concerned with consumer protection. It does not seem to me that this case falls within the type of mischief against which the Act is directed." The Divisional Court in that case, having allowed the appeal, imposed absolute discharges in relation to the breaches of the Trade Descriptions Act which had there occurred. 14. The learned judge, having quoted from that judgment of Phillips LJ, which included a reference to it being easy to see that: "... a busy criminal court and a jury could become bogged down in a misplaced endeavour to resolve what are essentially civil disputes," went on to refer to Mr Mitchell's reaction, and the fact that he, Mr Mitchell, had seen no good reason to involve the criminal law, because there seemed to be nothing specially heinous about these offences that made the county court inappropriate. 15. The judge went on, at the top of page 5: "However, I am not the prosecutor and I am not responsible for the decision to prosecute. I do not have power to stay a prosecution just because I do not like it." 16. The judge went on to refer to DPP v Humphries [1977] AC 1 , to Phillips LJ's judgment already cited and to the skeleton argument of Mr Cooper, on behalf of the prosecution. 17. This contained an assertion that the defendants: "... 'deliberately breached their legal obligation' and 'engaged in fraudulent activity' thus falling within those criteria." That is a reference to the criteria we have already identified in 7.2 of the Policy document. 18. The judge went on at 5H: "I really cannot say, and may never be able to say, whether these criteria are in fact satisfied and doubt whether it is realistic to reach a concluded view on such matters in advance of the trial and certainly without hearing evidence. All I can say is that there is nothing in the papers before me that supports Mr Cooper's bare assertion, save possibly from Mr Mitchell's cryptic comment noted above and a comment which at least initially did not cause him to recommend criminal proceedings. On the contrary, it rather looks to me as if the view of the man on the ground, Mr Mitchell, was initially that the criteria was not met and that he was persuaded to take a different view not by a consideration of the laid down criteria but by Mr Byatt's insistence." 19. The judge went on to say that the criteria did not have statutory effect and that the decision whether or not to prosecute was a matter for the discretion of the local authority. Those observations are clearly correct. 20. The judge, however, went on towards the end of his ruling, at page 7, to say this: "The views on the facts that I have expressed are entirely provisional. I have heard no evidence ... At the conclusion of the case, however it may end, I will have heard all the evidence and will have formed my own view of the matter in which the defendants carried on their business. If I then consider that there was no public interest served by this prosecution, none of the criteria having been met, especially if the reason for that failure was that Mr Mitchell's initial view was correct ... I shall certainly make my view clear and reflect it in any sentence or in considering costs or compensation." 21. Indeed, when the learned judge came to impose the fines upon the appellant, to which at the outset we referred, and to make the order in favour of the female defendant as to her costs, the learned judge said this in a passage on which Mr Mayall places particular reliance at page 3 of the sentencing remarks: "It is the responsibility of Wokingham District Council to ensure that they do not improperly or disproportionately use their powers of enforcement so as to cause oppression. They have, at their disposal, public funds and they should not mobilise the criminal law unless it is in the public interest to do so or when a warning or some form of caution would do as well. In particular, the criminal law should not be mobilised to secure the settlement of private disputes which should more appropriately be determined in the county court or by arbitration or by mediation." 22. The judge went on to rehearse certain passages from his ruling of 1st September, by which he said he had reminded the District Council of their duties in this respect. He went on to say that, so far as Mrs Adaway was concerned, she had had nothing whatever to do with the contract and there was no reason for including her in the prosecution, save the purely technical one that she was her husband's partner: "Still less was there any basis for cross-examining her on the basis of fraud or recklessness. In my judgment Wokingham District Council did not exercise the rigorous discretion required of them. According to their own guidelines, they had no good basis for prosecuting these defendants, especially Mrs Adaway, it was not in the public interest to do so." 23. He went on to refer to the indignity of the defendants having been publicly and aggressively cross-examined on the basis that they been dishonest: "... an allegation that, in my view, was made through a desire to continue, not to initiate these proceedings." He then went on to make the award of costs to which earlier we have referred. 24. In the light of those observations when passing sentence, Mr Mayall suggests that his submission to this Court is even more soundly based, because the learned judge was there recognising expressly that the local authority most not act in an oppressive way. In the light of the material available to the judge at the end of the trial, which was in substance no different from the material which was available to him at the beginning when he made his ruling, Mr Mayall submits that the judge should at the outset have concluded that this prosecution was oppressive and ordered that it be stayed. 25. In the face of that forceful submission, the Court sought submissions from Mr Cooper, on behalf of the prosecution, as to the manner in which it could be said that the criteria identified in 7.2 had been met. He accepted that there was no evidence of fraud. He accepted, that being so, that neither Mr nor Mrs Adaway ought to have been cross-examined on the basis that they were fraudulent. He accepted that there was no material demonstrating persistent breach of legal obligations. He accepted that the only material capable of establishing a deliberate breach was the denial by the appellant in the course of the interview that any mistake had been made by him. 26. As it seemed to us, as this appeal progressed, it became clear beyond per adventure that neither of the criterion identified in 7.2, and sought to be relied on before the learned judge, was capable of substantiation. It follows that Mr Mayall's submission, that the learned judge ought at the outset to have reached the conclusion that a prosecution was oppressive, which in the course of his sentencing remarks he hinted that he had by then reached, is well founded. In our judgment, it follows that the learned judge, albeit exercising a discretion in refusing a stay, exercised it in a way which was without foundation. It follows that this appeal must be allowed and the appellant's conviction quashed. 27. We add this. We have no information as to how much these proceedings have cost this local authority. We suspect that it must be many thousands of pounds. We cannot emphasise too strongly that before criminal proceedings are instituted by a local authority, acting in relation to the strict liability offences created by the Trade Descriptions Act, they must consider with care the terms of their own prosecuting policy. If they fail to do so, or if they reach a conclusion which is wholly unsupported, as the conclusion to prosecute in this case was, by material establishing the criteria for prosecution, it is unlikely that the courts will be sympathetic, in the face of the other demands upon their time at Crown Court and appellate level, to attempts to justify such prosecutions. 28. For the reasons which we have given, this appeal is allowed. The appellant's convictions are quashed. 29. MR MAYALL: My Lord, as in the court below, there is an application for costs in this matter. 30. THE VICE PRESIDENT: Are you privately funded? 31. MR MAYALL: My Lord, yes. 32. THE VICE PRESIDENT: You seek the costs against the prosecution? 33. MR MAYALL: My Lord, as in the court below. 34. THE VICE PRESIDENT: That would be the local authority, would it? 35. MR MAYALL: Yes. ( Pause ) 36. THE VICE PRESIDENT: Yes, Mr Mayall, you may have your costs. 37. MR MAYALL: I am grateful, my Lord. There is one other matter which arose in the court below, in that the regulation allowing for costs to be awarded against the prosecution, as against out of central funds, require that your Lordships specify the amount. 38. THE VICE PRESIDENT: You are quite right to remind us of that. Have you got a figure? 39. MR MAYALL: My Lord, yes. I have got -- 40. THE VICE PRESIDENT: Has Mr Cooper seen it? 41. MR MAYALL: My Lord, what we have is in relation to costs below. They are simply halved, half to represent Mr Adaway and half to represent Mrs Adaway. The local authority have paid their half in relation to that, so they are obviously aware of those costs. 42. THE VICE PRESIDENT: What is the figure? 43. MR MAYALL: My Lord, the figure is -- 44. MRS JUSTICE HALLETT: So those are the costs of a four day trial? 45. MR MAYALL: It was five days eventually, yes. Including the proceedings in the Magistrates' Court and the application, the total is £14,657.71. 46. THE VICE PRESIDENT: £14? 47. MR MAYALL: Plus VAT. 48. THE VICE PRESIDENT: £14,6 and what? 49. MR MAYALL: £57.71. 50. THE VICE PRESIDENT: Is that the total or the half figure? 51. MR MAYALL: That is the half figure. 52. MRS JUSTICE HALLETT: And that's the Crown Court proceedings and these proceedings? 53. MR MAYALL: My Lady, no. 54. THE VICE PRESIDENT: That is the proceedings before the Magistrates and in the Crown Court. 55. MR MAYALL: Yes. 56. THE VICE PRESIDENT: What is the figure you are seeking in connection with the appeal? 57. MR MAYALL: In connection with the appeal, my Lord, the costs are -- solicitors' costs £4,901.05, that includes VAT. 58. THE VICE PRESIDENT: We are not going into pence, Mr Mayall, I can tell you that. 59. MR MAYALL: £4,901. 60. THE VICE PRESIDENT: And counsel? 61. MR MAYALL: My Lord, £6,750 plus VAT, which is -- the VAT is £1,181-odd. So the total figure for everything is £12,832. 62. THE VICE PRESIDENT: I am not sure where that figure comes from. 63. MR MAYALL: My Lord, it is £4,901, which is the solicitors, £6,750, VAT of £1,181 on that £6,750. 64. THE VICE PRESIDENT: I see. So the total figure is? 65. MR MAYALL: £12,832. 66. THE VICE PRESIDENT: £12,832. Mr Cooper? 67. MR COOPER: My Lord, I don't wish to raise any due argument with regard to the costs. That is in your hands. It is not for me to raise any argument, save to say it is in your hands, my Lord, whether the prosecution have to meet the costs, or whether they can be met from central funds. 68. MRS JUSTICE HALLETT: What about the amount, Mr Cooper, apart from the principle? 69. MR COOPER: I was given a costs schedule two days ago with regard to today's hearing of some £3,000. I understand that has been revised to some £4,000-odd. 70. THE VICE PRESIDENT: That sounds like the solicitor's costs, doesn't it. 71. MR COOPER: That's right. I am not -- I have not seen any costs with regard to -- any other costs with regard to today. I can't obviously tax those, or deal with costs on a professional basis, because that is not really my argument to argue one way or another whether they are reasonable or not, so I can't offer any judgment. Clearly it is would be within the Court's jurisdiction to meet a costs demand as they think reasonable for the action taken. 72. THE VICE PRESIDENT: I take it you can't have any comment to make so far as the costs in the Magistrates' Court and Crown Court are concerned because those have been the subject of examination before? 73. MR COOPER: Yes, Mrs Adaway's costs have been met and paid. 74. THE VICE PRESIDENT: But those were halved, so there can't be any argument, as I understand it, about the figure of £14,600 plus VAT for that. 75. MR COOPER: No. 76. THE VICE PRESIDENT: Thank you. ( Pause ). We shall order the local authority to pay in relation to the costs of the Magistrates' and the Crown Court the sum of £14,657 plus VAT. In relation to the costs of this appeal, we shall order the local authority to pay a total sum of £7,500 plus VAT. Thank you.

```yaml citation: '[2004] EWCA Crim 2831' date: '2004-11-03' judges: - LORD JUSTICE ROSE - MRS JUSTICE HALLETT DBE - MRS JUSTICE DOBBS ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200704293/D3-200704384/D4-200704568/D4 Neutral Citation Number: [2008] EWCA Crim 2746 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 31st October 2008 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE FOSKETT HIS HONOUR JUDGE MORRIS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v CUONG PHU QUACH SON GIANG BUI HA THI NGUYEN - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr F Chamberlain appeared on behalf of the Appellant Quach Miss S Loke appeared on behalf of the Appellant Nguyen Mr T Badenoch appeared on behalf of the Appellant Bui Mr P Asteris appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE HALLETT: On 18th and 19th July 2007 at the Southampton Crown Court before His Honour Longbotham the appellant, Nguyen, was convicted of conspiring to produce a quantity of cannabis (count 1); converting criminal property (count 2); two counts of converting criminal property (counts 3 and 4) and two counts of obtaining a money transfer by deception (counts 5 and 7). The appellants, Bui and Quach, were also convicted of count 1. Bui was acquitted on count 2, converting criminal property; count 6, obtaining a money transfer and count 8 abstracting electricity. A man called Do should have been tried with the three but he absconded. 2. On 19th July 2007 they were sentenced as follows. Nyuyen on the count of conspiring to produce cannabis, 10 years' imprisonment, on the three counts of converting criminal property, 2 years' imprisonment, each ordered to run concurrently and 2 years’ imprisonment ordered to run concurrently on the two counts of obtaining money transfers, making a total sentence of 10 years. Bui was sentenced to 6 years' imprisonment, Quach was sentenced to 5 years' imprisonment and recommended for deportation. It seems that he was not long in custody in this country before he was sent back to Vietnam. 3. Nguyen has abandoned her application for leave to appeal against conviction, which was referred to us. Having reviewed the strength of the evidence against her, in our view that was a sensible decision. All three of the appellants have leave to appeal against sentence. 4. The background is as follows. Nguyen was the owner of a number of houses including 208 Leigh Road and 71 Westwood Road, Salisbury. She also owned two nail bars, which may or may not have been a front for her cannabis operation. Bui worked for her as a nail technician. He was the owner of a house at 10 Eastleigh Road, Fair Oak. Eastleigh Road was kept under observation by the Hampshire Constabulary. On 17th October 2005 Mr Range, an employee of Southern Electric, went to Eastleigh Road to change the meter. A man answered the door and would not let him in. He returned the following day and met Nguyen. He discovered the meterr had been tampered with and substantial quantities of electricity consumed un-metered to the value of approximately £1300. 5. On the same day police executed a search warrant. Quach was found in a bedroom and when police sought to detain him, he struggled and had to be handcuffed. Nguyen was found in the same room, partially concealed behind a window blind. One officer said when he was outside he saw a woman of oriental appearance trying to get out of an upstairs window. She was taken back inside and when her handbag was searched inside was found a water bill for the property. Downstairs, Do was also detained. Rooms in the house had been fitted with lighting and hydroponics. There were vents in the loft space and the doors and windows were covered in plastic sheeting. Two notes with Vietnamese handwriting on them were found in the loft. When they were translated they were found to contain instructions on how to grow cannabis plants. The Crown alleged the handwriting was Nguyen's. 6. Cannabis plants at different stages of growth were found in the three rooms in the house. They contained 407 plants, with a wholesale value of between about £31,500 to £46,000. The equipment itself was worth nearly £6,000. DNA evidence linked Bui and Do to the house and Quach to the van parked outside. The van had been rented by Nguyen the previous day in her sister's name. 7. By the time the police found Nguyen's other properties, two of them had been placed on the market for sale. Police noted that rooms had been re carpeted, there were vents in the loft, similar to those in Eastleigh Road and of the kind required for cannabis production. 8. Cannabis leaves were discovered at 71 Westwood Road and DNA linked Do to that property also. Again, there were holes in the roof and other equipment almost identical to that found in the loft space in Eastleigh Road. In addition, a neighbour described how the curtains were never opened, people came and went during the early hours but never in the daytime and never at weekends. She heard banging and saw that the occupants had built a ramp to the garage and there were vans parked outside on a regular basis. 9. A police officer gave evidence about money laundering techniques which include, "smurfing", where numerous small amounts are paid into different accounts and cross firing, where there is an unnecessary movement of funds between accounts. He had been through the bank accounts of Nguyen and Bui and he gave evidence that both smurfing and cross firing had occurred here. He could detect no legitimate income. He also noted that one of Nguyen's properties, 22 Churchfield Road, had been sold at a loss. It was his opinion that money laundering had been taking place and it must have been money laundering of thousands of pounds. 10. A Mr Abdul, a mortgage broker, gave evidence that Bui and another oriental man came to see him about a mortgage for Eastleigh Road. When he explained the procedure to Bui, he seemed to understand. He also assisted Nguyen in respect of her mortgage applications. For the purposes of buying 208 Leigh Road, she claimed that her takings from the nail bars were £79,000 a year. However, when she made a mortgage application for 71 Westwood Road, her income was £42,000 in 2003 and £45,000 in 2004. As far as Eastleigh Road was concerned, Bui's basic gross income was said to be £39,000 - rather a large sum for a nail technician. Pay slips supporting the mortgage application were alleged to be false. 11. Martin Rice, the previous owner of Eastleigh Road gave evidence. He saw Nguyen and another woman come to visit the house with a view to purchase. When she did, Nguyen asked her about the electricity supply and voltage. She also returned for a second viewing with Bui. On the third viewing Mr Rice thought all three were present. When there were problems with completion, he arranged to meet Nguyen and Bui. 12. The prosecution alleged that Nguyen and Bui dishonestly obtained their mortgages to purchase the properties in which to grow cannabis commercially. Once the drugs were harvested, Nguyen and Quach were to move it from Eastleigh Road, using the van that Nguyen had hired. Mr Asteris, for the Crown, argued the cigarette butts, showed, firstly, that Bui was present when the cannabis was planted, and secondly, that Quach was going to help remove it. He also submitted the evidence was overwhelming that Westwood Road and Leigh Road were both additional cannabis factories. 13. Nguyen gave evidence at the trial in which she insisted she was not involved in cannabis cultivation and all her financial and property dealings were above board. When something dishonest was pointed out to her, she tried to blame others, claiming she had relied upon them. 14. Quach denied involvement in any conspiracy and claimed that Nguyen was trying to put all the blame on him. Bui gave evidence, during the course of which he did his best to distance himself from the drugs operation. He did not expressly blame his co-accused but it was implicit in some of things he said. He claimed, for example, it was Nguyen who assisted him on transactions like opening a bank account and buying Eastleigh Road. 15. As far as the background of the three is concerned, Nguyen is now 39. She has been convicted three times for theft and once for forgery. Bui is now 27. He was of previous good character, it was said, save that when he decided to drive a car he did not seem to bother with having a licence or insurance. 1. Quach is now 40. He was of good character albeit we note that he was an illegal immigrant and, as we have indicated, he has already been deported. 16. The trial judge observed in his sentencing remarks that each had been convicted of a serious conspiracy. He described Nguyen as having not been honest at trial (something of an understatement) and he also referred to her previous convictions for dishonesty. He referred to the large sums of money that had gone through her bank accounts and he also noted that Bui had described her as "Miss Boss", which, in the judge's opinion, was an accurate description. However, he also observed that Bui seemed to be fond of expensive items and lived an extravagant lifestyle: for example he lost a BMW motorcar in a card game. The judge also noted the extent of Bui's involvement. He was the owner of Eastleigh Road, he found a tenant for it and he was significantly involved. The judge found that Nguyen may be his boss, but his role was more than that of simply doing as he was told. The judge also found that Quach was not just a “gardener” for the drugs. His involvement was to ensure the removal of substantial quantities of the harvested cannabis. 17. The judge considered the value of the drugs actually found. The main crop of drugs when harvested would have amounted to about 6.66 kilograms of cannabis, made up of 3.32 kilograms of skunk and 3.33 kilograms of herbal cannabis. The potential wholesale value was between £10,000 and £15,000. In rooms F and G (as they were described) police found a further 7.17 kilograms of skunk and 7.13 of herbal cannabis worth roughly £26,000. 18. The judge not surprisingly described the operation as "substantial" and "very profitable". He could not, of course, estimate the quantities of drugs that had been produced in the other properties. He accepted that there may have been what he described as "shadowy figures" higher up the chain of production but said there was no evidence of any pressure being placed on any of the defendants before him. 19. He also specifically addressed the issue of whether or not deterrent sentences were required. There was evidence before him of a substantial increase in the number of premises being raided and found to contain commercial cannabis factories. The figure grew from six in 2005 to 36 in 2006, and in the first half of 2007 alone, 29 such premises were discovered. The offenders were usually of Vietnamese origin. The judge bore in mind there is a closely linked and significant Vietnamese community in the area of Southampton. He found there was compelling evidence of a prevalent problem and a deterrent sentence was necessary. 20. Miss Loke, on behalf of Nguyen, argued that the appropriate sentence for the offences of which she was convicted, after trial, should have been in the region 5 to 6 years. She referred the court to a number of authorities including R v Liljerous & Alderson [2004] 1 Cr App R(S) 81. She argued, that the level of sentences suggested therein for offences of this kind already takes account of an element of deterrence. She argued that even if a further element of deterrence was required in the present case, an additional 4 to 5 years was manifestly excessive. Further she argued the sentence of 10 years took no account of the appellant's personal mitigation: Nguyen is a single mother who until her arrest was caring for a 13-year-old daughter. She also reminded the court that the judge seems to have accepted that Nguyen was not at the very top of the organisation behind this conspiracy. 21. Since the hearing below, the Vice-President Latham LJ, has delivered the judgment of this Court in the R v Xu & Ors [2007] EWCA Crim 329 . In Xu, the court heard seven appeals together in order to consider the appropriate level of sentencing in cases of large scale cultivation and production of cannabis. The Vice-President indicated that the court was not providing guidelines as such, but the court was prepared to indicate the bracket "within which some consistency of sentencing can be achieved." Latham LJ said this at paragraph 6: "We consider that for those involved at the lowest level, the starting point should be 3 years before taking into account any plea of guilty and personal mitigation. This reflects the view of this court in KuangVan Nguyen [2007] EWCA Crim 9 . For those who set up and control individual operations, the organisers, the starting point should be 6 – 7 years depending upon the quantity of cannabis involved, again before taking into account a plea of guilty and personal mitigation: see Jupp [2002] Cr. App. R. (S) 8 and Liljerous and Alderson [2004] 2Cr App (R)(S) 81 at page 486. The starting point for managers will be somewhere between 3 and 7 years depending on the level of their involvement and the value of the cannabis being produced. Severer sentences may be appropriate for those who control a larger number or network of such operations." 22. On that basis Miss Loke argued that the 10 years' imprisonment was substantially higher than the range suggested for even controllers and organisers of a large network of cultivations. 23. As far as Bui is concerned Mr Badenoch argued that the sentence of 6 years was excessive. He submitted that Bui's role was at most a “manager” rather than organiser, and he was a manager acting on the orders of his boss, namely Nguyen. Mr Badenoch rightly reminded the court of the counts of which Bui was acquitted. This is Bui's first time in custody and Mr Badenoch argued he has substantial personal mitigation for example his claim for asylum. He claims to have fled Vietnam for fear of persecution. Further, his father died while he was in custody; he has lost contact with his mother and all his natural family and a warrant for his arrest has been issued against him in Vietnam because he practised Buddhism. We would comment in passing, it is clear to us from the way in which this trial was conducted that Mr Bui has not been exactly truthful over the years. Nevertheless Mr Badenoch argued that given the guidance provided in Xu and in other decisions put before us a sentence of 6 years was simply too high. 24. As far as Quach is concerned Mr Chamberlain, in admirably succinct submissions, argued that the sentence of 5 years was excessive, given his role in the conspiracy. The evidence indicated that he was involved simply on one day, the day he was arrested. 25. In his written submissions, Mr Chamberlain referred to the appellant's “good character”. We note, however, he was in the UK illegally. The highest it can be put, therefore, is that before he committed the present offences, he had no previous convictions in this country. Mr Chamberlain also drew support from the decision in Xu for his proposition that if Quach stood to be sentenced as a low-level worker, the starting point should have been 3 years. 26. Looking at the conspiracy as a whole, in our judgment, this was a major operation. It clearly involved more than one centre of production, considerable quantities of drugs and considerable profits. The judge was right to emphasise that the factories produced, not just herbal cannabis but skunk which is a far more pernicious drug. 27. Applying the guidance in Xu , Miss Nguyen stood to be sentenced as an organiser and one who controlled more than one operation. Three separate properties were identified as possible cannabis factories and she was substantially involved in all of them. She bought two of the properties in her own name and went to view Eastleigh Road. She provided £8,500 deposit for its purchase. She also had a bill relating to Eastleigh Road in her possession when arrested. 28. The other two properties may not have contained cannabis by the time they were searched but they bore all the hallmarks of having been at one stage cannabis factories. Mr Asteris also invited out attention to the fact that the properties had all been bought with dishonestly obtained mortgages (which formed the substance of the other counts on the indictment). 29. But, if we are to be true to the jury's verdicts, stood to be sentenced as a manager. He owned Eastleigh Road, where the drugs and his co-accused were found. He was plainly heavily involved in whatever was going on there and therefore, was not merely a low level worker. His was an important role and it was a role in a conspiracy which had a much larger ambit. 30. Quach lived with the only proven organiser before the court, Nguyen, at her main home. He had no known means of income. He was plainly more than a mere gardener. He travelled with Nguyen from London to Eastleigh Road in the rented van, and he was going to be one of those responsible for transporting the fully matured plants from the house to the depot from which they would be supplied to the public. 31. On the question of deterrence, the judge was, in our view, entitled to find this kind of offence was particularly prevalent in the Southampton area amongst the Vietnamese community. Thus, he was entitled to bear that in mind when fixing the appropriate levels of sentence. 32. However, given the roles of the appellants we are persuaded that the sentences were excessive. Bearing in mind the guidance in Xu not available to the judge below, in our judgment, a sentence of 8 years for Nguyen would have been appropriate. We shall quash the sentence of 10 years' imprisonment on count 1 and substitute for it a sentence of 8 years. As far as Bui is concerned, we shall quash the sentence of 6 years and substitute for it a sentence of 5 years. Whether our decision makes any different to Quach we are not sure, nevertheless, we shall quash the sentence of 5 years on him and substitute for it a sentence of 4 years. To that extent and that extent alone the appeals succeed.

```yaml citation: '[2008] EWCA Crim 2746' date: '2008-10-31' judges: - LADY JUSTICE HALLETT DBE - MR JUSTICE FOSKETT - HIS HONOUR JUDGE MORRIS QC ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2024] EWCA Crim 409 Case No: 202303085 A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOD GREEN Recorder Ashley-Norman KC S20230313 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22 May 2024 Before : LORD JUSTICE GREEN MRS JUSTICE MAY and MRS JUSTICE YIP - - - - - - - - - - - - - - - - - - - - - Between : DEWEY Appellant - and - REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms R Sadler (instructed by Olliers Solicitors ) for the Appellant Ms M Mostafa (instructed by Crown Prosecution Service ) for the Respondent Hearing date : 7 March 2024 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 11.00am on 22 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, no matter relating to any of the complainants in this case shall during their lifetime be included in any publication if it is likely to lead members of the public to identify them as a complainant in that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act Mrs Justice May : Introduction 1. This appeal, brought with leave of the single judge, concerns the proper terms of a Sexual Harm Prevention Order (“SHPO”). 2. On 18 July 2023 the appellant pleaded guilty at West London Magistrates’ Court to four offences of making (ie downloading) or possessing indecent images of children and one offence of possessing extreme pornographic images. He was committed for sentence to the Crown Court. On 15 August 2023 in the Crown Court at Wood Green, the appellant was sentenced to a total of 12 months imprisonment suspended for 2 years with a rehabilitation activity requirement and unpaid work. Having been convicted of offences listed in Schedule 3 of the Sexual Offences Act 2003 the appellant was required to comply with notification provisions for a period of 10 years; in addition to this, the appellant will or may be included in the relevant list by the Disclosure and Barring Service. 3. On the day of the sentencing hearing, shortly before the case was called on, the prosecution uploaded a draft SHPO to DCS. There followed exchanges between counsel as to the proper terms of such an order. There was no objection in principle to the making of one. It seems that counsel were unable to agree the final terms, accordingly the court at and after the sentencing hearing was required to decide the scope and terms of the final order. 4. There is no appeal against sentence or any other ancillary order, the challenge is restricted to certain terms of the final SHPO. Facts of the offending 5. The National Crime Agency received reports that the appellant had uploaded indecent and prohibited images to his online storage. On 29 April 2022 at around 7am plain clothes police officers executed a search warrant at the appellant’s home address. On being told that the premises were to be searched he replied “I suspect you’ll need things such as electronic devices” and went on to identify and produce a number of digital devices including his mobile phone and two laptops, for which he provided the PINs and passwords as well as his email address and password. Ten devices were seized and analysed. On five of those devices police found 5 category A indecent images of children (offence 1), 41 category B indecent images of children (offence 2), 203 category C indecent images of children (offence 3), 78 extreme pornographic images (offence 4) and 1,523 prohibited images of children (offence 5). Information at sentence and the terms of the SHPO 6. The court below was provided with a schedule of representative images, which we have also seen. The schedule describes the content of images from each of the categories. The child images are all of male children. 7. The appellant was aged 37 at sentence and of previous good character. He had been employed in a senior role at a political consultancy, but had lost that job as a result of these offences. He had also been elected a local councillor shortly before his arrest and had long-standing political interests, from all of which he resigned as a consequence of these offences coming to light. The appellant appears to have been open with his family from the moment of his arrest; we have seen the letters of support from his parents and his sister which were before the sentencing judge. His family refer to the appellant’s difficulties as a gay man with political ambitions and his increasing isolation during his late 20s and 30s. They draw attention to the steps he has taken to confront his offending behaviour and to re-set his life following his arrest for these offences, obtaining a place on an MA course at Bristol University, subject to confirmation after disclosure of these offences. 8. A pre-sentence report (PSR) observed that “there is evidence of a lack of sexual intimacy, sexual pre-occupation and difficulties forming relationships and him socially isolating himself, which appears to have acted as a trigger to his use of the internet for sexual stimulation”. The author noted that the appellant was full of shame and remorse. He had voluntarily signed up to and completed a series of five sessions with “Safer Lives” and was attending one-to-one weekly counselling sessions to address his addiction to illegal images. In addition to his employment being terminated and resigning from his political positions he had given up the flat which he shared with others and had moved back home with his parents. As to the likelihood of further offending, the author of the report concluded that the appellant was “a medium risk of re-conviction for an internet sexual offence…and a low risk for a contact offence” Slightly confusingly, under a further heading “risk of serious harm” the author concluded that “based on the information in this report [the appellant] has been assessed as medium risk of harm to children, most likely teenage boys”. 9. As appears from a transcript of the hearing, the recorder heard submissions from counsel on the need for a non-contact provision in the SHPO, deciding during the hearing that one should be included, relying on the “medium risk” assessment of harm in the PSR to which we have referred above. He left the remaining terms to be agreed between counsel; however, as appears from a widely shared side note on DCS, he later resolved two remaining issues administratively, after the hearing. 10. The SHPO as finally ordered by the court restricted the appellant’s activities in the following terms: (1) Having any contact or communication of any kind with any child under the aged of 18, other than (i) Such as is inadvertent and not reasonably avoidable in the course of lawful daily life (such as being served by a young person in a shop,) or (ii) With the consent of the child’s parent or guardian who has been made aware of his convictions by Police and/or Social Services and this person has been approved by Police of Social Services. (2) Possessing or using any computer or other internet enabled device (including mobile phone and tablet PC), without Risk Management software approved by Police Visor Officers for the area which he lives, being installed. With the exceptions of: (i) A business/educational environment or Library, or an internet enabled device that does not have a search facility (such as some digital TV boxes), which must have been deemed suitable in writing by the managing Police Visor Officers, (ii) Any internet enabled device which has been approved in writing by the managing Police Visor Officers not to have monitoring software installed. (3) Possessing, owning or using a mobile phone other than a mobile phone that you have provided the telephone number and IMEI number of to your managing Police Visor Officer. (4) Downloading or using any password protected, hidden or disguised apps/programs that provide secret or secure storage for digital images on any Internet enabled device. (5) Possessing any device capable of capturing an image (moving, still, digital or otherwise) unless he makes his Police Visor Officer aware of the device and provides access to it on request for inspection. (6) Using any 'cloud' or similar remote storage media capable of storing digital images (other than that which is intrinsic to the operation of the device) unless you have prior written permission from your Police Visor Officer, and provides access to such storage on request for inspection by a police officer or police staff employee. (7) Refusing or hindering access to any device in the possession of the defendant or in premises where he is present, resides or otherwise controls on request by a police officer seeking to check his compliance with the terms of this order. Grounds of appeal 10. Ms Sadler appeared for the appellant on the appeal, as she did at sentence. We are grateful to her for her full and clear written grounds, supplemented by concise oral submissions at the hearing. Referring to the guidance on SHPOs given by this court in the case of Parsons and Morgan [2017] EWCA Crim 2163 she argued that certain terms of the SHPO ordered here were unnecessary and/or disproportionate and should be amended: (1) She submitted that the contact provision ought to be removed altogether, there being no evidence of the appellant having committed any contact offence, or even of having prepared to do so, and where the PSR concluded that he was “low risk” of committing that type of offence. (2) The term covering risk management software at paragraph (2) of the order ought to be replaced with a term of the kind preferred by the court in Parsons, as being a more manageable and proportionate way of affording the required level of protection. (3) It was said that paragraph (3) was otiose, given that all devices (which would include any mobile phone) would be covered by the requirements of paragraph (2) of the order so far as internet usage is concerned. Insofar as paragraph (3) covers calls or texts, such a provision was unnecessary as there was no evidence that the appellant had ever sought to contact a child. (4) As many regular programmes or apps now have password protected secure storage, paragraph (4) of the order preventing use of any such apps or programs was unnecessarily restrictive; Ms Sadler suggested that amending to require the appellant to provide police with details upon request would be a more proportionate requirement. (5) Ms Sadler questioned the necessity for a prohibition on possessing any image-capturing device, pointing to the absence of any evidence that the appellant had himself ever taken indecent images. The images on his devices had all been downloaded from the internet, from content uploaded by others. (6) The current formulation of the term relating to “cloud” and remote storage was subject to the administrative difficulties identified by the court in Parsons and should be amended as discussed by the court in that case. (7) Finally, a term which appeared to give the police powers of entry to any premises was too wide. A proportionate requirement was for the appellant to give immediate access to his devices for inspection upon request. 11. Ms Sadler pointed out that her points at (1) to (7) above had all been reflected in the draft which she initially proposed at the time of sentence. That draft was itself based upon the terms currently indicated as suitable in the Judicial College Crown Court Compendium. She suggested that the last minute back and forth of drafts at the sentencing hearing had distracted the recorder, who had wrongly adopted the prosecution draft, which was not in accordance with the guidance in Parsons nor the proforma terms suggested in the Compendium. 12. Ms Mostafa, for the crown, emphasised the extreme nature of the images and the length of time over which the appellant had pursued his interest in such material. She pointed out that relevant pages of the Compendium, as well as the Parsons authority, had been provided to the recorder in advance of sentence. He had read and considered them carefully, as the transcript makes plain. So far as the contact provision was concerned, Ms Mostafa pointed out that it was not unworkable or oppressive as it did not prevent any contact, but only required parents or guardians to be informed first. Referring to the extreme nature of some of the images, and the assessment of the PSR author that the appellant was a medium risk of harm to children, she submitted that the term was appropriately included. The risk management software was a necessary monitoring requirement and the term was drafted in such a way as to allow for it not to be installed in the event that it was considered by police to be unnecessary or overly burdensome. As to the phone, Ms Mostafa submitted that providing the required information was necessary and proportionate, bearing in mind the offences committed. The term as to password protected apps covered only secret or secure ie more inaccessible storage, which she maintained was a necessary and proportionate restriction. A ban on image capturing devices was likewise necessary. Seeking permission for the use of cloud or remote storage was not too onerous a requirement, she submitted. Finally, requiring the appellant simply to deliver up devices on request would not be sufficient, given the number of devices in his possession (10 at the time of his arrest); enabling the police to obtain access to his property would afford a further proportionate check. Discussion and conclusion 13. It is regrettable that the rules requiring service of a draft order not less than two business days in advance of the hearing, as provided for by Crim PR rule 31.3(1)(b) and (5) were not followed. The production of a timeous draft is a prosecution responsibility. We are quite satisfied that Ms Mostafa did all she could to prompt early production of draft terms, no doubt she also would have wished to see a draft before the morning of the hearing, yet there was no draft forthcoming from those instructing her until the day of sentence. The terms of restrictive orders will always require careful consideration which is why the rules require a draft to be produced in good time. The last-minute rush in this case precluded a sensible discussion between counsel before the hearing, both as to the need for certain terms (in particular the non-contact provision) but also as to the proper wording of terms, so as to ensure that necessary restrictions were also manageable and proportionate. Contact restriction 14. The touchstone when considering the precise terms of a restrictive order such as a SHPO is always necessity and proportionality. A SHPO may be imposed where it is necessary to protect “the public or any particular members of the public from sexual harm” – see section 346 of the Sentencing Act 2000s 103A and following of the Sexual Offences act 2003. The terms which are necessary in an individual case must be carefully considered and weighed against the facts of that case. Further, when considering what is necessary, it will be important to bear in mind the protection afforded to the public by the offender being on the Sexual Offences Register and subject also to the Disclosure and Barring Service. Any restriction beyond those necessarily involved in notification and disclosure/barring must be justified, not just as “appropriate” but as necessary . As was pointed out recently by this court in Hanna [2023] EWCA Crim 33 there will be cases, for instance where an offender has actively sought out contact opportunities with children, where a wide-ranging order will be necessary. 15. We doubted whether a non-contact provision was necessary here, certainly in the wide terms of the SHPO which the court ordered. Having regard to the concerns expressed by Ms Mostafa, however, we decided to reserve judgment, asking counsel to go away and give consideration to the possibility of a more circumscribed non-contact provision, directed solely at limiting contact with teenage boys. We have been very much assisted by counsel’s response, which has highlighted a number of difficulties in arriving at the narrower limitation. On balance, we have concluded that it is not necessary or proportionate for a non-contact provision be imposed in the circumstances of this case. As Ms Sadler pointed out, despite extensive analysis of all 10 devices taken from the appellant police found no evidence of any attempt at contact with children, whether through internet chatrooms or in any other way, on the part of the appellant. The absence of any such evidence distinguishes this case from the facts of Morgan (the conjoined appeal heard with Parsons ) where the court upheld a non-contact provision in a case involving indecent images offences. As we have already observed, the conclusions as to risk set out in the PSR here are on their face slightly contradictory, but it is nevertheless clear that the risk of this appellant committing contact offences was assessed as low. 16. We bear in mind also the mandatory notification provisions, the involvement of the Disclosure and Barring Service and the other restrictions contained in the SHPO. Taken together, these requirements appear to us to afford sufficient protection in the circumstances of this case. Restrictions contained in other terms 17. The seriousness of the appellant’s offending was in the time over which he had downloaded indecent images of children, the number of devices which he used and the number and nature of Cat A images, showing gross abuse of teenage boys. An order which restricted and controlled his continuing use of internet-enabled devices was always going to be necessary and Ms Sadler has never suggested otherwise. Her concerns have been with the scope and wording of the restrictions which the prosecution proposed and which the recorder subsequently accepted. 18. In Parsons the court updated the form of restrictions discussed and applied by courts following the earlier case of Smith [2011] EWCA Crim 1772. The court in Parsons emphasised that any necessary restriction must be in a form that is effective, clear and realistic, “readily capable of simple compliance and enforcement” (at [5]). To that end, the court sought and obtained expert evidence on internet access and business software in the form of two reports prepared for the purposes of the two conjoined appeals before them. The concern of the court was to consider not only what restrictions on the use of internet-enabled devices were necessary but further how they could sensibly and practically be achieved, bearing in mind the “realities of Police time and resource constraints” ( Parsons, at [18]). Having considered the evidence and submissions in connection with it, the court in Parsons concluded that routine installation of risk management software and/or approval of such software by the police would be administratively unworkable; a more practical solution would be to require notification to the police of any device capable of accessing the internet, together with a ban on deleting internet history, a requirement to produce the device for inspection and to allow installation of risk management software if required (at [19]). The court went on to determine that a general restriction on cloud storage was too blunt an approach; the specific vice to be protected against was the deliberate installation of a remote storage facility without notice to the police ([25]) and the order should be fashioned accordingly. 19. The terms of the SHPO which the court in Parsons finally determined as appropriate and necessary are helpfully discussed and set out in the current Crown Court Compendium volume 2 (Sentencing), at section 6.3. No evidence has been produced to us to suggest that technology has moved on in such a way as to require further updating at this time (see, however, the note at the end of this judgment). In the absence of such evidence we see no reason to depart from the form of the restrictions which the court in Parsons decided afforded the necessary protection, in practical and effective terms, in the cases before it. 20. We do not consider that a term restricting the use of a mobile phone or an image capturing device is necessary: there is no evidence that the appellant has used his phone to communicate with a child and no evidence that he has ever sought to make or capture any image himself, despite his preoccupation with teenage boys having existed and associated downloading activity having occurred over many years (since 2008 in some cases). Necessary control over the use of such devices for downloading or viewing indecent images is in our view properly and proportionately achieved by the Parsons -type provisions regarding notification, production for inspection and manner of operating such devices. 21. Finally we regard a term giving police power to enter any premises as unnecessarily wide and disproportionate. The other requirements, covering notification, production and inspection are sufficient. That is particularly so in the case of this appellant, who appears on his arrest to have rendered instant and entire compliance with police requests regarding his devices, as we have noted above. 22. With grateful thanks to the joint endeavours of counsel, we conclude that the SHPO in its current form requires amendment. The appeal will accordingly be allowed to the extent of replacing the existing order with one in these terms: “Thomas Dewey (TD) is prohibited, for a period of ten (10) years from: (1) Using any device capable of accessing the internet unless: (i) He has notified the police VISOR/Public Protection Unit team within three days of the making of this order of any devices already within his possession and three days of the acquisition of any such device thereafter; (ii) it has the capacity to retain and display the history of internet use, is at all times set so as to retain the history of internet use and he does not delete such history without permission of the VISOR/Public Protection Unit for the area in which he resides; (iii) he makes the device immediately available on request for inspection by a police officer, or police staff employee, and allows such person to install risk management monitoring software if they so choose. This prohibition shall not apply to a computer at TD’s place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that in relation to his place of work, within three days of him commencing use of such computer, he notifies the police VISOR team of this use. (2) Interfering with or bypassing the normal running of any such computer monitoring software. (3) Using or activating any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using ‘incognito’ mode or private browsing. (4) Using any ‘cloud’ or similar remote storage media capable of storing digital images (other than that which is intrinsic to the operation of the device) unless, within three days of the creation of an account for such storage, he notifies the police of that activity, and provides access to such storage on request for inspection by a police officer or police staff employee. (5) Possessing any device capable of storing digital images (moving or still) unless he provides access to such storage on request for inspection by a police officer or police staff employee. (6) Downloading or using any apps/programs which provide a facility to store digital images, on any internet-enabled device, unless he provides access to such storage facility on request for inspection by a police officer or police staff employee. (7) Installing any encryption or wiping software on any device other than that which is intrinsic to the operation of the device. 23. The appeal is allowed only to the extent of amending the terms of the SHPO as above; the sentence itself and all other orders remain unchanged. 24. Finally, we note that, in the course of submissions on this appeal, Ms Mostafa for the prosecution informed us that in her recent experience she had come across at least 50 different forms of SHPO wording covering restrictions on internet-enabled devices. These variations are likely to reflect changes in technology, as devices and programmes advance and become more sophisticated. We had no expert evidence before us on this appeal, but having regard to the years which have passed since Parsons (which was decided in 2016), the time may now be approaching where the precise wording of proportionate and realistic restrictions needs to be addressed once more, with appropriate contemporary expert evidence. Defence Costs Order 25. During the course of finalising this judgment, Ms Sadler notified us of her intention to seek a Defence Costs Order (“DCO”). The court has power under s.19(4) Prosecution of Offence Act 1985 (“POA”) to order payment out of central funds of such sums as appear to it to be reasonable  to compensate an appellant who is not in custody and attends court in relation to an appeal against conviction or sentence. s.16A of the POA precludes the reimbursement of legal costs under a DCO (subject to certain exceptions which do not apply here), accordingly the amount which we are able to order is restricted to the costs of obtaining a transcript and of the appellant’s travel to attend the hearing. Proper receipts having been provided to us, we make a DCO in the total amount of £145.69.

```yaml citation: '[2024] EWCA Crim 409' date: '2024-05-22' judges: - LORD JUSTICE GREEN - MRS JUSTICE YIP ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2009] EWCA Crim 2080 Case No: 200805154/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 7th October 2009 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE JACK MR JUSTICE COOKE - - - - - - - - - - - - - - - R E G I N A v CRAIG DONALD MOORE - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr J Harrison appeared on behalf of the Applicant - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE JACK: This is a renewed application for leave to appeal against conviction. 2. The applicant, Craig Moore, was convicted on 11th July 2008 in the Liverpool Crown Court of offences against a young woman, GR, who had been his girlfriend. They were assault occasioning actual bodily harm, making a threat to kill, attempted rape and assault by digital penetration of the vagina. The first two offences related to an occasion in April 2007 and the later two to 19th May 2007. 3. The applicant has prepared his own grounds of appeal. The main ground is that there were a number of inconsistencies in the prosecution evidence, in particular in the evidence of GR. These were considered by the judge at some length in the summing-up and he emphasised that, if the jury was not sure that GR was telling them the truth, the applicant must be acquitted. The summing-up was in this respect and overall very fair to the defence case. The jury must nonetheless have decided that they could accept the evidence of GR as to the offences, as is shown by their verdicts. That is something that was properly open to them and the applicant can have no complaint about it. It is not a case where the prosecution evidence was so weak by reason of inconsistencies that the case should not have been left to the jury. 4. The second proposed ground is that the judge in the summing-up seemed to favour the defence case. As we have indicated, in respect of in particular of the inconsistencies of the evidence of GR, the judge was very fair to the defence. That was not to indicate that he considered that the applicant was innocent. It was for the jury to decide what they made of the evidence that they had heard. 5. The third ground relates to the defendant's no comment interview, which followed an interview on a previous occasion when he had answered questions. The applicant had told the jury that he had not answered on legal advice. The judge directed the jury appropriately about this matter. The applicant now seeks leave to call his legal advisor to confirm the advice. That could have been done at the trial but might well have been ill advised because of the questions which the advisor might have been asked in cross-examination. It is too late now. 6. The applicant also wishes to call his previous partner in support of his appeal, to give evidence as to telephone calls from GR. He has not provided any statement from her and to the relevant evidence she might give. This evidence would have been available at his trial. It is unclear whether it would have assisted the defence case. It cannot provide a ground of appeal. 7. The applicant also complains that in some other proceedings, apparently involving alleged fraud for which he has been arrested, and which he states GR has admitted, she has said they were still in a relationship in April 2007. But the essential date, so far as that is concerned, is 19th May 2007. It appears from the evidence relating to the first two counts and April 2007 that their relationship was then continuing, though in difficulty: see the summing-up at page 15. 8. The applicant lastly suggests that GR's phone records would show that on 19th May they were in a relationship and she had asked him to stay with her that night. The records could show what calls were made but they could not show their substance. There was in fact evidence at the trial as to telephone calls and text messages but it did not assist: see the summing-up at page 27D to E. There is nothing in this point. 9. The renewed application is dismissed.

```yaml citation: '[2009] EWCA Crim 2080' date: '2009-10-07' judges: - LORD JUSTICE HOOPER - MR JUSTICE JACK - MR JUSTICE COOKE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Case No: 200203846D5 ; 200206091D5 Neutral Citation Number: [2006] EWCA Crim 605 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT SOUTHWARK His Honour Judge Elwen T19971490 Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 17 th March 2006 Before : THE RIGHT HONOURABLE LORD JUSTICE HOOPER THE HONOURABLE MR JUSTICE TUGENDHAT and SIR DOUGLAS BROWN - - - - - - - - - - - - - - - - - - - - - R. - v - LOUIS GLATT - - - - - - - - - - - - - - - - - - - - - (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) - - - - - - - - - - - - - - - - - - - - - Tim Owen QC and Mr Ivan Krolick (instructed by Byrne & Partners) for the Appellant, Glatt Oliver Sells QC, Andrew Mitchell QC and Martin Evans for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Tugendhat : 1. This is another case which concerns Part VI of the Criminal Justice Act 1988 which is headed “Confiscation of the Proceeds of an Offence”. Part VI was amended more than once, and has subsequently been replaced by the Proceeds of Crime Act 2002 . The instant case is concerned with Part VI as originally enacted. 2. Louis Glatt was convicted by a jury of a conspiracy to contravene the provisions of Section 93A of the Criminal Justice Act 1988 , contrary to Section 1(1) of the Criminal Law Act 1977 . His unsuccessful defence at the trial was that he thought that he was acting on behalf of the mother of Ellis Anthony Martin (“Martin”) and not on behalf of Martin. Martin’s fraudulent activities (described below) were not challenged. 3. Glatt was sentenced to seven years’ imprisonment. He now appeals against a confiscation order in the sum of £3,676,508.50 made on the 29 th May 2002. He was ordered to pay the sum within two years and ordered to serve three years’ imprisonment in default of payment. In a passage in a ruling given by the judge he said: “It was accepted by the prosecution, both at the trial and the retrial that Mr Glatt had not benefited personally in the sense of having made any money from his participation in the conspiracy, apart from the receipt from an old Rover car and agreement for the payment of his fees. In both trials the case was summed up to the jury on that basis.” 4. It is submitted, on the appellant’s behalf, that the trial judge, HHJ Elwen, ought to have found that the benefit obtained by Mr Glatt had no value. In the alternative it is submitted that the judge erred in his approach to the discretionary power vested in the judge to make no order or to reduce the amount ordered. Mr Krolick argues the first point on behalf of the appellant and Mr T Owen QC argues the second point. As part of the first submission, Mr Krolick raises a novel point of law on the interpretation of Part VI. 5. Between October 1994 and January 1997, Ellis Anthony Martin (“Martin”) was responsible for cheating the Revenue of a sum not less than £18 million by smuggling or diverting beers, spirits and cigarettes. The investigation into this fraud was given the name Operation Methuselah. Martin and a number of other defendants pleaded guilty to involvement. Four others were convicted at trial. Glatt’s trial took place later. This court dismissed Martin’s appeal and that of his co-defendants on 23 November 2005. The appellant, Glatt, who was tried separately, then abandoned his only remaining ground of appeal against conviction. 6. In March 1996 Martin was convicted of an earlier similar fraud which spanned the period November 1993 to July 1994. The investigation into that fraud was called Operation Jeroboam. He was subsequently sentenced to a substantial term of imprisonment. Whilst on bail awaiting sentence and in prison following sentence, Martin ran the Methuselah fraud. 7. Martin was able to carry out the Methuselah fraud because of the appellant Glatt, who was a solicitor at the time. Glatt pretended that various members of Martin’s team were legal representatives, thus enabling Martin to give the instructions to them to carry out the fraud. Martin also needed help in laundering the proceeds. Glatt gave considerable assistance in that regard. It was Glatt’s task on the instructions of Martin to acquire property by way of investment for Martin. 8. It was admitted at the trial that after his arrest in June 1994, Martin was made the subject of a restraint order by the High Court which required him to preserve his assets. The order was made on 22 July 1994. It restrained Martin from in any way dealing with any money goods, property or other assets whatever within or without the jurisdiction. In Operation Jeroboam the judge made a compensation order of some £3.3 million. Glatt was aware of both the restraint order and of the Jeroboam confiscation order. The following admission was made at the appellant’s trial: “Martin was laundering the proceeds of the fraud by removing the profits from the jurisdiction. He was also investing the proceeds in real property. Residential and commercial properties were purchased in London and the Home Counties, and also in France. The properties in London were managed by Gardner [one of Martin’s co-defendants] who had a management company called JPG Property; the French properties were located by Hutchinson [also a co-defendant] and were purchased in the name of Josephine Cruickshank, Martin’s mother, with the exception of a brandy distillery called Cognac Chollat which was purchased in the name of New England Trading Corporation. Glatt or French lawyers instructed by Glatt provided the legal services on the acquisition of these properties.” 9. It was further admitted that the properties purchased were held by a series of off-shore holding companies and that Glatt provided legal services in respect of each of the companies. The off-shore companies were themselves managed by an Isle of Man company and by a Guernsey company. Martin’s mother was shown as the owner of the company assets. Glatt had a power of attorney from her so that he could sign documents in her absence. Glatt was in regular contact with the two management companies and produced draft minutes of meetings. 10. For the purposes of the confiscation hearing the officer in the case, Mr Ford, prepared a statement. There was no challenge to paragraph 8.1 and 8.2 which read: “There can be no doubt that Louis Glatt has received very significant sums emanating from Martin’s criminal enterprises and has been directly instrumental in the conversion of such monies into the acquisition of various properties and other assets purchased in the names of off-shore companies for the ultimate benefit of Martin. Glatt was an expert in the field of off-shore companies and was responsible for the acquisition of those companies used for Martin’s benefit. At all material times he was the sole liaison with the relevant management companies who acted on his instructions alone.” 11. As this brief outline of the facts shows, this was as bad a case of money laundering as one could expect to see. As a solicitor, Glatt abused his professional position in order to assist Martin, whilst in prison, to launder the proceeds of a very large fraud. 12. Martin was made the subject of confiscation order in the sum of £10,000,342. The judge did not accept Martin’s denial about the extent of his assets. That order was quashed on appeal because of a failure on the part of the prosecution to serve the proper notice. Hutchinson was ordered to pay £1000 and Gardner was ordered to pay £28,502.18. Both were co-defendants in Martin’s proceedings. Gardner’s confiscation order was reduced on appeal to about £19,000 and Hutchinson’s order was quashed on appeal. See R v Brown [2001] EWCA Crim 2761 . 13. The sum of £3,676,508.50 which Glatt was ordered to pay reflected the amount of money which had either directly or indirectly passed through Glatt’s hands being the proceeds of Martin’s fraud. There were five discrete categories referred to by Mr Ford. 1) The total sum of £419,500 was paid primarily in cash into his client account by Glatt or his secretary. 2) Additional sums were paid or transferred into the client account of Louis Glatt & Co by Martin’s associates. This category amounts to about £1.9million. 3) £759,055 was paid by Martin’s associates directly to the bank accounts of the “Glatt created” off-shore companies. 4) A variety of properties were purchased by Martin or his companies using Glatt’s services. A receiver was appointed in connection with the proceedings against Martin, and the receiver sold the properties. The price received by the receiver exceeded the price paid for the properties by £728,750. The confiscation order included this sum in the total amount of the confiscation order. 5) Martin bought a second-hand Rover motor car for £7,200, which became registered in Glatt’s name. 14. There is no issue about the inclusion of the sum in the fifth category. However, if the only sum payable is £7,200, no confiscation order could be made. This is because no order could be made if the value of the benefit was less than £10,000. 15. Unlike most defendants, the appellant Glatt has considerable assets. Glatt largely failed to co-operate with the investigation into his financial affairs but the judge was satisfied that he had realisable assets of the amount (at least) of the confiscation order. To meet the confiscation order it might be thought that the appellant could have used the properties which Glatt bought on behalf of Martin, using the money in categories 1, 2 and 3. If Glatt had been able to use that property then it seems likely that there would have been no dispute about this confiscation order. However the properties which were acquired for Martin by Glatt in Operation Methusalah were not available having been used to meet the compensation order against Martin in Operation Jeroboam. Thus the prosecution sought (and obtained) an equivalent sum out of the non-criminal assets of Mr Glatt. The appellant had hoped to advance an argument based on “apportionment” but a recent decision of the Court of Appeal, to which we turn later, made that argument unsustainable. 16. Thus it can be seen that this case has two particular features. Glatt had no personal benefit out of the fraud (other than the Rover) and, if this order is upheld, HM Customs and Excise (“HMC&E”) will, in one sense, so it is submitted, recoup twice, once from Martin and once from Glatt. On the other hand, as Mr Evans points out, Martin’s total fraud cost the Revenue well in excess of the £3.6 million which Glatt has been ordered to pay. The argument on this appeal was heard on 24 th and 25 th November. At that time the Court was given to understand that all the property (other than the car) which Glatt obtained as a benefit had in fact been sold for the benefit of the Crown, to whom the proceeds had been paid by the Receiver. This was pursuant to the confiscation order made against Martin in the earlier proceedings, and not under an order made in these proceedings (that having been set aside in Brown ). So at that stage it appeared that all the property obtained by Glatt had been realised in the course of proceedings resulting from a confiscation order. As to a small proportion of it, it has also been the subject of the confiscation orders of £28,052.18 and £1000 made against Gardner and Hutchinson. But this information needed to be checked and it was left on the footing that the parties would inform the Court in writing of the position. On 1 st December 2005 Mr Sells QC and Mr Evans for the Crown prepared a Note for the Court stating that, to that date, the value of the property recovered in respect of the offence for which Glatt was convicted amounts to £2,423,157, leaving a shortfall well in excess of £1m. Thus, in so far as it is submitted for Glatt that there is double recovery in this case, the evidence is that it is limited to that amount of about £2.4m. Mr Owen QC, counsel for, Glatt does not agree this figure, but neither is he able to dispute it. The Note dated 1 st December 2005 was intended to reach this Court but unfortunately it did not do so. The fact that it had not reached this Court came to light when the draft of this judgment was circulated in the usual way with an invitation to counsel to submit a list of typing corrections and other obvious errors. For this reason, and for two other other reasons which will be referred to below, the Court reconvened at the request of the Crown to hear further argument on 6 th March 2006. THE STATUTORY PROVISIONS 17. It is helpful to start with the interpretation section. By virtue of s.102(1), “interest” in relation to property, includes “right.” The word “property”: “includes money and all other property, real or personal, heritable or moveable, including things in action and other intangible or incorporeal property.” By virtue of s.74(2), the expression “value of property” is to be construed in accordance with the provisions of section 74(4)–(6). Mr Krolick particularly relies on this. Lastly s.74(7) provides that: “Property is held by any person if he holds any interest in it.” 18. S.71(1) of the 1988 Act provides that courts shall have power to make an order under this section requiring the offender to pay such sum as the court thinks fit. S.71(2) provides that the Crown Court may make an order if certain requirements are satisfied. None of these requirements is relevant to the issues in this case. 19. S.71(4) , one of the key provisions in this case, provides: “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.” 20. There is no dispute in this case that in so far as category 1 and 2 are concerned, the appellant obtained the property as a result of or in connection with Martin’s fraud. In so far as category 3 is concerned, it is submitted that he did not obtain the property because it was paid directly to the bank accounts of the offshore companies, albeit they were set up by Glatt. 21. The appellant’s principal argument is that the property which he obtained had no value for the appellant because he had no beneficial interest in the money received in categories 1, 2 and 3. If this is right then it would also be wrong to include category 4 in the confiscation order, relating as it does to the increase in the value of the properties purchased. 22. S.72 (3) provides: “When considering whether to make a confiscation order the court may take into account any information that has been placed before it showing that a victim of an offence to which the proceedings relate has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with the offence.” We note in passing that a provision with a similar effect to this is still to be found in the 2002 Act s6(6). 23. There is no dispute that s.74(1), (2) and (3) assists the court in (and only in) determining the amount that might be realised at the time a confiscation order is made (the defendant’s “realisable assets”). 24. S.74(4), another key provision in this case, provides: “Subject to the following provisions of this section, for the purposes of this Part of this Act the value of property (other than cash) in relation to any person holding the property [A] – (a) where any other person [B] holds an interest in the property, is – (i) the market value of the first-mentioned person’s [A’s] beneficial interest in the property, less (ii) the amount required to discharge any encumbrance (other than a charging order) on that interest; and (b) in any other case, is its market value.” 25. The argument for the appellant is that s.74(4) applies to the determination of value for the purposes of section s.71(4), as well as to the process of determining the amount that might be realised at the time a confiscation order is made. Mr Krolick points to the opening words of the subsection and in particular the words “for the purposes of this Part of this Act” as well as to the definition of “value of property” in s.102(2). 26. Mr Evans, on behalf of the respondent, submits that section s.74(4) is concerned only with the determination of realisable assets. He further submits that, if he is wrong about that, then Martin did not, for the purposes of the section, hold any interest in the property. 27. It is important to note that s.74(4) only applies to the valuation of property in relation to a person “holding” the property. Mr Krolick submits that at the time he obtained the property for the purposes of s.71(4) the appellant was holding the property and therefore the subsection bites. 28. S.74(5) and (6) are not easy to understand. S.74(5) provides: “References in this Part of this Act to the value at any time (referred to in subsection (6) below as ‘the material time’) of any property obtained by a person as a result of or in connection with the commission of an offence are references to- (a) the value of the property to him when he obtained it adjusted to take account of subsequent changes in the value of money, or (b) where subsection (6) below applies, the value there mentioned, which ever is the greater.” 29. S.74(6) provides: “If at the material time he holds – (a) the property which he obtained (not being cash); or (b) property which, in whole or in part, directly or indirectly represents in his hands the property which he obtained, the value referred to in subsection (5)(b) above is the value to him at the material time of the property mentioned in paragraph (a) above or as the case may be, of the property mentioned in paragraph (b) above, so far as it so represents the property which he obtained, but disregarding any charging order.” 30. It is accepted that these two subsections apply when making the s.71(4) calculation of value. (We can ignore charging orders which are orders made on realisable property to secure payment to the Crown, see s.78). 31. An example illustrates these subsections at work. A thief T steals a ring. The court must determine T’s benefit under section 71(4) . His benefit is the value of the ring. In determining the value of the ring to T at the time he stole it, s.74(5)(a) requires the court to determine the value of the ring “to him” when he obtained it and then adjust that figure “to take account of subsequent changes in the value of money”, i.e. inflation. It has been authoritatively decided in a case to which we turn later that the value to T is not the amount of money which he could obtain (or did obtain) on the sale of the stolen ring, but the economic value to the loser ( Ascroft [2003] EWCA Crim 2365 ). Mr Krolick submits that this case is wrong. 32. Let us assume, however, that this case is right and that the value of the ring to T as adjusted is £3000. That will be the benefit unless the application of s.74(6)(a) or (b) achieves a higher figure, in which case the higher figure will be the benefit. S.74(6)(a) applies if T still holds the ring at the time of the confiscation order. If we assume that the ring is worth to T more than £3000, say £3200, the benefit (i.e. the value of the property obtained at the time of the theft) would then be £3200. 33. If T has disposed of the ring (obtaining some property in exchange) before the confiscation order is made, s.74(6)(b) comes into play. Let us assume that he disposed of it for £500 and with the £500 bought a second ring. If the value to T of that second ring is at the time of the confiscation order more than £3000, say £3500, then the benefit (i.e. the value of the property obtained at the time of the theft) will be £3500. If he has spent the £500 on living expenses, then s.746(b) has no application and the benefit would be, on our example, £3000 (the adjusted value of the ring). 34. If s.74(4) comes into play in determining “benefit” under section 71(4) , as Mr Krolick submits, then it would have the following effect on the ring example. The benefit, being the value of the ring at the time it was stolen, would be the market value of the ring (by virtue of s.74(4)(b)) unless the application of s.74(5) and (6) would achieve a higher value. That would be consistent with the authority to which we have referred and Mr Evans would have no objection, in practice, to that method of determining the benefit. 35. The dispute between the parties concerns s.74(4)(a) and its application to s.71(4). Returning to the ring example, the owner of the ring at the time of the theft (obviously) holds an interest in the ring even without the definition of “interest” as including “right” (s.102(1)). Mr Krolick submits that the court must determine the market value of T’s “beneficial interest in the” ring at that time because T was then holding the property. At that time it had no market value for T, so he submits, in a case where (as here, so he submits) there is an owner who is able and willing to make a claim to the ring, which is enforceable in law. He accepts that the court would then have to go on to consider s.74(5) and (6). He submits that s.74(5)(a) does not alter the position. The value to T when he obtained the ring was nil. The words “to him” achieve the same result as the expression “beneficial interest in the property” in s.74(4)(a)(i), so he submits. S.74(6)(a) does not assist if he is still holding the ring. 36. If, however, on disposal of the ring T received money or, for example, another ring, s.74(6)(b) comes into play. What is the value to T of the proceeds of the sale of the stolen ring? Mr Krolick accepts that the value to T is the amount of money he received, or the ring which he received, at the value current at the time of the confiscation order. Thus, he submits, the thief is only liable to account for the proceeds of his crime, in accordance, so he says, with the original aims of the legislation. If, on the other hand, he has thrown the stolen ring away, no confiscation order can be made and the proper order would be a compensation order under what is now s.130 of the Powers of Criminal Courts (Sentencing) Act 2000 . While Mr Krolick did not address the facts on a different assumption, we understand that he would submit that in a case where there is no person claiming an interest in the ring (or its proceeds), or if there is someone making such a claim, but the claim is not good, or legally enforceable, then the value of the ring to T will not be nil. In that case it will be a figure which is equivalent to its market value, subject to any uplift under section 74(5)-(6). 37. We now turn to the facts of this case and carry out the same exercise as we have done with the thief and the ring. What was the value of the property the appellant obtained? We start with s.74(4). Mr Evans submits (as we have noted) that this subsection is irrelevant, being concerned only with realisable assets. If Mr Krolick is right and the subsection does apply when determining the value under s.71(4), Mr Krolick submits that the value of the property (cash etc) obtained was nil, because, given that it was Martin’s money, the appellant had no beneficial interest in it (or his interest had no market value). Although Mr Krolick relied on the fact that the appellant was a solicitor and on the rules about client accounts, it seems to us that Mr Evans was right to say that the appellant could claim no special advantages as a solicitor. He should be treated as any launderer would be treated. Mr Krolick submitted that treating him in this way did not alter his argument that the appellant had no beneficial interest. What matters, in his submission, is that Martin was the beneficial owner and was in a position to make what Mr Krolick submitted was a legally enforceable claim to the money. To make such a claim all that Martin had to plead was the receipt by Glatt of the money (and not the illegal transactions out of which that arose) and so his claim would succeed on the basis of the law as stated in Tinsley v. Milligan [1994] 1 AC 340 . 38. S.74(5) and (6) do not alter the position, so Mr Krolick submits. The value to T of the property was nil (the words “to him” achieving the same result as the expression “beneficial interest in the property” in s.74(4)(a)(i)). So, in order to succeed on this point, Mr Krolick has to succeed at two stages. First he must be right that s.74(4) applies in the manner he contends for. If it does, then he must be right in his submission that Martin’s claim against Glatt for the money is a legally enforceable claim, which has the effect that the value of Glatt’s interest in the money is nil (on the facts of this case, Martin’s claim against Glatt is good or bad in its totality). 39. Mr Evans submits that, if s.74(4) is applicable to the s.71(4) calculation, Martin did not, within the meaning of s.74(4)(a) hold an interest in the property. Mr Evans submits that to the extent to which civil law cases (such as Tinsley v. Milligan [1994] 1 AC 340 ) might suggest the contrary, they should be ignored. In any event Mr Evans submits that the words “value to him” do not equate with “market value of the … beneficial interest” and he relies on authority to support his contention that “value to him” does not have the meaning for which Mr Krolick contends. The value to the appellant of Martin’s property at the time he obtained it was, so Mr Evans submits, its face value, ignoring any interest that Martin might have. Mr Evans also points to the practical consequences if Mr Krolick is right. Take this example. Examination of the accounts of a defendant convicted of conspiracy to defraud show that £1 million has passed through his account during the period of the conspiracy, for which no legitimate explanation is available. If Mr Evans is right, the prosecution will expect to have no difficulty making the judge sure that the defendant has benefited from the fraud by obtaining this £1 million and that the value of the benefit includes this £1 million. If Mr Krolick is right and if the defendant, who we shall call D1, says that he was holding the £1 million for D2, the prosecution would have to make the judge sure that the defendant was not telling the truth. If the judge was not sure, then the £1 million would not be included in the value of the benefit. D1 would have had the benefit but the benefit would have no value to him. His beneficial interest in the money would have no market value and the value of the property to him for the purposes of ss.74(5) and (6) would also be nil. The example becomes more bizarre if D2 denies that he had anything to do with the £1million or says that it was D1’s and not his and the judge cannot be sure that D2 is lying. Mr Krolick metaphorically shrugged his shoulders when an example like this was put to him. 40. Before resolving these competing arguments, we consider the policy behind Part VI of the 1988 Act , the provisions of which are often described as draconian. There is guidance on this in the cases. But first it is helpful to return to the example given above, and set out other examples of situations in which the Act has been, or may be, considered. 41. There is nothing exceptional about the fact that this case involves more than one person who might have rights to the money, and that their roles in the criminal conduct are different. It is clear that the effect of the legislation may be that the Crown receives payment from different individuals in respect of the same property. The effect may also be that each individual who is the subject of an order may lose more than the profit that he has made by his criminal conduct, and, in effect, pay twice over. The involvement of individuals can arise in a series or chain (where the proceeds of crime are passed from hand to hand) or in parallel (where individuals are jointly involved in the criminal acts). 42. Consider first the liability of individuals involved in series or chain. The thief T steals a ring with a market value of £3000. He sells it to a handler H1 for £1000. H1 sells it to another handler H2 for £1500. It is found by police in H2’s possession. All three are convicted. The fate of the ring itself may depend upon whether the true owner claims it or not: if she does, it will be restored to her by a restitution order, or she may claim for compensation in civil proceedings. If there is no traceable owner, or no claimant comes forward for some other reason, there will be no order for restitution or compensation. 43. In this example, on the Crown’s case, a confiscation order may be made against T for £3000. This is the benefit to him. As explained in Ascroft [2003] [EWCA] Crim 2365 at para 60, in cases where the goods acquired are not themselves illegal (as drugs are) the value to the defendant is what it would have cost him to obtain legitimately the goods that he had in fact obtained dishonestly. On Mr Krolick’s analysis, then as to £1000 it is his profit from the crime (that being what he sold it for), but as to the balance it is not profit but something else, which can only be a penalty. A second confiscation order for £3000 may be made against H1. In his case, this is the benefit to him, but it is not all profit from the crime. As to the £1000 he paid to T, it is his working capital invested in the criminal business. As to the balance of £2000, it either is profit (on the Crown’s case) or, on Mr Krolick’s includes £500 profit (being the difference between what he paid to T and received from H2), and as to the remaining £1500 it is a penalty. A third confiscation order for £3000 may be made against H2. In H2’s case, no more than £1500 can be profit, and his profit may be less (on Mr Krolick’s case) if he would have been unable to sell it for its market value of £3000. In addition (since a confiscation order is an order to pay money (s.71(1), and is not a proprietary remedy), there is the possibility that he may be deprived of the ring itself, whether by restitution to the owner or forfeiture. 44. Where individuals are involved in parallel, they may have similar roles or different roles. For example, a person may be party to a joint enterprise to commit burglary, or he may become involved only as a minder. 45. Suppose that in the example given in para 42 above, the ring is delivered by H2 to a minder M, and is found in his possession. On the Crown’s case, a fourth confiscation order in the sum of £3000 can be made against M, in addition to the orders made against T, H1 and H2. 46. In addition, at each stage (theft, handling and minding) there may be more than one individual jointly engaged. Subject to any question of apportionment, confiscation orders in the same amount may be made against each of those individuals. 47. On the Crown’s case there is thus no limit in principle to the total value of all confiscation orders that may be made against individuals involved in the theft and handling of a single ring. In R v May [2005] EWCA Crim 97 counsel accepted that there was this potential for multiple recovery in relation to chain cases (para 36), and the court held (at para 41) that it existed where defendants were jointly involved. 48. Similar questions arise in civil proceedings instituted for delivery up or damages, in a case of wrongful interference with goods, or, in other cases of fraud, for restitution, whether at common law or in equity. Where there has been a large robbery or fraud, there are examples of litigation in which fifty or more defendants have been joined to claims for delivery up, damages and restitution. See the Brinks Ltd v Abu-Saleh litigation reported at various stages, under this and other names, for example [1995] 1 WLR 1487 , and the Grupo Torres litigation, also reported at various stages (for example [1996] 1 Lloyd’s Rep 7). However, in civil cases there is a limit in principle to the total value of all orders that may be made in the victim’s favour. The limit is the value of the property stolen or dishonestly obtained. That value is either its value at the time the true owner was deprived of it, or if it has increased in value, then the higher figure. 49. There are crimes, such as those of which Martin was convicted, where the victim is not the owner of property, and the benefit obtained is the result of evading liability to pay taxes or excise duties. In these cases, there may also be civil proceedings of the kind contemplated in s.72(3) (see R v Edwards [2004] EWCA Crim 2923 ; [2004] All ER (D) 459 at para 71 below). A person convicted of smuggling or tax evasion remains liable for the duty or taxes evaded. In the case of drug trafficking, there was separate legislation which was in force at the time the offences which we are concerned with were committed, namely The Drug Trafficking Offences Act 1986 . In the case of drugs and other property which it is illegal for anyone to possess, there will be no civil proceedings by anyone claiming to be entitled to the property. So the need for forfeiture and confiscation orders is particularly acute in the case of crimes involving the possession of valuable illegal property. Correspondingly, the Drug Trafficking Offences Act 1986 s.1(5) (which requires the court to take account of the confiscation order it makes before imposing a fine or making other orders, such as a forfeiture order) does not refer to a compensation order. THE LEGISLATIVE POLICY 50. There are a number of statements as to the legislative policy. 51. In Welch v UK (1995) 20 EHRR 247 Welch was convicted of drugs offences and sentenced, on appeal, to 20 years imprisonment and a confiscation order of £7000 was made under the 1986 Act . He had been arrested in November 1986, the operative provisions of the 1986 Act came into force on 12 January 1987, and he had been sentenced in August 1988. The object of the proceedings before the European Court of Human Rights (“the Strasbourg court”) was to obtain a decision as to whether the facts disclosed a breach of Art 7 of the Convention (prohibition on retrospective penal provisions). The Strasbourg Court concluded (para 35) that, taking into account the combination of punitive elements it found to be present (set out at para 33), the order did amount to a penalty and there had been a breach of Art 7. One of these elements cited was the discretion of the trial judge, under s.4 of the 1986 Act , in determining the amount of the confiscation order. The 1986 Act s.4 contains provisions which correspond to the 1988 Act ss.71(6)(b), 72(4), and 73(6), which provide that the amount of a confiscation order is not to exceed the amount that might be realised. 52. The definition of benefit under the 1986 Act is different from that under the 1988 Act (set out at para 19 above). It reads as follows: 1(3) For the purposes of this Act, a person who has at any time (whether before or after the commencement of this section) received any payment or other reward in connection with drug trafficking carried on by him or another has benefited from drug trafficking. 53. This difference in wording (“received any payment or other reward”, rather than “obtains property”) is not material to the general legislative policy. But it is material to other matters, as noted below. 54. The submissions of the UK Government, represented by Mr Moses QC (as he then was) are set out at para 24: 24. The Government contended that the true purpose of the order was twofold: firstly, to deprive a person of the profits which he had received from drug trafficking and secondly, to remove the value of the proceeds from possible future use in the drugs trade. It thus did not seek to impose a penalty or punishment for a criminal offence but was essentially a confiscatory and preventive measure. This could be seen from the order in the recent case, which had been made for the purpose of depriving the defendant of illegal gains. Had no order been made, the money would have remained within the system for use in further drug-dealing enterprises… 55. The Strasbourg Court quoted from Hansard (para 11) where the Secretary of State is recorded as saying: "By attacking the profits made from drug trafficking, we intend to make it much less attractive to enter the trade. We intend to help guard against the possibility that the profits from one trafficking operation will be used to finance others, and, not least, to remove the sense of injury which ordinary people are bound to feel at the idea of traffickers, who may have ruined the lives of children, having the benefit of the profits that they have made from doing so. ... We need the legislation because the forfeiture powers in existing law have proved inadequate. The courts cannot order the forfeiture of the proceeds of an offence once they have been converted into another asset - a house, stocks and shares, or valuables of any sort. The Operation Julie case was the most notorious example of the courts being unable to deprive convicted traffickers, as they wished, of the proceeds of their offences ... the Bill is designed to remedy those defects. It will provide powers for courts to confiscate proceeds even after they have been converted into some other type of asset." (Hansard of 21 January 1986, Cols 242 and 243) 56. In R v Cuthbertson [1981] AC 470 , 482-484, the House of Lords had held that the forfeiture powers given to the court by s.27 of the Misuse of Drugs Act 1971 did not apply to offences of conspiracy. More fundamentally, it was held that the forfeiture power applied only to tangible property (including drugs, apparatus, vehicles and “cash ready to be, or having just been, handed over for them”). It did not apply to intangible property, or to property situate abroad, and it did not authorise the court to follow or trace assets which could have been forfeited (but for the fact that they had been exchanged) into the other assets for which they had been exchanged. The arguments of counsel, set out at [1981] AC 472 , are a reminder that until the Forfeiture Act 1870 a convicted felon did forfeit all his property to the Crown, and this was regarded as a source of revenue for the Crown. Following and tracing are means by which the law enables a victim to recover the proceeds of theft and fraud from the wrongdoer in civil proceedings. The 1986 Act and subsequent legislation adapt these civil law procedures to provide a statutory procedure for the recovery of the proceeds of drug trafficking, theft and fraud in the criminal court. 57. The Strasbourg Court also summarised statements of the law on this and related matters as follows: 13. In determining the amount of the confiscation order the trial judge may take into consideration the degree of culpability of the offender. For example, in R. v. Porter [1990] 12 Cr App Rep (S) 377 the Court of Appeal held that where more than one conspirator was before the court the total proceeds of a drug trafficking conspiracy could be unequally allocated as their respective share of the proceeds if there was evidence that the defendants had played unequal roles and had profited to a different extent. Similarly, in the present case, the trial judge made a much smaller order in respect of the applicant's co-defendant in recognition of his lesser involvement in the offences… 15. Prior to the passing of the 1986 Act , Lord Salmon expressed the view that forfeitures of money had both a punitive and deterrent purpose (House of Lords decision in R. v. Menocal , [1979] 2 WLR 876 ). 16. The domestic courts have commented in various cases on the draconian nature of the confiscation provisions in the 1986 Act and have occasionally referred to the orders, expressly or impliedly, as constituting penalties (R. v. Dickens [1990] 91 Criminal Appeal Reports 164 [at p167: ‘intentionally draconian’]; R. v. Porter [1990] 12 Criminal Appeal Reports 377 [at p379]; In Re Lorenzo Barretto , High Court decision of 30 November 1992 and Court of Appeal decision of 19 October 1993). In the Court of Appeal decision in the last-mentioned case, which concerned the question whether a power to vary confiscation orders introduced by the Criminal Justice (International Co-operation) Act 1990 could be applied retrospectively, the Master of the Rolls (Sir Thomas Bingham) stated as follows (at p. 11): "While it is true that a confiscation order is made before sentence is passed for the substantive offence, and the term of imprisonment in default is passed to procure compliance and not by way of punishment, these are in a broad sense penal provisions, inflicting the vengeance of society on those who have transgressed in this field." 17. However, the domestic courts have also referred to the confiscation provisions as not being punitive but reparative in purpose ( Re T (Restraint Order; Disclosure of Assets ) [1992] 1 Weekly Law Reports 949). 58. In Re T at p 954 Parker J had referred to: “…a very clear Parliamentary intent, first, that a person convicted of a drug trafficking offence, in addition to being punished for that offence, should not be punished for other offences of a like nature, but deprived of the benefits of all his other drug trafficking; secondly, that his property should, for that purpose only, be assumed to constitute such benefits in the absence of proof to the contrary; and, thirdly, and most importantly, that self-incrimination should be no ground for failing to comply with a Crown Court order under section 3”. 59. Tivnan [1999] 1 Cr.App.R.(S.) 92, 96-97 was another case concerned with the Drug Trafficking Offences Act 1986 . Rose LJ said, in a passage approved in Re P [2000] 1 W.L.R 473, at 479 as being applicable to all confiscatory proceedings: “It is intended to strip those who deal in drugs of any possible profit from so doing, by depriving them of their realisable assets, whether or not these are the proceeds of drug trafficking, up to the amount by which they have benefited from drug dealing.” 60. Simon Brown LJ (as he then was), who had cited these words, returned to the point at p481, saying: “…the central policy underlying this legislation - Parliament's desire to strip criminals of their present assets to the extent of their past criminal profits. The Act is designed essentially to impoverish defendants, not to enrich the Crown”. 61. In Phillips v UK (2001) 11 BHRC 280 one question for the consideration of the court was whether Art 6 applied to confiscation proceedings, and the other was whether there had been a violation of the right to peaceful enjoyment of property under Article 1 of Protocol No. 1. At para 28 of the judgment it is recorded that: The Government submitted that the confiscation order should be regarded as a penalty for the drug-trafficking offence for which the applicant had been tried and found guilty; the confiscation proceedings did not amount to his being charged with any additional offence and Article 6 § 2 did not, therefore, apply. 62. The court held that Art 6 § 2 (the presumption of innocence) did not apply at this stage of the proceedings, and the statutory presumptions did not give rise to a violation of the right to a fair trial under Art 6 § 1, although that did apply. 63. The court then considered the complaint of breach of Article 1 of Protocol No. 1, which states: “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.” 64. Phillips submitted that the principles raised under the above Article were almost identical to those under Article 6 § 2, and that a fair balance had not been struck between public policy and individual rights. 65. At para 50 the Court held that a confiscation order amounts to an interference with the applicant’s right to peaceful enjoyment of his possessions and that Article 1 of Protocol No. 1 is therefore applicable. The decision of the Court as to violation is set out at paras 51-52 as follows: “51. As previously stated, the confiscation order constituted a “penalty” within the meaning of the Convention. It therefore falls within the scope of the second paragraph of Article 1 of Protocol No. 1, which, inter alia, allows the Contracting States to control the use of property to secure the payment of penalties. However, this provision must be construed in the light of the general principle set out in the first sentence of the first paragraph and there must, therefore, exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, among many examples, Allan Jacobsson v. Sweden (no. 1 ), judgment of 25 October 1989, Series A no. 163, p. 17, § 55). 52. As to the aim pursued by the confiscation order procedure, as the Court observed in Welch …, these powers were conferred on the courts as a weapon in the fight against the scourge of drug trafficking. Thus, the making of a confiscation order operates in the way of a deterrent to those considering engaging in drug trafficking, and also to deprive a person of profits received from drug trafficking and to remove the value of the proceeds from possible future use in the drugs trade”. 66. Shortly afterwards, Lord Steyn set out the legislative purpose of the Act (as amended) in R v Rezvi [2002] Cr App R (S) 70 at para 14: “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. The United Kingdom has undertaken, by signing and ratifying treaties agreed under the auspices of the United Nations and the Council of Europe, to take measures necessary to ensure that the profits of those engaged in drug trafficking or other crimes are confiscated: see the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (19 December 1988); Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Strasbourg, November 8, 1990. These Conventions are in operation and have been ratified by the United Kingdom”. 67. This passage was in the context of demonstrating that the legislation did not violate the European Convention on Human rights in so far as it pursued a legitimate aim. 68. The following propositions appear from the foregoing. A confiscation order: i) is a penalty, and is a measure to which Article 1 of Protocol No. 1 is applicable; ii) is designed to deter those who consider embarking upon criminal conduct; iii) is designed to deprive a person of profits received from criminal conduct and to remove the value of the proceeds received from criminal conduct from possible future use in criminal conduct; iv) is designed essentially to impoverish defendants, not to enrich the Crown ( Re P ). 69. As already noted, (unlike the Drug Trafficking Act 1986) the 1988 Act contemplates (in s.72(3)) cases where there is a victim who may have a civil claim for restitution or damages. In such cases, at least where the victim is not the Crown, it is clear that the 1988 Act and related statutes cannot have a compensatory purpose: an order that money be paid to the Crown would not provide compensation to a victim who was not the Crown. In so far as the criminal courts had powers to order monetary compensation, they were derived from the Powers of Criminal Courts Act 1973 , as amended from time to time (now the Powers of Criminal Courts (Sentencing) Act 2000) . Similarly, there were powers to make restitution orders (now s.148 of the 2000 Act ) by which persons entitled to stolen property might have their stolen property, or goods representing that property, delivered up to them. There were also provisions in s.43 of the Powers of Criminal Courts Act 1973 for the forfeiture or deprivation of property used (or intended for use) in the commission of crimes (now s.143 of the 2000 Act ). By s.72(3) of the 1988 Act , the Court is required to take account of any confiscation order before making a forfeiture order. So the court has to consider a civil claim by a victim before the making of a confiscation order, but (as in the Drug Trafficking Act 1986 s.1(5)) a confiscation order is to be made (if at all) before the court considers a forfeiture or deprivation order. 70. The 1988 Act contemplates that both a compensation and confiscation order may be made against the same person in the same proceedings (s.71(7)), but where the court does that, the compensation takes priority in the event that the defendant’s means are insufficient. 71. The Act does not in terms contemplate that it shall operate as a means of compensating the Crown where the Crown is the victim, for example of evasion of duties and taxes, although a confiscation order may in practice have that effect. Compensating the Crown would only be necessary in cases where the Crown has suffered a loss, but does not have a civil claim against the defendant. Such a purpose will be unnecessary in most cases, since the Crown remains entitled to the duties and taxes evaded, and perhaps to other civil remedies, whether or not the defendant has been convicted. See R v Smith (David) [2001] UKHL 68 ; [2002] 2 Cr App R (S) 37. 72. In R v Edwards [2004] EWCA Crim 2923 ; [2004] All ER (D) 459 the facts were similar to those in Smith . The defendant had attempted to evade duty on importation of cigarettes, but did so by car, and was stopped while still inside the port area. The judgment includes the following at paras 24-25: “24. …On this appeal it was not argued that the provisions of the CJA arguably gave rise to the unlawful confiscation of property and a breach of Protocol 1, Article 1 of the ECHR because they could give rise to double recovery of the duty. In response to enquiry from the court, counsel for the respondent stated that where a confiscation order has been made, based upon a benefit calculated by reference to the unpaid duty, the Customs and Excise authorities do not, as a matter of practice, seek recovery of the unpaid duty by way of civil proceedings. That both civil and criminal remedies are available is not in doubt. Should the Customs and Excise Authorities pursue a civil remedy where a confiscation order had been met, it is clear there would, in effect, be double recovery of the duty. 25. The firm practice of the Customs and Excise Authorities is, in our judgment, well placed”. 73. What is referred to in this passage as double recovery is recovery from the same individual, both in confiscation proceedings, and in civil proceedings to enforce payment of the duty. There is nothing in this passage concerning double recovery in the other sense, namely the possibility of confiscation proceedings against a person who has been convicted, and civil proceedings against another person jointly involved against whom no confiscation order has been made (perhaps because he has not been prosecuted for some reason). 74. By the time Smith and Edwards came to be decided, the general power under s.71(1) of the 1988 had become an exception to the new general rule that the court was under a duty to make a confiscation order. Under s.71(1C) (set out in para 25 of Edwards ), it remained a power where the court was satisfied that a victim of any relevant conduct has instituted, or intends to institute civil proceedings, instead of being a duty, which it has otherwise become. It was to s.71(1C) that the court in Edwards was referring in the stating that the practice of the Customs & Excise Authorities is well placed. After citing that subsection, the court notes that the Authorities had confirmed, in answer to the court’s question, that they did not intend to, and would not, institute any civil proceedings against the appellant in respect of the duty. 75. In the present case, although the point was raised in argument by Hooper LJ, we have not been addressed on whether Glatt could be sued in the civil courts by the Crown for his role in assisting in the disposal of Martin’s money, and no assurance has been given of the kind given to the court in Edwards . If Glatt had been assisting in the disposal of the proceeds of a robbery or fraud, it is plain that the victim could sue him for his role as a dishonest assistant. See Barlow Clowes International Ltd & Anor v Eurotrust International Ltd & Ors (Isle of Man) [2005] UKPC 37 para 28 and the cases referred to in para 48 above. It is for consideration whether or not the Crown would have had any corresponding claim against Glatt for his role in this case. Since Glatt’s role involved the breach of a restraint order, it appears to us to be at least arguable that, subject to proof of damage, the Crown would have had a cause of action against him in conspiracy or negligence. See the cases on civil liability for disobedience to a freezing order, namely Surzur v Koros [1999] 2 Lloyds Rep 611 (as explained in Michaels v Taylor Woodrow [2001] Ch 493 para 40) and Customs & Excise v Barclays Bank Plc [2004] EWCA Civ 1555 ; [2005] 1 WLR 2082 . 76. Mr Evans pointed to the losses suffered by the Crown in the present case. But he did not invite us to find that the 1988 Act has, as one of the legislative purposes, to compensate the Crown for its losses in those cases where there is no civil claim that the Crown can make against the defendant. 77. When the making of a confiscation order under the 1988 Act became a duty, and not just a power, it became in effect a form of mandatory sentence. A confiscation order under the 1988 Act , in the form in which it was enacted and was in force at the time relevant to Glatt, was by contrast a form of discretionary sentence. The possibilities of injustice arising are greater in the case of a mandatory sentence, and in cases concerning the Act as amended the courts have been concerned as to how to avoid such injustice: see for example R v Wilkes [2003] EWCA Crim 848 para 31 (“The provisions are compatible with Convention rights because any serious or real risk of injustice can be avoided either by not making the assumptions [under s.72AA(4)] or by disapplying them”). In practice the cases involving the Crown where the court has no possible discretion may be limited. This remains the case under the 2002 Act s.6(6). Given the very wide scope of civil remedies available, the cases where the Crown will be in a position to institute civil proceedings are likely to be numerous. THE RELEVANCE OF SUBSEQUENT LEGISLATION 78. Mr Krolick invited us to use the subsequent legislation, including the Proceeds of Crime Act 2002 , as an aid to the interpretation of the 1988 Act . He cited R v Montila [2004] 1 WLR 3141 . That case concerned a different provision of the 1988 Act , namely s.93C(2), together with the Drug Trafficking Act 1994 s.49(2) (converting the proceeds of criminal conduct, and of drug trafficking, respectively). At para 41 Lord Hope of Craighead noted the different language used in the corresponding provisions of the 2002 Act , commenting that it would be surprising if the intention of Parliament in 2002 was to reduce the scope of the offences in question. He referred to the international instruments which the three statutory provisions had all been implementing. He had identified them earlier (they are referred to by Lord Steyn in the passage cited in para 66 above). These were followed by EEC Council Directive of 10 June 1991 (91/308/EEC). The Criminal Justice Act 1993 s.93C implemented the Directive. Both the Vienna Convention and the Directive are now implemented by the Proceeds of Crime Act 2002 . 79. The 1988 Act , Part VI, in the form originally enacted antedated these international instruments. We have not been referred to other international instruments preceding the 1988 Act . The reason given in Montila for departing from the general rule, and using a later statute as an aid to the construction of an earlier one, does not therefore apply to the statutory provisions with which this case is concerned. 80. At the hearing on 6 th March 2006 Mr Sells QC and Mr Mitchell QC appeared for the Crown. At this hearing Mr Sells QC submitted that when a court comes to exercise its discretion pursuant to the 1988 Act in its amended form, but it has to do so at a date after the Act was amended to remove the discretion (as the Judge had to here), then the court should take into account the intention of Parliament as expressed in the amending legislation. The 1988 Act was amended by the Proceeds of Crime Act 1995 , and by the time the confiscation order was made in this case in 2002, Parliament had again legislated for a significant diminution of the use of the discretion by the Crown Court, both in the 1995 Act and in the Proceeds of Crime Act 2002 . Mr Sells QC submits that in making the order in 2002 the Judge was entitled (although not bound) to consider that the removal of the discretion in 1995 could properly be taken into account in a case where the order was made seven years later, after the legislative landscape had so radically changed. He submits that this Court, when it comes to consider the ground of appeal relating to the exercise of the discretion by the Judge, should also have regard to the 1995 and 2002 legislation. Mr Sells QC relies on R v Khurshid Ahmed (Court of Appeal 9905818 X4) an unreported decision of this Court made on 8 th February 2000. 81. This submission had not been advanced by Mr Evans, rightly in our view. Khurshid Ahmed was convicted of three offences of conspiracy to defraud committed in periods between January 1995 and November 1997. The fraud was inflating the invoices for goods supplied by Ahmed’s business to a customer. The co-conspirators would sign receipts for the full amount of goods invoiced, although not all the goods were in fact delivered. Ahmed received the full invoice price and split the dishonest gains with the co-conspirators. 82. The Judge approached the case on the footing that all three counts related to offences committed after the coming into force of the 1995 Act , and so that his discretion was limited accordingly. This Court accepted that in relation to Counts 1 and 2 the 1995 Act did not apply, so that he did have the discretion afforded by the unamended 1988 Act (para 23 of the judgment). Counsel for Ahmed then submitted that had the true position been appreciated the Judge would have exercised his discretion to make a confiscation order of less than the full amount of the benefit obtained, because Ahmed had not kept all the benefit, but had passed three quarters of it on to his co-conspirators. This Court rejected that argument on the familiar ground that the fact a defendant passes some of his benefit on to somebody else is neither here nor there (para 25). The Court then added in para 27 an observation that under the unamended Act, the judge would inevitably have borne in mind the fact that, although the amended provisions did not apply at the relevant time, Parliament had thought it necessary to pass an amending Act which made it incumbent, in relation to offences committed after 1 st November 1995, to make confiscation orders of the kind the judge had in fact made in that case. 83. In our judgment the observations in para 27 are obiter, given the conclusion already reached in para 25, and are not authority for the submission advanced in this case by Mr Sells QC. 84. Mr Sells QC also referred us to a decision of this Court handed down after the hearing of this case, that is on 27 th January 2006 in the case of R v Ajay Kumar Sharma [2006] EWCA 16 Crim. In that case the defendant was convicted of an offence of conspiracy to defraud committed in the period October 2000 to May 2002. The judge made a confiscation order under the 1988 Act as amended by the 1995 Act . One of the grounds of appeal was that the judge failed to read down section 71 of the 1988 Act (as amended) as providing the court with a discretion. The argument was based on Articles 8 and Article 1 of Protocol 1 of the European Convention on Human Rights. At para 25 of the judgment the Court observed that it cannot be disproportionate for a defendant to be made accountable for what he has obtained. The amount of the benefit he obtained is not affected by the amount which might also be obtained by others to whom he transfers any part of the benefit. A decision on the construction of the 1988 Act as amended, and the impact of those articles of the ECHR does not assist in the exercise of the undoubted discretion that exists under the 1988 Act in its unamended form. 85. We reject the submission of Mr Sells QC. The 1988 Act , as unamended, is penal, the amending legislation is not retrospective, and cannot be retrospective: see para 51 above. It must be applied in accordance with its terms, and with any interpretation of it, or guidance in respect of it, given by this Court. s.74(4), AGENTS AND MINDERS 86. Glatt’s position is comparable to that of a person who minds drugs or stolen property, or an agent who carries money abroad. There are a number of cases in which defendants carrying out this, and other, roles have been considered by the courts. In many cases it is unclear what role a defendant has in fact played in the criminal conduct. But in others, including the present case, the defendant’s role can be identified from the indictment or basis of plea, or from the judge’s remarks. 87. A number of the cases cited to us related to defendants whose roles were clear and who could be described as couriers or minders or launderers. In all but two, confiscation orders were made in respect of the whole value of the property in question, and not on the basis of the reward the defendant received. Mr Krolick relied on two of these in particular, R v J [2001] 1 Cr App R (S) 273 and R v Johannes [2001] EWCA Crim 2825 ; [2002] Crim LR 14. 88. In R v J the appellant was convicted, together with others, of conspiracy to supply Class A drugs. The confiscation order was in the sum of £22,890. His realisable assets were £5,422. Lord Woolf CJ, at paras 11 and 13, approached the appeal on the basis that that the Judge had said that the appellant did not have a beneficial interest in the drugs with which he had been entrusted. The question was whether it was proper to draw the inference that they had been paid for. The Court of Appeal held it was not proper to draw that inference, given what the Judge had said. The reason that question was important was that the Crown were relying on the statutory assumptions under the Drug Trafficking Act 1994 s.4(3) (b). These included the assumption that any expenditure by a defendant since the beginning of the period was made out of payments received by him in connection with drug trafficking. That means that the Crown have to show expenditure, and they were unable to do this in a case where the Judge considered that the appellant had not paid for the drugs in his possession. The 1994 Act includes, at s.2(3), a provision in the terms set out in para 52 above, which corresponds to the differently worded provisions of s.71(4) of the 1988 Act . The decision said nothing about that section. Under s.4 of the 1994 Act , the Court was required to make the assumption for the purpose of determining whether a defendant had received any payment, and if so, the value of any payment received. The Court was not approaching the matter on the footing that the drugs the appellant was minding were property that he had obtained (the test under the 1988 Act ), since that was not the test to be applied under the 1994 Act . 89. In Johannes the Judge said the he was sure the appellant was a custodian or minder of the drugs worth £99,000 found in his possession, and had no financial interest in them. The Court of Appeal, following R v J , held that on that finding the statutory assumption under s.4(3) of the 1994 Act had been displaced. It followed that a confiscation order including the value of the drugs had to be set aside. The case adds nothing to R v J . 90. Mr Evans referred us to: R v Simpson [1998] 2 Cr App R (S) 111, R v Metcalfe [2001] EWCA Crim 1343 , R v Wilkes [2003] EWCA Crim 848 , R v May [2005] EWCA Crim 97 para 39-41 and Jennings v CPS [2005] Civ 746 para 28-42. 91. Simpson was another case under the Drug Trafficking Act 1994 . But in Simpson the appellant was found in possession of cash, the proceeds of trafficking. He was not found in possession of drugs. That Act includes the provision cited at para 52 above, and the further provision, s.4(1), that any payments received by any person in connection with drug trafficking “are his proceeds of drug trafficking”. It was submitted that in this laundering case, the appellant did not receive the cash within the meaning of the Act, because he was merely a bailee of it. A confiscation order was upheld in the value of the cash, and not of the much smaller sum contended for the appellant, namely his own personal reward for carrying the cash. 92. Simpson turns on s.2(3) of the 1994 Act and is not decisive of the interpretation of s.71(4) of the 1988 Act . Mr Krolick submits that it has no application because it turns on the words of the 1994 Act . This submission does not sit well with his reliance on the R v J and Johannes , which do turn on the words of the 1994 Act , but on the words of a provision in that Act which has no corresponding provision in the 1988 Act . 93. In Metcalfe [2001] EWCA Crim 1343 the point arose directly in relation to s.71(4). Mantell LJ held at para 12 that there was no reason why the approach of the court should be any different in relation to s.71(4). Mr Krolick notes the brevity of the reasoning, and that in particular, the Court was not apparently invited to consider his argument relating to s.74(4), to which there is no equivalent in the 1994 Act . 94. Mr Krolick sought to suggest that Lord Rodger of Earlsferry was suggesting a difference in R v Smith (David) [2001] UKHL 68 ; [2002] 2 Cr App R (S) 37 at para 32. That case concerned the smuggling of cigarettes. A minor issue related to the boat used and the facts are set out at para 10. Another smuggler, Marriott had been released on bail in November 1997. While on bail he approached the Respondent and, it appears, put up £55,000 with which the Respondent bough the boat. The Crown did not argue that the Respondent had himself put up any of the money to buy the boat. The boat was used to smuggle cigarettes in April. It was used again in May, when it was stopped with Marriott and the Respondent on board. The confiscation order made against the Respondent was made on an assessment of benefit received totalling £185,666.40. This included £55,000 in respect of the boat, as well as the value of the cigarettes. The order was limited to £46,250, the value of his realisable property (para 12). The boat was forfeited (para 14). The passage relied on by Mr Krolick is at para 32 where Lord Rodger says: “… it is not entirely clear, on the available evidence, what the value of the boat would have been to the respondent at the time when he obtained it (s.74(5)).” Mr Krolick submits this is a reference to the fact that the Respondent did not put up any money. That may be a possible interpretation, but the citation can hardly stand as a statement of legal principle. 95. In Walls [2002] EWCA Crim 2456 ; [2003] 1 Cr App R (S) 31 at para 25 this Court held that s.74(4) applied only when the Court is making the valuation of the offender’s realisable assets. Mr Krolick recognises that that is against him, but submits that it is not binding because the case in fact related to a different statute, the Drug Trafficking Act 1994 . 96. Of the other cases cited by Mr Evans, May and Jennings v CPS are on joint control. In Jennings the arguments are set out at para 26. The appellant contended that his benefit was what he got and retained for himself. After a detailed review of the authorities, including May , Laws LJ concluded that a restraint order had been properly made against each of two defendants in the whole sum alleged to be the proceeds of the conspiracy. In May at para 36 Keene LJ said: “If he obtains property within the meaning of s71(4), it matters not that he does so merely as a collector or distributor for others involved in the offence: it is the obtaining and not the retention that matters”. 97. R v Ellingham [2004] EWCA Crim 3446 ; [2005] 2 Cr App R (S) 32 is another case under the 1988 Act . The appellant pleaded guilty to fraudulent evasion of duty on cigarettes. His basis of plea was that he was not the organiser of the importation, but merely assisted in it, for a fee plus expenses. A confiscation order was made following a finding that the benefit was the whole sum of the duty evaded. There was no confiscation order in relation to a separate money laundering conviction in that case, but Pill LJ cited another case in which there was, R v Alagobola [2004] EWCA Crim 89 ; [2004] 2 Cr App R (S) 48. 98. In Alagobola the defendant was convicted of money laundering under s.93A(1)(a) of the 1988 Act . £121,570 was paid into the defendant’s bank account by a third party. The Judge found that the appellant’s suspicion about the money, and therefore his criminality, did not arise until some time after the deposit of the money into his account. The judge found that the benefit to be £62,238.61 and limited the confiscation order to that sum. The main reason for this was that the bank had recovered the balance. Pill LJ said this: “20 On the face of it, however, his submission is an attractive one. It is said that the appellant in fact derived no benefit; on the contrary, he sought to deprive himself of any benefit when he realised the possible source of the funds by ridding himself of them as soon as he could. 21 It seems to us, however, that the submission is founded upon the fallacious 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 s.71, mean personally to enjoy the fruits of criminal conduct. 22 Mr Moss [for the Crown] went further in argument. He submitted that upon the appellant acquiring knowledge or suspicion that the fund was criminal proceeds, the appellant, without more, obtained the fund for the purpose of s.71. 23 This submission we cannot accept. The appellant would obtain the fund only if he decided to retain it or to deal with it for his own or another's purposes. If, for example, he had gone to the police and reported his suspicions, it seems to us he could be said neither to have committed an offence under s.93A(1)(a), nor to have obtained property within the meaning of s.71. The appellant did, however, deal with the fund with knowledge on the instructions of the criminal, and by so doing, for the purposes of transfer, he obtained. 24 Thus it seems to this Court the judge was right to find as he did and the appeal must be dismissed.” 99. It follows, if Mr Krolick is right, that the effect of s.74(4) has been overlooked in a number of cases. We do not consider that it has been overlooked. The value referred to in s.74(4) is the value of property (other than cash), and is in effect either the value of that person’s beneficial interest, or the value of the whole, if no other person holds an interest. This provision is an appropriate one for calculating the realisable property held by the defendant. But the effect of applying this to s.71(4) would be to exclude from the scope of the legislation all those who obtain property as minders, or couriers or agents, and to give rise to the problems of proof described in para 39 above. Given that the objective of the legislation includes a deterrent and penal element, and that there is in principle no objection to multiple recovery in the sense of recovery of the same sum from different individuals, it is difficult to attribute to the legislature the purpose of excluding such an important group of offenders from the scope of the legislation. 100. There would also be an anomaly if Mr Krolick’s submission on s.74(4) is correct. The minder or courier caught with his principal’s cash would on any view be treated as having received the benefit of that cash, because cash is excluded from s.74(4). But if the principal’s money is paid into the minder’s bank account through the clearing system, since a bank account is not cash, s.74(4) would apply, and he would not be treated as having received the benefit. This anomaly arises in the present case, since category (1) is cash, and category (2) is money in a form other than cash. £419,500 was paid primarily in cash into his client account by Glatt or his secretary. See para 13 above. 101. Those who dishonestly assist in money laundering and other crimes by obtaining the property, but do so in the capacity as agents, might consider themselves fortunate if they do not have to pay someone (that is to the victim or, if none sues, the Crown) the value of the loss they have assisted in causing. Justice does not require that they be excluded from the provisions of the Act simply because they are likely to have to make payment out of their lawfully owned property without having enjoyed a beneficial interest in the property they have obtained. So far as the civil law is concerned, they are in general liable to be sued as joint tortfeasors or conspirators, or for knowing assistance in a fraudulent breach of trust (see the cases cited in para 48 above). They may have to meet any judgment out of their lawfully acquired assets. If the victims of offences were always in a position to institute civil proceedings, Parliament might not have thought it necessary to introduce the 1988 legislation. But in reality the victims are not always known, or if known, not always in a position to institute proceedings for other reasons. The proceeds of crime legislation prevents criminals from retaining as a windfall what the law contemplates should in principle be paid to the victims. 102. In cases involving very large sums of money, the disposal of the proceeds of crime (and civil wrongs) is difficult to achieve without the assistance of professional agents. The fact that they have not themselves profited from the crime to the full value of the loss is a point that arises on the issue of contribution between defendants to civil proceedings. It is not normally a defence to the claim. If the financial risk to which they are exposed in the confiscation proceedings is limited by the amount of the reward they gain, the deterrent will be much less than if the financial risk is limited by the amount of the property they obtain. If multiple recoveries from different individuals, which in total exceed the value of the loss caused, is considered to create an injustice in a particular case, then that can be addressed under the 1988 Act (in its unamended form) in the exercise of the court’s discretion. There may be other ways of addressing the point under later legislation. 103. For these reason, s.74(4) does not, in our judgment, apply to the assessment of the value of benefit under s.71(4), at least in the way which Mr Krolick submits. MARTIN’S CLAIM TO THE MONEY HELD BY GLATT 104. In Tinsley v Milligan [1994] 1 AC 340 two women ran a business together. They put a house into the name of the plaintiff for the purpose of concealing the fact that claims made by the defendant against the Department of Social Security were fraudulent. Later they fell out and the plaintiff claimed possession from the defendant. She counterclaimed for a declaration that the property was held on trust for the two of them in equal shares. The counterclaim succeeded. The principle, as stated by Lord Brown-Wilkinson at the end of his speech is: “In a case where the plaintiff is not seeking to enforce an unlawful contract (such as a right of property) the court is neither bound nor entitled to reject the claim unless the illegality of necessity forms part of the plaintiff’s case”. 105. This principle can cause problems for the police when faced with claims for the delivery up of property, which they have seized. In Webb v. Chief Constable of Merseyside Police [2000] Q.B. 427, 446-447 May LJ said: “In my judgment, the court should not extend the law in the way suggested. Although from the Chief Constable's perspective the money is the proceeds of crime, from another perspective the court should not, in my view, countenance expropriation by a public authority of money or property belonging to an individual for which there is no statutory authority. There is statutory machinery for the prosecution of those who deal in drugs and for the confiscation upon conviction of the proceeds of their drug dealing. There is statutory machinery for the confiscation upon conviction of the proceeds of other serious crime. There is statutory machinery for the forfeiture of the cash proceeds of drug trafficking which are being imported into or exported from the United Kingdom. There is no statutory power to confiscate the proceeds of drug dealing within the United Kingdom where the person entitled to possession of the money is not convicted of a drug trafficking offence. I recognise that there may be circumstances where for a variety of reasons a prosecution may not take place. But that does not, in my view, justify expropriation by means of a defence to a civil claim for return of money which has been seized from persons who are not convicted. It is one thing to prosecute to conviction and to take positive steps authorised by statute to confiscate the proceeds of crime from the convicted defendant. It is quite another to resist the claim of an innocent person by asserting some or all of the ingredients of what might have been a prosecution; or to effect confiscation in this way from a convicted person against whom statutory confiscation machinery has not been used. Innocent claimants would, I am sure, be deterred from pursuing entirely proper claims for the return of money or property to which they were entitled. I can foresee quite unacceptable possible consequences of the development of the law for which the Chief Constable contends in these cases. If statutory provision for civil confiscation are inadequate, it is for Parliament to strengthen them after proper consideration of all the implications”. 106. Martin is, of course, not innocent, and has been convicted. Moreover, as noted in para 8 above, the following facts were admitted by Glatt. After Martin’s arrest in June 1994, Martin was made the subject of a restraint order by the High Court, which required him to preserve his assets. In Operation Jeroboam the judge made a confiscation order of some £3.3 million. Glatt was aware of both the restraint order and of the Jeroboam confiscation order. 107. The money held on Martin’s behalf by Glatt could found a confiscation order in proceedings against Martin. The facts are therefore far removed from those in Tinsley and Webb . It may be that (but for the restraint order) Martin would have been legally entitled to demand that Glatt pay the money in question to Martin or to his order, and that in order to frame such a demand, he would not have had to rely upon his illegal activities. But given the restraint order, Glatt could not comply with any demand by Martin. For reasons explained in R v Brown (failure to serve the right notice on time) the confiscation order made in relation to this conspiracy against Martin in the sum of £10,000,342 was made and set aside on appeal. But the assets were nevertheless available to meet the order made against Martin in Operation Jereboam. They were in fact realised for that purpose. It is quite unrealistic to submit that Martin had a claim, which was enforceable against Glatt, in respect of these assets held by him. 108. The fact that Martin did not have an enforceable claim does not mean that the property was beneficially owned by Glatt. It means that the enforceable claim was ultimately going to be made on behalf of the Crown. For reasons stated above, in so far as Glatt obtained the property, it counts as a benefit to him under s.71(4) and its value is its market value. 109. But this result also means that this is not a case where the confiscation order amounts to double recovery in the sense of requiring Glatt to pay the same sum twice. The possible double recovery in question here is recovery from Martin (albeit in respect of an earlier offence) and recovery from Glatt. WHAT WAS OBTAINED BY GLATT? 110. In relation to categories (3) and (4) Mr Krolick submits that since these were not payments obtained by Glatt personally, they were not obtained by him within s.71(4). For the Crown it is submitted that a person obtains property if he receives property in a form over which he exercises a degree of control, even if the beneficial interest remains throughout with another person. 111. The facts as set out in the Statement of Mr Ford dated March 2001 are set out in paras 8 to 10 above, and as follows. In August 1994 Glatt, on Martin’s instructions, obtained Dolphin Properties Ltd. There was a change of name to Zero One. Seven properties were acquired by this company. In March 1995 Intercounty Ltd was acquired by Glatt on the specific instructions of Martin. This company also acquired seven properties. Other companies obtained by Glatt on Martin’s instructions are referred to as New England Trading, and Hallworth Finance. Centreville acquired on property. Two additional properties were acquired by Martin’s mother and another company referred to as JPG Properties. It is not suggested that Glatt had any beneficial interest in these companies, and he is not said to be the owner of the shares. 112. Mr Ford’s evidence in his paras 8.2 (para 10 above) as summarised in his para 8.4.i is that the companies were “controlled” by Glatt on behalf of Martin. The Skeleton Argument on behalf of Glatt sets out extensive passages from the Crown’s case as set out in its 1997 Statement of Evidence and subsequent documents. Little is said of the role of Glatt. From this it appears that the management of the properties was substantially carried out by Gardner and Hutchinson. Their roles in purchasing and managing properties, and handling cash, are also summarised in the judgment in Brown at paras 3(iii) and (xii). Hutchinson visited Martin in prison, posing as one of Glatt’s clerks. Gardner made some of the payments which were credited to Glatt’s client account. 113. Glatt took very little part in the proceedings at first instance. He adduced no evidence to explain or contradict the statement of Mr Ford in this respect. When ordered to inform the court whether he accepted or disputed the calculation of the minimum benefit figure set out in Mr Ford’s statement, a one sentenced response was given, dated 17 th May 2001. At that time Glatt was not represented by the solicitors and counsel representing him before us. It reads: “Without prejudice to the defence submissions as to the proper meaning of ‘benefit’ in s. 71(4) of the CJA 1988, the defence accepts that the calculation of the minimum benefit figure is accurate”. 114. In the skeleton argument filed on his behalf in May 2001 by Glatt’s counsel at that time, the passage in which Mr Ford states that Glatt controlled the companies is set out, as are extensive quotations from the authorities, including Rees (unreported 19 th July 1990) and Patel [2000] 2 Cr App R (S) 10. No submissions are made in that skeleton in relation to ‘control’, whether as to the facts or as to the law, although the point was raised in a Supplementary skeleton argument on behalf of Glatt on 15 May 2002. On 16 May 2002 HHJ Elwen accepted the Crown’s submission that the effect of the document dated 17 th May 2001 was that the court was not entitled to hear argument concerning the valuation of Glatt’s benefit. He held the benefit had been conclusively accepted by Glatt in the sum of £3,787,300. In his ruling of 29 May 2002 the Judge recorded what he had decided on 16 May 2002. The Judge said that there was no good reason advanced, almost twelve months later, as to why the defendant should be allowed to resile from it. 115. Before this court the Crown stood by this (on the basis of R v Tredwen (1994) 15 Cr App R (S) 580), but accepted that if there were shown to be an error of law in the basis of the concession, that concession could be re-opened on appeal. 116. The question whether Glatt did exercise control over the companies is one of fact, and in the absence of any statement from Glatt, there does not appear to us to be any basis on which that could have been disputed before the Judge, or could be re-opened before us. Of course, like Gardner and Hutchinson, Glatt exercised control not for his own benefit, but for the benefit of Martin. 117. Category (3) is said to be money paid directly into the off shore accounts of the four companies. Category (4) represents the increase in value of the properties acquired by Glatt and beneficially owned by Martin, as subsequently sold by the Receiver. 118. There are authorities on the meaning of ‘obtain’ in the 1988 Act . In Rees (unreported 19 th July 1990) Auld J (as he then was) held that “obtains” was not restricted to cases where the defendant had received the property into his possession, but included “obtaining for another or enabling another to obtain or to retain”. This part of Auld J’s judgment is available to us in the form of the extracts in the judgment of Buxton J (as he then was) in Gokal (unreported 7 th May 1997) and Patel [2000] 2 Cr App R (S) 10. Rees had pleaded guilty to three counts of obtaining money by deception with others. The total involved was £90,051.95, (the sum sought by way of confiscation order) but only in the case of count 1 did the building society suffer a loss of the whole of £33,465 obtained from it. In Patel Douglas Brown J identified the relevant facts as follows: “As is apparent from the judgment of Auld J., Rees pleaded guilty to three counts of obtaining money by deception, the money in each case being mortgage funds from a building society. He received loan moneys totalling £90,051.95: £33,465 in count one; £29,786.95 in count two; and £26,800 in count three. The argument on behalf of Rees to restrict benefit only to £33,465 derived from the fact that, in the face of the other two counts, the building society did not suffer a loss because there was adequate security for, and repayment of, the loan under the mortgage. Auld J.'s decision was that, irrespective of any net loss to the building society, Rees had actually obtained, with others, the total amount of the loans. What happened thereafter was irrelevant to the question of benefit…. ” 119. It appears that the issue in Rees arose partly out of the fact that the money was obtained jointly with others, and partly out of the fact that some of it was not lost. It is distinguishable from the issue in this case. The point made in relation to category (3) is that the property was not obtained by Glatt at all, and that it was not obtained for him either, but wholly on behalf of Martin. 120. In Currey [1995] 16 Cr App R (S) 421 the defendant was convicted with another of conspiracies to publish and import obscene articles. The defendant was the banker for both. The confiscation order was made on the basis of the total receipts generated. The appellant submitted unsuccessfully that the benefit should not have been assessed on the total that passed through his hands, but on his profit. Currey is thus unlike the case on category (3) in that the defendant received the whole of the property himself and passed some of it on to his co-defendant. 121. The issue in Gokal (unreported 7 th May 1997) arose from the fact that the Gulf Group of companies, by reason of the fraud perpetrated by Gokal and others, had obtained the total of £548m. The fraud had been necessary to enable BCCI to continue to fund Gulf. It was argued that Gokal was to be taken for the purposes of the 1988 Act as having obtained the whole of the £548m, because he caused that to be obtained by Gulf group. 122. Buxton J noted that Rees may have turned on the fact that it was a case involving s.15(2) of the Theft Act, which concerns obtaining property by deception. This provides: “For the purposes of this section a person is to be treated as obtaining property if he obtains ownership, possession or control of it and ‘obtain’ includes obtaining for another or enabling another to obtain or to retain”. 123. Buxton J held that s.71(4) required “what can fairly be described as an obtaining by the defendant”. He stated that he saw no reason for reading the Theft Act definition as found in s.15(2) into the 1988 Act . He added: “Indeed, the fact that that definition is said to be specific to that section would suggest that the ordinary meaning of the word ‘obtains’ is not as set out in s.15(2)”. 124. Gokal appealed but not on this point, on which the decision of Buxton J was favourable to him. A further point argued before Buxton J was that the money was to be treated as Gokal’s, by piercing the corporate veil. Buxton J declined to take that step in that case. He considered that the realistic description of the case was that the Gulf companies were beneficiaries of Gokal’s fraud. 125. Gokal has this in common with the present case. The relevant property was obtained by the companies through the criminal conduct of the defendant, but not by the defendant, nor for the benefit of the defendant. In this respect it is the only one of this line of cases where the issue arises on facts similar to the ones in relation to category (3). On the other hand, it does not appear from the judgment in Gokal that Gokal exercised control over the Gulf companies, whereas Glatt did exercise control over the companies that received the property in category (3). 126. In Saia (unreported 20 th April 1999) Saia and others were convicted of conspiracy to defraud. Separate payments had been made to the defendants or one alone. The prosecution submitted that in assessing the benefit obtained by each defendant the court must attribute to each conspirator the gross proceeds of the particular conspiracy regardless of which of them may in fact have received the proceeds. Langley J agreed with Buxton J. He did “not think that a person obtains property which he causes to be received by someone else”. He reached this conclusion as a matter of ordinary English usage, and did not find the reference to the Theft Act helpful. Consequently he held that the court had to look at the extent of obtaining by the defendant personally. The case is therefore unlike the present one, to the extent that Saia, unlike Glatt, had a beneficial interest in some of the monies obtained. 127. In Patel [2000] 2 Cr App R (S) 10 the Court of Appeal considered the point in relation to the 1988 Act as amended by the 1995 Act . Patel had been convicted of conspiracy to obtain property by deception. He ran a post office, and had received stolen benefit books from a co-conspirator. Importantly, the appellant took the whole of the proceeds from the safe, and then paid to his co-conspirator his share. Douglas Brown J stated: “We share the view of Buxton J that s.15(2) of the Theft Act 1968 cannot assist in the construction of the 1988 Act where the offender is not charged with obtaining property by deception under s.15 or conspiracy to do so…” 128. Patel is thus unlike the case on category (3) in that the defendant received the whole of the property himself and passed some of it on to his co-defendant. 129. In M etcalfe [2001] EWCA Crim 1343 robbers had obtained £1.2m. Metcalfe was not a robber. He was a gambler who whose role was to launder the proceeds of the robbery. He received the money from the robbers and used it to place bets. He lost a lot in the process, but on occasion received winnings which he then gave to the robbers or their nominees. He was convicted of assisting others to obtain the benefits of criminal conduct. His benefit was assessed on the basis of what he had received, when he submitted it should be on the basis of his own fee or reward. The case is similar to the case against Glatt on categories (1) and (2), but differs from the case on category (3), because Metcalfe did receive all the money himself. 130. In May [2005] EWCA Crim 97 ; [2005] 2 Cr App R (S) 67 the Court considered Patel and other cases, in the context of considering property that was under joint control. However, the property had been received by companies, and in that context there is a reference to receipt by others, and to piercing the corporate veil. At para 37 Keene LJ said: “It seems to this Court to be important that there was a finding here that the companies retaining the VAT fraudulently were jointly controlled by various of the appellants. Once the corporate veil is pierced, as the appellants accepted it can be (a step endorsed by this Court in Dimsey and Allen [2000] 1 Cr.App.R.(S) 497 at 502), the property held by the company in question is to be regarded as the joint property of those controlling that company. It is analogous to the situation where conspirators have put the proceeds of the fraud straight into their joint bank account. In such a situation each is entitled to the full amount in the account. If one concentrates on the words of the statute, as one must, it seems to us that each individual "obtains" the property jointly held.” 131. On the basis of May Glatt abandoned the submission he had hoped to make to the effect that the court was required as a matter of law to apportion between the conspirators the totality of the benefit obtained by them. However, he submitted that the point was relevant to the exercise of the court’s discretion. 132. Mr Krolick submitted that piercing the corporate veil was not a course the court was asked to take. This may have been because the natural person standing as principal behind the corporate veils of the off shore companies was Martin, not Glatt. 133. Jennings v CPS [2005] EWCA Civ 746 ; [2005] 4 All ER 391 was an appeal against the continuation of a restraint order. The order was made in respect of an alleged conspiracy to defraud and fraudulent trading. The conspiracy was to defraud members of the public seeking loans. The company took fees from them, but no loans were ever made. The submission for the appellant was that the court should look to see what the defendant had got and retained for himself. The controlling director and shareholder was RP, who was due to be charged with conspiracy. A similar restraint order had been made against him. The appellant claimed he was no more than an employee, but the Crown alleged he was at the heart of the conspiracy, and that he played a full role in spending some of the cash generated. The Crown alleged that large sums sent to the company in the form of postal orders were cashed at a local post office but not credited to the accounts of the company. The restraint order was made on the basis of the alleged proceeds of the conspiracy amounting to £580,000 odd. 134. Laws LJ held (para 49) that the fact there was some evidence suggesting RP kept far and away the bulk of the money did not touch the merits of the order against the appellant. The case thus proceeded on the assumed basis that the appellant did receive the proceeds of the conspiracy and had an interest in at least some of them, unlike the case against Glatt on category (3). 135. At paras 29-37 Laws LJ considered these cases other than Saia . He held at para 37 that Gokal (and by implication Saia ) were out of line with the general run of authority. He said at para 38 that: “All that is required is that the defendant’s acts should have contributed, to a non-trivial (that is, not de minimis) extent, to the getting of the property”. 136. In response to this Mr Krolick submitted that the decision in Jennings v CPS , although decided in June 2005, did not have regard to the legislation subsequent to the 1988 Act . We have referred to this submission as a matter of principle, in para 78. 137. In particular, Mr Krolick notes that in the 2002 Act s.76 corresponds to the definition in s.71(4) of the 1988 Act , including the word “obtains”. It includes: “(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct… (7) If a person benefits from conduct his benefit is the value of the property obtained” 138. In the 2002 Act there is a definition of ‘obtains’ at s.84(2), which the focus of Mr Krolick’s submission: “(b) property is obtained by a person if he obtains an interest in it… (h) references to an interest, in relation to property other than land, include references to a right (including a right to possession)”. 139. It appears that the draftsmen considered the situation of property obtained by one person for another, and considered it necessary to state that in such a case obtaining an interest in property sufficed for obtaining property. The Act does not say that obtaining an interest in the property is a necessary condition of ‘obtaining’, nor does it in terms speak of control. On the other hand, there is nothing in the 2002 Act equivalent to the broader definition of Laws J in Jennings v CPS in para 135 above, namely that contributing to getting the property suffices. Of course, in Jennings Laws LJ was addressing an assumed factual situation where the defendant did retain control over and some interest in the property received by the third party, and his words must be understood in that context. 140. It must also be borne in mind that the provisions in question are in a penal statute and must be construed strictly, as Rose V-P stated in Attorney General's References Numbers 114-116 of 2002 and Numbers 144-5 of 2002 [2003] EWCA Crim 3374 , para 18. It makes a difference to the scope of the legislation if it is confined to those who do have an interest in property received by a third party, or if it extends to those who have no interest. 141. We would accept Mr Krolick’s submission only up to a point. In our judgment it may be that “obtains” does not include a case where a person causes property in which he has no beneficial interest to be received by someone else over whom he has no control. We do not have to decide that. But ‘obtain’ does include the cases where a defendant retains control over property received by a third person as a result of steps taken by him, as well as cases where he obtains an interest in property received by a third person. 142. Accordingly, since Glatt had some control over the companies, albeit for the benefit of Martin, he did obtain the property referred to in category (3), and, consequently, any increase in value of such property within category (4). DISCRETION 143. In exercising his discretion the Judge said that although Glatt was not in the same position as Currey (see para 120 above), who had disposed of the money he had received, the reasoning in that case applied equally to him, in that the money had been disbursed for investment. The judge took into consideration that Glatt was a professional man who had abused his trust, without which the operation could not have been carried on as it was. He said: “For the court to exercise its discretion otherwise than by making an order would be to subvert the legislation”. 144. The points made for Glatt are: i) The effect of the order is that there has been double counting in relation to the benefit set out in Mr Ford’s statement; ii) The benefit should have been apportioned between Glatt, Hutchinson and Gardner, as a matter of discretion. A calculation has been done dividing each item or class of property in Mr Ford’s statement equally between each of the defendants namely Martin, Gardner, Hutchinson and Glatt. Since in relation to some property all four were involved, and in relation to other parts either three or two of them were involved, with a particular part of the property, this arrives at a figure of £976,121.66 as Glatt’s share of the benefit. iii) That the order should have been limited to a defendant’s actual gain, which in Glatt’s case was nothing over the £10,000 minimum; iv) That Glatt should have been treated similarly to Gardner, and in Gardner’s case the Court of Appeal had reduced the confiscation order to about two thirds of the maximum available; v) That Glatt and his family have been ruined and the order is unfair, oppressive, and disproportionate when considered in conjunction with the rest of Glatt’s sentence and the loss of his profession; vi) That the Judge erred in comparing Glatt’s position to that of Currey; vii) That the Judge erred in considering himself bound to exercise his discretion to impose the maximum order. 145. For the Crown it is submitted that: i) The legislation envisages ‘multiple recovery’; ii) There is no occasion to apportion the benefit, where, as here, it is clear which defendant has received what property; iii) As to Gardner and Hutchinson, the cash they had actually handled was included in the benefit they had been found to obtain, and as to the other property the Judge had ruled that mere involvement in property purchases without receipt of funds did not constitute obtaining a benefit; iv) The judge exercised his discretion rightly, and was well equipped to do so, having conducted the trial and retrial of Glatt and having sentenced all the conspirators and conducted all related confiscation proceedings; v) The circumstances in which this Court was entitled to interfere were limited, namely where the Judge had failed to take into account a material consideration and had taken into account an immaterial consideration. 146. We have already referred to cases where this Court has held that the legislation envisages multiple recovery and double counting is not objectionable: see R v May [2005] EWCA Crim 97 (para 47 above), Jennings v CPS (para 96 above). We ourselves proceed on that basis: see para 99 above). 147. It is right to consider, as the Judge did, whether the making of this order, or not, would serve to fulfil the purpose of the legislation. 148. In the present case Glatt did not use any of his own funds to obtain the property (as might a trafficker in stolen goods or drugs) and he did not obtain any reward for his services (apart from the car worth less than £10,000). What he did employ, as the Judge pointed out, was his position as a solicitor, but he has forfeited that in any event. 149. So the purpose of a confiscation order against Glatt cannot be to take away his profits from crime, in the ordinary sense of the word profit. Nor can the purpose be to remove from him assets which he has used to commit crimes, in order to prevent him misusing them in that way in the future. We have found these to be the legislative purpose as set out in paras 50 to 68 above. We have also concluded (as the Crown accepts) that compensation is not one of the purposes of this legislation, for the reasons given in paras 69 to 77 above. This does not mean that HMC&E has no way of obtaining compensation for any losses suffered as a result of conduct such as Glatt’s involvement in the breach of the restraint order. The civil law has developed in recent years, as set out in para 75 above. The criminal courts might also have power to make a compensation order in such circumstances. 150. In these circumstances, it has to be asked what legislative purpose would be fulfilled by the order made. We find none. As stated above, Glatt has already been sentenced to the term of imprisonment of seven years (para 3 above) and has, of course, forfeited his profession as a solicitor. In addition, we were told on 6 th March, sums that he will in any event have to pay, or cannot recover, are the Receiver’s fees and his legal costs, for which the figures given to us are respectively £546,519.62 and £645,024.37, a total of £1,291,543.99. 151. The Judge was referred to Re K The Times 1 October 1990, of which we have the full judgment in the form of a Lexis print out. In that case McCullough J was asked to discharge a restraint order made under the 1988 Act . K had been charged with six offences of dishonesty while trading as an estate agent. It was alleged that he had bought properties with the assistance of mortgages, which had been procured by making false statements about his earnings and other matters. The benefit alleged was the total sum of £242,744.78 received from those providing the mortgage funds. These capital sums were secured on the properties purchased. Counsel for K submitted that the benefit was thus the equity of redemption. McCullough J did not accept this. He held that the benefit was the value of the houses. He explained: “There is nothing unfair to the defendant in this construction, since both capital and interest secured on the house will be taken into account at stage (3) [valuing his realisable assets], … and in any event, as I will come to presently, I would expect the judge to do so when arriving at a fair figure at stage (4) [whether it appears that a confiscation order may in fact be made]”. 152. McCullough J then turned to consider how the trial court might exercise the discretion under the 1988 Act . He held that the restraint order in that case was appropriate. But before reaching this conclusion he said this: “[the trial court] will not make an order which would be oppressive; in other words it will seek to be fair. So, for example, if a defendant with realisable assets of £200,000 committed an offence of the kind with which K is charged and thereby obtained a house worth £100,000 with the assistance of a mortgage of £70,000 and had not otherwise benefited (for example by letting or reselling), one would anticipate that, notwithstanding that the £70,000 had been left out of account in assessing the value of he defendant’s benefit from the crime, the judge would order confiscation of no more than £30,000. Indeed, in the example, he might decide to make no order at all, since not only would the defrauded mortgagee have lost nothing (being able to recover the advance in full from his security), the defendant (assuming that he had paid the balance of £30,000 in cash) would overall have gained nothing”. 153. In R v Layode (unreported 12 March 1993) this court, presided over by Watkins LJ, considered an appeal against the making of confiscation order in the sum of £133,891 made in respect of the defendant’s conviction for mortgage frauds. In that case the defendant had bought one property for £80,000 with the assistance of advances from the building society of £72,000. The judge included the £80,000 when valuing the benefit. This court held that he was right to do so. McPherson J gave the judgment of the court. He quoted with approval the passage in McCullough J’s judgment in K cited above. He also referred to Rees as follows: “Auld J considered all aspects of that particular case. He stressed the discretionary nature of the provisions of s.71(1)… He pointed out further that in the exercise of that discretion ‘if it is the case that the building societies have been able to recover the moneys dishonestly obtained, it seems to me, subject to any further submissions, that the proper exercise of the court’s discretion should be to exclude those sums in determining the amount of the order’. This court agrees with that approach…” 154. In our judgment, for the reasons given in para 85 above, this approach is one which we ought to follow in this case. It is not necessary or fair to impose any further sanction on Glatt in the form of a confiscation order. 155. Accordingly, in our judgment the judge fell into an error of law when he directed himself that “For the court to exercise its discretion otherwise than by making an order would be to subvert the legislation”. For the reasons given, we would therefore set aside his order, and make no confiscation order against Glatt. Before concluding this judgment we would like to acknowledge our indebtedness to Janet Ulph LLM LLM for her work “Commercial Fraud: Civil Liability for Fraud, Human Rights, and Money Laundering” recently published by OUP. 156. In these circumstances we do not need to consider the other points advanced under this head. The appeal succeeds to that extent. THE HEARING ON 6 TH MARCH 2006 157. The Crown asked for this case to be listed for rehearing on three grounds, namely i) the error of fact as to the amount recovered by the Crown under an earlier confiscation order, due to the Note of 1 st December 2005 not having been received by the Court (referred to in para 16 above); ii) in order to advance the new argument based on the decision in Ahmed which we have considered and rejected in para 85 above) iii) in order to address the Court upon certain authorities referred to in the draft judgment, and the textbook referred to in para 155 above, which had not been referred to in argument. 158. In this revised judgment we have corrected the factual error, and dealt with the argument based upon Ahmed . It remains for us to address the third point. 159. At the hearing on 6 th March 2006 Mr Sells QC did not submit that in the draft judgment the Court fell into any error of law in the sections of the judgment preceding the section headed Discretion. All the references to cases not referred to at the hearing in November 2005, save for one, were in sections of the draft judgment in which we have upheld submissions for the Crown, and rejected submissions for Glatt, and which have not needed to be revised following the submissions on 6 th March 2006. The textbook also relates to those sections, and does not address the exercise of discretion under the unamended 1988 Act. 160. The exception was a reference to para 75 above in the section headed Discretion which we have revised in this judgment (see para 149 above). The erroneous reference in the draft did not affect the conclusion we had reached in that section. Nevertheless, for the purposes of this judgment, we have reconsidered the whole of the section headed Discretion, and have reached the same conclusion.

```yaml citation: '[2006] EWCA Crim 605' date: '2006-03-17' judges: - THE RIGHT HONOURABLE LORD JUSTICE HOOPER - SIR DOUGLAS BROWN ```

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Neutral Citation Number: [2023] EWCA Crim 424 Case No: 202201206 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM HER HONOUR JUDGE KRISTINA MONTGOMERY KC Indictment No. T20170537 Royal Courts of Justice Strand, London, WC2A 2LL 21/4/2023 Before: LADY JUSTICE ANDREWS MR JUSTICE MORRIS and HH JUDGE EDMUNDS KC, THE RECORDER OF KENSINGTON AND CHELSEA - - - - - - - - - - - - - - - - - - - - - Between : DAVID JOHN MITCHELL (AKA DAVID JOHN) Applicant - and - THE KING Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The Applicant’s brother and Mackenzie Friend, Mr Christopher Kennedy, was allowed to address the Court briefly on his behalf. Hearing date: 24 March 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10.30am on [21 st April 2023] by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. The Hon Recorder of Kensington and Chelsea: 1. The applicant, David John Mitchell, is now aged 31. 2. On 31 st August 2017, in the Crown Court at Birmingham before HHJ Kristina Montgomery QC, the applicant, then aged 26, pleaded guilty to three offences. 3. He subsequently instructed new solicitors privately, and following a request by them for the case to be listed for sentence the applicant was sentenced on 22 nd January 2018, almost five months after he had entered his pleas, by Mrs Recorder Thompson: 4. On Counts 1 and 2, being possessions with intent to supply of crack cocaine and diamorphine respectively, he was sentenced to three years imprisonment on each concurrent, and on Count 3 for dangerous driving he received 9 months consecutive. The applicant was disqualified from driving for 37 months and was ordered to take an extended re-test. No separate penalties were imposed for driving without a driving licence or insurance. 5. A co-defendant was then awaiting trial. No reporting restrictions were imposed in the court below and none has been sought before us. 6. The applicant now renews his application for an extension of time by 1,163 days to apply for leave to appeal against conviction on the two matters of possession of class A drugs with intent to supply. He is no longer in custody in relation to these matters but remains in custody on other matters, 7. There is a side issue in that the applicant says that he was prosecuted as David James Mitchell whereas his real name is David John. Whilst that is a matter which we will invite the Criminal Appeal Office to refer to those responsible for criminal records, it does not affect the merits of his present application. 8. The applicant explains the delay saying that he has dyslexia and severe issues with reading and writing so as to be dependent on others to read and reply to all his letters, and that he was only recently made aware of the appeal process. The applicant has received assistance from his brother, Mr Kennedy, who has been in such regular contact with the CAO that the office has been obliged to remind him of the limited role of a third party. 9. The applicant did not have a right to be present for the purposes of a renewed application of this sort. Within our papers is a document from the applicant dated 4 th March giving his consent for Mr Kennedy to act as his McKenzie friend and speak on his behalf. It is clear from that document and the materials that Mr Kennedy has sought to file on behalf of the applicant that the reality of the application is that Mr Kennedy be permitted to act as litigator and advocate. 10. Mr Kennedy, together with the applicant’s mother, attended the hearing. We had in mind the guidance of Hallett LJ in R v Conaghan [2017] EWCA Crim 597 which makes clear that only in exceptional circumstances will this Court permit a person without formal rights of audience to act as advocate and such exceptional circumstances are not made out in this case. 11. Nevertheless, we took the opportunity to allow Mr Kennedy to identify for us what he felt were the key issues and we are grateful to him for the measured, courteous, and clear assistance that he gave us. Of that more later. 12. The circumstances can be stated shortly. On the afternoon of 19 th February 2017 at about 2:30 pm a police officer saw the applicant driving a Vauxhall Astra at speed in Gypsy Lane, Erdington, a suburb of Birmingham. The applicant’s driving during the pursuit resulted in the charge of dangerous driving. When the pursuit ended in Greenholme Road, Great Barr, the applicant jumped out of the driver’s side and a passenger, the co-defendant, ran off from the other side. The co-defendant had £630 in cash on him and, when about to be detained, he threw away a Boots bag later found to contain 60 wraps of heroin and 242 wraps of crack cocaine. The co-defendant also had a further two wraps of heroin on his person. The total value of the drugs was around £3,040. 13. When detained, the applicant had on him £836 in cash but no drugs. 14. The two counts of possession of drugs with intent to supply were put on the basis that the applicant and the co-defendant were engaged in a joint enterprise, each playing their respective roles. 15. There were a number of other aspects of the case. 16. First at the time of the decision to plead, and now, there were two SFR1 fingerprint reports on the Digital Case System file. They reported respectively a match to the applicant’s left middle fingerprint on the inside of the Boots bag and the left middle fingerprint of the co-defendant on the outside of that bag. Had the matter proceeded to trial and the content of the report had been disputed then a SFR2 report would doubtless have been ordered. 17. In paper submissions, the applicant has suggested that the fingerprint in fact derived from the car rather than the bag. We asked Mr Kennedy to clarify his reasons and he referred to documentation he had obtained from the CPS which we understood him to say spoke of a fingerprint recovered from the car steering wheel. We therefore asked to see the material that related specifically to fingerprints before we made a decision on this application, and Mr Kennedy provided further materials for which we are grateful. In fact, the pages he initially supplied appeared incomplete, so the position was checked with Mr Kennedy who sent in further scans. We are satisfied we have all the material on which Mr Kennedy, and thus the applicant, relies on for this issue. 18. The prosecution also relied on telephone evidence. Three telephones identified as PS7, 8 and 9 were recovered from the co-defendant. The content of the first could not be accessed. The second was attributed to the co-defendant and had messages and photographs relating to drug dealing, and the third was said by the police to be a phone for a drugs line called “the Dave line”, which in turn the prosecution linked to the applicant. The application 19. The grounds identified by the applicant may be summarised for present purposes in these terms: i) That the applicant was pressurised to plead guilty due to negligent advice of solicitors and counsel; ii) That the applicant’s two firms of solicitors failed to pursue evidence from bank accounts, Universal Credit or his father that might support an innocent account as to the origin of the money found on him, or after his plea to apply before sentence for permission to change his plea. iii) That the SFR1 report of the finding of a fingerprint match on the inside of the Boots bag was both a deception by the prosecution, it being suggested that the fingerprint was derived from the car rather than the bag, and was used in a coercive and deceptive manner by his lawyers to obtain a guilty plea from the applicant. iv) That the prosecution relied upon telephone evidence which the applicant says was inadmissible evidence obtained in breach of ACPO guidelines. 20. To us the key points that Mr Kennedy emphasised were: i) That the applicant had learning difficulties so as to be vulnerable; ii) That in this case the drugs were all found on or associated with the co-defendant, none being found on the applicant; iii) That his concern for his brother was that he had been pressurised into pleading guilty, in particular because of advice about the credit available for an early guilty plea. iv) That the advice was defective because at that stage the full prosecution case had not been served so that the applicant could be advised properly, and that the material available, in particular the SFR1, meant that he was advised on a false basis. 21. Many and varied legal submissions have been made in the written materials submitted, including the material submitted by Mr Kennedy in an email dated 10 th February 2023 and bearing a signature from the applicant dated 2 nd March 2023. 22. The applicant is fortunate to have the support of his brother and mother. However, many of the submissions indicate misunderstandings of applicable legal concepts. We do not say that in any spirit of criticism, but assure the applicant that they have been considered by us even if this ruling does not address each in turn. 23. The applicant has also submitted requests for disclosure. We are satisfied that this application can properly be considered without addressing that matter. Were leave to be granted, further directions could be considered. 24. In view of the criticisms made of counsel and solicitors who represented him at the time of his guilty plea, the applicant was invited to and did waive his privilege in respect of his communications with them. We have before us responses from solicitors and counsel to which the applicant himself has responded. We have also considered the responses of those representing the applicant at the time of sentence and that of the Respondent. Discussion 25. So that we do not risk losing sight of the wood for the trees it is right to identify from the first that this was a strong prosecution case. The summary we have provided speaks for itself. With that in mind we turn to the applicant’s arguments, having made clear that this ruling will not deal with every detail. 26. Any advocate representing the applicant would be obliged to advise, even in robust terms, on the strength of the prosecution case, the evidence apparently available, and as to the credit available for an early plea of guilty, whilst at the same time making it clear that if a defendant is not guilty they should not plead guilty. Credit for plea is given precisely to encourage a defendant who is in fact guilty to plead guilty at an early stage, before the time set for full service of the case. 27. We acknowledge that the applicant reports his difficulties in reading and writing, described by Mr Kennedy as learning difficulties. That sadly is not uncommon among defendants. However, it is clear that he had the opportunity to discuss the case orally with both solicitor and counsel prior to entering his pleas and to give his instructions orally. Indeed the late arrival of his co-defendant gave additional time for discussion. It is also the case that he subsequently instructed new solicitors who acted for him in the period of almost five months before he was sentenced.. We see no basis to conclude that his literacy or learning difficulties in themselves undermine the safety of this conviction. 28. Particular concerns were raised with us about the SFR1 fingerprint material. The SFR1 is in standard form authored by Ian Williams and dated 19 th April 2017 with crime number 20BW/37832R/17. It reports a match to the applicant’s left middle finger. The source of the match is reported as: PS/4-JCT3 Taken from PS/4 WHITE CARRIER BAG (BOOTS) CONTAINING EXHIBITS PS/1 AND PS/3 Mark Location: Inside of white carrier bag (Boots)(PS/4) 29. PS4 is the exhibit reference given by PC P Sutton who seized the bag at the scene. We infer that JCT3 is the exhibit reference for the fingerprint lift that would have been taken by an investigator, probably a scenes of crime officer, for submission to the Fingerprint Bureau. A continuity statement from such an officer would not usually be served unless a dispute was indicated, so it is unsurprising that none appears on the court file. 30. We observe that the report refers to a total of five lifts (JCT 1-5) all taken from the Boots bag and is not, in any way concerned with the Astra motorcar. 31. The SFR1 therefore appears on its face to be a report of the finding of a print matching the applicant on the inside of the Boots bag. Had the case continued to be contested by the applicant and the fingerprint not admitted, then it would be at that stage that a full SFR2 report would have been commissioned. There is nothing before us that suggests that at the time of plea or sentence the advocates for the applicant or the prosecution had any reason to doubt the bona fides of the report. 32. We turn to the question whether there is material suggesting that the SFR1 which would have been considered by the applicant in making his decision on plea was, unbeknownst to his legal representatives at the time, in error. 33. Of the material first provided by Mr Kennedy there are three pages of relevance to fingerprints. They have side numbering 85, 86 and 88. The pages 85 and 86 are identical and bear the numbering page 1 of 13 , and page 88 bears the numbering page 10 of 13 ). They bear the same crime number as the SFR1, being the overarching crime number for this enquiry. The pages have been subject to some redaction including of the initials of exhibits, but we can see on the page 88 reference to six attempts to find marks using two different types of treatments and that, for each one, no marks were found. The exhibit numbers are shown as 2 through to 7 but the letters preceding have been redacted. It may well be that those attempts to develop marks were made on the Vauxhall Astra that the applicant had been driving, although that is not confirmed. We cannot tell from those pages the sites from which attempts to obtain marks failed. 34. Those pages appeared incomplete, and so Mr Kennedy was given an opportunity to supplement them and did so sending scans of 7 pages which we have also considered. There is some overlap with pages sent before (particularly further copies of the pages that, when previously supplied, had the side numbers 85 and 88), and what appears to be an intermixing of police documents with pages recording events at the first appearance at Birmingham Magistrates Court, at which stage not guilty pleas were being indicated by the applicant to the drugs matters. 35. Therefore, the materials put before us are not evidence of the finding of a print from the applicant on the steering wheel, let alone evidence that such a print has been confused and misreported as having come from the Boots bag. 36. As for the other aspects of the case, the applicant was himself best placed to know if such further enquiries would indeed materially support his case. He says that the cash he had on him could have been accounted for via bank statements, Universal Credit records and a statement from his father. It is all too clear that none of those matters would be determinative. Once he had chosen to plead guilty, there can be no criticism of his legal representatives for not pursuing enquiries that were no longer relevant. The criticism that the absence of assets identified in the POCA proceedings should have caused his solicitors to review the evidence falls away when the basis of plea presented in mitigation is considered, and that we review later. 37. It is suggested that the telephone evidence was inadmissible, but no reason why it would be inadmissible is offered other than a suggestion that there was a breach of ACPO guidelines, or that because the phone concerned was recovered from the co-defendant its contents could not be used against the applicant. These are simply not matters which, in themselves, would make the material inadmissible. 38. A defendant who delays a plea to wait for, for example the service of a full SFR2 statement and continuity evidence on a fingerprint finding, or for his legal team to pursue evidence that may support his account about cash sums found upon him, and then pleads guilty, will necessarily suffer a loss of credit. 39. Mr Kennedy complains that offering the applicant the prospect of a reduction of sentence for an early guilty plea put improper pressure upon him. The reduction in sentence for early guilty pleas is an established part of our process for good policy reasons. It presents defendants with a choice which can be a difficult one. However, the applicant’s legal representatives were bound to advise him about it for the applicant to make his decision. The response of counsel to the allegations is that proper advice about credit for plea was given, including that the applicant should not plead guilty unless he was guilty. 40. The sentencing took place almost five months after the pleas were entered. In the interim the applicant chose to instruct new solicitors privately. Although the applicant asserts that the new solicitors were instructed to vacate his pleas, there is no confirmation from those solicitors of any such instructions. In any event a defendant may not withdraw a plea of guilty as of right, but only if the court permits him to do so following a successful application. 41. If the applicant is right that the matter was raised with his new solicitors, then it was clearly not pursued by him at that time. It is inconsistent with the solicitors instead writing to the Court applying for the applicant to be sentenced before the co-defendant’s trial. It is also inconsistent with the fact that at sentence the applicant’s new advocate, Mr Peggs, presented in mitigation an account that the applicant had been pressured by the co-defendant into acting as driver for the co-defendant’s drug dealing. The advocate also spoke of threats to the applicant’s girlfriend. We have a transcript that includes this assertion: One of the people to whom he owed money was [ the co-defendant ] and it was agreed that Mr Mitchell would drive for [ the co-defendant ] whilst [ the co-defendant ] supplied drugs to other people and Mr Mitchell took part in that. 42. It is clear from the sentence remarks that the basis presented was accepted and resulted in a reduction in the sentence passed. 43. Thus, the mitigation presented is wholly inconsistent with the position the applicant now seeks to take. We see no basis for concluding that the mitigation was simply invented by the advocate, it must have originated from instructions given by the applicant. 44. Taking these factors individually and collectively we identify no argument that has been presented that has any prospect of success so as to justify granting leave to pursue this appeal. There are simply no arguable grounds that these pleas were other than voluntary and informed, or that the applicant was deprived of a defence which would probably have succeeded, or that the convictions are in any other way unsafe. 45. That being so, there can be no point in granting any extension of time. The renewed application is therefore dismissed.

```yaml citation: '[2023] EWCA Crim 424' date: '2023-03-24' judges: - LADY JUSTICE ANDREWS ```

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No: 200504325/C4 Neutral Citation Number: [2006] EWCA Crim 1985 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 4th July 2006 B E F O R E: LORD JUSTICE MAURICE KAY MR JUSTICE CRANE MRS JUSTICE DOBBS DBE - - - - - - - - R E G I N A -v- MARK JARVIS - - - - - - - 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 MCKONE appeared on behalf of the APPELLANT MISS H KUBIK appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MRS JUSTICE DOBBS: On 28th August 1998, at the Wolverhampton Crown Court, this 39 year old appellant pleaded guilty on the first day of trial to one count of kidnapping, two counts of robbery and one count of rape. He was sentenced as follows: 10 years' imprisonment for the kidnapping; 5 years' imprisonment for each robbery concurrent to each other and the kidnapping and for the rape, life imprisonment with a minimum of seven-and-a-half years to be served under the provisions of section 2 of the Crime Sentences Act 1997 . The total sentence therefore was life imprisonment, with a specified seven-and-a-half year minimum term. On 16th March 1999, the Single Judge refused leave to appeal sentence. The application was renewed before the Full Court, on 2nd July, which refused the application. He appeals against sentence in relation to the rape count only, on reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal act 1995 . 2. The facts are these. At about 6.40 am on 13th January 1998 the complainant, a 26 year old married woman, was waiting at a bus station in Bearwood. The appellant approached her twice and asked when the bus was coming and where it was going. A few minutes later he returned to her again, grabbed the collar of her coat and pushed her into the bus shelter. He said she had to come with him and if she screamed he would cut her throat. He had a hook-shaped object, about two-and-a-half inches long, which later transpired to be a nail clipper. He forced the lady into a van about 100 metres away, took her rings, necklaces and earrings and bracelet. He asked whether she had any credit cards which she showed him and he then went through her purse and handbag. 3. He drove off, placing the complainant's hand between his legs and took her to three banks and made her use her credit card to obtain a total of £250 which he took. He held on to her tightly by the hand throughout and although she saw other people in the street she was too frightened to call for help. 4. He took her back to the van where he told her he needed the money because he was a "crackhead". He said that he had just been released and if he was caught he would do a "long stretch" so he may as well take everything she had. He took her to a number of other banks until the cards were declined. 5. At about 7.20 am he started to ask about her personal life and forced her to kiss him. He undid her blouse and bra, touched her breast and then forced her into the back of the van, telling her to keep her eyes shut. He pulled down her tights and underwear, cut them so her legs were free and raped her. He said he could not be bothered to finish off and got off. He wrapped either her underwear or tights round his fingers and inserted them into the complainant's vagina seemingly in an attempt to remove potential forensic evidence. He told her she could go, but that she must keep her eyes shut. As she walked away he told her not to look back, particularly at the number plate or he would run her over. She went to a nearby shop and the police were summoned. 6. The appellant was arrested on 14th January. The complainant tights were found in his van. DNA samples were taken. 7. He was interviewed over a period of three days and denied the offences. 8. The appellant has a number of previous convictions. The previous convictions between 1981 and 1984 were for mainly driving matters and offences of dishonesty. In 1985 he was convicted of rape, two offences of robbery, taking a child without lawful authority, taking a vehicle without consent, aggravated burglary and attempted robbery. He received a total of 12 years in custody. In 1993 he was convicted of manslaughter for which he received 7 years' imprisonment. 9. When sentencing, in the light of the appellant's previous convictions, particularly those for rape in 1986 and manslaughter in 1993, and the fact that the present offence had been committed while on licence for the offence of manslaughter, the appellant having been released approximately 10 years prior to the commission of the current offences in October 1997, the judge took the view that a sentence of life imprisonment under the Crime Sentences Act 1997 was appropriate. He found that the appropriate determinate sentence was 14 years. There was a specified period of between 7 years and 9 years and 4 months to be ordered and the period he took was 8 years. He indicated that the lowest it could have been was 7 years, which might have been available if the appellant had pleaded guilty at the earliest opportunity. In the circumstances the judge felt that he had given as much credit as he could. He went on to observe that this appellant had been in custody since 14th January 1998, and subject to licence recall until 19th May 1998 and for all practical purposes had been remanded for the current offences for 6 months. That would be deducted from the specified period of 8 years and therefore the minimum period the appellant had to serve would be seven-and-a-half years. 10. There are three matters that are raised by the Criminal Cases Review Commission and advanced by counsel. First of all, the discount for the plea guilty. It is submitted that the judge erroneously applied the discount to the specified period rather than taking it into account when setting the notional determinate period. Secondly, that it was inappropriate for the judge to set the specified period at more than half the determinate sentence, especially in the light of the fact he gave no reasons for so doing. He seemed to take the view that the onus was on the convicted person to show specific circumstances why the discount should be more than one-third, rather than taking half the determinate period as the starting point. Thirdly, that the judge wrongly took a rounding approach by converting the 208 days spent on remand to 6 months, the effect being that the appellant has only received 182 days' credit rather than 208 days credit. 11. Two further grounds were submitted by counsel for the appellant, namely the notional determinate sentence was too high, this point being rejected by the Commission, and secondly, that the life sentence was wrong in principle. This was also considered and rejected by the Commission. Both these two grounds have been rejected by the Single Judge and the time within which to renew the application for reconsideration has lapsed. It should be noted that none of these grounds were raised at the original application, back in 1999, when the Full Court refused leave. That application was purely on the question of the effect of Article 7 of the European Convention on Human Rights. 12. In the Criminal Cases Review Commission Statement of Reasons they set out a number of calculations to support the proposition that the eventual period specified may be too long in the light of the grounds now advanced. We hope not to get bogged down in "what if" calculations when dealing with the real question to be decided, namely whether the sentence is manifestly excessive or wrong in principle. 13. There can be no doubt that the life sentence was not wrong in principle and that is why leave to appeal has been refused and no doubt why counsel previously instructed in the first application conceded as much before the Full Court. Counsel, realistically, has advised as such in his advice on appeal. The appellant qualified for an automatic life sentence by virtue of two qualifying offences, committed on two separate occasions, namely rape and manslaughter. The instant offences being committed within 10 weeks of his release from the sentence of 7 years for manslaughter, means that he committed offences on licence. 14. We turn to the question of the specified period. It is apparent that the learned judge intended to give credit for the plea of guilty and mitigation generally. There is no doubt that he failed to give reasons as to why he was not taking the usual half of the notional determinate sentence as the specified period. He seemed to be of the impression that the question of credit and plea was relevant to that exercise as opposed to other factors. 15. Was the notional determinate sentence of 14 years too long? Although leave has not been granted on this issue it needs to be dealt with in order to put our findings into some perspective. We can take this shortly. It was not. Even the Criminal Cases Review Commission came to the conclusion that there was no real possibility that the Court of Appeal would conclude that this figure was manifestly excessive. 16. We turn therefore to the question of discount for plea and the appropriate specified period. The judge intended to give as much credit as he could for the plea of guilty and other matters albeit that the plea was entered at the last moment. What he did in fact was to take the two-thirds point of the 14 year determinate period, namely 9 years and 4 months and then discounted it by 1 year and 4 months for the plea and mitigation. 17. When sentencing he was not made aware of the case of R v Marklew & Lambert [1999] 1 Cr App R(S) 6, which although not officially reported had been decided. That case indicated, that the general approach to be taken, was by taking half of the determinate period which had been passed. However, the Court noted that there may be circumstances where it would be appropriate for the judge to exercise his discretion based on the facts of the particular case to fix a period which was more than half and up to two-thirds. Reasons for so doing should of course be given. 18. Counsel for the applicant relies on the subsequent case of R v Szczerba [2002] EWCA Crim 440 , decided some 3 years after the sentence of the appellant, in which the Court of Appeal confirmed that whilst this was an area in the judge's discretion, the use of any period over one-half of the notional determinate sentence should only be used in exceptional circumstances. It was originally submitted by the appellant, contrary to the findings of the Criminal Cases Review Commission, that exceptional circumstances do not apply here. Counsel, realistically, today has conceded that such circumstances do apply. 19. In our view, this is a case where exceptional circumstances did exist to justify the judge departing from the usual one-half starting point - that is the commission of offences whilst on licence. 20. The error of the judge was his articulation of what he was doing. This has led to the confusion as to whether he has given proper credit for the plea of guilty and other mitigation. Additionally, he did not indicate why he started with the two-thirds figure, rather than starting at the halfway figure and considering if there were reasons to increase the period. 21. Another factor in this case was, had there been a determinate sentence, the judge could have and no doubt would have ordered at least some of the 524 days which was still outstanding from the 7 year sentence for manslaughter to take effect before the sentences for rape and the other offences. He noted that the offences were committed on licence which no doubt is a matter he had in mind when coming to the conclusion that a life sentence was appropriate. He may also have had it in mind when working from the two-thirds figure although again, this was not articulated. 22. In our judgment, it is regrettable that the various matters such as what percentage the discount had been and what point the specified period kicked in, were not clarified with the learned judge at the time. It would have helped to give this Court a clear indication of what his intention was. 23. Doing the best we can and in the light of the uncertainty of approach adopted originally, we propose to do the following: we have already indicated that a sentence of life imprisonment and a starting point of 14 years were appropriate. We intend to make a 30% discount from that starting point of 14 years, which very roughly speaking adds up to 4 years and 2 months. That will be deducted from the period of 14 years, making a notional determinate period of 9 years and 10 months. 24. As we have already indicated, the two-thirds specified period was, in our judgment, appropriate. Using that figure, that makes a period of 6 years and 6 months. From that has to be deducted the period of 6 months and 25 days, and no doubt counsel will be able to correct the maths, but this makes a specified period of 5 years 11 months and six days. To that extent, this appeal against sentence is allowed.

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Neutral Citation Number: [2021] EWCA Crim 413 Case No: 202000831 B2 , 202000824 B2, 202000825 B2, 202000826 B2, 202000827 B2, 202000828 B2, 202000829 B2, 202000833 B2, 202001454 B2, 202001455 B2, 202001456 B2, 202001457 B2, 202001458 B2, 202001459 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT SHREWSBURY The Honourable Mr Justice Mais and HHJ Chetwynd-Talbot Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/03/2021 Before : THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE FULFORD MR JUSTICE ANDREW BAKER and MR JUSTICE GOOSE - - - - - - - - - - - - - - - - - - - - - Between: 1. Dennis Michael WARREN 2. John Malcolm CLEE 3. William Michael PIERCE 4. Terence RENSHAW 5. Patrick Kevin BUTCHER 6. Bernard WILLIAMS 7. John McKinsie JONES 8. Kenneth Desmond Francis O’SHEA 9. Alfred JAMES 10. Samuel Roy WARBURTON 11. Graham ROBERTS 12. John Kenneth SEABURG 13. Eric TOMLINSON 14. George Arthur MURRAY Appellants - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Danny Friedman QC & Mr Benjamin Newton (instructed by Bindmans LLP pursuant to a representation order) for the Appellants 1 to 12 Mr Piers Marquis & Ms Annabel Timan (instructed by the Public Interest Law Centre pursuant to a representation order) for the Appellants 13 and 14 Mr John Price QC & Mr Hugh Forgan (instructed by the Crown Prosecution Service ) for the Respondents Hearing dates: 3 rd & 4 th February 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Fulford V.P.: Introduction 1. These appeals come before the Court of Appeal following references by the Criminal Cases Review Commission (“CCRC”) dated 4 March and 22 May 2020. The appellants were all convicted or pleaded guilty in the course of three trials that were held at Shrewsbury Crown Court in 1973 and 1974 which concerned trade union-related public order allegations. Six of the fourteen appellants have regrettably died, and the court granted applications pursuant to section 44 A Criminal Appeals Act 1968 to approve named individuals to take up their appeals. 2. This case has a complicated procedural history, which is unnecessary to rehearse, that includes a claim for judicial review having been lodged on behalf of four of the appellants following the decision on 31 October 2017 by the CCRC not to refer any of the convictions to the Court of Appeal pursuant to its powers under section 9 Criminal Appeal Act 1995 . During the substantive hearing in the Divisional Court on 30 April 2019, the CCRC conceded the claim and agreed to reconsider the applications. The decision was made thereafter to refer the cases. 3. This judgment is not an appropriate vehicle for providing a summary of the political and industrial relations history that led to the introduction of the Industrial Relations Act 1971 , which received Royal Assent in September 1971. On any view, this legislation introduced far reaching changes, some of which were significantly controversial, such as new registration requirements, provisions concerning the future conduct of trade unions and the right to collective bargaining. The Act was repealed by the incoming Labour Government in 1974. 4. It was, however, against this backcloth that the first national building workers’ strike took place between 26 June and 16 September 1972. The strike action was part of a campaign to achieve an increase in the minimum wage to £30 per week for 35 hours work and to abolish the Lump Labour Scheme (“ the lump ”), the system of casual cash-paid daily labour that lacked appropriate accompanying employment rights. There were also concerns as to safety procedures within the building industry, given the high mortality rate. The 12-week stoppage affected many major sites and led to negotiations with representatives of the employers. 5. One of the tactics deployed by the strikers was the use of flying pickets, that is to say to transport (“ bus ”) unionised workers, particularly from the Union of Construction, Allied Trades and Technicians (“UCATT”) and the Transport and General Workers’ Union (“TGWU”), to particular building sites in order to seek support from those working on the lump. On 6 September 1972, the unions bussed some of their members from North Wales and Chester to picket building sites in Shrewsbury. The three trials concerned incidents alleged to have occurred during that day. Insofar as the materials enable us to do so, we have provided a summary of the cases relating to the individual appellants. We are grateful to all counsel for their considerable assistance in helping piece together this history from the slender extant material. Trial 1 6. The first trial (“Trial 1”), before Mais J and a jury, took place between 3 October 1973 and 19 December 1973. There were six defendants. Dennis “Des” Warren (deceased), Eric “Ricky” Tomlinson and John McKinsie Jones were convicted of conspiracy to intimidate, unlawful assembly and affray. They were sentenced to three years’, two years’, and nine months’ imprisonment respectively on each count, to be served concurrently. Kenneth “Ken” O’Shea (deceased), John Carpenter and John Elfyn Llywarch were acquitted of conspiracy and affray and convicted of unlawful assembly and they were each sentenced to nine months’ imprisonment, suspended for two years. 7. Dennis Warren, Eric Tomlinson, John McKinsie Jones and Kenneth O’Shea are appellants in the present proceedings. John Carpenter and John Llywarch are not before this court, given they did not make an application to the CCRC. 8. Following the trial, all six men, however, appealed their convictions and sentences to the Court of Appeal (Criminal Division) (“CACD”). There was a split hearing because certain grounds of appeal for Mr Warren and Mr Tomlinson depended on transcripts being obtained of a substantial part of the evidence that had been given. Different sections of the court’s judgment were, as a consequence, delivered on 4 March 1974 and 29 October 1974. In the event, the CACD dismissed the conviction appeals in relation to the counts of conspiracy to intimidate and unlawful assembly and allowed the appeals against the affray convictions. The latter convictions were quashed. Mr O’Shea, Mr Carpenter and Mr Llywarch withdrew their applications for leave to appeal against sentence. The applications for leave to appeal against sentence in the cases of Mr Warren, Mr Tomlinson and Mr Jones were refused. Trial 2 9. The second trial (“Trial 2”), before Judge Chetwynd-Talbot and a jury, again at Shrewsbury Crown Court, took place between 14 January 1974 and 13 February 1974. There were nine defendants. Michael Pierce and George Arthur Murray were convicted of unlawful assembly and affray. They were both sentenced to six months’ and four months’ imprisonment respectively, to be served concurrently. John Clee, Alfred James (deceased) and Samuel Roy Warburton (deceased) were convicted of unlawful assembly and sentenced to four months’ imprisonment, suspended for two years. Derrick Hughes, Dennis Morris and Thomas Brian Williams almost undoubtedly pleaded guilty either at the beginning of the trial or at the close of the prosecution’s case. John Garry Davies was acquitted. 10. Michael Pierce, Arthur Murray, John Clee, Alfred James and Samuel Warburton are appellants in the present proceedings. Derrick Hughes, Dennis Morris and Thomas Brian Williams are not before this court, given they did not make an application to the CCRC. 11. There was no earlier appeal to this court against either conviction or sentence with the exception of Arthur Murray who, limited surviving information indicates, had leave to appeal against sentence refused by the single judge . Trial 3 12. The third trial (“Trial 3”), again before Judge Chetwynd-Talbot and a jury at Shrewsbury Crown Court, took place between 26 February 1974 and 22 March 1974. There were nine defendants. Terence “Terry” Renshaw and Bernard Williams were convicted of unlawful assembly. They were sentenced to four months’ imprisonment suspended for two years. John Seaburg (deceased) was convicted of affray and unlawful assembly. He was sentenced to concurrent terms of imprisonment of six months and four months respectively, suspended for two years. Graham Roberts (deceased) pleaded guilty to unlawful assembly in advance of the third trial. He was sentenced to four months’ imprisonment, suspended for two years. Patrick Kevin Butcher pleaded guilty to threatening behaviour and was sentenced to three months’ imprisonment, suspended for two years. Peter Sear, Bryn Thomas and Edward Williams pleaded guilty to unlawful assembly. The prosecution offered no evidence against William Hoosen, who was acquitted. 13. Terence Renshaw, Bernard Williams, John Seaburg, Graham Roberts and Patrick Kevin Butcher are appellants in the present proceedings. 14. There was no earlier appeal to this court against either conviction or sentence. A Summary of the Core Issues 15. Two central points are taken on this Reference. First, it appears that handwritten witness statements made by some of the civilian eyewitnesses were destroyed during the early stages of the proceedings, for which substitute statements were provided. This was not revealed to the accused, who, along with the judge in the first trial, were seemingly reassured that they had had access to all the statements, including those which the prosecution had no obligation to disclose under the law and practice that existed at the time (the accused and Mais J were thus told that there had been what would nowadays be voluntary disclosure of prosecution materials beyond the requirements of section 3(1)(a) Criminal Procedure and Investigations Act 1996; the latter provision contains the obligation to disclose prosecution material that might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused). Second, on the same day that the prosecution closed its case in the first trial, a programme entitled “ Red under the Bed ” was broadcast on national media, which it is suggested was highly prejudicial to the appellants, thereby undermining the safety of the conviction. The Case against the Appellants Trial 1 Generally 16. In relation to the first trial, it is fortunate that the complete summing up of Mais J, a selection of transcripts and the split decision of this court on the first appeal have all survived. There was a single witness bundle for the three trials. 17. The prosecution case was that on 31 August 1972, the area strike committee of North Wales’ building workers held its weekly gathering in the upstairs meeting room of the Bull & Stirrup public house in Chester. The committee comprised delegates from the local strike committees in the Chester and North Wales area. After hearing reports from delegates from the Oswestry area strike committee requesting support, it was agreed that picketing would take place in Shrewsbury on 6 September 1972. All of the Trial 1 defendants, bar John McKinsie Jones, attended the meeting. McKinsie Jones was the committee treasurer and had been given money from workplace collections before the meeting began. He took the money home for safekeeping instead of attending. 18. On 6 September 1972, six coach loads of pickets travelled from Denbigh, Chester, Flint, Wrexham and Oswestry. Having first stopped at Oswestry, the coaches travelled on to the Shrewsbury and Telford area and visited nine building sites, which were in a twenty mile radius of each other. They were Kingswood (where a shotgun was produced by the site foreman, a Mr Parry), Shelton roadworks, The Mount, Severn Meadows, The Weir (these four sites were all in Shrewsbury), Brookside, Maxwell Homes and Woodside (which were all in Telford). As a consequence of what occurred, a man was hospitalised and damage quantified at £1,770 was caused (the current value is £20,255). 19. Not all of the pickets attended all of the sites. For example, John McKinsie Jones, Ricky Tomlinson and Kenneth O’Shea were not at the Shelton site. Kenneth O’Shea and John Carpenter did not go the Woodside site and The Weir respectively. The pickets were in the Shropshire area for some five hours which included a break for lunch. Unlike a factory, where there are usually one or two entrance gates next to which pickets are able to stand, building sites tend to be open and often have no fencing or obvious entrance. Consequently, the practice of the pickets, as part of a national agreement with the employers, was to visit the site office to request a meeting with the employees working on the site, either in the canteen or in the open air. Alan Abrahams (now deceased), a full-time union official from Liverpool, was to have been the leader of the pickets. However, on the day he was not able to attend, and Dennis Warren assumed the role of spokesman. 20. Police officers accompanied the pickets to many of the sites, but no arrests were made at the time. Insofar as they assist, the available extracts from the police radio communications do not suggest there were any significant concerns over public order as events unfolded. However, the West Mercia Constabulary Report of 18 December 1972 entitled “ Disorderly conduct by pickets at building sites in Shropshire on Wednesday 6 th September 1972” prepared by Chief Superintendent Hodges and Detective Chief Inspector Glover, which was sent to the Director of Public Prosecutions (“ the West Mercia Police Report ”), suggested that the police were unprepared for the “ massive disorder ” on the part of the flying pickets and as a result prolonged enquiries were necessary in order to trace and prosecute those responsible. This report first became available for the purposes of the present proceedings in March 2017, following a request under the Freedom of Information Act 2000 . 21. Complaints were made by the local representative of the National Federation of Building Trades Employers (“NFBTE”) as to the suggested failure by West Mercia Police to take action against those who had been involved in the pickets. On 11 September 1972, Philip Smith, the Midland Regional Director of the NFBTE wrote to the Chief Constable of West Mercia Police, referring to the pickets as “ terrorists ” and noting there did not appear to have been any arrests and expressing the concern that a mob “ was able to carry out violence on this scale with apparent impunity ”. Mr Smith provided a witness statement dated 13 September 1972. 22. The national strike ended on 16 September 1972 when an agreement was reached with the NFBTE. An increase in rates of pay was agreed (£6 per week for craftsmen and £5 for labourers). 23. The NFBTE nationally compiled an “ Intimidation Dossier ” which was forwarded at the end of October 1972 to the Chief Constable and the Home Secretary, Robert Carr. 24. West Mercia and Gwynedd police interviewed many of the pickets. On 14 November 1972, 31 men were arrested and questioned in relation to the events on 6 September 1972. They were released without charge, although some remained on police bail. On 14 February 1973, 24 of the men were either rearrested and charged, or summonsed, with offences arising out of the picketing. These men have come to be known as “ The Shrewsbury 24 ” and their cases were dealt with in the three trials with which this appeal is concerned. 25. Trial 1 was the only trial that contained a conspiracy count. The prosecution asserted that the defendants were the leaders of the plan to visit the sites in question and unlawfully to intimidate those who were working there. It was not disputed, however, that amongst the pickets who visited the sites at Shrewsbury and Telford some only intended to picket peacefully, saw and heard nothing before the journey to lead them to think that events were to unfold otherwise, and disapproved of, and were not associated with, any unlawful behaviour that occurred. Eighteen pickets were called to give evidence by the prosecution, and one was called by the defence. There was undisputed evidence that Terence Parry had produced a shotgun at the first Kingswood site, an event which the defence submitted acted as the trigger for the ensuing events. Dennis Michael Warren 26. The prosecution case was that Mr Warren was a leader at the Kingswood Site, as suggested by Arthur Hartshorn who was pulled from a vehicle. Anthony Alvis had identified Mr Warren as having been present, but he did not see him do anything in particular. Arthur Bateman claimed Mr Warren shouted, “ It’s a revolution ”. There were loud voices and noise at the Shelton site, but he did not see any damage. He did not know how a van came to be overturned. Police officers spoke to Mr Warren after the pickets had been to Kingswood and Shelton to warn him and other perceived leaders about any violence. Others said to be present when this occurred were Mr Tomlinson, Mr McKinsie Jones, Mr Llywarch and Mr Carpenter. There was evidence from various pickets who got back on the coach that Mr Warren and Mr Tomlinson had told some of those present to cool off. 27. Dennis Warren had been involved in the Chester and North Wales Strike Action Committee. He denied that intimidation or serious disorder had occurred, and he suggested that the damage had been slight. He rejected the suggestion that there was any intimidation at Kingswood, or that a man was pulled from a roller. Mr Warren explained that some men in small and isolated sites feared to come out on strike. His case was that there was no intention to terrify the workers, who were already intimidated by their employers. He suggested that allegations of violence in the press meant that some were fearful before the pickets even arrived. 28. He testified that the pickets were told to spread out and to inform those working at the site that there was a meeting, whilst he went to see the management. He denied making threats of violence or using violence. 29. At The Mount, Mr Warren said he went into the office and asked Terence Callaghan to sign the company agreement, before going to the canteen to address the workers. He did not see anyone flee in terror. Mr Callaghan initially told the police that it was Mr Llywarch who had said that a revolution was occurring but later he ascribed this statement to Mr Warren. 30. At Severn Meadows, Mr Warren testified that he spoke to Herbert Starbuck who was not prepared to sign any agreement. He then went to The Weir where he hastened to the site of a commotion on the other side of the river, but on his arrival the men were already walking away from whatever had occurred. He denied attacking the canteen. 31. Mr Warren maintained that he saw no damage at Brookside, nor stones thrown. He denied any involvement by himself or Mr Tomlinson in an attack on Clifford Growcott (who was admitted to hospital with a head injury where he was detained for a week, suffering from suspected concussion) and he suggested Mr Growcott had made false allegations. Henry James – a picket whose evidence had been the subject of considerable controversy, resulting in a specific warning by the judge to the jury – alleged that Mr Warren had said to Mr Tomlinson that throwing a missile was a “ good job done ”. 32. Woodside was suggested to have been the scene of a peaceful picket with no threats, damage or intimidation. Mr Warren indicated he did not go onto the site except to attend the meeting. There were contradictory accounts as to what occurred, in that Alan Goodwin claimed he saw Mr Warren throwing stones at the site whereas Peter Morgan thought Mr Warren’s speech was “ partly good ” and he made no mention of seeing any violence. John McKinsie Jones 33. John McKinsie Jones was a painter and decorator, a shop steward, a member of the North Wales and Chester Strike Action Committee and treasurer of the Flint Pickets. He testified there was shouting and noise at the Shelton site but he saw no damage being caused, and he did not know how a van came to be overturned. He was part of a group of men that was spoken to by police officers about the nature of the picketing after the visits to the first two sites. The judge noted that although there was not extensive evidence of Mr Jones doing any damage, he was “ there or thereabouts all through the day ”. 34. The judge summarised the case advanced by Mr Jones particularly by reference to his account of what happened at the first site. In a nutshell, he denied witnessing any intimidation or serious disorder. If such events had occurred, he did not participate in or see them. 35. At The Mount, he went into the site office but took no part in the discussion with Mr Callaghan. There were allegations of abusive language directed at Mr Smith and later Mr Starbuck (at Severn Meadows) which he denied. He also denied going to the canteen that had been damaged or harassing the workmen at Severn Meadows. As regards the suggested identification evidence that he had been involved in some of the relevant events, he said there must have been somebody else carrying an attaché case that day. 36. He went 50 yards onto the Brookside site before returning to the coach to get his case. He denied that he threw a stone or broke a window, or that he said to others “ if you come back you will be beaten up so you will never work again ” or “ we’re closing the site ”. He disputed the evidence that he had been with Mr Warren or Mr Tomlinson, or that he shouted at a machine driver and threw hard core and a brick. Ken O’Shea 37. Ken O’Shea was a shop steward and Chairman of the Denbigh Strike Action Committee as well as a representative of the Chester and North Wales Strike Action Committee. He was not alleged to have personally caused any specific damage; instead, he was said to have been a leader and to have given encouragement to others who committed offences. 38. He was the only defendant who did not give evidence, although he did make a statement to the police. He suggested that although disorder and damage had occurred which had shocked him, he was not a participant. 39. In the course of his interview, he suggested he had visited all the sites but he was not entirely certain. The judge summarised his account as being that he went to all sites except Shelton and that “ he did not go across the river at the Weir, and Maxwell Houses did not get out of the coach there, and at Woodside there is no evidence that he took part in any meeting or went on to the site ”. 40. He denied being a “ front runner ” when they first went on site, or that his presence at the front was encouraging to others due to his position as Chairman. He similarly denied being in the front at The Mount, where he said he walked straight through to a location by the river; he did not go to the canteen and did not see the compressor turned over into the water. 41. He described what he saw at Brookside as terrible, but he denied any personal responsibility for what occurred. 42. At The Oaks he went forward with the others to see the police, not – he maintained – as a leader but instead to hear what they had to say. He was in a photograph purportedly showing those in charge at the meeting at Brookside. Eric Tomlinson 43. Eric Tomlinson was recruited to a trade union by Mr Llywarch in the summer of 1972 while he was working on the Wrexham bypass. He became a shop steward, and then the Chairman of the Wrexham Strike Action Committee. 44. The judge summarised the essence of the case advanced by Mr Tomlinson particularly by reference to his account of what happened at the first site, in that he denied that either intimidation or serious disorder had occurred. He suggested that any damage was slight. 45. He denied that he had made an initial speech at Oswestry and, as with Dennis Warren, the burden of his evidence was that the allegations of damage and violence had been exaggerated. In interview he told the police that the damage was slight and was unplanned. At Kingswood, he shouted to one of the men who had thrown a brick at a JCB. 46. He challenged the assertion by Mr Parry (who, as set out above, produced a gun at the Kingswood site to frighten away the pickets) that he was part of the crowd that was causing damage. 47. He described the meeting at the Mount as being ideal, and he refuted the claim that he had referred to people being “ carried out in a box ”, as alleged by Alan Hordley. At The Weir he saw a compressor on its side and men running away who he thought had turned it over. However, he denied having crossed the river at The Weir and denied the allegation made by Arthur Newton that he had attacked a hut door with a shovel. 48. At Brookside he saw some damage as he went through the site, but nothing that looked deliberate, and he denied using any violence in relation to Mr Growcott. He saw a man smash a window and told him to stop. He disputed going further onto the site than the site of the school. He said there were was no intimidation and he denied the various specific allegations advanced against him, which included the description by Roger Castle of threats having been made by a bearded man with a Welsh accent dressed in a white shirt and jeans, who seemed to know about the man who had been injured by a brick. Mr Castle identified this individual as Mr Tomlinson from photographs shown to him by the police. This was the subject of dispute at trial, and Mr Tomlinson emphasised his strong Liverpudlian accent and the fact that he had been wearing a flowered shirt, together with a light cardigan and light trousers. 49. Mr Tomlinson denied going on to the site at Woodside, and he maintained he simply spoke to two men outside the site. He disputed that threats were made at the canteen. He challenged the suggestion that stones had been thrown or windows had been broken, or that he had said “ we will be back tomorrow or someone will ”. John Carpenter and John Elfyn Llywarch 50. As set out above, neither Mr Carpenter nor Mr Llywarch have approached the CCRC. Trials 2 and 3 51. Due to the absence of the original Crown Court papers and in light of the absence of a judgment following a contemporaneous appeal to this court, we have not attempted to summarise the individual cases against the relevant appellants. The Crown’s opening speech for Trial 2, however, has been preserved and it is clear that the case focussed on the allegations of affray and unlawful assembly at the Brookside site ( i.e. the first of the sites visited in the Telford area). 52. Although the allegations were focussed on this site at Brookside, the Crown also relied on a continuing course of conduct over the course of the day which included the five earlier sites at Kingswood, Shelton, The Mount, Severn Meadows and The Weir. 53. The Crown’s case in Trial 2, and it is assumed Trial 3, was based at least in part on the defendants’ alleged association with the leaders. 54. At the outset of his opening speech in Trial 2, Mr Maurice Drake Q.C., leading counsel for the Crown, acknowledged that the jury would inevitably be aware of the earlier trial, given the publicity that attended it. He indicated that the charges in Trials 1 and 2 were not precisely the same, and he encouraged the jury to put the earlier proceedings out of mind, save to the extent that the trial and its circumstances was referred to in the present case. However, he acknowledged that many of the prosecution witnesses were the same in both cases, and some of those convicted in the first trial had been identified as the leaders of the events in which the accused in the second trial were said to have been involved. For instance, Mr Drake observed “ You may think it is not insignificant – it is a matter for you to say – the position of some of these men in the dock right up amongst the leaders addressing the crown, uttering their threats plus promises at that stage”. In that sense, the convictions in Trial 1 – the findings of guilt as regards the “ leaders ” – would have had an impact on Trial 2. As Mr Drake made clear at the conclusion of the opening, “ These men, as I have indicated to you, are not put forward as the organizing ring leaders of what happened that day. Those organising ring leaders have been dealt with in a separate proceeding. ” Throughout the opening Mr Drake referred, therefore, to some of those who had been convicted in the first trial as the ring leaders. 55. The Crown called witnesses in Trial 2 who attributed particular instances of violence to the various defendants. By way of example, it was suggested that the appellants Derrick Hughes and Michael Pierce had been identified as having been in the site office with some of the leaders and that they behaved violently; Samuel Warburton was alleged to have climbed onto some scaffolding, thereafter causing damage to brickwork; Arthur Murray was seen carrying a short iron stake; Brian Williams was identified as throwing a brick which hit a man who was standing on scaffolding; Alfred James was seen carrying a pole and was alleged to have pushed over some brickwork; and John Clee was said to have uttered threats to a crane driver. 56. Very little is known of the prosecution and defence cases in Trial 3, albeit it is highly likely to have involved many similarities to Trial 2 in terms of the approach of the prosecution and the nature of the evidence. 57. The lack of materials in relation to Trials 2 and 3 is rendered of lesser significance than otherwise would have been the case by the concession by Mr Price Q.C. and Mr Forgan on behalf of the respondent that if the convictions relating to Trial 1 are to be quashed, it would be appropriate to quash the convictions relating to Trials 2 and 3 given the generic nature of the grounds of appeal. It follows that this judgment tends to focus on the circumstances of the first trial. The Grounds of Appeal Ground 1: The “Destroyed” Statements Submissions 58. The West Mercia Police Report (see [20] above) sets out many of the problems that faced the investigating police officers, which had led to prolonged enquiries with a view to tracing and prosecuting those responsible for the violence. The report rehearses in significant detail the areas covered in the various witness statements that had been taken, highlighting the parallel investigations by different teams and the cooperation between them. A schedule was prepared, which included, inter alia , a description of the events at the various sites, a list of the witnesses in each instance, together with a summary of their individual accounts together with any identifications that had been made. The police relied substantially on press photographs, including of the marches that had been held to promote publicity concerning the strike, instances of peaceful picketing and the events on 6 September 1972 at Telford. These photographs were shown to all the witnesses “ with a view to identifying persons involved in disorderly picketing – both in Shropshire and North Wales ”. In a section of the report, entitled The Statements , the following is set out: “104.The statements taken from witnesses fall into four main categories ( viz. non-striking workmen, miscellaneous witnesses, pickets and police officers). All these statements, whilst in Criminal Justice Act form and signed, include matter which may be held to be irrelevant and also some hearsay. By the very nature of the investigation, this form of statement was considered essential in the initial stages and is left on file for the information of counsel. (a) Non-striking workmen 105. All workers on the seven affected building sites were interviewed and statements recorded, embodying evidence of the disorder and damage and, where applicable, the identification from the photographs of those responsible. These constitute the majority of witnesses. 106. One point must be made here: due to the circumstances, confusion, and fear generated by the pickets, it would be unrealistic to think that all these could have been identified. Indeed, in the circumstances we have been singularly fortunate in the number that have been identified. […] (c) Pickets […] 110. […] it was decided to interview all the identified “passive” pickets. […] 111. Several […] made statements […] 112. One point to be made about these statements is that these men visited so many sites and […] finer details is short on accuracy. Basically, however, the story they tell is corroborated by other witnesses. (d) Police Officers 116.These are largely non-evidential as to specific offences but do fill in the background of the sites and […] details of the interview with the accused persons.” 59. The report goes on to suggest that some of what occurred was spontaneous and had not been planned in advance, for instance the events at Kingswood, Shelton roadworks, The Mount and Severn Meadows. Similarly, the visit to Telford was said to have been spontaneous. The authors then added: “126.The evidence against several […] organisers and leaders […] is not so strong. It mainly consists of the very act of organising their party’s attendance, in circumstances where disorder on a large scale must have been foreseen, and the fact that they were present on the sites with the pickets without trying to restore order (or paying lip-service in that respect). […]” 60. Mais J ordered that before entering the court to give evidence the witnesses should see their witness statements and the photographs that they had earlier viewed for identification purposes. 61. As set out above, during the first trial, and this was likely to have been the general position in Trials 2 and 3, the appellants accepted their presence at the various picketing sites but challenged the identification evidence to the extent that it was suggested they had been involved in criminality. As Mais J summed up the defence contention: “The accused, on the other hand, say that they took no part in any violence; they threatened no one; they acted peacefully; they did no damage. They say that if there was any violence, any threats, any intimidation, any damage, they were not parties to it, they did not lend their support and were not responsible in any way.” 62. To a significant extent during Trial 1, and again in all probability repeated in Trials 2 and 3, the witnesses were cross-examined on the basis of their statements, and any contradictions and omissions were highlighted. Additionally, Mr Platts-Mills (appearing for Mr Warren) during his closing speech made significant criticisms as to what he suggested was the selective and partial approach of the police. The judge dealt with this issue during the summing up as follows: “Mr Platts-Mills on behalf of Warren said this: there was a partial and selective weeding of witnesses. Admittedly the prosecution only called 200 witnesses. The police had interviewed and obtained statements from some 700. The Defence have been provided with the names of all such, so it is said. It is the duty of the Prosecution to adduce relevant evidence before you. That is the duty of the Prosecution. The Defence, providing they are given the facilities, know what other people have said. It is up to them, if need be, but the Prosecution’s duty is to produce the relevant evidence before you.” (our emphasis) 63. Before the three trials, the police revisited some witnesses in order to obtain, inter alia , identification evidence from them. Unlike the modern practice of taking a further or additional statement, the police – potentially, we observe, in many instances – elected instead to amend the earlier statement. A witness called Roger Castle provides an example of this. The first version of his statement that has been produced is dated 29 September 1972. In it he described the actions of some of the pickets, including what was allegedly said by their “ spokesman ”. He gave no description of this individual. The statement was then amended on 13 March 1973 (as indicated in the body of the statement) when PC Jones visited Mr Castle and showed him a number of photographs. This section of the statement, as it is to be inferred, commences with the words “ I have now been shown some photographs marked A – N ”. As set out in what is apparently, therefore, an amendment to the statement, he suggested that one of the individuals was the spokesman, who had been dressed in a white shirt and (he thought) in jeans, and who had a Welsh accent (see [48] above). 64. We interpolate to observe that this was a significant alteration, not only because it involved his identification of Mr Tomlinson as the spokesman, but he also described what he said was his clothing and accent. 65. The same course was apparently taken with a witness called Henry James (one of those picketing: see above at [31]). His statement was purportedly taken on 2 November 1972, although the date does not appear on the version of the document provided to defence counsel. There is no indication in the body of the statement that it was altered, but in evidence Mr James said that a section had been added to the end of the statement without his consent. There was no subscription, as with Mr Castle’s statement, to indicate it had been altered. It is perhaps notable that the section that Mr James suggested had been added begins with the words “ I have now been shown a set of photographs lettered A – N ”. 66. Again, the importance of this development is that there had been a significant change in the witness’s account during the process of seemingly adding to the original written/typed account, in that in the addendum Mr James asserted that Mr Pierce was one of the front runners at Telford and had charged up the site waving a stick. Mr James said that he had not seen this alleged occurrence and that it had been added to his statement without his permission. 67. It is unsurprising, therefore, that during the first trial, the appellants were forensically interested in the existence of any additional accounts from the witnesses. In support of this appeal, they rely on four instances when the issue arose as to the availability of earlier statements or reports from particular witnesses, which resulted in a response from the judge or prosecution counsel that would have had a tendency to deter them from pursuing this line of enquiry. In essence, two things occurred. Either the prosecution strongly implied that the appellants were in possession of all the potentially relevant materials, or the judge indicated that if the issue was pursued the witness’s statement would be made an exhibit and provided to the jury (in accordance with the practice at the time), or alternatively he chastised defence counsel for pursuing the issue. 68. By way of detail, during the cross examination of PC Jones, Mr Drake stated in front of the jury that all the statements, including those the defence were not entitled to see, had been made available. When Mr Turner-Samuels Q.C. on behalf of Mr Carpenter was asking Mr James about the addition, without his consent, to his witness statement as set out above (at [65]), the judge observed that this had involved “ a most outrageous suggestion ” by counsel, notwithstanding the fact that it was the witness who had volunteered this information. During the cross-examination of Alan Hordley, Mr Platts-Mills attempted to test the reliability of the witness by reference to changes in the account that he had provided to the police. The copy of the witness’s statement served on the defence in advance of the trial was dated 20 March 1973. However, on the last page there was a subscription: “ Statement amended from statements taken on 7 th and 13 th September, 1972 ”. Mr Platts-Mills was concerned to highlight how the witness’s account had changed during this process, and particularly that in the statement of 7 September 1972 he had not mentioned the “ the big man ” (Mr Warren) “ taking a poke at him ”. This statement had not been provided to Mr Platts-Mills until Mr Hordley was in the witness box and was being questioned by him during the trial. Mr Drake made it clear that if it was to be suggested that the witness’s account had changed, the relevant statements should be provided to the jury. When Detective Inspector Gradwell gave evidence, he indicated that he had dictated a statement on 7 September 1972. However, the statement he was shown during the trial, dated 30 March 1973, was not his original statement. The statement of 7 September 1972 does not appear to have been available. We note that he looked at photographs to make identifications within a few days of 6 September 1972. 69. It is on the basis of these clear foundations for the interest on the part of defence counsel in any changes in the accounts of the witnesses as to what had occurred, along with the apparent assertion by the prosecution that the accused had been shown all the statements – including those they were not entitled to see – that we turn to the lynchpin of this ground of appeal. This is to be found in paragraph 16 of a note of a consultation on 17 September 1973 at which Mr Drake and officers from West Mercia Police were present (held at Mr Drake’s home). This document was found in the National Archives in late October 2013. The note was prepared by an assistant chief constable (administration), Alex Rennie, who was present at the meeting. The note was sent with a covering letter dated 20 September 1973 to Mr Desmond Fennell, Mr Drake’s junior, who had not attended the consultation, as well as to the office of the Director of Public Prosecutions. Paragraph 16 sets out: “So that Counsel would be aware it was mentioned that not all original hand written statements were still in existence, some having been destroyed after a fresh statement had been obtained. In most cases the first statement was taken before photographs were available for witnesses and before the Officers taking the statements knew what we were trying to prove.” 70. It is important to understand the extent to which the terms of this note reveal what must have occurred. The incident was on 6 September 1972. The relevant photographs (from the press) were in the possession of the West Mercia Police by 13 September 1972. However, it is by no means clear by which date the officers understood what it was that the prosecution were trying to prove. Therefore, if the destroyed “ original handwritten ” statements in the first sentence, which represented “ some ” of the total, are the same as the “ first statement(s) ” in the second sentence (which seems to us to be the likely position), “ most ” of them would have been written at a time before the police had the press photographs (within 7 days of the incident) and before the police knew what those responsible for the prosecution were trying to prove. In our judgment it would be erroneous, therefore, to conclude that this subset of destroyed handwritten statements had necessarily been provided before 13 September 1972. The most that can be said with confidence is that there were handwritten statements from eyewitnesses which had been destroyed once i) the police were able to show the press photographs to the witnesses and ii) the officers knew what those responsible for these prosecutions were seeking to prove in the forthcoming trial. 71. One of the investigating forces, Gwynedd police, adopted the straightforward approach, which mirrors that of today, in which they took initial statements to which were added later additional statements. The statements taken by West Mercia Police, by way of contrast, were in various forms. Some were taken on a particular date and they provide no indication as to whether later amendments or additions were made. Others are dated March or April 1973 but are recorded as having been taken in September or October 1972. Some were clearly marked as being further statements. In other instances, it is evident that composite statements had been prepared, which combined the contents of various statements that had been prepared on more than one occasion (for this latter category, see [63], [65] and [68] above). A number of statements had details added to them (for instance under the heading “ further states ”). In other instances, the handwritten original statements are still in existence, a number of which were exhibited at trial. 72. Critically, however, none of the surviving statements indicates it is a replacement document, in the sense described in paragraph 16 of the note of 17 September 1973, namely that an earlier statement, or a version of it, had been destroyed leading to a replacement statement. We note that the committal proceedings were delayed because the statements “ were still being amended and signed following Counsel’s advice ”. 73. The CCRC considered whether it is possible to establish the approximate number of statements to which the note refers but concluded this would be a futile exercise. 74. There is an absence, therefore, of any reference in any of the documents in this case, save for paragraph 16 of the note of 17 September 1973, to this procedure of destroying an unknown number of the original hand-written statements. As we have already set out above, the report of the West Mercia Police to the Director of Public Prosecutions (“DPP”) dated 18 December 1972 summarises the difficulties faced by those responsible for the investigation and the reliance on photographs shown to witnesses when taking the statements. It records that “ the task would been virtually impossible without Press photographs: of various marches held to promote publicity in the strike, of actual peaceful picketing, and one set taken on a Telford site on “Black Wednesday” by the local news photographer […]” (see paragraph 102). It is of note that the Chief Constable of West Mercia Constabulary made no mention of the destruction of some statements in his letter of 18 December 1972 to the DPP which attached the report. Instead, he set out not, we observe, entirely accurately: “ The West Mercia Investigating Officers were fortunate in having press photographs of the pickets and they started by identifying persons on the photographs and then taking statements when identifications had been made. The officers considered that all statements taken should be included to present a full picture and also to enable counsel to discard those not required.” 75. The Chief Constable added, “ The officers are in no doubt that there may be some difficulties in identification after this lapse of time”. 76. The prosecution, with considerable industry for which we are grateful, have sought to demonstrate that there was a clear and consistent pattern to the way in which the civilian eyewitness statements were taken. There were over a hundred and forty individuals in this category. Mr Price Q.C., leading counsel for the Crown, has set out a number of key factors which include: i) There was clear utility in indicating in the margins of the witness statements the identity of the individuals identified in the photographs; ii) Only the last witness statement from the witness was placed in the trial bundle (this is described by Mr Price as an annotated account of a witness, recorded in a single document); iii) Statements sometimes incorporated the contents of earlier statements or referred to other statements ( e.g. George Evans’s statement is dated 21 March 1973 but at the conclusion it is set out “ Statement taken at […] at 8.35 on Thursday, 7 th September, 1972; and amended […] at 5.00 p.m. Wednesday 13 th September, 1972 ; Trevor Clarke’s statement is dated 3 March 1973 and at the conclusion it is recorded “ Statement taken at 11.55 a.m. on Thursday 28 th September, 1972 […]”;William Allen’s statement is dated 21 March 1973 but at the conclusion it is recorded “ Statement taken from statements taken on the 9 th and 20 th September 1972 ”; Robert Briscoe’s statement is dated 20 March 1973 and it concludes “ The details contained in this statement were originally reported to Police on 7 th September 1972, and added to on 3 rd October 1972 ”; George Stubbs’s statement is dated 21 March 1973 but at the conclusion it is recorded “ Statement amended from statements taken on the 8 th and 14 th September 1972 ”). 77. It is contended that it is reasonable to infer that the destruction of an original handwritten statement only occurred after the replacement had been taken and only when the latter contained the information set out in the original. It is suggested that: “Even if a statement taken prior to 13.09.72 had not already been typed and or photocopied by the time it was destroyed, its content was otherwise preserved in its replacement. That it should by then not have been copied or typed, is in any event submitted to be highly unlikely, not least because it would have been expedient when going to see a witness for a second time, so soon after the first with a photograph album, that the officer should also take with him a copy of the first statement, with which to begin the process of supplementing the narrative with additional information obtained from a review of the photographs”. Analysis 78. The case against all the appellants was essentially based on the testimony of eyewitnesses who were asked to look at photographs of potential suspects some days at least (but in some cases it might have been weeks or months) after the incidents had occurred. These events substantially predated our era of ubiquitous CCTV cameras and mobile telephones, which frequently provide a contemporaneous and continuous record of public events. Crossexamination in the circumstances of the present case, particularly in the absence of modern methods of verification, can be critical. One of the vital means of demonstrating that an eyewitness is unreliable is by careful examination of the opportunities the individual had for observation; their powers of perception and memory; mistakes they have made in recalling and recording what occurred; inconsistencies in their evidence; and omissions or inconsistencies revealed in, or by, previous statements. Proof of previous inconsistent statements is governed by sections 4 and 5 Criminal Procedure Act 1865 . Although criminal cases are infinitely various, based always on their particular facts, comparing and contrasting the various accounts of eyewitnesses can have a substantial – indeed, potentially determinative – impact on their credibility. 79. We are unpersuaded by Mr Price’s analysis of the witness statements and the conclusions that he suggests should be drawn. We can see no basis for concluding that the content of a destroyed witness statement would necessarily have been preserved in its replacement. Indeed, we would suggest that the opposite may – indeed, was likely – to have been the case, given the destroyed statements in all probability had a different focus than their later iterations, since they were taken before photographs were available and before the officers taking the statements knew what the Crown were seeking to prove. Furthermore, Mr Price’s contentions have been substantively undermined by the transcript of the cross-examination of Alan Hordley by Mr Platts-Mills. As set out above, Mr Platts-Mills sought to test the reliability of the witness by reference to changes in his account. The witness statement dated 20 March 1973 was an amendment from statements taken on 7 and 13 September 1972. Mr Platts-Mills was provided with the statement of 7 September 1972 during his cross-examination of the witness, and it was clear that the witness had not mentioned in this earlier version key assertions that featured in the later statements, for example that the “ the big man ” (Mr Warren) had taken “ a poke at him ”. 80. Similarly, again as set out above, Mr James testified that there had been a significant change to his statement when additional detail was added to the original iteration. It was suggested that Mr James had claimed that Mr Pierce (a Trial 2 appellant, William Michael Pierce) was one of the front runners at Telford and had charged up the site waving a stick. Mr James said that he had not seen this alleged occurrence and that it had been added to the end of his statement without his permission. The layout of the statement potentially supported Mr James’s contentions in this regard, demonstrating that additional allegations may have been added, once the photographs were available and the officers understood what the prosecuting authorities were seeking to prove. 81. In our view, these two examples exemplify the lack of a proper basis for the Crown to assert that we should infer that nothing of consequence was lost in the process of destroying this unknown number of original handwritten statements. The respondent’s detailed analysis set out above, albeit presented skilfully and helpfully by Mr Price, does not therefore support the conclusion that the contents of the destroyed statements would necessarily have been preserved in the later statements. Considered realistically, recollections on an unquantifiable number of occasions will have changed and additional details will have been provided as the statement-taking process unfolded, in a case which involved a large number of eyewitnesses. 82. As Mr Friedman Q.C. and Mr Newton, along with Mr Marquis and Ms Timan, have correctly submitted, in historic cases of this kind the court should apply the relevant statutory provisions as in force at the time of the original events, but the common law is to be applied as understood at the time of the present review. Lord Bingham C.J. put the matter succinctly in R v Bentley [2001] 1 Cr. App. R. 21: “5. Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the Court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time. […]” 83. The respondent does not dispute that this represents the correct approach. 84. This court has on a number of occasions considered the consequences when evidence of relevance has become unavailable. Relatively recently, in PR [2019] EWCA Crim 1225 , [2019] 2 Cr App R 22 (227), the issue under consideration was whether the trial judge was right to allow the case to proceed when evidence gathered by the police in 2002, relevant to the accused’s defence, had been destroyed by water damage and was unavailable for the trial in 2018. It was observed at [65]) that: “[...] there is no rule that if material has become unavailable, that of itself means the trial is unfair because, for instance, a relevant avenue of inquiry can no longer be explored with the benefit of the missing documents or records. It follows that there is no presumption that extraneous material must be available to enable the defendant to test the reliability of the oral testimony of one or more of the prosecution's witnesses. In some instances, this opportunity exists; in others it does not. It is to be regretted if relevant records become unavailable, but when this happens the effect may be to put the defendant closer to the position of many accused whose trial turns on a decision by the jury as to whether they are sure of the oral evidence of the prosecution witness or witnesses, absent other substantive information by which their testimony can be tested.” 85. The court noted at [66]: “[...] the question of whether the defendant can receive a fair trial when relevant material has been accidentally destroyed will depend on the particular circumstances of the case, the focus being on the nature and extent of the prejudice to the defendant. A careful judicial direction, in many instances, will operate to ensure the integrity of the proceedings.” And at 71: “It is clear that imposing a stay in situations of missing records is not a step that will be taken lightly; it will only occur when the trial process, including the judge’s directions, is unable adequately to deal with the prejudice caused to the defence by the absence of the materials that have been lost. The court should not engage in speculation as to what evidence might have become unavailable but instead it should focus on any “missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case. […]”. 86. The directions to the jury will frequently be of significance in this regard, as the court highlighted at [73]: “The judge's directions to the jury should include the need for them to be aware that the lost material, as identified, may have put the defendant at a serious disadvantage, in that documents and other materials he would have wished to deploy had been destroyed. Critically, the jury should be directed to take this prejudice to the defendant into account when considering whether the prosecution had been able to prove, so that they are sure, that he or she is guilty. […]” 87. If the destruction of the handwritten statements had been revealed to the appellants at the time of the trial, this issue could have been comprehensively investigated with the witnesses when they gave evidence, and the judge would have been able to give appropriate directions. We have no doubt that if that had happened, the trial process would have ensured fairness to the accused. Self-evidently, that is not what occurred. Instead, we are confronted with a situation in which an unknown number of the first written accounts by eyewitnesses have been destroyed in a case in which the allegations essentially turned on the accuracy and credibility of their testimony. As we have already described, we consider it correct to infer that the descriptions by the witnesses would in many instances have changed and developed as they were shown the photographs and as the police gained greater understanding of what those responsible for the investigation sought to prove. Those changes and developments could have been critical for the assessment by the jury of whether they were sure that the individual appellants were guilty of the charges they faced. The jury either needed to have this evidence rehearsed in front of them to the extent necessary, if the statements were still in existence, or they needed to be given clear and precise directions as to how to approach the destruction of the statements if that had occurred. Neither of those things happened, and in consequence we consider the verdicts in all three trials are unsafe. The common law has developed significantly in this area over the last half century, particularly as regards the obligation on the prosecution to retain a record of any variations in the statements of relevant witnesses (see the Code under the Criminal Procedure and Investigations Act 1996 (“CPIA”), paragraphs 4 and 5) and to disclose them if that material might reasonably be considered capable of undermining the prosecution's case or assisting the case for the accused. It is to be stressed that under paragraph 5 CPIA Code, the duty is to retain the final versions of witness statements and draft versions where the content differs, along with, inter alia , any material casting doubt on the reliability of a witness. As in Bentley , this court in arriving at this conclusion on the first ground of appeal has applied “ legal rules and procedural criteria which were not […] applied at the time ”. By the standards of today, what occurred was unfair to the extent that the verdicts cannot be upheld. Ground 2: The Red under the Bed Submissions 88. On 13 November 1973, the same day that the prosecution closed its case in the first trial, an undoubtedly political documentary entitled “ The Red under the Bed ”, compiled and narrated by the well-known former Labour MP and controversialist Woodrow Wyatt, was broadcast nationwide by Granada Television. The local daily press had indicated that the programme was to be shown, inter alia , under the heading “ Reds in Industry ”. A significant part of the thesis of the programme was that there was a new and alarming phenomenon: “ violent picketing and intimidation ”. A panel discussion followed the presentation by Mr Wyatt who had suggested, as part of his analysis, that the Communist Party was determined to take over the Labour Party by fair means or foul. The presentation included controversial comments by a journalist, Simon Regan, to the effect that the union leadership was prepared to turn a blind eye to unlawful tactics, such as making threats to kill. A Conservative MP, Geoffrey Stewart-Smith, suggested at the end of the panel discussion that the Building Workers strike was an example of “ blatant communist influence ”, and he expressed the view that " the violence in the building strike was caused by a group, the Building Workers Charter, operating in defiance of their union leadership, indulging in violence and flying pickets and this is an example of these people operating, opposing free trades unions, opposing the Labour Party ”. 89. Although not “ in shot ” for more than a short period, Mr O’Shea, Mr Tomlinson, Mr Warren and Mr Carpenter can be seen marching in Shrewsbury Town Centre on 15 March 1973 (which coincided with their first appearance in the Magistrates’ Court in connection with the present proceedings) towards the start of the documentary. The Magistrates’ Court is located in the same building as the Crown Court in the Shirehall where the three trials were held. 90. Complaints are made concerning the cooperation by a Foreign Office agency called the Information Research Department in making the programme (it seems they a “ a discreet but considerable hand in the programme ”, per T.G. Barker the Head of the Department). It is highlighted that Simon Regan’s reporting had been discredited in relation to events in Birmingham on 23 August 1972 and in Corby on 30 August 1972. The relevant police forces had dismissed his reports of a particular incident on 23 August 1972 as being “ mistaken ”, alternately “ a figment of imagination ”, and that he had either not been present or had “ completely fabricated ” the alleged events on the 30 August 1972. The Prime Minister of the day, Edward Heath, praised the programme with a note in his own hand, “ We want as much as possible of this ”. 91. The programme was brought to the attention of the judge and he viewed a copy of it in Chambers. The context of his viewing was that the representatives of Mr Carpenter applied for the makers of the film, Anglia TV and another regional television company, Granada TV, to be proceeded against for contempt. The judge was told that Shrewsbury Crown Court, defendants and the demonstrations in Shrewsbury had been shown. The version seen by Mais J did not include the panel discussion, which he was told was “ uneventful ”. The judge was directed to Mr Regan’s claim that he had infiltrated pickets and what he described as violence during strike action in southern England. The judge was unaware of the adverse comments by the police concerning Simon Regan and the involvement of Information Research Department, as set out above. 92. The judge directed the jury as follows: “ You will not be dissuaded or allow your judgment to be influenced by outside considerations. ” 93. The appellants submit the judge did not take sufficient steps to ensure that the adverse publicity did not undermine the fairness of the proceedings. It is argued that he should have enquired as to whether any of the jurors had viewed the programme and, if this was the case, they should either have been discharged or given robust directions to ensure that they did not allow any prejudice created by the programme to affect their verdicts. It is argued that the judge’s reaction to the programme was, in part, vitiated by the lack of information set out above as to Mr Stewart-Smith’s comment, the criticisms by two police forces of Mr Regan and the role played by the Information Research Department. In summary, it is submitted the programme undermined the fairness of the proceedings and that by contemporary standards the prejudice it created was not addressed in an appropriate manner by directions to the jury. Discussion 94. There is no doubt, in our judgment, that in 2021 the court and the parties would take steps to seek a postponement of the broadcast of a programme such as Red under the Bed until after the trial, given it involved consideration, in an uncompromising format, of some of the political issues underpinning the national building workers’ strike that was clearly relevant to the ongoing trial. Alternatively, as with contemporary internet material, the jury would be directed not to view it and they would be given a robust direction not to undertake any research and to disregard any potentially prejudicial material that they might encounter that touched on the issues in the case. 95. However, the question for this court is whether the risk that the programme may have been seen by one or more jurors renders the verdicts in the three trials unsafe. We have no doubt this is not the case. It is not suggested that there was an attempt by the executive to prejudice the proceedings, albeit at one stage it appeared that this contention was being advanced. It follows that the criticisms, for instance, of the involvement of the Information Research Department and the apparent attitude of the then Prime Minister are irrelevant to this Ground of Appeal. The issue is the impact of the broadcast on the safety of the conviction – whether the content would have affected the jury’s fair appreciation of the evidence – rather than an assessment of the motives of those who participated in its creation. In oral submissions before us, the argument was not advanced under the heading of abuse of process, on the basis that the proceedings constituted an abuse of executive power. It is not suggested, in this sense, that the circumstances of the trial offended “ the court's sense of justice and propriety ” (per Lord Lowry in Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42 , at p. 74G) or undermined “ public confidence in the criminal justice system ” thereby bringing it into disrepute (per Lord Steyn in R v Latif 1996 2 Cr App R 92 at p. 100). Factors such as the involvement of the Information Research Department and the views of Mr Heath are, therefore, no doubt of historical and political significance, but they fall outside the bounds of this court’s consideration. 96. This trial occurred in a charged political atmosphere of which the jury would undoubtedly have been aware, which included the notably polarised industrial relations of which the allegations against these appellants were said to have been an example. There was, on a general level, no apparent dispute by the appellants that violence and criminality had occurred on 6 September 1972 within this significantly unsettled context (although it was not accepted this necessarily happened at each of the six sites and there were differing levels of acceptance within the appellants’ accounts as to how serious it had been). The issue was whether the appellants had been correctly identified as being involved in the offences. The trials would have been focussed on a careful analysis of whether each accused had been a participant in, or as having instigated or encouraged, the violence. The summing up by Mais J in the first trial amply bears out this conclusion. 97. The main part of the programme was an avowedly anti-communist exercise in journalism – it was inescapably recognisable as such – with a strong message that the labour movement and the Labour Party were at risk of being infiltrated or taken over. The panel discussion that followed included a wide range of views across the political spectrum. It is notable that no defence counsel, whose number included barristers of considerable eminence, applied for the jury to be discharged and the matter was not raised during the first appeal, during which a wide range of complaints were ventilated. Although the judge’s direction to the jury on disregarding extraneous considerations was limited to a single sentence, as set out above, this was not raised as having been insufficient, either with the judge at the time or with this court on appeal. To the extent that some appellants were fleetingly shown within the film footage, they had chosen to attend a march in Shrewsbury as part of an exercise of bringing the dispute, and the politicised trial (as they regarded it) to the attention of a wider audience. Although they had not sought to be involved in a documentary of this kind, they had aimed at gaining publicity. 98. Given the political climate of the early 1970s and the clear issues in the case, we are confident that any juror who saw this programme would not have been prejudiced against the appellants as a consequence. They would have understood that it was essentially and avowedly polemical, and that it was unrelated to the decision that had to be made as regards each accused: were they sure the defendant they were considering had been involved in the criminality reflected in one or more of the counts on the indictment. Conclusion 99. It follows that under Ground 1, the convictions of all the appellants in Trials 1, 2 and 3 are unsafe. Their appeals are allowed and all the verdicts in relation to them are quashed. 100. For obvious reasons there is no sensible prospect of a retrial, nor would it be in the public interest to retry these appellants after such a significant gap of time in the particular circumstances of these cases. Postscript: The Extant Materials 101. This trial took place nearly 50 years ago, in the pre-digital era, when the court records (self-evidently in paper form only) were retained for a set period following the convictions and any subsequent appeals, and thereafter destroyed. Serendipity governed what, if anything, survived beyond that date, perhaps in the chambers of counsel, the offices of solicitors, with the relevant investigating police force, at the National Archive, with the accused or with others with an interest in the proceedings. This case provides the clearest example as to why injustice might result when a routine date is set for the deletion and destruction of the papers that founded criminal proceedings (the statements, exhibits, transcripts, grounds of appeal etc .), particularly if they resulted in a conviction. At the point when the record is extinguished by way of destruction of the paper file (as hitherto) or digital deletion (as now), there is no way of predicting whether something may later emerge that casts material doubt over the result of the case. 102. Given most, if not all, of the materials in criminal cases are now presented in digital format, with the ability to store them in a compressed format, we suggest that there should be consideration as to whether the present regimen for retaining and deleting digital files is appropriate, given that the absence of relevant court records can make the task of this court markedly difficult when assessing – which is not an uncommon event – whether an historical conviction is safe. 103. If it is decided to undertake this piece of work, it will self-evidently involve reconsideration of the HMCTS Record Retention and Disposition Schedule dated 19 August 2020.

```yaml citation: '[2021] EWCA Crim 413' date: '2021-03-23' judges: - The Honourable Mr Justice Mais and HHJ Chetwynd - LORD JUSTICE FULFORD - MR JUSTICE ANDREW BAKER - MR JUSTICE GOOSE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Case No: 201501170 Neutral Citation Number: [2016] EWCA Crim 670 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT HIS HONOUR JUDGE MATTHEWS Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/06/2016 Before : LORD JUSTICE GROSS MRS JUSTICE THIRLWALL DBE and MRS JUSTICE LANG DBE - - - - - - - - - - - - - - - - - - - - - Between : Saber Mohammed Ali Ahmed Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Stella Harris (instructed by Michael Purdon Solicitors ) for the Appellant Mr Andrew Jackson (instructed by CPS ) for the Respondent Hearing date: 29 th April 2016 - - - - - - - - - - - - - - - - - - - - - JUDGMENT MRS JUSTICE THIRLWALL DBE: 1. Saber Ahmed 31, was tried for murder in the Crown Court at Birmingham in 2006 before HHJ Matthews and a jury. On 3 August 2006 he was acquitted of murder and convicted of manslaughter on the grounds of diminished responsibility. 2. On 20 October 2006 HHJ Matthews sentenced him to life imprisonment with a minimum term of 3 years and 6 months, less 462 days spent on remand. The judge recommended deportation. 3. This application referred to us by the single judge is for permission to appeal out of time against sentence and for permission to rely on fresh evidence. We give leave to appeal out of time and we permit the appellant to rely on fresh evidence for reasons we shall give later in this judgment. Facts 4. On 12 July 2005 the appellant, then 21, went to a police station in Digbeth, Birmingham and volunteered that he had killed his friend, Mr Harun, by stabbing him. Evidence at trial revealed that he had stabbed him three times in what the judge was to describe as a brutal killing. There was no provocation. Mr Harun was described as a peaceful and gentle man. 5. Dr Maganty, a consultant at Reaside hospital, gave evidence at trial on the central issue in the case namely the appellant’s mental state at the time of the offence. His evidence no doubt contributed to the jury’s decision that the appellant’s responsibility for the killing was diminished. Dr Maganty and Dr Kenny Herbert also gave their opinions as to the nature of the appellant’s illness as at the date of trial. Before sentencing, the judge considered further reports from Dr Maganty and Dr Moholka, forensic psychiatrist. They confirmed that the appellant was suffering from a severe depressive episode with psychotic symptoms but it was not of a nature or degree which made it appropriate for him to be detained in hospital. As of the end of September 2005 while on remand in prison he was being treated with a high dose of Olanzapine, an anti psychotic drug. Before that medication was prescribed he had attacked a female member of the prison staff. By the time of sentence he was complying with his regime of medication and had some insight into his illness. When he was not given his medication his condition relapsed. 6. Very little was known about the appellant beyond the facts of the offence and his conduct in prison He had left his home in Sudan and entered this country illegally in about 2004 and his application for leave to remain had been refused. By his own account he had no previous convictions and had not previously been in trouble with the police either in this country or in Sudan. 7. It is plain that the judge carefully considered the appellant’s mental health. He said “This is not a case where the court can make an order for your admission to and detention in hospital because the mental illness from which you are suffering is not presently of a nature or degree which makes it appropriate for you to be detained in hospital”. The judge was there referring to one of the conditions for the imposition of a hospital order under section 37 of the Mental Health Act 1983 . Section 37 reads: Powers of courts to order hospital admission or guardianship 37.-(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law … and the conditions mentioned in sub-section (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order … … (2) The conditions referred to in subsection (1) above are that- (a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either- (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or (ii) … and (b) the court is of the opinion having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section 8. The judge concluded, correctly, that an order under the Mental Health Act was not open to him. Manslaughter being a serious offence within the meaning of the Criminal Justice Act 2003 , he considered first the provisions of part 5. He found the appellant dangerous and concluded that only a life sentence would protect the public. There was no arguable error in the judge’s approach or in the sentence he imposed in the light of the seriousness of the offence and the evidence about the appellant’s mental illness. Unsurprisingly there was no appeal. Further offence 9. In December 2011 in Winchester prison the appellant, in a state of some agitation, confronted another inmate and slashed his face with a razor blade attached to a toothbrush. He was charged with an offence contrary to section 18 of the Offences against the Person Act 1856. Between then and March 2012 his mental health deteriorated very markedly indeed. The appellant was held in isolation and received medical attention but he became extremely unwell, both physically and mentally. He was transferred to Reaside Hospital under section 47 of the Mental Health Act 1983 . He has been at Reaside ever since. 10. The appellant was very unwell and unfit to plead for almost a year after the offence. He recovered to some extent and in December 2012 he pleaded guilty to section 20 wounding. He was sentenced by HHJ Thomas QC at Birmingham Crown Court on 6 February 2013. The judge had before him reports from two psychiatrists, one of whom was the appellant’s treating psychiatrist, Dr Bourne. Dr Bourne gave evidence as to her recommended mental health disposal. The judge imposed an order under section 37 of the Mental Health Act and combined it with a restriction order under section 41 of the Mental Health Act, without limitation of time. Section 41 reads: Power of higher courts to restrict discharge from hospital 41.-(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, […] and an order under this section shall be known as “a restriction order”. (2) A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court. (3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows- (a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below … (c) the following powers shall be exercisable only with the consent of the Secretary of State, namely- (i) power to grant leave of absence to the patient under section 17 above; (ii) power to transfer the patient in pursuance of regulations under section 19 above … ; and (iii) power to order the discharge of the patient under section 23 above; and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible clinician; and (d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time; and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule. … 11. Orders under section 37 and section 41 are often imposed together. Where a restriction order is imposed without limit of time the patient continues to be liable to be detained or recalled until he is absolutely discharged, if ever. 12. The judge said that had he been minded to pass a determinate sentence it would have been 2 years’ imprisonment. It is plain from the judge’s sentencing remarks that he was satisfied that (i) the appellant was suffering from a serious mental illness (ii) section 37 would address the appellant’s psychiatric needs (iii) section 41 would protect the public in the event that release of some sort was being considered, (iv) the mental health disposal would not cut across the life sentence which remained in effect so that the appellant would not be released save by the parole board. The current position 13. In addition to the life sentence the appellant is currently subject to orders under the Mental Health Act as follows:- i) an order under section 47 MHA with a linked order under section 49 ii) an order under section 37 MHA with a linked order under section 41 . 14. Section 47 provides for the removal to hospital of a person serving a sentence of imprisonment on the direction of the Secretary of State. Before doing so the Secretary of State must be satisfied from reports from two medical practitioners that the prisoner is suffering from a mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, effectively the same test as for an order under section 37 . A transfer direction has the same effect as a hospital order under section 37 (see section 47(3) ). 15. Section 49 mirrors section 41 ; where the Secretary of State makes a transfer direction under section 47 he may also direct that the person be subject to the special restrictions set out in section 41 . Such a direction has the same effect as an order made under section 41 and is known as a “restriction direction” (see 49(2)). 16. It is convenient to set out here two further provisions of the Act, s45A and 45B. Originally implemented in April 2005, they have been in force in their current form since 3 November 2008. They read as follows: Power of higher courts to direct hospital admission 45A.-(1) This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law- (a) the conditions mentioned in subsection (2) below are fulfilled; and (b) […], the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment (“the relevant sentence”) in respect of the offence. (2) The conditions referred to in subsection (1) above are that the court is satisfied, on the written or oral evidence of two registered medical practitioners – (a) that the offender is suffering from mental disorder; (b) that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and (c) that appropriate medical treatment is available for him. (3) The court may give both of the following directions, namely- (a) a direction that, instead of being removed to and detained in a prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a “hospital direction”; and (b) a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a “limitation direction”). (4) A hospital direction and a limitation direction shall not be given in relation to an offender unless at least one of the medical practitioners whose evidence is take n into account by the court under subsection (2) above has given evidence orally before the court. (5) A hospital direction and a limitation directions shall not be given in relation to an offender unless the court is satisfied on the written or oral evidence of the approved clinician who would have overall responsibility for his case, or of some other person representing the managers of the hospital that arrangements have been made- (a) for his admission to that hospital; and (b) for his admission to it within the period of 28 days beginning with the day of the giving of such directions; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety. … (8) Section 38(1) and (5) and section 39 above shall have effect as if any reference to the making of a hospital order included a reference to the giving of a hospital direction and a limitation direction. (9) A hospital direction and a limitation direction given in relation to an offender shall have effect not only as regards the relevant sentence but also (so far as applicable) as regards any other sentence of imprisonment imposed on the same or a previous occasion. 45B… With respect to any person- (a) a hospital direction shall have effect as a transfer direction; and (b) a limitation direction shall have effect as a restriction direction. … 17. At the time of the original sentence section 45A applied only where the offender was suffering from psychopathic disorder. The appellant did not (and does not) suffer from a psychopathic disorder and so an order under Section 45A was not open to the judge. 18. Whilst the effect of a restriction direction (under section 49 or section 45B) is the same as a restriction order under section 41 there is an important difference as to duration; a restriction direction ceases to have effect on the person’s release date. This is the effect of Sections 50(2) and (3) of the Act which read as follows: 50.- … (2) A restriction direction in the case of a person serving a sentence of imprisonment shall cease to have effect, if it has not previously done so, on his release date. (3) In this section, references to a person’s release date are to the day (if any) on which he would be entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if the transfer direction had not been given; and in determining that day there shall be disregarded- (a) any powers that would be exercisable by the parole Board if he were detained in such a prison or other institution, and (b) any practice of the Secretary of State in relation to the early release under discretionary powers of persons detained in such a prison or other institution Fresh Evidence 19. There was before us comprehensive fresh evidence which we heard and read de bene esse. There were reports dated 22 May 2012; 1 February 2013; 10 February 2014; and 17 November 2015 from Dr Maganty and reports dated 22 January 2013; 1 February 2013; 28 November 2014; and 10 December 2015 from Dr Bourne, the appellant’s Responsible Clinician. Both of them gave evidence before us. 20. Dr Maganty has reconsidered all of the information that was available in October 2006, everything that has happened since, and has revisited his opinion. He is firmly of the view that the diagnosis he made in 2006 was wrong. The development of the appellant’s condition over the last ten years demonstrates that he is now and was then suffering from schizo-affective disorder. 21. In a report dated 1 February 2013, Dr Bourne includes a detailed analysis of the 6 years the appellant spent in prison. He was very disruptive, difficult and, at times, violent. He did not take his medication either because he did not want to or, more frequently, because it was not provided to him. His behaviour resulted in his being moved from prison to prison and, frequently, being held in isolation in increasing distress. This led him to develop symptoms of post traumatic stress disorder on top of the deteriorating course of his schizoaffective/phrenic disorder. 22. We are satisfied that the evidence of the period 2005-2012 reveals the course of a deteriorating mental condition. We accept that the appellant’s conduct at the time of the killing was the first manifestation of what was to become an enduring and relapsing condition. This is not a case where the appellant has developed a new or different disorder in prison. The original diagnosis has been proved wrong by the course of the illness over many years. 23. We are satisfied that it is necessary in the interests of justice to receive the fresh evidence. It provides a firm foundation for the appeal against sentence to the merits of which we now turn. 24. The questions for the court are those set out by this court in R v Vowles [2015] EWCA Crim 45 . At paragraph 51 Lord Thomas CJ said; “it is important to emphasise that the judge must carefully consider all the evidence in each case and not, as some of the early cases have suggested, feel circumscribed by the psychiatric opinions. A judge must therefore consider, where the conditions in s37 (2)(a) are met, what is the appropriate disposal. In considering that wider question the matters to which a judge will invariably have to have regard include (1) the extent to which the offender needs treatment for the mental disorder from which the offender suffers (2) the extent to which the offending is attributable to the mental disorder (3) the extent to which punishment is required and (4) the protection of the public including the regime for deciding release and the regime after release. There must always be sound reasons for departing from the usual course of imposing a penal sentence and the judge must set these out”. 25. At paragraph 53 the court reminded sentencing judges of the provisions of section 45A and at paragraph 54 directed them to approach matters in the order we now follow. The extent to which the offender needs treatment for the mental disorder from which he suffers 26. Unlike the sentencing judge we have had the great advantage of receiving detailed and cogent evidence of the course of the appellant’s illness, the effect of treatment, its progress and its remission over many years. We have no doubt that the appellant has a mental disorder that needs continuing hospital treatment, that he responds to it and that it has been successful in controlling his illness. 27. We are satisfied that the conditions in section 37(2)(a) are met. We turn to section 37(2)(b) : having regard to all the circumstances and to the available methods of dealing with the appellant are we satisfied that an order under section 37 is the most suitable method of disposing of the case? We have in mind the questions posed in Vowles. To what extent is his offending attributable to his illness? 28. Although very little is known of the appellant before he came to the attention of the police in 2005 his conduct over the 11 years since then is well documented. It is inescapable that while his mental health was untreated he offended or, at least, engaged in highly antisocial behaviour in prison. Since 2012 he has not offended nor has he been disruptive or antisocial. We have considered whether the reason for this is simply the close supervision in a hospital environment which has reduced his opportunities for criminal or disruptive behaviour. We are satisfied that confinement and supervision are the context of the change and improvement, close confinement and isolation in prison did not have the same effect even when medication was available to him. We are satisfied that the reason for the absence of criminal or any other anti social behaviour is the effective control of his schizo-affective disorder. We accept that the treatment for his symptoms of PTSD have also made a contribution to his stability. In our judgment the evidence is now all one way; the appellant offends only when he is mentally ill. Mr Jackson, who appeared for the Crown, did not seek to persuade us otherwise. This does not mean that the appellant bears no responsibility for the killing. His responsibility was diminished, not eliminated but it means that when the question of release is to be considered his mental health will be the fundamental issue – whether it is considered by the parole board or the First Tier Tribunal. We should add (dealing with the third question in Vowles ) that he has already served the minimum term imposed upon him, the punitive element of his sentence. The regime for deciding release 29. The regime for release on life licence is different from the regime for release on a hospital order/restriction order. The focus for the parole board is broad; they consider the likelihood of reoffending and the risk to the public resulting from it. Under the regime of sections 37 and 41 the focus is narrower, it is entirely on the appellant’ mental health. If that does not relapse a person is not recalled even if he offends. Given our finding that the appellant offends only when mentally ill it is plain that in this case there is no practical difference between the answers to the broad questions to be asked by the parole board and the answers to the narrow question to be asked by the FTT when considering whether the appellant should be released into the community . On the evidence we have seen the overwhelming likelihood is that the appellant will be released either on licence or, were we to accede to the appeal, under the restriction order. The regime after release 30. The appellant’s illness is life long. The seriousness of the offence of which he was convicted in 2006 and the premeditated violence in 2011 demonstrate that when his mental illness is untreated the appellant is very dangerous. Under a life licence recall generally occurs when an offence is committed. Given the likely nature of the offence this would be far too late for the appellant and the public. We were concerned therefore to compare the regime of supervision were the appellant on life licence with the regime were he to be conditionally discharged under the auspices of a section 41 order. Because the appellant has been subject of orders under the Mental Health Act we have the advantage of seeing how things have been managed in practice. The appellant has been free of psychosis for well over a year. He has been permitted frequent unescorted leave in the community. The leave is planned by the Responsible Clinician, Dr Bourne and the programme is approved by the Ministry of Justice. So far leave has been successful. In addition the appellant now has some responsibility for his own medication. He is stable and lucid. It is proposed gradually to rehabilitate him into the community and if he remains well, to grant him a conditional discharge. He would be released (but subject to recall) with the support and supervision of the Community psychiatric service, including a psychiatrist, supervisor and community psychiatric nurse – with a 24 hour mental health placement available to him. If there were to be any signs of relapse they would be picked up at an early stage and would lead to a swift (ie within hours) recall to hospital. 31. Dr Bourne explained that under a section 41 order the appellant would be monitored and supervised by an experienced mental health team, including her, or her successors. Unlike the prison staff who dealt with him between 2005 and 2012 they can recognise and act upon the early warning signs of relapse. These would be picked up well before there was any risk of criminal behaviour. It is Dr Bourne’s opinion that the appellant is sufficiently motivated to draw to the attention of his supervisors any concerns he may have about his deteriorating mental health. He knows the signs he should look out for. It follows, Dr Bourne opined, that deterioration would be identified early and would lead to a speedy recall to hospital and appropriate in-patient treatment. 32. Under the life licence regime the system of monitoring is much less close and much less frequent. Furthermore the probation officers do not have the clinical experience to recognise early stage deterioration of mental health. 33. Although there can never be certainty on such matters, on the evidence we have heard we are satisfied that public safety may much better be secured upon the appellant’s eventual release by the regime under a restriction order under the Mental Health Act. Mr Jackson for the prosecution did not seek to persuade us otherwise. 34. There is a further issue; the appellant has family in Khartoum. He has made it clear to the clinical team that he would wish to return to be with them in Sudan as soon as he is able to do so. The team has been in touch with family members in Khartoum and with psychologists and other professionals who will be in a position to assist in treating the appellant once he reaches his home country. Dr Bourne and the rest of the clinical team are satisfied that once the appellant has spent some months in the community in the United Kingdom, under their care, his future mental health will be best secured if he is able to live near his family in Sudan. The team at Reaside have had experience in recent years in achieving the successful resettlement of patients in their country of origin. The precise mechanics of how that may be achieved is not for us. 35. It is not open to this court to impose an order under section 45A alongside the life sentence, since an order under section 45A was not available to the original sentencing court, see section 11 (3)(b) of the Criminal Appeal Act 1968 but we are satisfied that section 45A, even if available to us, would not be the right disposal. The doctors do not expect the appellant’s health to deteriorate in the short or even the medium term. But deterioration at some stage is inevitable, even if the appellant consistently takes his medication and complies with treatment. It is imperative that he is subject to appropriate expert supervision on his release and thereafter. That is not possible under S45A. Conclusion 36. We are satisfied that in all the circumstances of this case it is appropriate to impose a hospital order with a restriction order. This is no reflection on the sentencing judge who passed the only sentence available to him on the evidence at the time. We quash the life sentence and we impose orders under Sections 37 and 41 of the Mental Health Act 1983 , the latter without limit of time. To that extent the appeal is allowed. 37. We direct that i) a copy of this judgment be provided by the appellant’s advisers to Dr Bourne, to be held on the NHS file of the appellant and that ii) a further copy be provided by the CPS to the relevant officials dealing with the appellant’s immigration status at the Home Office and to those dealing with his case at the Ministry of Justice.

```yaml citation: '[2016] EWCA Crim 670' date: '2016-06-09' judges: - LORD JUSTICE GROSS - MRS JUSTICE THIRLWALL DBE - MRS JUSTICE LANG DBE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200705462/A2 Neutral Citation Number: [2008] EWCA Crim 667 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 27th February 2008 B e f o r e : SIR IGOR JUDGE (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE FORBES MR JUSTICE MACKAY - - - - - - - - - - - - - - - - - - - - R E G I N A v AHMED OSMAN - - - - - - - - - - - - - - - - - - - - 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 M Fox appeared on behalf of the Appellant Mr M McDonagh appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE FORBES: On 4th September 2007, on rearraignment at the Inner London Crown Court, this appellant pleaded guilty to wounding with intent, contrary to section 18 of the Offences Against the Persons Act 1861 . On 2nd October 2007 he was sentenced to five-and-a-half years' detention in a young offender institution, with a direction that 164 days spent on remand in custody should count towards that sentence. He now appeals against sentence with the leave of the Full Court. 2. The brief facts are these. On the afternoon of 18th April 2007 the complainant, Edwardo Luiz, was on a bus with two friends travelling in the direction of Camden. One of Mr Luiz's friends decided that he wished to visit his old school. Accordingly they all got off the bus near to the school. They encountered the appellant, who spoke them. It appears that there was then some form of verbal altercation between them. The appellant later claimed that he was slapped by one or two of Mr Luiz's group before Mr Luiz and his friends went into the school, where Mr Luiz's friend talked to some of his old teachers. 3. A few minutes later Mr Luiz went out into the school car park to get some fresh air. Almost immediately he saw the appellant walking in the school grounds. The appellant approached Mr Luiz and pulled a kitchen knife out of the front of his trousers. Mr Luiz tried to escape by backing away from the appellant but stumbled and fell on his back. As Mr Luiz lay on the ground the appellant stabbed him once in the left leg. The knife then fell to the ground and the appellant cut his own hand on it. Mr Luiz managed to get to his feet and run into the school. When he looked out of the window he saw the appellant speaking to a community support officer. Apparently, the appellant told the community support officer that a boy had been cut and had gone into the school. The officer therefore went into the school to investigate the matter and this enabled the appellant to make good his escape. 4. Mr Luiz was taken to hospital. Whilst he was waiting there for treatment the appellant was brought in for treatment to his bleeding hand. Mr Luiz then identified him as his assailant. Mr Luiz was treated for a 2 centimetre half inch stab wound to his left thigh. The appellant was subsequently arrested. When interviewed he denied any involvement in any stabbing of Mr Luiz. 5. When passing sentence the judge accepted that the appellant might have been provoked by being slapped as he claimed. The judge said that as a result the appellant had lost his self-control and had gone and armed himself with a substantial kitchen knife. He had then waylaid Mr Luiz as he left the school and had stabbed him in the leg. The judge rightly observed that the courts have to make clear that those who arm themselves with a potentially lethal weapon and then go on to use it would be dealt with severely. The judge correctly concluded that the provocation to which the appellant had been subjected paled into insignificance compared with the appellant's conduct in inflicting a deliberate stab wound, albeit not one of the worst kind. 6. Having taken everything into account the judge came to the conclusion that the appellant was not a dangerous offender for the purposes of section 228 of the Criminal Justice Act 2003 . Accordingly he proceeded to pass the determinate sentence to which we have earlier referred. 7. The appellant is now aged 18, having been born on 8th August 1989. He was 17 at the date of the offence. On 5th October 2006 at the Thames Juvenile Court the appellant pleaded guilty to offences of offering to supply and the possession of cannabis. He was made the subject of a referral order for 6 months. He has also received cautions for criminal damage and the possession of cannabis. It also appears that he was made the subject of an interim anti-social behaviour order on 13th January 2007. 8. The pre-sentence report, dated 28th September 2007, made no specific recommendation. However, the probation officer assessed the appellant as presenting a medium risk of reoffending and a high risk of serious harm to the public. According to the probation officer the appellant's breaches of the anti-social behaviour order clearly demonstrated his total disregard for court orders. The probation officer concluded his report by expressing the view that the appellant tended to minimise his responsibility for the offence in question and that he showed little remorse. 9. On behalf of the appellant, Mr Fox submitted that a sentence of five-and-a-half years' detention was manifestly excessive in all the circumstances, having regard to the appellant's age, his non-violent previous record, his plea of guilty (albeit a late plea) and the relatively non-serious nature of the actual wound itself. As we have already indicated, the stabbing involved a single half inch deep wound to the left leg. It was treated with three sutures and an anti-tetanus injection. Apparently it left Mr Luiz ambulatory on the day of the attack and has since healed in full. 10. In support of his submissions Mr Fox referred to the decision of this court in R v Samuel-Furness [2005] 2 Cr App R(S) 84. In that case the victim was stabbed in the torso and sustained serious damage to a kidney (which he actually lost) and to his liver. It was held that, even with a late plea of guilty, the appropriate sentence was one of 7 years. Mr Fox also referred to Attorney-General's Reference No 4 of 1998 2 Cr App R(S) 388, in which, following a plea of guilty, a sentence of 7 - 8 years was stated to be appropriate for a pub fight stabbing, as a result of which the victim lost his spleen. Mr Fox made the point that there is a dearth of authorities dealing with factual circumstances such as the present case and pointed out that the two cases to which he had referred involved adults who had been affected by drink. 11. When granting leave in this case, the Full Court expressed the view that there does appear to be a shortage of recent authority on the level of sentence for offences of wounding with intent that involve stabbings inflicted by young men who have armed themselves with knives. As the Full Court observed, this is a form of offending behaviour about which there is an increasing level of public concern because not infrequently the tragic consequence of such a stabbing is the loss of life. In our view, the very serious nature of this form of offending behaviour cannot be exaggerated. The premeditated carrying and use of a knife to inflict an intentional stab wound necessarily involves the commission of a very serious offence and all too often one of the utmost gravity. The need for the courts to take account of legitimate public concern and to deter such offending behaviour, by the imposition of condign and/or deterrent sentences is all too obvious. Such an approach to this type of criminal behaviour is reflected in the Sentencing Guideline's Council's recently published Definitive Guideline in respect of assault and other offences against the person. When dealing with wounding with intent to do grievous bodily harm, contrary to section 18 of the 1861 Act , a guideline starting point of 8 years' custody and a sentencing range of 7 to 10 years' custody is recommended by the Sentencing Guidelines Council in cases involving "premeditated wounding or grievous bodily harm, involving the use of a weapon, acquired prior to the offence and carried to the scene with the specific intent to injure the victim but not resulting in a life threatening injury or particularly grave injury." 12. However, it is be noted that the suggested starting point for the sentencing range in that guideline is based upon a first- time adult offender convicted after a trial. In this case the appellant was aged 17 at the time of the offence and had the benefit of a plea of guilty, albeit a late one. Furthermore, although the offence was premeditated and involved the use of a knife acquired for that purpose, the single stab wound was inflicted to the leg, rather than to the abdomen and was relatively non-serious in the manner described earlier in our judgment. In addition, the judge accepted that the appellant had been subjected to a certain amount of provocation. In our judgment the sentence passed by the judge might well have been appropriate in the case of an adult offender, but was too long for a 17-year-old, who had pleaded guilty and who did not have a previous record for violence or weapons. For that reason, we have come to the conclusion that the sentence imposed was excessive and manifestly so. In our judgment, the appropriate sentence would have been one of 4 years' detention in a young offender institution. Accordingly we quash the sentence passed and substitute for it one of 4 years' detention. For those reasons and to that extent this appeal against sentence is allowed.

```yaml citation: '[2008] EWCA Crim 667' date: '2008-02-27' judges: - SIR IGOR JUDGE - MR JUSTICE FORBES - MR JUSTICE MACKAY ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Case No: 2011/0097/A3 Neutral Citation Number: [2011] EWCA Crim 1044 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 5th April 2011 B e f o r e: PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE TREACY MR JUSTICE EDWARDS-STUART - - - - - - - - - - - - R E G I N A v RAJBINDER RATTU - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - Mr A Baker appeared on behalf of the Applicant - - - - - - - - - - - - J U D G M E N T MR JUSTICE TREACY : 1. On 8th November 2010, which was the date originally fixed for the trial, this appellant pleaded guilty to a count of being concerned in the production of a class B drug, namely cannabis. This plea was tendered before Her Honour Judge Watson in the Crown Court at Wolverhampton. On 9th December 2010 she sentenced this appellant to 23 months' imprisonment and made directions in relation to time served on remand and under electronically monitored curfew, pursuant to the provisions of section 240 and 240A of the Criminal Justice Act 2003 . The appellant has been granted leave by the single judge. 2. There were two others involved in the matter who also pleaded guilty to the same count which this appellant faced. They had pleaded guilty at a slightly earlier stage of proceedings than this appellant had. What had happened was that all three had originally denied a charge of producing cannabis and shortly before the date fixed for trial, count 2, which was the charge of being concerned in the production of a class B drug, was added to the indictment. That count was added at a hearing about a week prior to the date fixed for trial. The two co-accused pleaded guilty there and then but this appellant did not. However, he notified his intention to plead guilty to the new count some three days later. It meant that the trial date was vacated and that the matter was listed for him to enter his plea. 3. The circumstances of the offence are as follows. On the evening of 15th June 2010 police were contacted about suspicious activity in the vicinity of commercial premises in the centre of Wolverhampton. A number of vans had turned up at the premises and individuals had been seen coming and going from the premises. When police officers arrived they found four vans outside. One of them had reversed up to the doors of the premises. Another had 66 mature cannabis plants wrapped in plastic bin liner bags inside it. Officers found a further 16 bags containing cannabis plants waiting to be loaded into the van. The officers searched the premises and quickly came upon the appellant and one of the other two. They ran away but were arrested after a short chase down a corridor. A third man was found upstairs and was also arrested. 4. A full search of the premises revealed a sophisticated cannabis factory containing about 1100 plants at various stages of maturity. It was estimated that a total yield of about 40 kilograms of cannabis could have been produced, giving a street value of around £200,000. The appellant declined to comment when he was interviewed. 5. When he tendered his plea he put forward a basis of plea which was very similar to that put forward by the two co-accused. His account was as follows. That he had been at the home of one of his co-accused when the co-accused received a call on his mobile phone. The appellant was told that there was a cleaning job available and was also told that the other co-accused was coming to pick the pair up and take them to the job. The appellant went on to say that he and the other man were collected in a red transit van and that when he arrived at the destination he realised that the job was not a cleaning job but was to do with cannabis. Despite that knowledge, he had agreed to move bags from upstairs to downstairs and while he was in the process of doing that the police arrived and arrested the three of them. 6. This appellant is 26 years of age. He had previous convictions. None involved drugs, but he had a conviction for theft as an employee recorded against him in 2007 and a caution for a public order matter in 2008. He had not previously served any custodial sentence. 7. The pre-sentence report showed that the appellant accepted responsibility for what he had done and stated that his actions were financially motivated. There were three favourable character references. 8. The grounds of appeal assert that the sentence was manifestly excessive. The written grounds submit that the judge took too high a starting point and failed to take sufficient account of the guilty plea and the basis of plea. Mr Baker, who has appeared today, has essentially confined himself to two points. First of all submitting that insufficient credit has been given for the guilty plea, and secondly, drawing our attention to the well-known authority of Xu [2008] 2 Cr. App. R (S) 50 and submitting that in the light of that decision the judge should have taken a lower starting point. 9. The sentencing judge said that she was taking account of the basis of plea. That clearly showed that this appellant only became criminally involved at a late stage in events, that is upon arrival at the warehouse. He had originally attended at the premises for an innocent purpose, according to the basis of plea, and it was on that basis that he had to be sentenced. Then, with a view to financial gain, he became involved in the preparations for physical removal of a significant number of cannabis plants. The judge accurately described the appellant as playing a “lowly and menial role”. She described the overall operation as a very sophisticated and professional operation and plainly had in mind the case of Xu . In that case, this court indicated that those at the lowest level in an enterprise of this type of scale should be subject to a starting point of three years, prior to taking account of plea and personal mitigation. It is however right to observe that in giving that guidance this court described those at the lowest level as “workers tending the plants in the particular premises, carrying out the ordinary tasks involved in growing and harvesting the cannabis.” Such people are often referred to as gardeners. This court went on to observe: “They would usually have little or nothing to do with the setting up of the operation but would simply carry out their tasks on the instruction of those running the operation.” 10. In our judgment this appellant was involved at an even lower level than those described in Xu . The judge appears to have recognised that as she took a starting point of 27 months. Although it is correct that this was a large scale operation, this appellant had not previously been involved prior to the night when he went to the premises and therefore would not have been in the same position of appreciating the nature and scale of the operation as someone who, employed as a gardener, had visited the premises on a number of occasions and had tended the plants in the course of doing so. 11. In our judgment, the judge's starting point failed to make sufficient allowance for the limited involvement disclosed by the basis of plea to which the judge had to be loyal. We consider that a starting point of 18 months or a little more discounted to 15 months to reflect guilty plea would have been appropriate in the circumstances of this case. 12. Accordingly, we allow this appeal by substituting a term of 15 months for the 23 months imposed. Time credited for curfew and remand in custody will continue to apply.

```yaml citation: '[2011] EWCA Crim 1044' date: '2011-04-05' judges: - (LORD JUSTICE HUGHES) - MR JUSTICE TREACY - MR JUSTICE EDWARDS-STUART ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2013] EWCA Crim 501 Case No: 201202725/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13 March 2013 B e f o r e : LORD JUSTICE MOORE-BICK MR JUSTICE WILKIE MR JUSTICE LEGGATT - - - - - - - - - - - - - - - - - - - - - Between : R E G I N A v ANTONIO CORTES PLAZA - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss N Bahra appeared on behalf of the Appellant Mr M Seymour appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MOORE-BICK: On 5 April 2012 in the Crown Court at Kingston upon Thames before His Honour Judge Birts QC, the appellant was convicted of conspiracy to supply a class A drug, in this case cocaine. On 9 May 2012 he was sentenced to 14 years' imprisonment with a direction under section 240 of the Criminal Justice Act that 208 days spent on remand should count towards that sentence. 2. Two other accused, Johnny Delgado Cortezano and Humberto Caicedo-Ramirez, pleaded guilty on the same count and were each sentenced to eight years' imprisonment. A fourth accused, Adriana Maria Zabala-Zuniga, was acquitted. 3. The appellant now appeals against conviction by leave of the single judge. 4. The circumstances in which the appellant came to be arrested and later charged with the offence were these. 5. On 10 October 2011 he arrived at London on a coach from Spain which had come via Paris. He was carrying a black bag with a shoulder strap. He travelled to Shepherds Bush and stayed at a flat, Flat 19 Oaklands Court, until he was arrested two days later. It was common ground that the flat was being used as a centre for processing cocaine. Indeed, that was the basis for the guilty pleas entered by the other accused. However, the appellant denied any knowledge of or involvement in that activity. 6. It was the prosecution case that the appellant was involved in a conspiracy to import cocaine into this country and supply drugs from the flat. It invited the jury to infer that the appellant himself had either carried drugs or that he had acted as an escort for a woman courier with whom he had been seen in conversation at Victoria coach station and later identified on CCTV. It was said that his presence at the flat after his arrival showed that he had a continuing part in the conspiracy. In further support of its case the prosecution said that the account he had given of his entire journey from Spain via Paris to London was completely false. 7. In addition, the prosecution sought and was granted leave to rely on the fact that on 10 December 2010 the appellant had been convicted in the District Court of Haarlem of importing almost 4 kg of cocaine (the equivalent of 1.44 kg at 100 per cent purity) into the Netherlands hidden in the lining of his suitcase. 8. In ruling on the admissibility of the appellant's conviction the judge said that he had not found it a very easy point to decide, but he was satisfied that the evidence had powerful probative force and ought to be admitted. However, he said that he would direct the jury that whether it tended to establish a propensity on the part of the appellant to traffic in drugs was entirely a matter for them. 9. The appellant's case was that he had come to this country to join his friends and to find work. He said he did not know that the flat was being used to process cocaine and he had had nothing to do with it. In short, his defence was one of innocent association. 10. In due course the jury convicted the appellant. 11. His grounds of appeal are that the judge was wrong to allow the prosecution to put in evidence his conviction in the Netherlands and that as a result his conviction is unsafe. 12. The conviction in the Netherlands was adduced in evidence under section 101(1)(d) of the Criminal Justice Act 2003 which provides that evidence of a defendant's bad character is admissible if it is relevant to an important matter in issue between the defendant and the prosecution. It was and is accepted in this case that the conviction was relevant in that sense because it was relevant to establish a propensity on the part of the appellant to become involved in the importation and distribution of cocaine and was also relevant to his defence of innocent association. 13. However section 101(3) provides that the court must not admit evidence under subsection (1)(d) if it considers that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. That is the ground on which the appellant challenges his conviction. He says that although the evidence fell within the scope of section 101(1)(d), in a case where the whole of the prosecution case was based on inference the admission of his conviction was likely to have an overwhelmingly prejudicial effect on the jury and seriously undermine the fairness of the proceedings. Accordingly the judge should have refused to admit it. 14. In order to evaluate that submission it is necessary to consider for a moment the other evidence before the jury. An officer of the Serious Organised Crime Agency, a Mr Brown, said that on 12 October 2011 he was one of a team of officers who had made a forcible entry into the flat. The only person present was Miss Zabala-Zuniga, the wife of the co-accused Cortezano. A thorough search of the flat was carried out and a quantity of drugs was found behind one of the kickboards in the kitchen. A large block of cocaine was also found hidden in the back of the airing cupboard. There was a hydraulic press used for compressing diluted cocaine erected in the hallway and a large container of cutting agent was found in one corner of the kitchen together with other equipment used for the production of drugs. In one of the bedrooms the officers found a recipe in Spanish, which, although it did not specifically mention cocaine, contained a full set of instructions for recovering cocaine from impregnated materials. No steps had apparently been taken to conceal from any visitor to the flat the purposes for which it was being used. 15. Mr Michael Day, a forensic scientist, gave evidence that two rolls of wallpaper found at the flat, particularly in the form of lining paper, were suitable for use as a filter in the process of extracting cocaine from other materials. Within the flat there were various materials, acetone, ammonia, hydrochloric acid and others, together with written instructions necessary to undertake the process of the secondary extraction of cocaine from impregnated media. 16. In addition to the surveillance evidence and the items found at the flat to which we have referred, the prosecution relied on documentary evidence which it said showed that the appellant's account of his journey to London was false. 17. The documents showed that he had left Murcia on 4 October 2011 to travel by coach to Paris. The appellant claimed, however, that a friend by the name of Pedro had driven him to Barcelona where he had bought a ticket to Paris the next day. However, he said that after he had boarded the coach at Barcelona on 5 October he had received a text message from Pedro telling him of a job opportunity so he got off the coach and stayed in Barcelona. He said that on 8 October he had purchased a second ticket for Paris and travelled on to London by coach on a third ticket. 18. The appellant was arrested on the afternoon of 12 October 2012. His hands were swabbed and his clothing was later examined but no trace of drugs or anything else of relevance was found. He was in possession of three coach tickets, a piece of paper which referred to "Flaco, Bombi and Hermano" with telephone numbers, a business card from the Sani Hotel and a scrap of paper with "261 Uxbridge Road, Shepherds Bush w12 9ds" on it, and the words "sent from my iPhone" on which someone else had written in manuscript "Hammersmit" (sic) and "Sani Hotel". The wording corresponded exactly both in form and content with the typed form of a text from Cortezano's mobile to a man known as Bombi. The address was that of the Sani Hotel which is located a few hundred metres from flat 19. 19. A black suitcase was found in flat 19 which contained black clothing and a pair of child's roller skates which the appellant accepted belonged to him. The bag which he had been seen carrying when he arrived at Victoria coach station was not at the flat and was never recovered. Within hours of his arrival the appellant had been seen going to a department of Homebase with Delgado Cortezano and Caicedo-Ramirez where they bought rolls of wallpaper. 20. In this case, unusually, but for what we accept were good reasons, the judge considered the application to adduce the evidence of the appellant's conviction at the beginning of the trial so that at that stage he had not heard the evidence called in the course of the trial. Nonetheless, the evidential context in which he considered the application does not appear to have been significantly wide of the mark. 21. The existence of the conviction was dealt with by way of a formal admission. The appellant gave evidence to the jury explaining the circumstances in which he had come to be convicted, despite the fact that, as he said, he had not in fact committed the offence in question. 22. When he dealt with the matter in his summing-up, the judge directed the jury that they should disregard the conviction altogether unless they were sure, having considered the appellant's explanation, that he had actually committed the offence with which he was charged. He also pointed out that the conviction represented only a small part of the evidence in the case and directed the jury not to place undue weight upon it. Finally, of course, he directed them not to convict the appellant simply because of his previous conviction. 23. Miss Bahra, who has appeared on behalf the appellant, has provided us with substantial written skeleton arguments. She says that the prosecution case rested largely, if not entirely, on circumstantial evidence and submits that the admission of the evidence of the conviction in the Netherlands was overwhelmingly prejudicial because it had occurred such a short time before the matter with which he was then charged. She submits that once the evidence of that earlier conviction had been admitted the appellant had no choice but to seek to explain it. That made it necessary for him to give evidence and there was a real danger that the jury might convict him on the basis simply that they did not find his explanation credible. She also says that the judge was unable to mitigate sufficiently any prejudice to the appellant by the directions given in the course of summing up. In those circumstances she submits that to admit the evidence of the conviction for importing cocaine into the Netherlands fundamentally undermined the fairness of the trial. 24. In his extensive written skeleton argument Mr Seymour for the prosecution really makes the simple submission that the judge was right to admit the evidence of the conviction in the Netherlands, or, at any rate, that it was within the scope of his discretion to do so and that he dealt with the matter properly in his summing-up. 25. When giving his ruling the judge said that he had not found this a very easy point to decide, but it seems that he found it difficult only because he was conscious that the conviction was both powerful evidence of a propensity to engage in trafficking drugs, and therefore strongly supportive of the prosecution case, but also potentially prejudicial in the sense that the mere existence of a conviction might diminish the appellant in the eyes of the jury. 26. The purpose of section 101(3) of the Criminal Justice Act 2003 is to ensure that evidence of bad character which may prejudice the defendant in the eyes of the jury is not admitted unless it has real probative value. As the judge said when giving his ruling, it has some similarity with section 78 of the Police and Criminal Evidence Act 1984. The purpose of the subsection is to ensure that evidence of bad character is not admitted unless it has sufficient probative value to outweigh any risk of prejudice to the defendant and does not affect the fundamental fairness of the proceedings. If the matter constituting bad character is of only slight or peripheral evidential significance, the prejudicial effect of admitting it may well be such as to render the proceedings unfair. But the more powerful the evidential significance, the less likely it will be that to admit it will render the proceedings unfair. 27. It is very much a matter for the trial judge to decide on the basis of his own assessment of the case whether the admission of the particular evidence of bad character under consideration would render the proceedings unfair and this court will not interfere with his decision unless it is satisfied that it is clearly wrong. In the present case the judge thought that the evidence of the Dutch conviction had powerful probative force in tending to show that the appellant had a propensity to become involved in trafficking drugs and in rebutting the defence of innocent association. In our view he was right to take that view. Given the nature and circumstances of that earlier conviction, it is difficult to see how the jury could have been prejudiced against the appellant simply by virtue of the fact that he had been convicted of an offence of some kind. If, on the other hand, they considered that it was evidence of a propensity to become involved in supplying drugs, it is difficult to see how its admission can have rendered the proceedings unfair. It was for the appellant to decide whether to contest the facts of which the Dutch conviction was evidence. If, as was the case, he chose to do so, the jury was entitled to take what he said into account when assessing his overall credibility. Although some complaint about the extent of the cross-examination has been hinted at in counsel's skeleton argument, it does not form one of the grounds of appeal. 28. The judge dealt with the Dutch conviction in an entirely appropriate manner in his summing-up. He made it clear to the jury that they had to be sure that the appellant had in fact committed the offence before they could take it into consideration at all. He also explained its potential relevance to the issues of innocent association and propensity while making it clear that whether the conviction did in fact assist on either of those questions was entirely a matter for them. 29. In the circumstances we can see no grounds for saying that the admission of this evidence had an adverse effect on the fairness of the trial and we are satisfied that the conviction in this case is safe. The appeal must therefore be dismissed.

```yaml citation: '[2013] EWCA Crim 501' date: '2013-03-13' judges: - LORD JUSTICE MOORE-BICK - MR JUSTICE WILKIE - MR JUSTICE LEGGATT ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200904892 A1 Neutral Citation Number: [2010] EWCA Crim 46 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 13 January 2010 B e f o r e : LORD JUSTICE MAURICE KAY MR JUSTICE DAVID CLARKE MRS JUSTICE SHARP DBE - - - - - - - - - - - - - R E G I N A v EDWARD ARTHUR SHEPHERD - - - - - - - - - - - - - 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 JP Leaning (Solicitor Advocate) appeared on behalf of the Applicant Miss J Martin appeared on behalf of the Crown - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MAURICE KAY: David Clarke J will give our judgment. 2. MR JUSTICE DAVID CLARKE: On 24 July 2009 in the Crown Court at Truro, the appellant, who is now 19 years of age, pleaded guilty to an offence of causing death by driving without due care and attention. On 28 August before HHJ Cottle, he was sentenced to four years' detention in a Young Offender Institution, disqualified from driving for five years and directed to take thereafter an extended retest. He appeals against that sentence by leave of the Single Judge. 3. The fatal accident giving rise to this prosecution occurred at about 10.25 in the evening, on 22 September 2008, on the A3074 road between Carbis Bay and Lelant, near Hayle in Cornwall. This was, as we see from photographs, a rural stretch of road, but close to a residential area. The speed limit was 40 miles per hour. 4. What happened was that a young lady, Unity Perkins, was driving her car with a friend. They had been shopping to buy things for the new flat which they had just moved into as flatmates. Miss Perkins was driving her car at about 40 miles an hour. The appellant was driving in the opposite direction, clearly at an excessive speed. He was being followed by four friends in another car, to whom we will refer in a moment. 5. His car had a faulty anti-skid braking system, as was indicated by a warning light on the dashboard. He drove around a right-hand bend and evidently braked hard at or near the bend, at which the back wheels of his car locked, the car lurched to the side, the back-end swung around and the nearside collided head on with the on-coming car. His car and Miss Perkins' car came to rest. His friends behind stopped, as did the car following Miss Perkins. She and her passenger were trapped in the car. The emergency services had to help her friend out, but she tragically was found to be dead at the scene. 6. The evidence about the appellant's speed comes from two sources. He had stopped a short time earlier to speak to four friends who were in another car. He showed them his car, which had a number of special features, including a so-called trumpet exhaust, and there was some conversation between the young men about the car and its engine. He then got in the car and drove off. The other four set off following in the other car. 7. They have given descriptions of the way the appellant then drove. He reached a high speed. Some of them estimated it at twice the speed limit, which would be 80 miles per hour, though counsel opening the case to the judge suggested that this should be treated with some caution because of the difficulty of estimating speed in that way. At all events those witnesses spoke of the car being driven off very fast, which counsel understandably described to the judge as "showing off". One of the men in the other car referred to the defendant as "flooring it". From a distance they saw him approach the right-hand bend where the accident occurred and one of them said he saw the appellant braking hard. 8. The other evidence as to speed came from a police vehicle examiner who concluded from the damage and other findings that the speed at impact was no less than 46 miles an hour and up to 65 miles an hour. He added that the car was undoubtedly going faster than this before the braking started. It was a bend which could be safely negotiated at 40 miles an hour, or even a little faster, but, as the witness remarked, an inexperienced driver often reacts too harshly with steering and braking actions so as to give rise to a loss of control. In that situation the faulty anti-braking system, which would not have caused any problem going round the bend in normal circumstances, might well come into play. 9. The appellant was interviewed in due course. He expressed shock at what had occurred. He disputed that he had been driving to excessive speed, but he undoubtedly had lost control with these disastrous consequences. It is clear to us that he had no possible alternative to pleading guilty to the offence charged against him, something he did at the first opportunity. 10. There was, however, important other evidence which caused the judge to treat this case as very much more serious than a more normal example of causing death by driving without due care and attention. It clearly troubled the judge that the Crown had decided not to prosecute the appellant for causing death by dangerous driving. 11. These circumstances arose in this way: the appellant, who had bought this car some weeks earlier, had passed his driving test on 16 September, six days before the fatal accident. On 19 September he was spoken to by a police officer who had seen him speeding in a residential area and he was given informal advice about the nature of his driving, as well as the state of his tyres. 12. During the following weekend, in the car park of a leisure centre where the appellant was working part-time as a life guard, he was seen by another police officer doing manoeuvres, such as wheel spins, in a place where members of the public were likely to be present. The officer's evidence was that he noted the car number and planned to have a word with the local beat officer the following week, but events took place before that could occur. 13. At about 7.30pm on 22 September, some three hours before the fatal accident, on a narrow road in a residential area, a motorist, Mr Saunders, was confronted by the appellant driving his oncoming car at what he considered a grossly excessive speed, so that he had to take evasive action. He said that he was shocked to see the appellant laughing as he drove past. 14. Mr Saunders turned his car to follow, but when the appellant stopped and got out of his car he decided not to confront him after all. It appears that that decision was made because of the level of anger he was then feeling, rather than because of any particular aggressive demeanour on the appellant's part. Be that as it may, this incident gave the judge grave cause for concern. 15. There was also evidence that subsequent to the accident, some weeks later, another member of the public complained to the police about the fast and dangerous way in which she had seen the appellant drive past her shop on a number of occasions in his new car, which was a similarly modified model. It was said that this complaint was made to the police without knowledge that he had been involved in the fatal road accident. 16. We treat that evidence with a degree of caution, having seen what the appellant said to the author of the pre-sentence report about this evidence. We have no doubt that in any event feelings were running high in the locality following the occurrence of the fatal accident. 17. On the other side of the coin, the appellant was only 18 at the time. He had no previous convictions of any sort. There were powerful testimonials before the court from a number of people who were supportive of him as a determined but kind and reliable young man, who had done much to support his mother and other family members following her recent separation from her husband. The pre-sentence report provided a good deal of background, including reference to the separation of his parents. The appellant was expressing remorse. He claimed to have no intention of driving again, though the author of the report felt that that is unlikely to last. The appellant has said that when the inevitable custodial sentence is over he will move to another part of the country and get away from past associations. 18. The learned judge took a very serious view of the case. It is appropriate to cite his sentencing remarks. He, having referred to the maximum for the offence, said this: "It is also clear from what I have said during the course of this hearing that I consider you to be extremely fortunate not to be facing a more serious charge of causing death by dangerous driving. Apart from expressing my surprise, there is nothing further that I have power to do. I make it clear that I consider that the manner of your driving and culpability on the 22nd of September is at the very top end of the range of careless driving. Furthermore, credit for your plea of guilty which should in the circumstances of this case be balanced by the fact that you had no conceivable alternative other than to plead guilty." 19. The learned judge then went on to refer to some of the history, which we have related. He remarked that the appellant had very little driving experience. He went on: "And more importantly, no respect whatsoever for the fact that a motor vehicle is, when in the wrong hands, a potentially lethal weapon; you regarded this vehicle as a toy to play with and to show off to your friends. In the days before this tragedy you ignored advice that you were given about the way in which you were driving the vehicle. At the time of the tragedy the breaking system was faulty, there were two defective tyres, it is true that neither of those facts caused or contributed to the accident, but they demonstrate still further your attitude. Everything about this case points to the inevitability of a tragedy occurring at anytime whilst you were behind the wheel of that car. From everything that I have heard and read, this was an accident waiting to happen. The evidence of the manner of your driving very shortly before the fatal accident demonstrates quite plainly that you were showing off. A car followed you down the road towards this right-hand bend, it was driven by people who knew you and who have described the manner of the driving that they witnessed. You accelerated away at considerable speed, you were, in the words of one of the witnesses, flooring it. And you entered a bend at a speed probably in the region of 65 miles an hour, probably more. And you had no prospect whatsoever of negotiating that bend successfully and the inevitable accident duly occurred with catastrophic consequences." He then referred to the post-accident incident, which we have mentioned. He referred to the appellant's recognition of the effect of this tragedy, saying that: "No sentence will satisfy those who continue to grieve for the loss of their child, their sibling, their friend." The learned judge went then to the sentencing guidelines. He said: "... it goes without saying that this case belongs at the very top end of the range. However, they are only sentencing guidelines. Additional aggravating features are listed in those guidelines, none of the aggravating features that are present in this case among those listed. And I have come to the conclusion that this case quite clearly falls outside those guidelines, useful though they may be in certain cases. I have taken into account the mitigation that has been advanced on your behalf; had you been convicted after a trial I would have passed the maximum sentence of five years custody upon you. You have plead guilty, I repeat that you are entitled to credit for a plea of guilty, however, I make it clear to those who might hereafter be invited to reconsider my sentence, that you had no conceivable alternative and therefore credit for plea is significantly offset by that fact. You will be disqualified for a period of five years, I order that you take an extended driving test and I sentence you to four years custody." 20. We interpose to say that we have read the very moving victim personal statement setting out the thoughts of the parents, twin brother and younger brother of Miss Perkins. The judge's words about those family members were sensitive and entirely appropriate. We are sure that they understand that the length of the sentence imposed should never be measured against the value of the life lost, which was priceless. 21. The appeal is based essentially on two arguments: firstly, that the judge was not justified in going above the upper end of the upper bracket for this offence, namely three years, in the definitive guideline, to which the judge referred. Secondly, that he did not allow the appropriate credit for the early plea of guilty. He in fact made no more than a 20 per cent deduction from the notional maximum sentence. 22. We therefore turn to consider the definitive guideline, particular the factors and ranges set out on page 15. It demonstrates, of course, that although in these cases the result of the driving: the death of another person, is uniformly devastating and of maximum severity, the range of culpability of the driving is very large. Sentencing at the lower end of the spectrum is particularly difficult, as is shown by the recent judgment of Cranston J in R v Campbell [2009] EWCA Crim 2459 . This case is at the other end of the spectrum. It undoubtedly fell within the top bracket described as "careless or inconsiderate driving, falling not far short of dangerous driving". 23. Furthermore, although the sentence range is placed by the Guidelines Council at 36 weeks to three years custody, there must be, and Mr Leaning acknowledges this, cases which justify a sentence up to the statutory maximum of five years after a contested trial. It should be remembered that this particular offence does not encompass those cases in which, for example, the driver is impaired by drugs or alcohol, because there is a separate offence in the legislation for that. That carries a longer maximum sentence even where the standard of driving is no more than at the lower grade of a momentary inattention case, so the absence of those factors cannot be prayed in aid here. 24. The guideline also enjoins judges, by part of the introduction on page 2, in every case to evaluate the quality of the driving involved and the degree of danger that it foreseeably created. That is what the judge has clearly done in looking at the driving in this case as a whole. 25. The approach which the court should adopt is set out in section C on page 8. The sentencing range is the bracket into which the provisional sentence will normally fall, but particular circumstances may take it outside that bracket. It is our judgment that the judge in this case, and for the reasons he gave, was fully entitled, and indeed right, to go outside the sentencing range and to go above it, bearing in mind that the range stops short of the statutory maximum. Whether he was right to go as far as five years, as the sentence he would have imposed after trial, is a point to which we will return. 26. As to the second ground of appeal, the withholding of the full one-third discount, in our judgment the judge was fully entitled to do that in this particular case. It is not necessary to read into this judgment paragraphs 5.3 and 5.4 of the definitive guideline on discount for pleas of guilty, but he had regard to it. Mr Leaning has submitted that this was not permissible because this offence covers such a wide range of gravity, and carelessness or lack of due care or attention is easily proved. He points out that the plea of guilty saved the family the ordeal of the trial. 27. We do not accept this argument. Avoiding a trial is an important part of the reasoning behind giving a discount, but it does not govern or have relevance to the assessment of how much the discount should be. The fact that carelessness covers so wide a range, in our judgment, makes it all the more inevitable that there was no realistic alternative to the plea of guilty. The case on the charge which the Crown chose to bring was overwhelming. 28. We have had cited to us the decision of this court in R v Lord [2009] 1 Criminal Appeal Reports (S) 44 at page 243 where it was said, in a case of causing death by driving when unfit due to drugs: "A plea of guilty at the earliest moment was entered here. There is no reason for countenancing anything other than a full one-third reduction for it." In that case, unlike the present one, there was an additional element of the charge on which the case may well not have been overwhelming, namely whether the defendant was unfit through drugs; which is a matter of subjective judgment. We do not find that that case undermines the approach of the learned judge in the present case. 29. We have considered this difficult and tragic case with anxious care. We are left with the uneasy feeling that the judge was unduly influenced by his view that the appellant should have been prosecuted for causing death by dangerous driving, a view which we can fully understand. A sentencing judge must take great care to be totally faithful not only to the facts of the case, but also to the offence with which he is dealing. By placing this case at the statutory maximum, but for the plea, he left no room for the sort of case which might contain other aggravating features, or relevant previous convictions. It can be said on the other side of the coin that he cannot have given any weight to the appellant's young age and previous good character. 30. In the light of all these matters we conclude that the proper sentence after a trial would have been four rather than five years. Considering the matter of discount for plea of guilty and taking it into account, we shall reduce the sentence of four years' detention in a Young Offender Institution to one of three years. 31. We are urged to reduce also the length of the driving disqualification. Under the definitive guideline at paragraph 31 the court, it is suggested, should start with the length of the determinate sentence. Had we upheld four years we would have held that five years was within the proper discretion of the judge. In the light of our judgment on the length of the custodial term, we propose to reduce the driving disqualification to four years. The order for the taking of the extended retest will stand. The appeal is allowed accordingly. 32. LORD JUSTICE MAURICE KAY: We understand that no member of the deceased family is present in court today. 33. MISS DUNKLEY: My Lord, that is right. 34. LORD JUSTICE MAURICE KAY: We also understand that they were anxious to know the outcome of the case and may simply be told that if they wish a transcript of the judgment one will be made available to them on request at public expense. It is important that they understand the reasoning behind the decision. 35. MISS DUNKLEY: My Lord, I am grateful for the comments. I will make sure they are passed on. 36. LORD JUSTICE MAURICE KAY: Thank you both very much.

```yaml citation: '[2010] EWCA Crim 46' date: '2010-01-13' judges: - LORD JUSTICE MAURICE KAY - MR JUSTICE DAVID CLARKE - MRS JUSTICE SHARP DBE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Case No: 201400201 C1 Neutral Citation Number: [2015] EWCA Crim 42 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT His Honour Judge Pitts QC T20107446 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/02/2015 Before: LADY JUSTICE RAFFERTY MR JUSTICE CRANSTON and HIS HONOUR JUDGE CAREY DL (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION - - - - - - - - - - - - - - - - - - - - - Between: REGINA Appellant - and - ELLIAS NIMOH PREKO Respondent - - - - - - - - - - - - - - - - - - - - - (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) - - - - - - - - - - - - - - - - - - - - - Sasha Wass QC and Esther Schutzer-Weissmann for the Appellant Richard Horwell QC and Ms Saba Shafique Naqshbandi for the Respondent Hearing date: 2 nd December 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Rafferty: 1. On 9 th December 2013 in the Crown Court at Southwark the appellant Ellias Preko (55) was convicted after a re-trial of two counts of money laundering (Counts 1 & 2 of the indictment at re-trial). He had been acquitted of Counts 1, 4 & 5 of the original indictment and that jury was unable to reach a verdict in respect of Counts 2 & 3, re-numbered Counts 1 & 2 at the re-trial. He was sentenced to 4 ½ years’ imprisonment on each concurrently. He appeals against conviction by limited leave of Openshaw J. 2. James Ibori was the Governor of Delta State in Nigeria from 1999 to 2007 during which time he defrauded the state of $89 million. He intended to secrete the proceeds of his political corruption in offshore accounts and trust funds. The Crown’s case was that Ibori sought and obtained the appellant’s assistance in placing over $5 million of that sum in foreign accounts and that the appellant from the outset knew or suspected that Ibori’s funds were criminal in nature. 3. Count 1 went to the funding of Zircon and Onyx, a trust set up for Ibori’s benefit and whose assets were held by Zeta Limited and Alantar Limited respectively. The funds came from a company called Sagicon, owned by the mother of Ibori’s child. This prompted enquiries by The Royal Bank of Canada (“RBC”), which was to hold the funds as trustee. At a meeting at Guernsey airport in May 2004 RBC agreed to accept the funds, comforted, said the Crown, by the appellant’s persuasiveness and reassurance. Due to the difficulties in persuading RBC to accept the funds, Onyx and a holding company Alantar were established by William Hunter of NMT Trustees, a close associate of the appellant. Funds held in Zeta and Alantar were invested at the appellant’s direction on Ibori’s behalf through stockbrokers Brewin Dolphin. 4. The appellant arranged through NMT for another company to be established, Manapouri Limited, which owned a Bentley bought by Ibori. Count 2 represented the funding of Onyx and the purchase of the Bentley. 5. The Crown suggested that Preko was a well-educated respected investment banker who had worked at Goldman Sachs (“GS”) for 10 years. Without him Ibori could not have laundered the funds. It was common ground that Preko had had comprehensive money laundering training and realised how important it was to know both client and source of money. The Crown suggested he knew Ibori was a politically exposed person (“PEP”) and concealed this. After he left GS, he sought cover under a small investment company, DECA, but was not candid with them, concealing clients. 6. Preko’s case was that on the instructions of Ibori he helped set up trust funds and managed investments they held. He neither knew nor suspected the money was proceeds of crime. He believed an account for Ibori had been opened at GS, and no one said otherwise. Other institutions had accepted Ibori’s funds, despite their own extensive, independent due diligence. 7. He relied on his record with GS where between 1991 and 2001 he was paid over $10 million in salary and commission. When made redundant his severance package was $3 million. 8. Ibori was introduced to him in 1996 or 1997 by Pat Ward and Joseph Sassoon his managers at GS. Everyone at GS knew Ibori was a PEP. 9. At GS Kevin Ford ran money-laundering programmes and training and was responsible for due diligence. Any politician from Nigeria was automatically a PEP and attracted a higher standard of due diligence due to the corruption there. Preko, he told the jury, would have been well aware of this and obliged to note on the relevant form that Ibori was a politician. He did not. Mr Ford recommended that no account be opened because of the Nigerian political connection. In a face-to-face meeting with Preko he explained that disturbing information had surfaced. Preko wanted to appeal the decision, and was told several times that no account was to be opened. Ibori was never a GS client. 10. David Wilson a senior lawyer at GS confirmed that no account was opened. An account number is issued when an account is opened, regardless of whether money were deposited. 11. RBC had misgivings about Ibori, which Preko tried to answer. It operated on the basis that an account had been opened at GS though it could not say for certain whether that were so. 12. Giuseppe Dessi had worked at GS for 13 years and knew Preko. Dessi set up DECA which held a FSA licence to handle other people’s money. Preko joined DECA in October 2002, needing its licence to work in the UK. According to Dessi and Magoni. DECA’s compliance officer, Preko’s clients were not registered with DECA, and only if they had been would due diligence have been done. Preko, said Dessi, was not salaried and brought no clients. Dessi had never heard of Zeta or been asked to do any checks on them or met Ibori. Preko was not authorised to perform checks on clients. An IMA involving stockbrokers Brewin Dolphin (before the jury) was a forgery. They were not a DECA client and had they been Dessi would have done due diligence. Mr Mergoni confirmed much of Dessi’s evidence. Preko had no power to sign the IMA and Mergoni never saw a file for Ibori, Zeta or Alantar. 13. Preko told the jury he was a 54 year old Ghanaian and on the board of several multinationals. He joined GS in 1991 and at leaving had approximately 40 active clients, many of whom had opened but not funded accounts and this would not secure an account number. He had compliance training about four times a year. 14. He met Ibori at GS when his manager, Sassoon, introduced him in 1996/1997 Sassoon was keen GS should open an account. GS, whose clients included many PEPs, knew Ibori was Governor of Delta State. Documents would have been seen, and an account was opened in 2000. 15. Zeta was opened, incorporated by Monument, and Zircon was created. Monument/RBC knew Ibori was a PEP – they referred to him as HE (His Excellency) – so there was no need to record this on the form since everyone knew. Neither Sassoon nor Ford ever said Ibori had been rejected as a client. A list of clients Preko was taking with him did not include Zeta or Ibori because they were not ‘funded’ but had an account opened in principle. 16. Dessi needed a senior person for FSA licence purposes. Preko brought clients, each with a client file. DECA was only allowed to manage accounts and its due diligence consequently was not at the level of institutions which take client money. He discussed clients and their portfolios with Dessi. Serengeti Asset Management, registered with Dessi as a company, never traded. Preko left DECA in 2006, moved back to Ghana and transferred all his clients there. 17. An account, unfunded, had been opened at GS for Ibori who wanted to reactivate it. The same business interests were declared as before. Ibori was consistent and Preko had no reason to doubt him. A $4 million transfer to RBC Ibori said was from the sale of securities, though Preko did not see the transfer documents. He had no idea that documents associated with the Sagicon money were false. Due diligence was not his responsibility, he simply bought and sold. He did not know or suspect that Ibori’s money was the proceeds of crime. $4 million was an insignificant sum. He had known Ibori since 1996/1997 and Ibori had bank accounts all over the place. No one seemed to be refusing or suspecting him. His own fees were never paid by Ibori. 18. Criminally tainted money was always a danger in the world of big finance. Preko dealt with money already cleared so his due diligence marched alongside that of the relevant banks. He denied one-to-one training with Ford. He accepted in general terms that in some areas politicians were known to inflate contracts, but GS had introduced Ibori as a prospective client and released an account for him. That he did not have an account number might have been since it was not funded. The acquittals 19. At the start of the re-trial the Crown sought to lead evidence relating to the original Count 1 as essential to the factual background of the current Counts 1 & 2. However, it submitted that since his acquittal could not be taken as proof that, for all other purposes, he was innocent, it was unnecessary to mention the acquittal. The defence objected to the leading of the evidence and, were the court against it, argued that the jury should know of the acquittal. 20. The Judge ruled that the evidence was permissibly before the jury (as to which there is no complaint) but that the acquittals as a matter of law were irrelevant. 21. Witnesses from DECA touched on the subject of the original Count 1, the Crown commented on it during its closing speech, and the defence revisited the admissibility of the acquittal. The Judge thought it inevitable the previous counts would be trodden on to a certain extent, as activities were relevant, but that did not make the acquittals admissible. Page 70a of the jury bundle 22. The Crown sought leave to ask Preko about a document added to the jury bundle as page 70a which it suggested was the written record of the GS compliance department decision to decline the account for Ibori. The defence challenged its provenance and origins as not established. 23. The Judge said that with thousands of documents the Crown had to anticipate relevance and perform an exercise in reduction. After Preko’s evidence that no document existed to say GS rejected Ibori, 70a was highly relevant to that central issue. Preko had thrown down the gauntlet and could be asked about it. Grounds of appeal 24. Ground 1 : The acquittals on Counts 1, 4 and 5 should have been admitted in evidence. The appellant had to meet the same allegations in the retrial of which in the first he had been acquitted on three counts out of five. He could not refute the allegations pleaded in Counts 4 and 5 since the Crown did not cross-examine him on them but referred to them in its closing speech. The single judge gave leave on this Ground. 25. Ground 2: Page 70a should not have been before the jury. Any relevance did not arise ex improviso and it should not have been introduced during cross-examination, especially as it was a document Preko could not explain. The jury should not have been invited to speculate about its purpose and effect. Renewed application is made for leave to argue this ground after refusal by the single judge 26. Ground 3: The judge should not have said that if Preko had known Ibori’s application for an account had been rejected he was guilty of Counts 1 and 2. This was not based on evidence and it was not the approach of the Crown. The single judge gave leave on this Ground. 27. Ground 4: Although an adverse inference from the failure to answer questions was not left to the jury the judge summed-up in such a way as to leave the possibility that Preko had in fact failed to mention an explanation on which he later came to rely. The single judge gave leave on this Ground . 28. Ground 5: The Crown sought to reverse the burden of proof by submitting that Preko should have called witnesses employed by GS and commenting adversely on his failure so to do. The judge gave some support to this approach. The single judge gave leave on this Ground . 29. Ground 6: The Crown sought to undermine both the appellant and those representing him by commenting that money launderers acquire extensive funds and hire expensive lawyers to protect their interests which meant, in the circumstances, to get them off when arrested. The single judge gave leave on this Ground. 30. Ground 7: The judge had agreed to give a direction on the consequences of delay and consequential difficulties but failed to do so. The single judge gave leave on this Ground Developed submissions 31. As to Ground 1, we set the scene with our view that the jurisprudence on the admissibility of previous acquittals is not in issue and, though a number of authorities over the years has sought to enlarge upon the topic, the enduring principle remains well-expressed in R v Joseph Robert H (1990) 90 Cr. App. R. 440 . Lord Lane said: “….the judge…has to balance the interests of the defendant against the interests of the prosecution, and ….determine…what …would be fair, because like so many problems in the criminal trial, it is fairness rather than any remote, abstruse legal principle which must guide the judge. Coupled with that fairness….is the necessity for the judge to ensure that the jury…..do not have their minds clouded by issues which are not the true issues which they have to determine.” 32. During submissions the judge was taken to authorities to the effect that an acquittal is not conclusive evidence of innocence and does not establish that all relevant issues were resolved in favour of the accused: Terry [2005] QB 996 . Evidence of an earlier acquittal is generally irrelevant and therefore inadmissible: Hui Chi-Ming v Reg [1992] 1 AC 34 . In most cases it is impossible to be certain why a jury acquitted. An exception may exist where a witness’s credibility is directly in issue and there is a clear inference that the jury rejected his evidence because it did not believe him – see for example Edwards [1991] 2 All ER 226 . 33. Mr Horwell QC reminded us that the original Count 1 alleged entering into an arrangement between 1 February 2000 and 24 March 2003, Preko’s final 21 months at GS during which the meetings with Ford and Sassoon were said to have taken place, and his first six months at DECA. He was tried on money laundering from 2003 -2005 and in each trial it was a fundamental assertion that from 2001 Preko knew Ibori to be corrupt and his money proceeds of crime. Preko accepted at both trials that from February 2000 to March 2004 he had agreed with Ibori to use Zeta to control Ibori’s funds. Consequently, Mr Horwell suggests, his knowledge was the only issue in trial one, count one. 34. The effect for which he argues is that the second jury, once it heard evidence about that period, was entitled to take the acquittal into account and it would have added weight to Preko’s evidence. 35. Mr Horwell urged us to keep well in mind that in trial one Preko had been acquitted of Counts 4 and 5, the forgeries (signatures in his own name on DECA IMAs). It was as a consequence of that verdict, he told us, that the Crown undertook in trial two not to suggest that Preko was not authorised to sign DECA IMAs, as it had suggested during trial one. 36. Dessi and Mergoni were the only witnesses on Counts 4 and 5. Until due diligence showed the money to be clean there was, said Mr Horwell, no question of signing the IMAs - the precise allegations of which Preko had been acquitted. 37. Dessi and Mergoni in trial two were according to Mr Horwell agitated by not being asked about IMAs and Dessi at times was uncontrollable. Mr Horwell, aware of the Crown’s stance, did not re-examine on their limited references to authority to sign. He told us that naturally he did not lead the matter of the IMAs during Preko’s evidence. 38. He explained to us his astonishment at a foreshadowing, followed by a volte face and finally by an impermissible reference not rooted in cross-examination. During cross-examination of Preko absent the jury the Crown signalled its intention to apply to ask him about authority to sign IMAs thus, Mr Horwell would say, resurrecting counts 4 and 5 from trial one. He objected and awaited the application foreshadowed. Next day came the volte face when it was withdrawn. Thus, so the submission goes, Preko had neither opportunity nor need to give evidence about it. 39. Mr Horwell complains, therefore, about that part of the Crown’s closing speech which he submitted resurrected the IMAs. 40. The Crown said: “And until the prospective client and his…money was deemed clean they (sic) were not taken on by DECA. And until the due diligence checks had come out and the money was clean there was no question of signing these IMAs. And that is why both Mr Desi and Mr Magoni were so incensed when they were shown those IMAs between Zeta and Alantar. Neither of them had ever heard of Zeta and Alantar. Neither of them had heard of James Ibori. Due diligence checks had never been performed on Ibori and both Mr Desi and Mr Magoni said that Mr Preko had no right to sign those IMAs in behalf of DECA” 41. By the time of this mention in the Crown’s closing speech, the aspect Mr Horwell describes as impermissible and unfair, Preko is said to have lost his chance to offer the jury his evidence on the topic. 42. Mr Horwell’s précis of his submissions is that trial two was conducted as though trial one did not happen and that the combination of all that of which he complains is that trial two was unfair. 43. He sought to support that assertion by reference to what he described as the Crown’s failure to call witnesses central to the background, especially Vikki Willis, compliance officer at GS. Whether Ibori opened an account at GS was in hot dispute. The Crown’s case was that the reasoned refusal – that Ibori was corrupt – Ford had explained to Preko. Preko’s case was that the application had been agreed in principle. Ford conceded that by the use of a particular form the application must, at that stage, at least have been agreed in principle. Preko told the jury that if the application had been refused he had not been told and nor did the trustees know. Mr Horwell told us this contest was as much a part of trial one as of two. 44. As to Ground 2, Mr Horwell took us to cross-examination of Preko when the Crown sought to introduce page 70a, part of a file produced in 2008 by David Wilson which had not featured in trial one and not previously in trial two. 45. Page 70a reads: “Client: Zeta Limited – James Ibori Control number ………. Sales Rep; Ellias Preko Compliance Officer: Vicky Willis Date received: 12/02/01 Date completed:5 th March 2001 Result: Not approved Sales Rep Notified [box ticked] Compliance Notified [box ticked].” 46. Mr Horwell objected to its being put to Preko and the Crown said its relevance had only just become clear. 47. Before us Mr Horwell’s submission was that though on its face it might have gone to determination of the application, without more it lacked relevance. It does not speak for itself. Its purpose is not clear. The author is not identified. There was no suggestion Preko had seen it so he was in no position to comment. It was close to certain it could not have been written by Miss Willis as she used the abbreviation “Vikki” not “Vicky” as on 70a. Ibori’s application had been stamped “Approved VW” whereas the contrary is conveyed on the face of 70a. If it were relevant then it did not arise ex improviso. The issue to which it went was clear at the latest during trial one which ended 18 months before trial two began. 48. In his ruling permitting the Crown to deploy it the Judge said: “What has happened here is that Mr Preko has been laying down a challenge in his evidence, perhaps confident that the prosecution could not deal with it…in effect saying “There are no documents and this supports my case” I am quite confident that the spotlight was thrown on it by Mr Preko and a challenge was handed out in him by his evidence” 49. Mr Horwell complains too about the Crown’s reference to it as "Vicky Willis's document" since it had nothing provably to do with her yet the epithet lent it weight because of her position. It had clearly not come from compliance as the ticking of the box “Compliance Notified” showed. The Judge was astute to this during dialogue but by the time he summed up he too referred to “VWs document”. 50. The Crown argued that Preko’s defence team had long had the document. Indeed interviewed as long ago as September 2008 and shown 70a Preko said Ibori was subject to due diligence at GS and an account had been opened. 51. Mr Horwell argued and argues that, on the contrary, the Crown set an ambush. If it had elected not to prove its own document it should not be entitled to put it in during cross-examination. The Crown must have known of its relevance to the important issues of whether the application had been rejected and if so whether Preko were told. 52. Mr Horwell suggests that in cross-examination the Crown tried to lay a trap for Preko as, he said, it had always intended. The state of play was long distant from Preko having thrown down the gauntlet, as the Judge had effectively described it. 53. Hence the importance of the rehearsal, described as deficient, during the summing-up, when the Judge said: “The Vicky Willis document was put to him at page 70a which actually the Crown introduced, saying that the account was not approved and it was put to him: “It is clear that the account was not approved by Vicky Willis”. “I don’t know. He was classified as a client. I don’t know what was not approved by her. It could be anything.” As far as he was concerned [Ibori] was classified as a client. “This does not show that Mr Ibori was refused as a client as far as I can see.”” 54. On that basis, Mr Horwell argues, Preko could have been convicted on 70a alone, an anonymous unexplained document. 55. As to Ground 3, that the judge should not have said that if Preko knew Ibori’s application had been rejected he was guilty of Counts 1 and 2, during cross-examination, Preko had accepted that had he been told by Ford that Ibori’s application had been rejected and, second, that Ibori had been found to be corrupt, then he was guilty of counts 1 and 2. 56. The Judge, immediately after that part of his summing up we have quoted above, added: “[The Crown asked] “If Mr Ibori was refused and you were told and went on to deal with him, you would be guilty, would you not?” “Yes”.” 57. The complaint is that the comment, towards the end of the summing up, far from fairly representing Preko's evidence, omitted the most important part of the question, the element of corruption. 58. As to Ground 4, adverse inference, the Crown had cross-examined with an eye to an interview in which Preko said “GS did not tell me of the reason the account was declined”. It hoped to rely on his failure to foreshadow his case at trial that an account had been opened, an explanation it hoped to suggest had been later fabricated. However, six months earlier, during an interview which was before the jury Preko had said an Ibori account had been opened and the Crown abandoned its application for an adverse inference. 59. During the summing up when the Judge considered the cross-examination designed to lay the foundation for the adverse inference, he is said to have resurrected this. He said: “[Counsel for the Crown] referred him to his prepared statement ………”GS did not inform me of the reason the account was declined” 60. As to Ground 5, reversal of the burden of proof, the submission relies on what Mr Horwell described as a known vulnerability on the part of the Crown due to its failure to call key witnesses. Vicky Willis, Sassoon and Ward he argued were oddly absent. The Crown closed its case on the basis that Preko should have called them and that that failure undermined his case. 61. In his summing-up the judge said: “Mr Preko. You will remember him well, of course. He is the only defence witness in the case and he was in the witness box for many many many days.” 62. At the conclusion of his distillation of Preko’s evidence, some 33 pages of transcript later, the Judge said: “No other witnesses were called. That is the evidence I propose to remind you of and I going to send you out in a moment to start your deliberations.” Mr Horwell argued that this was undesirable. 63. As to Ground 6, expensive lawyers, a comment in the Crown's final speech pejorative about the hiring by those in jeopardy of expensive lawyers Mr Horwell suggests bore the implication that Preko’s lawyers were paid to advance an unmeritorious cause. 64. Its foundation lay in an exchange about Companies House documents which RBC wanted. A comment was made by Preko to Ibori: “I suggest you quickly pay a reputable lawyer or accountant to do this immediately and quickly before it gets ugly." Discussion and conclusion 65. The jurisprudential principle on the admissibility of prior acquittals which we set out was plainly in the mind of the Judge, doubtless astute to its rarity being rooted in a jury not being required to give reasons. 66. There is a range of explanations for the consistency of the acquittal in trial one and the conviction in the retrial. It is neither helpful nor necessary to attempt exhaustive recitation of all possibilities so we mention only some of the examples the Crown, when pressed, suggested are obvious. 67. The first jury might have been affected by a conclusion that no money actually came in to GS, and decided to acquit. In trial one Preko’s defence team departed during his cross-examination and the effect upon Preko was, we are told, plain to see. That he was unrepresented for a significant part of the trial and, as the transcript suggests, he and the Judge were not at one might also have played a part in the approach of the jury. The Crown’s case was that at a 2001 meeting Ford told Preko that Ibori was a PEP and corrupt. There were no contemporaneous notes of those events which by the trial were long in the past, and the topic of extensive cross-examination. For all we know the jury rejected Ford’s evidence for that reason if for none other. True it is that the judge in his summing-up in the first trial told the jury it was open to it to conclude that counts 1, 2 and 3 stood or fell together but he also directed it to consider the evidence in respect of each count separately because of the potential for different verdicts, depending on its view of the evidence. 68. As to the acquittals on counts 4 and 5, the Crown, invited at the retrial to indicate how it would amend its Opening, when it told the court it was content not to open that Preko was not authorised to sign the IMAs nevertheless pointed out that that position might change as the defence case developed. 69. The DECA witnesses told the jury they had not heard of Zeta or Alantar or Ibori. When it was suggested that the existence of the IMAs suggested that to the contrary these were DECA clients they said Preko was not entitled to sign the IMAs. 70. In our view this rejoinder emerged against the backdrop of a first trial and in light of a self-denying ordinance by the Crown in the retrial. It was however always open to Preko to tell the jury that DECA did know of these clients and that it must have done due diligence. 71. The criticised comment in the Crown’s final speech did no more than remind the jury of evidence which went to whether the DECA witnesses knew of Ibori. Its case was that none did, since Preko was protecting him and had signed a document he was not entitled to sign. Once this is remembered it is easier to understand that his acquittal of forgery, a signature in his own name, could not have been of assistance to the second jury on whether he had authority to sign IMAs. The acquittals would not have shown that the first jury disbelieved the DECA witnesses. 72. Once again, in our view it would achieve nothing to speculate ad infinitum on the range of potential explanations for these acquittals. That one jury in one trial did not find the Crown’s case proved to the criminal standard is of no relevance to the decision of the jury in the retrial. 73. We are in no doubt that the Judge reached the correct conclusion. Ground 2, page 70a 74. The difficulty confronting Mr Horwell begins with Preko having been asked about this in interview 2008. It is then compounded by the page having been served by the Crown not only long before the retrial began but well in advance of the first trial. 75. No account number was recorded on page 70a. Ford’s evidence was that after due diligence a supplementary form, although recording information about Ibori's business, was silent as to his PEP status, though the question had been posed. The jury had all those documents. 76. The Crown thus began its presentation of trial two in this position: The jury had documentation which lacked an account number, suggestive of none being in existence. GS had done due diligence. Ford said he would never have approved Ibori and would have told the person handling the application, viz Preko, of that. David Wilson’s search of the GS database revealed no record of Ibori or of Zeta holding an account. 77. The suggestion that GS, aware of the unflattering reports on Ibori, would nevertheless have decided to open an account was in our view one of which even Mr Horwell would have struggled to persuade a jury. 78. We examined the transcript of cross-examination, given the uncompromising nature of Mr Horwell’s submission about the bona fides of the Crown’s approach. It reveals Preko consistently averring that, had there been a rejection of an account, documentation to that effect would exist. Those comments were not extracted from him as a consequence of a line of questioning by the Crown, rather it was Preko who repeated his mantra no matter the question posed. 79. 70a, on its face controverting the repeated assertions Preko chose to advance, was capable of showing that his evidence lacked candour or at the very least accuracy. It was plainly of potential importance as going to an issue he elected to emphasise. 80. We regard the suggestion that it did not arise ex improviso as taking the matter no further. 70a was part of the documents served by the Crown in support of its case. Preko and his lawyers knew of it by the time of preparation for the first trial. 81. Whether something may permissibly be put in cross-examination when evidence of the defendant brings out some matter more clearly than the other party might have appreciated can be a grey area. What is far from grey however is the approach to be adopted. The trial judge is best placed to make that assessment, having the whole feel of the case: Grocott [2011] EWCA Crim 1962 82. Not only are we in no doubt that 70a, capable of controverting his repeated assertions, was permissibly put to Preko once he had chosen his course during his evidence, but we should have found it astonishing had the Crown not made the application. 83. That it was described as “The Vicky Willis” document was no more than shorthand. That submission adds nothing. 84. We reject the renewed application on Ground 2. Ground 3, direction on what established guilt on Counts 1 and 2 85. Whilst it is true that in the criticized comment the Judge did not articulate corruption as a necessary element before the case could be proved, the position for which the Crown argued was uncomplicated and had been clearly expressed. To be sure that Preko knew Ibori’s application had been rejected the jury was bound to have considered the evidence as a whole. It could not have been under any misapprehension: Preko’s awareness of corruption was part and parcel of the knowledge the Crown had to prove. The Judge’s passing comment must been seen in the context of the entirety of the summing-up and of the trial itself, not as standing artificially proud. The jury can have been in no doubt of what was required before it could convict. 86. We reject this Ground. Ground 4, adverse inference 87. There are insuperable difficulties in the way of this submission. First, the Judge was entitled to remind the jury of that part of the cross-examination when he dealt with the entirety of the evidence of Preko. In any event, fatally to the criticism, he directed the jury that it must not draw any adverse inference against him for failing to answer questions in interview. 88. That is an end to the matter and we reject this Ground. Ground 5, reversal of the burden of proof 89. The authorities suggest that in limited circumstances the Judge may permissibly comment on the failure of the defendant to call a particular witness albeit confined to instances where the Crown would have had no means of knowing the witness had relevant evidence to give until after the commencement of the defence case. 90. The decision to mention Preko’s failure to call witnesses was one of judgment for the tribunal which had heard the entirety of the evidence and the submissions of experienced leading counsel. Even if we were concerned about the criticisms advanced, this Ground would fall away in light of the clear and unambiguous direction (not criticized) that the Crown throughout bore the burden of proof. 91. We reject this Ground. Ground 6, expensive lawyers 92. Examination of the transcript did not support Mr Horwell’s contention. These passing remarks were neither controversial, prejudicial nor unfair. Experienced leading counsel have regularly met and will meet again in hotly contested trials comments they would prefer had not been made. That is a long way short of impermissibility, even if (and we do not suggest it was here) it were a “dig” at an opponent. 93. There is nothing in this Ground. Ground 7, no direction on delay 94. This too we can take shortly. That there was no such direction is not, on these facts and with the advantages for the jury of skilled presentation in the hands of Mr Horwell, such as to bring the safety of the conviction into doubt. On any view this case was heavily document-dependent and parties were far from reliant upon memory without more. 95. We reject this Ground. 96. For the reasons given this appeal is dismissed.

```yaml citation: '[2015] EWCA Crim 42' date: '2015-02-03' judges: - LADY JUSTICE RAFFERTY - MR JUSTICE CRANSTON - HIS HONOUR JUDGE CAREY DL (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200701652 C3 Neutral Citation Number: [2007] EWCA Crim 2896 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 20 November 2007 B e f o r e : LORD JUSTICE KEENE MR JUSTICE OPENSHAW MR JUSTICE IRWIN Between - - - - - - - - - - - - - - - - - - - - - R E G I N A v PETER MOORCROFT - - - - - - - - - - - - - - - - - - - - - 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 K HODSON appeared on behalf of the Appellant MR HWR BLACKSHAW appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - Judgment 1. LORD JUSTICE KEENE: On 23 February 2007, at the Crown Court at Manchester before HHJ Thomas QC, this appellant was convicted of sexual assault of a female under the age of 13. He was subsequently sentenced to a two-year conditional discharge. 2. He now appeals against that conviction by leave of the Single Judge. That leave was granted on only some of the grounds put forward. The complainant in the case, whoM we shall call L, was a girl who was 12 years old at the time of the alleged incident. She, on 10 August 2005, visited a roller-skating rink in Stockport with a number of other children, who had been at a school-holiday club. The manager of that club was with them, a woman called Emma Kneale, as were other members of its staff, including Jenna Stevens and Emma James. The appellant was there because he ran the roller-skating rink. 3. The evidence put very briefly was that in the course of her time at the rink the complainant, L, told several people that a member of the rink staff had put his hand down the back of her pants and Knickers as she walked past him. In her evidence L said that just after the incident she turned and looked at the man and he was looking at her, although she had agreed in cross-examination that it was a very quick look. At another point in her evidence she described him as looking at her and then looking away. 4. One of those who she told was Emma James, who asked her where the man was now. The complainant replied that he was in the DJ box at the rink and she pointed him out. This was about 10 to 15 minutes after the incident itself. According to Emma Kneale, the complainant pointed the man out to her as well shortly afterwards and she videoed him on her mobile phone. That videoing took place in the café to the rink. 5. The complainant in her evidence described the man as wearing a darkish blue shirt, as being in his 50s with greyish hair and with a pair of glasses in his shirt pocket. She said that she had first seen him serving in the café with another man who was wearing glasses. He had then gone over to the side of the rink which was where the assault occurred as she was walking past him on her skates. 6. When she gave an account the day after the incident to a police officer, he noted down the words "glasses, white man" and took that to mean that the offender wore glasses. Another worker from the rink, a Mr Appleyard, who did wear glasses, was subsequently arrested but was not then identified by the complainant at an identification parade and he was released without charge. The appellant, however, was identified by the complainant at an identification parade in December 2005. In the course of her evidence she said that she had known straightaway that it was him. 7. The appellant also gave evidence. He agreed that he was at the rink at the time in question but he denied that he had committed any such assault. He was a person of good character. 8. Most of the grounds on which leave has been given to appeal concern the issue of identification. Although there is finally a ground asserting a lurking doubt about the safety of the conviction, the main thrust of the submissions, on his behalf, do relate to the identification evidence and process. The appellant criticises the way in which the judge summed up the issue of identification for the jury. It is said that he did not remind the jury of specific weaknesses surrounding the complainant's initial observation at the time of the incident. That initial observation, says Miss Hodson, who appears on behalf of the appellant, was the crucial first stage on which all else depended. It was only a brief glance. The lighting was, to some extent, dimmed and to the police she had said that she had not looked back. The defence case was that this was a fleeting glimpse case and yet the judge told the jury that it was not. Thus he undermined the Turnbull direction. 9. Furthermore, argues Miss Hodson, the judge played down the significance of the complainant's evidence that the man had had glasses in his shirt pocket, whereas the appellant did not wear glasses. All in all there was a failure to follow the approach to identification evidence required by the decision in Turnbull [1977] 1 QB 224 . 10. We note what the judge did say in summing-up on this aspect. He referred to the issue of identification and began by saying this, at page 8 of the transcript: "It is right that, in any case where the issue of identification arises, there is a need for a judge in his summing-up to deal with it and the reason why that is the case is because experience has shown, from cases over many years now, that there can be mistakes made by witnesses, who are doing their honest best to give evidence about an allegation to a jury, that mistakes can be made with identification. Again, this may be common sense in many, many ways, but we have all got experience of mistakes with some sort of recognition and identification and we can all imagine, perhaps at one extreme of a criminal trial, the bank robber fleeing from the bank and you or I walking down the street doing our shopping and seeing the man run out and run round the corner and we may, if one was to put a clock on it, have seen him for a second or two. That sort of (we call it) fleeting glimpse type case, we can see how mistakes can very readily creep in there, especially if, between seeing the man running round the corner for a couple of seconds and perhaps being asked by the police to go to an identification procedure six months, nine months, a year later, or whatever..." He then went on to refer to the need for the jurors to bear in mind the circumstances in which the sighting was made, referring to factors such as the distance between the two people, how light it was, whether anything got in the way or diverted the witness's attention, the time gap between the first sighting and the actual identification, and then the description given by the witness initially of the person in question. The judge did draw attention to the complainant's evidence about glasses in the man's shirt pocket and to the evidence that the appellant said that he did not wear glasses, although it is right to observe that he said that he had in fact sometimes worn sun-glasses on holiday. 11. What is true, as Miss Hodson emphasises, is that the judge did not specifically remind the jury of the particular factual circumstances of the sighting by the complainant at the time of the incident. No doubt it would have been better if he had done so. However, this was a relatively short trial, beginning on a Monday and with the judge summing-up on the Thursday. He had specifically directed them, as we have indicated, to take into account such matters as distance, lighting, the length of observation, and so on. When we put those two elements together we do not regard this aspect of the summing-up as calling into question the safety of the conviction. 12. Nor, in our judgment, was this truly a fleeting glance case. First because the complainant had already seen the appellant shortly before this incident, working in the rink café. We are satisfied that that was her evidence and that she regarded him as the man who was the person who committed the assault on her. It also follows from that that she was identifying the man in question as a member of the rink staff. Secondly, as the judge pointed out, once one has got to that stage it becomes what he called "a limited cast case" with a limited number of people against whom the allegation could lie. In the end it came down essentially to one of the two men working in the café where the video film was taken, those being the appellant and Mr Appleyard. The complainant distinguished between those two men in the café as "one with the glasses" and "the other one who put his hand down the back of my pants". That pointed clearly towards the appellant. In our judgment the trial judge was entitled to distinguish this from the classic fleeting glance case where a witness only sees the suspect for a few seconds in total. 13. It is also submitted that the judge went wrong in failing to warn the jury that the complainant might have picked out the appellant at the identification parade simply as a result of having seen him at the rink. Miss Hodson emphasises that the complainant had seen the appellant after the assault and that may have been why she picked him out subsequently at the identification parade. She may, it is said, have convinced herself that it was him. However, as Mr Blackshaw points out in his written submissions, the complainant had not picked out Mr Appleyard at the previous identification parade, even though he too had been seen by her at the rink and had been one of the two men in the DJ box. We can see no force in this limb of the argument. 14. It is further submitted that the tenor of the summing-up made clear the judge's view on the identification issue. Miss Hodson draws attention, in particular, to what the judge said at the top of page 13 of the transcript where one finds this passage: "So be alive to identification as an issue and the sort of dangers that are attached to it but, in the reality of this case, how far does the issue of dangers of identification really go, you decide." We do not regard that as going beyond the proper bounds of the area of comment legitimately available to a trial judge. He was, no doubt, giving some implied indication of his own view to the jury, but in the usual way he indicated to them that the issues of fact were for them to decide and not for him. We do not regard this as casting doubt upon the safety of the conviction. 15. It is also said that the conviction is undermined by the number of times that the video taken by Emma Kneale was played to the jury. In total, it seems, it was played some eight times with the scene being shown twice on the video, once in a smaller version and then in a larger and somewhat enhanced version. It is contended that this may have suggested that the video was especially important and that this prejudiced the appellant. We cannot agree. 16. It is understandable that the video was played a number of times. First of all, it is not very easy to discern precisely what is being shown in the video. It is, of course, not like a still photograph over which the jury could pore. It needs to be played several times if one is to make out what it shows. 17. Secondly, until the appellant accepted in cross-examination that he was the man in the blue shirt shown in the film, there could well have been an issue as to whether it was him. Once he had admitted that he was one of the two men shown in the film, the issue became whether he was the man pointed out to Emma Kneale by the complainant. The judge properly identified that issue for the jury and did so in clear terms at page 13E of the transcript. Emma Kneale's evidence was quite clear that he was the man pointed out to her by the complainant and it seems to us that it was open to the jury so to conclude. 18. Apart from those submissions on the issue of identification, the appellant also puts forward a ground to indicate that there ought to be some lurking doubt about the safety of this conviction. In support of that, Miss Hodson refers both to the identification issues, which we have just dealt with, and also to a number of other matters. For example, she stresses that this was alleged to have happened in a public place. The complainant was a 12 year old girl who, in some accounts that she gave, was unsure whether or not it may have been accidental, and there were some discrepancies in the accounts which she gave at different times. 19. It seems to us to that all of those are factors which really go to her credibility and to the accuracy of the evidence which she gave. The jury heard her, as they did the appellant. They believed her evidence and they were sure that the appellant was the person who had committed this sexual assault on the complainant. The case turned on that credibility. We can see no reason to believe that the jury erred in the verdict at which they arrived. 20. It follows that this conviction is not unsafe and the appeal must therefore must be dismissed. 21. MR BLACKSHAW: In the circumstances I am instructed to apply for costs for the respondent. 22. LORD JUSTICE KEENE: Yes, Miss Hodson? 23. MISS HODSON: The appellant has appealed on advice and was granted leave by the Single Judge. I invite your Lordship's to consider whether it is necessary to order him to pay further costs in this case, bearing in mind that there was a financial penalty of £3,500 in the lower court. 24. LORD JUSTICE KEENE: Yes. 25. MISS HODSON: Can I also indicate to your Lordships that the appellant himself is currently in receipt of benefits. He is in receipt of sickness benefit. He had to cease work as a result of depression that was brought on following these proceedings. He has also, since then, been diagnosed with a pulmonary disease and he is awaiting the outcome of an application for incapacity benefit. He and his wife sold the business as a result of, and following, this case. 26. LORD JUSTICE KEENE: They sold the business for how much? 27. MISS HODSON: Would your Lordship allow me to take instructions, please? ( Instructions taken ) It was sold for £25,000 and £12,000 was owed to the landlord. 28. LORD JUSTICE KEENE: Do you mean that £12,000 comes off the £25,000? 29. MISS HODSON: It does, yes. 30. LORD JUSTICE KEENE: Thank you. Mr Blackshaw, how much are you asking for? What are the prosecution costs? 31. MR BLACKSHAW: £1,400. 32. LORD JUSTICE KEENE: We are not prepared to make any order for costs in this case. Thank you both very much, indeed.

```yaml citation: '[2007] EWCA Crim 2896' date: '2007-11-20' judges: - LORD JUSTICE KEENE - MR JUSTICE OPENSHAW - MR JUSTICE IRWIN ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2013] EWCA Crim 1865 Case No: 201207099 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday 24 April 2013 B E F O R E: LORD JUSTICE DAVIS MR JUSTICE ANDREW SMITH MR JUSTICE JEREMY BAKER R E G I N A -v- ANWAR Computer Aided Transcript of the Palantype 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 C WARE appeared on behalf of the APPELLANT MR A JORDAN appeared on behalf of the CROWN J U D G M E N T 1. LORD JUSTICE DAVIS: This appeal, for which this court has given leave, yet again raises a point by reference to Section 327 (1) and Section 329 (1) of the Proceeds of Crime Act 2002 . More particularly, it calls into consideration the way in which the jury, after submitting a written note in the course of their deliberations, were instructed by the judge in the circumstances arising at the trial below. 2. The background is this. The appellant faced a number of counts on an indictment on which there was also a co-accused called Adeel Arshad. In due course the appellant pleaded guilty to three counts on that indictment, being counts of possessing articles for use in fraud. The co-accused also pleaded guilty to a number of counts. The prosecution offered no further evidence in respect of certain other counts on the indictment but three counts were pursued to trial. One was a count of possessing criminal property, contrary to Section 329 (1) (c) of the Proceeds of Crime Act 2002 ; and two other counts were counts of disguising or converting criminal property, contrary to Section 327 (1) (b) and (c) of the Proceeds of Crime Act 2002 . It may be noted that none of those three counts, as particularised on the indictment, included any specific allegations as to the precise nature or type of the criminal conduct in question. 3. On 1 April 2011, during a search of the appellant's home in East London, police found a total of some £2,240 in cash, variously discovered in two handbags belonging to the appellant's niece or under the bed of the niece's husband. This was to reflect what was alleged in count 1. 4. As to count 2, it was not disputed that on 20 August 2010 the appellant had purchased a BMW car from Mr Harkinson (in fact a serving police officer, as the appellant apparently knew at the time) for £38,500. The purchase of that car had been made using £37,000 in cash, with the balance being paid by use of a debit card. 5. As to count 3, this involved the purchase of another BMW from Mr Rhodes on 24 January 2011. The agreed price was £47,000 odd, apparently to be satisfied by way of part-exchange of the BMW previously acquired from Mr Harkinson together with a further payment of £12,500. The £12,500 was paid by the appellant by way of cash and use of a debit card or debit cards. At trial, his case was that the £12,500 had been provided by a friend called Mr Bhaji, part of which had been paid in cash into the appellant's own bank accounts to enable him to meet the payments on the debit cards. 6. The appellant was arrested on 1 April 2011 and interviewed. He declined to answer questions but provided a statement. This was to the effect that he denied that the cash found at his home belonged to him. As to the purchase of the BMW cars, amongst other things, he said that the acquisition - and certainly that relating to the car bought from Mr Harkinson - had been funded by use of a combination of wages, rental income and cash gifts from family and friends. 7. The matter came on for trial before Her Honour Judge Dean and a jury at Isleworth Crown Court. After a trial lasting some four days, the appellant was convicted on 15 November 2012 by unanimous verdicts of the jury on each of the two counts. In due course he was sentenced to a total term of twenty-two months' imprisonment which included the matters to which he had pleaded guilty. 8. In opening the case at trial the prosecution made clear - and this, indeed, accorded with the indictment - that it was not alleging any particular kind of criminal conduct. Its case was, in a nutshell, that the circumstances were such that it was an irresistible inference that the cash represented, and the acquisition of the cars derived from, the proceeds of unspecified crime. By agreement, the pleas of guilt by the appellant to the three counts of possessing articles for use in a fraud were before the jury. There was also as part of the prosecution case an unchallenged witness statement read out to the jury to the effect that the appellant's income, as contained in the records of HM Revenue & Customs, indicated that there were no employment records or details for the years 2005/2006 to 2008/2009. A very modest income for the year 2009/2010 in respect of employment by a flooring company was made good in the sum of £1,733 and for 2010/2011 in the sum of £4,160. He was also noted as receiving various tax credits and child tax credits with the amounts being given. 9. The prosecution case therefore, in essence, was that there was a very modest declared or recorded income but nevertheless access to large sums of money and a lack of any convincing explanation for the possession of such large sums. 10. Oral evidence was given at the trial by the appellant and also by his sister. The appellant's case at trial departed somewhat from what he had said in a prepared statement provided at interview. He now said, amongst other things, that he had little in the way of rental income; rather, the rental income from family property belonged to his mother. He also said that he had funded the purchase from Mr Harkinson in part from the sale of bridal gold jewellery originating in Pakistan, generating £14,850 odd, and also, in part, from the sale of yet another BMW car acquired by him for £15,000 in cash. He also relied on an alleged gift of £10,000 in cash, said to have been given to him by his mother. Various documents were produced at the trial to support his explanation. As to the purchase of the BMW car from Mr Rhodes (the subject of count 3), he said that Mr Bhaji had provided the cash balances and in due course he had sold the vehicle on to Mr Bhaji, receiving for himself payment of the appropriate balance. Mr Bhaji did not give evidence at the trial. 11. The appellant's sister in the course of her testimony for the defence gave evidence about the purchase of bridal gold, amongst other things. She also gave some evidence about her mother's tax return which included rental income and which return - the sister said - she had helped her mother to prepare. It was not put to the sister that there had been false statements in the tax returns. No questions were asked of the appellant in the course of his cross-examination as to whether he himself had been engaged in some kind of illegal activity involving the dishonest and unlawful evasion of tax properly payable. 12. During the course of the appellant's evidence, the jury had put in notes asking various questions. One question was this: "Was the gold declared to HMRC when imported to Pakistan? What was the duty/VAT paid?" The judge's response in due course to this question was to the effect that the jury simply had to decide the case on the evidence as presented to the jury. In the course of summing up on this aspect, the judge said (page 3A): "In this case there were a number of interesting questions which you raised. I hope you will forgive me for having dealt with them in the round and for not dealing, I am sure, with the questions in relation to the importation of the gold. Members of the jury, you simply have to decide the case on the evidence which has been presented to you. There won't be anymore. Please do not speculate, in other words guess, about what other evidence you might have heard." 13. The whole trial thus continued at that stage to be conducted on the footing that, so far as the prosecution were alleging, the circumstances were such that the jury could safely and surely conclude that the cash and acquisitions of the cars, in whole or in part, represented or were derived from, unspecified crime. And that is the basis on which the judge summed up. 14. Amongst other things, the judge said this in the course of her summing-up (page 7C): "The prosecution do not have to prove what the precise criminal conduct was because again the purpose of the legislation is to catch out criminals who are trying to conceal proceeds of crime and hence the prosecution do not have to prove what the precise criminal conduct was. But of course they do have to prove that the money or part of it came directly or indirectly from criminal conduct and the defendant knew or suspected that. The prosecution case in this trial is that that is the only sensible inference that can be drawn. Please bear in mind at all times, members of the jury, that it is not for the defendant to prove that it is was not criminal conduct. It is for the prosecution to prove that it was. Of course, members of the jury, this case, as I am sure is obvious, is not about whether the defendant got some small change for being a bit part man or middle man in some car deal. This case is about whether this defendant was involved in laundering quite substantial sums of money which came about from criminal conduct. So that is what the prosecution must prove." 15. A little further on in the summing-up the judge dealt briefly with the evidence relating to the applicant receiving working tax credits and child tax credit. She said: "You heard something about the working tax credits and the child tax credit that the defendant claimed. I am not going to remind you about those because they are not going to assist you in deciding the issues in this case. So he is not earning a great deal." 16. The judge proceeded to sum up the prosecution case and the defence case on the evidence fully and properly. No complaint is or can be made about the summing-up. 17. The problem arises - and which has generated this appeal - from a jury note which was sent in some two hours after the jury had first retired. The note was to this effect: "Can tax evasion in the UK constitute criminal conduct for the purposes of this case?" Quite rightly, the judge discussed this note with counsel. 18. Mr Ware, appearing on behalf of the appellant at trial, as he does on his behalf at this appeal, did not wish there to be an unequivocal answer "yes" to the question as put. Mr Ware submitted to the trial judge that "tax evasion" could be a somewhat blurred and confusing matter of law. Mr Ware further submitted to the judge that tax evasion had not been any part of the way in which the case was presented at trial. The judge initially appeared to be receptive to this argument advanced by Mr Ware. Mr Jordan, appearing on behalf of the Crown at trial and also on behalf of the Crown at this appeal, whilst fairly accepting that he had not conducted the trial on a footing that there had been some kind of tax evasion or, indeed, any particular kind of criminal conduct, submitted to the trial judge that the answer sought should not be denied to the jury and it was, indeed, a matter for the jury. 19. Mr Ware then asked for more time to consider the point. The judge rejected that and the debate continued. 20. With hindsight, it would have been very much better if some time to reflect and to research the legal authorities had been accorded to counsel and, indeed, so that the judge herself could reflect further. Of course, one can understand the time pressures on a judge conducting a trial when the jury is out and waiting for some type of answer. The judge, overall, as the argument developed, was clearly concerned that the jury, having asked a straight question (as the judge put it) were entitled to a straight answer. 21. At one stage in the course of debate before the judge, Mr Jordan is recorded as saying: "I don't want to speculate why they might be asking the question but it is possible that the fact that we are not charging him with tax evasion alongside these crimes has caused them to wonder whether tax evasion is a qualifying crime, if you like, and the clarification about it is quite straightforward, yes. As to whether they are correct in their analysis of tax evasion, we have not provided them with any evidence one way or another, so it is the man on the street's analysis, which may be as good as Mr Ware's or mine. It may not be as good as your Honour's in terms of knowledge of the law." 22. Mr Ware continued to maintain his objection, saying that tax evasion had been put neither to the appellant nor to the sister and the case had never been conducted by anyone on such a possible aspect and the point had not been addressed in speeches or otherwise. 23. The judge decided to direct the jury, indicating her view in this way: "It is not about how the prosecution puts its case. It is about what the law is. My duty is to tell the jury what the law is irrespective of how the respective cases are put." She then asked Mr Ware whether he agreed that tax evasion was a criminal offence. Mr Ware, not surprisingly, answered that in some circumstances it may amount to a criminal offence. 24. The judge had the jury back. She directed the jury in this way. She read out the note and said: "Members of the jury, as I have already reminded you in my summing-up, the prosecution case is that they do not know the sources of these funds in question and I explained to you that nor do they need to prove those sources. The prosecution case, for reasons that I won't remind you of is that the only inference in this case is that those funds were criminal and the defendant knew or suspected as much. You know what the defence case is that he has given an explanation for the sources of the funds, leaving out count 1 of course because that is a different issue, and has certainly had no reason to know or suspect that any of these funds came from criminal conduct. To answer your question shortly, members of the jury, for the purposes of this case can tax evasion constitute criminal conduct? Well, tax evasion is a criminal offence in the United Kingdom so that is the long and short of it. Thank you very much. Would you like to go with the jury bailiff?" The jury retired at 2.32 pm and returned with their verdicts at 2.55 pm. 25. In order to put the arguments before us in context, it is necessary to refer to some legal background. Section 327 (1) of the Proceeds of Crime Act 2002 reads as follows: "(1) A person commits an offence if he — (a)conceals criminal property; (b)disguises criminal property; (c)converts criminal property; (d)transfers criminal property; (e)removes criminal property from England and Wales or from Scotland or from Northern Ireland." 26. Section 329 (1) reads: "(1) A person commits an offence if he — (a) acquires criminal property; (b) uses criminal property; (c) has possession of criminal property." 27. Section 340 (1) (5) reads: "(1) This section applies for the purposes of this Part. (2) Criminal conduct is conduct which — (a) constitutes an offence in any part of the United Kingdom, or (b) would constitute an offence in any part of the United Kingdom if it occurred there. (3) Property is criminal property if — (a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and (b) the alleged offender knows or suspects that it constitutes or represents such a benefit. (4) It is immaterial — (a) who carried out the conduct; (b) who benefited from it; (c) whether the conduct occurred before or after the passing of this Act . (5) A person benefits from conduct if he obtains property as a result of or in connection with the conduct." 28. Those provisions of the statute have given rise in the past to some debate as to whether it was necessary to adduce evidence of the particular type of criminal conduct alleged to have given rise to the property in question. Many of the authorities are help fully summarised in the opinion of Lord Kerr in the Privy Council in Director of Public Prosecutions v Bholah [2011] UKSC 44 . The position, so far as the law of England and Wales is concerned, has been authoritatively stated by a constitution of this court in Anwoir [2008] EWCA Crim 1354 , [2008] 2 Crim App R 36. In that case the court reviewed the various authorities and concluded that there were two ways in which the Crown could prove that property derived from crime: (a) that it derived from conduct of a specific kind or kinds and that conduct of that kind or those kinds was unlawful; or (b) the evidence of the circumstances in which the property was handled, such as to give rise to the irresistible inference that it could only be derived from crime (see paragraph 21 of the judgment of the court delivered by Lord Justice Latham). 29. It is clear, as will be gathered from what we have said, that in the present case the prosecution case had been put at trial by way of seeking to establish the second proposition - that is to say (b) - having regard to the particular circumstances arising in this case. The prosecution thus had not set out to prove any kind of revenue fraud. But the jury note then raised this as a specific aspect which the jury might be considering. 30. The situation does have some similarity to the case of Gabriel [2006] EWCA Crim 229 , [2007] 2 Crim App R 11. In that case also the Crown had set out to prove money laundering without seeking to establish any particular kind of criminal conduct. A jury note submitted after the jury had retired asked if the regular buying and selling of goods to supplement household income without declaring it for tax purpose constituted a criminal offence. The Court of Appeal held that the fact of making profits from trading in legitimate goods without declaring it did not necessarily convert those profits into criminal property. Reference may also be made in this context to a further decision of a constitution of this court on different facts in R v K [2007] EWCA Crim 491 . 31. At all events, in Gabriel the court had said that there was a material error on the part of the judge in not directing the jury properly on this aspect arising by reason of the note. The Court of Appeal in Gabriel also said (Lord Justice Gage, paragraph 23): "This gives rise to what we consider to be one of the main difficulties in the way of the prosecution's attempt to uphold these convictions. The case as opened by counsel, and as put to the appellant, was one of alleged money laundering. It was not put on the basis of an income tax fraud or benefit fraud. The suggestion made to the appellant was that either she or someone else in her house had been engaged in some criminal activity. It was never suggested that she was trading legitimately and not declaring income to the Inland Revenue or the Department of Work and Pensions. The question from the jury raised a matter which had never been the subject of any evidence or any allegation." 32. In R v Yip [2010] EWCA Crim 1381 , the position was that the Crown had not sought to allege a specific kind or kinds of conduct by the defendant that was unlawful other than by cheating the Revenue. It was held by a constitution of this court, following Gabriel , that if the prosecution wished to rely on criminal conduct involving a failure to disclose to HM Revenue & Customs income or profits it needed to do more than show mere failure to declare a legitimate income and it would have to prove facts tending to establish the offence of cheating the Revenue. Further, in such a situation it was, as the court there held, incumbent upon the trial judge to instruct the jury at least as to the essential elements of the offence of cheating the Revenue. 33. A consideration of those cases really gives the answer to the proper outcome for this appeal. Mr Jordan, for the Crown on this appeal, accepted that the judge's direction "could have been better". He submitted in his written argument, however, that the only real fault in the judge's direction to the jury, in the light of the jury's note, was that the judge would have done better to have reversed the order of her remarks and should have told them first that tax evasion was a criminal offence. Thus whilst he conceded that the direction could have been improved, it was not a direction which, he submitted, was materially misleading. 34. In the judgment of this court the substance of the judge's direction cannot be changed simply by considering the order in which the judge made her remarks. Indeed, in his own written submissions Mr Jordan said: "It might also have been better had she crafted a direction based upon the authority of Gabriel ..... setting out the circumstances in which tax evasion could amount to criminal activity within the relevant parts of Section 340 of the Proceeds of Crime Act 2002 . That said, to do might have given undue prominence to something that was not part of either party's case and upon which no evidence had been heard." 35. As Mr Ware submitted: precisely so. That was indeed the difficulty. First, the jury were given no instruction as to the circumstances in which "tax evasion" could constitute criminal activity; second, the whole subject matter of tax evasion had been no part of anybody's case or evidence at trial. 36. The judge thought that the jury's note had raised a straight question which deserved a straight answer. We sympathise with that sentiment. We can also see the attraction of saying that if the Crown had not sought to specify or rely on any particular kind or type of criminal activity, then why should any particular kind or type of criminal activity be excluded from the jury's deliberation. 37. But matters demonstrably were not as simple or as straightforward as that and for a number of reasons. The first is this. What did the jury mean by "tax evasion"? Tax evasion is not of itself a defined statutory offence. As Mr Ware pointed out, both to the trial judge and to us, what is to one person lawful if contrived tax avoidance may be to another person unlawful (or at least immoral) tax evasion. The judge broadly gave the jury the answer yes without giving the jury any guidance at all as to the legal elements of the offence of cheating the Revenue. 38. Second, the previous jury note submitted during the course of the trial had indicated a possible interest on the part of the jury as to whether the importation of gold from Pakistan attracted VAT or duty to be paid. It is not clear from the jury note whether the jury still had some thoughts in that regard or indeed were contemplating the position about benefit fraud. All this highlights that it is not clear what the jury had in mind when asking about tax evasion. 39. Third, and reflecting these points, the jury were left with an answer enabling them to convict not only on a basis that was not legally explained to them but on a basis which had never featured at trial. We repeat that it had never been part of the prosecution case that there had been "tax evasion" of any kind. That had never been put to the appellant or to anyone else and it had not been alleged that he had been dishonest in not paying taxes properly due by him or by someone else. In consequence, Mr Ware had had no opportunity or reason to deal with any such point in his closing speech. 40. In substance, the position in the present case is in many way of a kind corresponding to that found objectionable in Gabriel and Yip . 41. As we see it, the judge had two choices. The first - and in our view the correct choice given the circumstances - was to instruct the jury that "tax evasion" had never been part of the prosecution, had never been subject to any evidence and the jury should simply not speculate on that matter any further. That approach would also have been consistent with the way the judge had earlier summed up with regard to the first jury question as to the importation of the gold and with the way she had dealt with the point about the tax and child credits. 42. The second possible approach was to give the jury some legal instruction as to the elements of "tax evasion", perhaps after ascertaining (to the extent that an appropriate question to the jury could reveal it) just what the jury may have had in mind. But that approach would very quickly have led to the difficulties of identifying that there had been no evidence directed to that point at all. 43. In the result, the judge adopted neither course in answering the note. She simply summarised the respective cases and then concluded that "tax evasion is a criminal offence in the United Kingdom so that is the long and short of it". The jury therefore were never told of the legal elements of the offence; nor were they ever reminded of the total lack of evidence on the point. Indeed, it may be noted that the jury, astutely, had not simply asked can tax evasion in the United Kingdom constitute criminal conduct, they had qualified their question by asking if that was so "for the purposes for this case". Had appropriate focus been put on these last words, we would like to think that the answer given to the jury would have been different. At all events, in the clear view of this court, the answer should have been different. 44. We should, in fairness to the judge, explain that in the result we have of course received far more extensive legal argument than was deployed before her. But that in part was due to the fact that the judge had not acceded to the request for an adjournment to enable further research to be made before the jury note was answered. 45. Given all this, we think there was here a material misdirection to the jury. We have considered whether nevertheless the convictions can be upheld as being safe. Given that the jury returned very shortly after the judge's instruction to them with unanimous verdicts, in the light of what the judge had said to them, we cannot be satisfied that these convictions are safe. Accordingly, we quash the convictions and the appeal is allowed. 46. Mr Jordan, do you have any application? 47. MR JORDAN: Yes. I am instructed to seek a retrial. I am in your Lordship's hands on that. 48. LORD JUSTICE DAVIS: He has pleaded guilty and served a sentence in respect of other matters, a sentence of sixteen months on these matters. 49. MR JORDAN: Yes. 50. LORD JUSTICE DAVIS: Your submission is that there should be a retrial on these matters. 51. MR JORDAN: Yes. 52. LORD JUSTICE DAVIS: Mr Ware? 53. MR WARE: Two matters: first, the length of time since the original alleged offences. They are, in my submission, of some age. 10 August 2010, one transaction with a car; 24 January 2011, the second car; and of course the circumstances on 1 April 2011. Indeed, Mr Anwar had been charged on 22 December 2011. 54. Second, I would invite you to consider the extent to which Mr Anwar has already served a custodial sentence. He is due for release, as I understand it, on 16 August. I am not aware of the position as to the home detention curfew but I understand that is under consideration. 55. LORD JUSTICE DAVIS: He has serve the equivalent of what - eight months? 56. MR WARE: Yes. 57. LORD JUSTICE DAVIS: Anything else? 58. MR WARE: No. ( Pause ) 59. LORD JUSTICE DAVIS: No. Mr Jordan, we think the interests of justice do not require a re-trial here and we decline to order a retrial.

```yaml citation: '[2013] EWCA Crim 1865' date: '2013-04-24' judges: - LORD JUSTICE DAVIS - MR JUSTICE ANDREW SMITH - MR JUSTICE JEREMY BAKER ```

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No: 2007/5704/B1 Neutral Citation Number: [2008] EWCA Crim 1117 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 7 May 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE TREACY SIR PETER CRESSWELL - - - - - - - - - - - - - - - - - - - - - R E G I N A v MOHAMMED HUSSAIN - - - - - - - - - - - - - - - - - - - - - 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 Shannon appeared on behalf of the Appellant Miss B Cripps and Miss N Carter appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HUGHES: This appellant contends that a ruling by the judge declining to admit under the bad character provisions some evidence about his co-accused was wrong because it prevented him from fully developing a defence which he was advancing alleging duress by that co-accused. 2. The appellant and a man called Forid Miah were jointly charged with an attempted robbery at an amusement arcade in Luton. This appellant worked at the arcade. The Crown case was that he and Miah had hatched the plan together for the appellant to let Miah into the premises just before closing time, show him where the money and valuables could be found and generally facilitate the robbery. 3. It was common ground that at about closing time, when there were only two staff left in the arcade, this appellant and one woman, Miah emerged from the basement armed with certainly a knife and, on the Crown's case, also a gun - real or imitation not known. It was common ground that the lady member of staff was tied up by Miah with Sellotape around her wrists and locked in the downstairs lavatory. She, however, managed to telephone her manageress, who by then had left for the evening. The result of that was that the manageress was able to alert her partner and he, followed quite shortly by the police, arrived at the arcade and eventually any effective robbery was foiled. Thus it was that the charge was of attempted robbery. 4. Miah was tried alongside this appellant. He admitted that there had been attempted theft and he admitted that it was an inside job planned with this appellant. His case was that it was the appellant who had set up the whole affair and his contention was that the appellant had told Miah that the woman shop assistant was in on the plot as well. Accordingly, said Miah, it was never robbery anyway. 5. This appellant's defence was firstly that he had not taken any relevant active part at all, although he agreed that he knew that Miah intended to rob the arcade. His alternative defence was that if what he had done did amount to participation, it had all been done under duress from Miah. Said Hussain, he had tried to persuade Miah not to do it but Miah had obliged him to be of such help as he was. 6. Along the way to those inconsistent defences Miah and Hussain each contended that the other was a drugs supplier and he the hapless addicted purchaser. Each said that the other had used his power as supplier to persuade him to take part in the offence. 7. Both defendants had previous convictions. The defences being inconsistent as they were, each wished to put in evidence the bad character of the other. Counsel for each defendant realistically agreed that their respective clients' convictions for various offences of dishonesty were bound to be admitted. So did counsel for the Crown. So those convictions of both defendants went into evidence under gateway (a), that is to say agreement of the parties, and the Recorder was not required to rule upon that part of the bad character evidence. 8. Next, Miah wanted to call evidence from the arcade manageress which he said supported his claim that this appellant was a drug supplier. She had seen what on one view were drug transactions taking place. The Recorder admitted that piece of evidence under gateway (e) as having substantial probative value upon an important issue arising between the co-accused. He was plainly right about that and there is no complaint about that part of his ruling. 9. This appeal arises out of the last part of the Recorder's ruling. Miah had been involved something like eight or nine years previously in what was described to the Recorder as a road rage incident in the course of which another man had died. The exact circumstances of that are a little hard to determine but as presented to the Recorder, and substantially also to us, it appears that Miah had been charged originally with murder, tried on that count, convicted not of murder but of manslaughter but had successfully appealed. That conviction had been found to be unsafe and had been quashed. When the case came back to the Crown Court for retrial a plea of guilty to assault occasioning actual bodily harm was accepted. It follows that the only conviction arising out of that incident was one for assault occasioning actual bodily harm and not for any form of homicide. 10. Counsel for Hussain applied to admit under gateway (c) and/or (e) the fact that Miah had been charged with murder although he had not been convicted of it. For its part the Crown made an application to admit the conviction for assault occasioning actual bodily harm under gateway (g) based on the attack which Miah made on his co-accused. The Crown limited what it sought to adduce to the conviction which had actually resulted. Miah conceded that the conviction which had actually resulted was admissible, but contended that the form of the original charge for murder was not. The Recorder accepted the submissions of Miah and the Crown and limited what was described throughout as bad character evidence to what Miah had actually been convicted of, namely the assault occasioning actual bodily harm. 11. Miss Shannon's grounds of appeal mirror the submissions which were made at the trial. They are and were based on the fact that this appellant's case was going to be that he was overborne by Miah and obliged to commit the offence, if he did, not only by some personal violence but also by what Hussain believed was Miah's reputation for violence. It was going to be Hussain's evidence that he believed Miah to have a conviction for murder. Miss Shannon's contention was that if that was Hussain's belief it went to the issue of duress. 12. We agree that the appellant was entitled to give evidence of what he believed Miah had done in the past and/or what he believed Miah to be capable of as at the time of the alleged duress. Hussain was also entitled if there existed evidence that his belief had some kind of foundation in fact to adduce evidence of that foundation. In the context of a defendant who is seeking to advance a defence of duress, evidence that his belief had some foundation in fact would in the circumstances of this case be capable of going to (i) the truthfulness of his evidence that that is what he believed, (ii) the reasonableness of his belief in a danger of immediate or near immediate death or serious injury, and (iii) the reasonableness of his response in committing the offence. 13. The difficulty for the Recorder is that all this was presented on all three sides as a question of bad character evidence. On the way that the application was argued before him we are not particularly surprised that he refused it. Gateways apart, the Recorder was plainly right to say that a mere charge, unproved, could not be evidence of bad character, still less could it be bad character itself. Bad character evidence is evidence of something bad done by the person in question in the past. That is a commonsense summary of what it is, but it is also effectively the statutory definition which is to be found in section 98 of the Criminal Justice Act 2003 . Omitting irrelevant words that reads: "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..." Misconduct is then defined in section 112(1) in this way: "... 'misconduct' means the commission of an offence or other reprehensible behaviour..." Note that it is the misconduct which is bad character. Evidence is simply the means by which the misconduct is proved. It is not unusual to see the concept of bad character wrongly elided with that of conviction. It may well be that often they go together, but a conviction is not by itself misconduct. Its status is that it is excellent and very often irrefutable evidence of misconduct. A mere charge unproved cannot begin to be conduct. 14. In this case, in so far as the application was to adduce bad character, that is to say misconduct of Miah, the Recorder was right to say, whichever might be the gateway suggested, that the only available evidence of misconduct was evidence of a conviction for assault occasioning actual bodily harm. That was the only conviction which had resulted. It proved misconduct to that extent and no further. If, however, the Recorder had been asked to admit the evidence of what Hussain believed about Miah, however mistaken it might have been, and together with that to admit evidence that Miah had in the past been tried for murder, on the different basis that this might help to show that there was some foundation for Hussain's asserted belief, then it seems to us, for the reasons which we have already given, that it would have been relevant evidence which ought to have been admitted. 15. Miss Cripps, who has appeared for the Crown today and for whose assistance we are grateful, is, as it seems to us, correctly unable now to suggest any reason why the evidence if put on that basis could have been excluded. Of course it would no doubt have been followed by a response from either Miah or the Crown or both. It might have been open to either Miah or the Crown or both to adduce evidence which cast doubt upon the veracity of Hussain's belief. As to that we do not know. What we do know is that the evidence which Hussain sought to adduce was admissible, although not within the bad character provisions which was the way that the application was couched. 16. It follows that to that extent, although for reasons which we readily understand, evidence was excluded which ought to have been admitted. The question in those circumstances for this court is whether the conviction is or is not unsafe as a result. That in turn depends upon whether the defence of duress which Hussain was advancing could properly have succeeded had this additional piece of evidence been before the jury. That is a question for this court to be judged objectively now. 17. Certain it is that once duress is advanced it is for the Crown to show that it is not established. It is for the Crown to negative a defence of duress. It is however a defence which is available in strictly limited circumstances. The leading case now is R v Hasan [2005] UKHL 22 , [2005] 2 Cr.App.R 22 at page 314. 18. As is well-known, there are four questions that need to be asked when a jury is addressing the question of whether the defence of duress has or has not been negated. Duress involves, first, a genuine belief that if the crime was not committed the defendant would be at immediate or near immediate peril not simply of violence but of serious harm or death; alternatively that those very close to him would be. Secondly, it is not sufficient that the defendant felt impelled to carry out the offence unless a reasonable person in his circumstances and of his age and background would have felt similarly. For the reasons which we have already explained, the evidence of Hussain's belief that Miah had a previous conviction for murder would be capable of being relevant to, without by itself answering, those first two questions. However, there are two more important questions which have to be addressed. The third question is this: "Could the defendant have avoided acting as he did, without harm coming to him or to his nearest and dearest?" If he could have done so then the defence of duress is negated. It fails. Fourthly, a defendant is not entitled to rely on the defence of duress when as a result of his voluntary association with criminals he foresaw or ought reasonably to have foreseen the risk of being subjected to compulsion by threats of violence to commit criminal offences. 19. In the present case the appellant's account in support of duress was as follows. He said first that he was a customer of Miah for drugs. He said in evidence that he did not know Miah socially but that was almost immediately belied by his own evidence that on occasions they would share drugs together. They were not, on his account, simply supplier and purchaser, but associates in use. His evidence was that in the course of just such a session sitting smoking drugs with Miah, a third man, present and doing the same, had suggested this robbery. Said Hussain, Miah had then taken up the idea. It was apparent from dates given by Hussain in interview that this had been something like three weeks or so, perhaps a little longer, before the eventual offence. Then, said Hussain, a fortnight or so before the offence Miah and a friend came to look over the shop. The appellant let him conduct the reconnaissance but said in evidence that he was not taking the suggestion of robbery seriously. Three days after that, said Hussain, there was an incident when he was ordered into Miah's car. Said Hussain, he was reluctant but Miah was aggressive so he complied. Miah then told him that he wanted help to carry out this robbery. Said the appellant, he was reluctant because he did not feel he could object because of what he said was Miah's known tendency to anger and violence. On that occasion he said Miah shouted at him but there was no physical violence. A few days later the appellant asserted that he and another man both decided that they would not take part. When Miah was told this, said the appellant, he came to see him. He was verbally agitated. Then, by now about four or five days prior to the robbery, Hussain said that Miah came to the shop with a man called Mofitur. Miah was angry and shouted at the appellant. The appellant said: "He looked like he'd beat me up given the chance." A little later that night when the appellant left work Miah accosted him in the presence of Mofitur, seized him by the shoulder, punched him a number of times and put his hands around his throat. Said the appellant, he was seriously scared for his life or the lives of his family. The appellant's evidence, however, was that after that incident all three of the men, Miah, Mofitur and he (the appellant) went off together to somebody's house to smoke drugs together for the remainder of the evening. 20. The jury had the benefit of Mofitur's evidence about this same encounter. His evidence scarcely advanced the defence of duress. Mofitur said that there was an argument between Miah and Hussain but that that seemed to be because Miah blamed Hussain for the fact that Miah's car had been impounded. Mofitur described the argument as a "bit of rough treatment, a couple of pushes and shoves". Although he said that Hussain seemed afraid, he went on to say that after a short while the two of them, Miah and Hussain, settled their differences and they all went off together. As we have already said, on the appellant's case they went off together to share some drugs. The appellant had also told the police that the following day he had again spent part of the day sharing drugs with Miah and consuming them together. 21. Miss Cripps suggested to us today that that being the state of the evidence the Recorder should really have withdrawn the defence of duress from the jury. That submission we reject. Nobody suggested it at the time and we are quite satisfied that the Recorder was right to leave the defence to the jury and would have been right if the evidence which ought to have been admitted had been added in. But whether the question should at trial have been left to the jury is not now the question for us. 22. The question for us is whether the evidence which was mistakenly excluded should properly have made any difference to the jury's eventual conclusion which was that duress had been negated. We are quite satisfied that it could not. There had been ample opportunity on the appellant's own account to go to the authorities between the violent incident, such as it was, and the robbery. There was ample opportunity accordingly to avoid being compelled to commit the offence. Moreover, on his own account Hussain had associated with Miah throughout and had continued to do so after he knew that Miah was planning a robbery of Hussain's work place which Hussain knew Miah needed him to help with. The plan depended in part upon Hussain's help. Hussain actually foresaw and certainly ought to have foreseen that he would come under pressure from Miah to assist in this robbery, but he continued nevertheless in his association with him -- evidenced most plainly by the two evenings spent consuming drugs together within the few days before the offence. 23. We make no general propositions about how duress may have to be considered on different facts, but on the facts of this case we are satisfied that the defence of duress could never properly have succeeded. In those circumstances the conviction is safe, despite the mistaken exclusion of the evidence to which we have referred, and that being so this appeal must be dismissed.

```yaml citation: '[2008] EWCA Crim 1117' date: '2008-05-07' judges: - LORD JUSTICE HUGHES - MR JUSTICE TREACY - SIR PETER CRESSWELL ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2023] EWCA Crim 1196 Case No: CAO NO: 2023/021148/A1 IN THE COURT OF APPEAL, CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT, SITTING AT STOKE ON TRENT THE HON MR JUSTICE PEPPERALL 21GN6269120 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/10/2023 Before : Dame Victoria Sharp, President of the King’s Bench Division Lord Justice Holroyde, Vice-President of the Court of Appeal, Criminal Division and Mrs Justice Lambert - - - - - - - - - - - - - - - - - - - - - Between : CARLA FOSTER Appellant - and - REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Barry White (instructed by Registrar for Criminal Appeals ) for the Appellant Robert Price (instructed by Complex Casework Unit, West Midlands ) for the Respondent Hearing dates : 18 July 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 2.30pm on 18 th October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Dame Victoria Sharp, P.: 1. On 6 March 2023, at the Crown Court sitting at Stoke on Trent, Carla Foster pleaded guilty to administering poison with intent to procure her own miscarriage, contrary to section 58 of the Offences against the Person Act 1861 (count 2 on the indictment). On 12th June 2023, for that offence she was sentenced at the same court to 28 months’ imprisonment. She had earlier pleaded not guilty to a charge of child destruction contrary to section 1(1) of the Infant Life (Preservation) Act 1929 (count 1 on the indictment). No evidence was offered against her on count 1, and a not guilty verdict was entered pursuant to section 17 of the Criminal Justice Act 1967 . 2. Ms Foster’s application for leave to appeal against sentence was referred to the Full Court by the Registrar. At the hearing of the application on 18 July 2023, we gave leave to appeal, quashed the sentence of 28 months’ imprisonment and substituted for it a sentence of 14 months’ imprisonment, suspended for 18 months, with a rehabilitation activity requirement of up to 50 days. The operational period of suspension was 18 months from the date when Ms Foster was sentenced. The effect of our decision was that Ms Foster was immediately released from custody. 3. We gave brief reasons for our decision at the hearing and said that full reasons would be given in a judgment to be handed down in due course. This is that judgment. 4. Carla Foster is now 45. She was 44 at the time of sentence. Up until the events with which this appeal is concerned, she was a person of good character and lived a useful and law-abiding life. She has three children with her long-term partner, Stephen Birks. These children were born in 2001, 2005 and 2009 after uneventful pregnancies. Her middle child is autistic. During a period of separation from her partner, she had brief relationships with two men, and in about late September or early October 2019 became pregnant by one of them, though she did not know by which one. She subsequently moved back with her partner for the sake of her children when lockdown began (so that both parents could have unrestricted access to them) but concealed the pregnancy from him. 5. As was to emerge from later investigations by the police, Ms Foster made web searches in February 2020 about how to conceal her pregnancy, and later in February and throughout March and April, about miscarriages, how to procure a miscarriage, how to obtain abortion pills, and how to have an abortion at home. Such searches included “how not to look pregnant” (in February), “how to have an abortion without going to a doctor” (in early March), “how to injure yourself to lose a baby” and “how to do your own miscarriage at home” (all in late March). 6. It was clear from some of the search terms used that Ms Foster knew she was in an advanced state of pregnancy, and certainly, by late April 2020, that she was more than 24 weeks pregnant. On 24 April 2020 for example, her search was: “I need to have an abortion but I’m past 24 weeks”. In a text conversation with a friend at about the same time, Ms Foster said: “I’m too old and I don’t want to be a single mum”. In late April, Ms Foster repeatedly searched online for abortifacient drugs. By early May 2020, Ms Foster had ordered such drugs online; though these did not arrive until after she had been provided with such drugs by the British Pregnancy Advisory Service (BPAS). 7. On 6 May 2020, Ms Foster called BPAS and spoke to a nurse practitioner. Her purpose in doing so, was to obtain abortifacient drugs. She was told by the nurse practitioner to whom she spoke, that receiving abortifacient drugs by post was only an option for those with pregnancies of less than 10 weeks’ gestation. The information given by Ms Foster, which she knew to be false but confirmed to the nurse practitioner was accurate, led the nurse practitioner to calculate that Ms Foster’s pregnancy was 7 weeks and 4 days gestation. 8. BPAS then posted a Medabon pack containing 1 mifepristone tablet and 4 misoprostol tablets to Ms Foster’s home address. Ms Foster took the mifepristone tablet on 9 May, and 4 misoprostol tablets in the afternoon of 11 May. The searches she made on the internet at this stage, indicated a belief that she was then 28 weeks’ pregnant. 9. On 11 May, at about 4.25 pm, Ms Foster called emergency services. She said she was 28 weeks pregnant and suspected she was having a miscarriage. Paramedics attended. Ms Foster told them a false story: that she had suffered a miscarriage in August or September 2019, and had been told she was not pregnant; her GP thought she had not expelled the miscarriage and had prescribed medication to flush out her insides. Based on what they were told and a swift physical examination, the paramedics did not believe Ms Foster was pregnant and left. At 6.39 pm, Mr Birks called ‘999’ and said Ms Foster thought she was in labour. Ms Foster’s daughter, subsequently named Lily, was born during the course of the call. Paramedics attended within 20 minutes. Lily was not breathing when she was delivered. Nevertheless paramedics attempted resuscitation. Prior to the attendance of the paramedics Mr Birks had also attempted to resuscitate Lily. Lily was taken by ambulance to hospital and pronounced dead at 7.45pm. Ms Foster was also taken to hospital, where she remained for treatment consequent on the delivery. 10. A subsequent post mortem examination determined Lily was between 32- and 34-weeks’ gestation at the time of delivery and that the cause of her death was a combination of stillbirth and maternal use of abortifacients. 32 weeks prior to 11 May 2020 was the end of September 2019. 11. From the account given by Ms Foster and Mr Birks after the delivery (both at home and when taken to hospital) – and having spoken to medical staff - the police initially formed the view this was a tragic incident with no suspicious circumstances. On the 12 May 2020 however, Ms Foster made admissions to the hospital staff and then to the police that she had not told the truth in that account. She said this was because she had not yet told Mr Birks (about the circumstances of her pregnancy) and did not want him to find out when police and medical staff were present. Ms Foster’s first police interview was a voluntary one and took place 4 days after the stillbirth. At that interview, at which she was unrepresented, she gave the police a partial and inconsistent account of what had happened. She admitted she had contacted BPAS as she wanted an abortion, and had obtained abortifacients through the post, which she had then taken. She said she did not realise how pregnant she was until she had felt the head of the baby, but could have conceived in October or Christmas 2019. 12. A police investigation was then commenced. Ms Foster’s next police interview was on 16 December 2021, a year and a half therefore after the stillbirth. This too was a voluntary interview. At this second interview, having been told that a doctor considered Lily was delivered after at least 32 weeks’ gestation, Ms Foster said she did not think she was that far gone, and she had subsequently calculated she was 24 or 26 weeks pregnant when she took the abortifacient drugs. Ms Foster admitted she had lied to BPAS about how pregnant she was to ensure they sent the tablets to her, and that she had first found out she was pregnant in December 2019 when she took a pregnancy test. Ms Foster said she had not seen a doctor about her pregnancy because she was embarrassed; and she had been cautious about what she had said to the paramedics because she had not wanted Mr Birks to know that she had had sexual intercourse with someone else. She accepted she had told the 999 operator she was 28 weeks’ pregnant and that she was past the legal limit for an abortion when took the abortifacient drugs. 13. Ms Foster was first notified of the fact that she was to be prosecuted for the offence of child destruction by a postal requisition dated 16 June 2022, and her first appearance before a magistrates’ court took place on 19 June 2022. No plea was entered and no indication of plea was provided, pending the preparation of expert reports, prosecution papers and mental health assessments. She pleaded not guilty at the Plea and Trial Preparation Hearing (“PTPH”) in the Crown Court on 18 August 2022. The case was adjourned for trial. In a note prepared by defence counsel (Mr Barry White) for the PTPH, Mr White asked whether the Crown had given consideration to a charge under section 58 of the Offences Against the Person Act 1861 . On 1 February 2023, following discussions between counsel, it was confirmed that Ms Foster was willing to plead guilty to the section 58 offence; and following further discussions it was confirmed she was willing to do so on a ‘full facts’ basis, and no basis of plea would be advanced on her behalf. The indictment was then amended by the addition of count 2, and Ms Foster pleaded guilty to that count on 6 March 2023 (the prosecution having taken the view there was little practical difference between counts 1 and 2). 14. The sentencing judge had a number of sources of information for the purposes of sentence. He had a detailed prosecution opening note and response from the defence, a short format pre-sentence report, two expert psychiatric reports commissioned by the defence and the prosecution respectively and three character references for Ms Foster (from Mr Birks, from the biological father of Lily, and from a teacher of her son with autism). The author of the pre-sentence report noted that Ms Foster was preparing herself for a prison sentence, and believed she deserved to go to prison; but whilst such an outcome might be deemed appropriate for the offence, there were more effective community-based alternatives that would enable Ms Foster to continue with her current parental responsibilities whilst ascertaining the therapeutic intervention she needed. The author recommended a community-based order for up to two years. As for the expert psychiatric reports, in a report dated 31 March 2023, Dr Gupta, instructed by the defence concluded that Ms Foster presented with longstanding difficulties with her mental health and had developed various dysfunctional personality traits and maladaptive ways of coping. He said she suffered from emotionally unstable personality disorder and required treatment, and that she was extremely vulnerable and should receive treatment in a supportive community setting. From a clinical perspective, prison was unlikely to provide such a supportive setting and may contribute to the worsening of her mental health. The prosecution expert, Dr Kennedy, in his report dated 27 May 2023, noted that Ms Foster exhibited symptoms consistent with emotionally unstable personality traits. However in his view, it was somewhat difficult to make a diagnosis of emotionally unstable personality disorder. He too considered she would struggle in prison and would benefit from psychological treatment. 15. Prior to the sentencing hearing the judge had also been sent a letter dated 6 April 2023, headed “Mitigation on behalf of Carla Foster”, the ‘liaison author’ of which was Dr Jonathan Lord. Dr Lord is the Co-chair of the Royal College of Obstetricians and Gynaecologists (RCOG) and the NHS clinician representative NICE (National Institute of Clinical Excellence) for abortion care guidelines. We shall return to this letter (which we shall call the Doctors’ letter) below. 16. There are no sentencing guidelines for offending contrary to section 58 of the Offences Against the Person Act 1861 . In the absence of such guidelines, the judge considered the decision of the Court of Appeal, Criminal Division in R v Catt [2013] EWCA Crim 1187 to be useful guidance. He considered harm was high because Lily had been stillborn. Having regard to what was said in Catt, culpability was also high because of the length of gestation, the fact that Ms Foster knew the pregnancy was beyond the legal limit for abortions of 24 weeks and the fact that she had lied to bring herself within the telemedical services for early medical abortions. Also relevant was Ms Foster’s considerable previous obstetric experience and the fact that some planning had been involved, albeit it had been somewhat chaotic. 17. On the basis of this assessment, the judge reached a provisional sentence of five years’ imprisonment (and said that had the Court of Appeal in Catt applied the approach in the current general guidelines, he anticipated it would have reached a higher provisional sentence before considering the mitigation available to Ms Catt). He identified a number of mitigating factors. Ms Foster was 44 and had no previous convictions; the offence was committed against the backdrop of the first, and most intense phase of lockdown at the start of the Covid-19 pandemic when Ms Foster had moved back in with her long-term but estranged partner while carrying another man’s child; and she was in emotional turmoil as she sought to hide the pregnancy. The judge said Ms Foster was not suffering from any serious mental illness at the time of the offence, but he accepted there was evidence of emotionally unstable personality traits and that she was deeply remorseful, wracked by guilt and suffered from depression. He also accepted she was a good mother to three children (one of whom had special needs) who would suffer from her imprisonment. Balancing these features of the case, he considered the appropriate sentence after a trial would have been three years imprisonment. The sentence of 28 months’ imprisonment was arrived at after giving Ms Foster 20 per cent credit for her plea. Amongst the many tragedies of the case, the judge said, was that had Ms Foster indicated her guilty plea at the earliest opportunity, the sentence he was obliged to pass, would have been capable of being suspended. 18. Subsequently, the defence lodged an application that the court should reconsider its sentence pursuant to section 385 of the Sentencing Act 2020 (which provides that the Crown Court may vary or rescind a sentence at any time within 56 days of sentence). The application was made on the basis that there were two issues in mitigation that may not have been fully advanced or taken into consideration. These were the long period of delay, not of Ms Foster’s making, in prosecuting the case; and the (related) absence of reports on Ms Foster’s mental health nearer the time of the offending. In a written ruling the judge refused the application. He said he had taken the delay into account in determining the appropriate sentence and it was his view that the doctors were properly able to consider Ms Foster’s mental health in their recent reports, despite the passage of time between the offending and their engagement with her for the purposes of preparing those reports. 19. In order to place Ms Foster’s offending in context is necessary to say something, in brief, about the law. The offence to which Ms Foster pleaded guilty, section 58 of the Offences Against the Person Act 1861 , is headed “ Administering drugs or using instruments to procure abortion”. As amended that section provides that: “ Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable  ... to be kept in penal servitude for life… ” References to penal servitude for life are to be construed as reference to imprisonment for life or any shorter term: see the Criminal Justice Act 1948 , section 1(1) . 20. As the prosecution recognised, there is an overlap between the section 58 offence and the offence of child destruction contrary to section 1 of the Infant Life (Preservation) Act 1929 , as procuring a miscarriage so as to kill a child capable of being born alive may amount to both offences. 21. Both provisions however are subject to the Abortion Act 1967 (“ the 1967 Act ”: all reference to this Act are to its amended form, unless otherwise stated) which legalises abortion in certain circumstances (abortion being the termination of an established pregnancy, where established is taken to mean that the embryo has implanted in the uterus R v Secretary of State for Health [2002] 2 FLR 146 ). The 1967 Act does this by providing that a person shall not be guilty of an offence relating to abortion, including an offence contrary to section 58 of the Offences Against the Person Act 1861 or an offence under the Infant Life (Preservation) Act 1929 i.e. child destruction, when a pregnancy is terminated by a registered medical practitioner in accordance with the provisions of the 1967 Act ; and by providing that f or the purposes of the law relating to abortion, anything done with intent to procure a woman’s miscarriage is unlawfully done unless authorised by section 1 of the same Act: see sections 1(1) and 5 of the 1967 Act . 22. There are limited circumstances specified in the 1967 Act (by section 1(1) (b), (c) and (d)) in which a termination of a pregnancy after it has exceeded the twenty-fourth week would not be contrary to the provisions of the 1967 Act . None of these circumstances applied to Ms Foster. 23. Nor, self-evidently, was it open to Ms Foster to take advantage of the provisions in the 1967 Act governing the termination of an unwanted pregnancy within the first ten weeks of gestation by taking abortifacient drugs (an early medical abortion) or of recently introduced temporary provisions which enabled (subject to conditions) such drugs for an early medical abortion, to be posted to and taken at the woman’s home - the so-called “pills by post” scheme . Prior to 30 March 2020, the first pill of the relevant combination of abortifacient drugs, could only be taken at a hospital or registered clinic, following a medical consultation. The second pill could be taken within 24 to 48 hours, at home or during a second visit to a clinic. The abortifacient drugs in question are Mifepristone and Misoprostol. When dispensed as a Medabon combination pack, Mifepristone is usually taken up to 48 hours before Misoprostol . Misoprostol is taken if the delivery of the foetus has not occurred following the taking of Mifepristone. These temporary provisions (made permanent from 30 August 2022 See sections 1 (3B) to (3D) of the 1967 Act , inserted by the Health and Care Act 2022 ss 178(4) , 186(6) and SI 2022/734, reg 4 (with regs 13, 29 and 30). ) had been introduced by amendment to the 1967 Act during the Covid-19 pandemic, with effect from 30 March 2020. They changed the definition of an approved place to receive treatment for ending a pregnancy to make the home of a pregnant woman an approved place for taking approved abortifacients, provided they had been prescribed following an online or telephone consultation with a medical professional; and defined a registered medical professional’s home as a suitable place to have the consultation and to prescribe the drugs. 24. The judge in this case took account of the guidance given in the Sentencing Council’s General guideline: overarching principles (“the overarching guideline”). This says that where there are no sentencing guidelines for a particular offence, account must be taken of the statutory maximum sentence for the offence (in this case, life imprisonment), any sentencing judgment of the Court of Appeal, Criminal Division, for the offence, and any definitive sentencing guidelines for analogous offences. In that context, the judge decided there were no materially analogous guidelines, and placed considerable weight on the approach of the Court in Catt. 25. In Catt, a sentence of eight years’ imprisonment for administering poison with intent to procure a miscarriage contrary to section 58 of the Offences Against the Person Act 1861 was reduced to three years’ and six months’ imprisonment on appeal. The court held that the judge’s starting point of 12 years, before full credit for plea, was manifestly excessive. The appropriate starting point was in the region of 5 years, reduced to three years and six months imprisonment after giving credit for plea. 26. The appellant, Mrs Catt, was 36 and married with two children aged nine and eight. Her obstetric history was complex and as the court described it, threw out the potential for “disturbance, misery and entrenched problems”. During three of four pregnancies, she had concealed her pregnancy; her first child to which she gave birth when she was 21, was given up for adoption; the following year she had an abortion at 24 weeks; two years later, she presented at hospital and asked for a termination but the pregnancy was too far advanced. She had also had a lengthy affair, which covered the period of conception. The appellant’s internet searches showed she had searched for information about termination from an early stage of her pregnancy, and about illegal abortion and the consequences of procuring one. She had also visited the Marie Stopes clinic and the Pregnancy Advisory Service. She then purchased online and took an abortifacient drug, and subsequently lied to the authorities about what she had done. The aggravating features were that termination was at full term; the body was never recovered; there was careful planning; acquisition of the abortifacient; and the criminal acts were done despite considerable experience of pregnancy and its range of consequences. The mitigating features were the plea of guilty; the psychiatrist’s view that the appellant’s emotional attachment to children in utero was difficult; the appellant’s remorse; and that she had two young children to whom she was a good mother and whose development would be adversely affected by her absence from the family home. 27. The court in Catt acknowledged the case involved a difficult sentencing exercise with help from neither jurisprudence nor statute. The court also referred to the need in a novel case to reach a view on culpability and harm (the harm being the extinguishing of a young life before it had begun); but also the desire of the court to achieve a just outcome and the need to have regard in particular to the appellant’s two young children, and husband. 28. As for this court’s view, we consider that in cases of this nature, there will often be substantial personal mitigation to balance against the seriousness of the charge; and that an immediate custodial sentence in such cases is unlikely to provide a just outcome. And this was precisely the case here. 29. Prior to the Covid-19 pandemic an individual in Ms Foster’s position would have been seen in a clinic to discuss their decision to terminate a pregnancy. However the events we have described, occurred during the height of the first lockdown, when Ms Foster did not have any access to the sort of support and counselling that was available to women in her situation in normal times. It also obvious from the evidence that throughout this period she was in emotional turmoil. 30. After Lily’s birth, and whilst still in hospital, Ms Foster made admissions to the hospital staff and then to the police in her voluntary first interview at which she was unrepresented – 4 days after the stillbirth– and which ultimately led to her prosecution. It must be doubtful whether she would have been prosecuted but for those admissions. 31. In addition, there was the issue of delay. The overarching guideline makes clear, reflecting settled previous practice, that amongst the factors that can reduce seriousness or reflect personal mitigation is an unreasonable delay in proceedings since apprehension which is not the fault of the offender; and that this can be taken into account to reduce the sentence if this has had a detrimental effect on the offender. The guideline also notes that no fault should attach to an offender for not admitting an offence and/or putting the prosecution to proof of its case. As this court pointed out in R v Beattie-Milligan [2019] EWCA 2367, such delays can put extra strain on a defendant, particularly where, not just the defendant but also their family, will be affected, and can cause injustice to both sides, particularly in a sensitive case. 32. In this case the delay between offence and charge were substantial as was (though to a lesser extent) that between charge and sentence. After the admissions made by Ms Foster in her first police interview, there was more than a two-year delay before she was first notified by a postal requisition that she would be charged. Whilst appreciating the impact of the Covid pandemic on the prosecuting authorities, given the admissions already made by Ms Foster and the availability of the evidence from BPAS and from the post-mortem, this delay was not the responsibility of Ms Foster and was, objectively speaking, unreasonable. As for the further period of delay before Ms Foster was sentenced, some of the latter period of delay was inevitable in our view, in a sensitive and difficult case such as this one, in circumstances where there had been a two-year gap between the material events and notification of charge and where it would have been important to ensure that proper reports were prepared on Ms Foster’s mental health so she could properly be advised in relation to her plea. In the event, the result of all this was that Ms Foster was sentenced for procuring her own miscarriage more than three years after that miscarriage had taken place. 33. There will, no doubt, be many cases in which such delays have a limited impact on a defendant and their family. It is clear from the evidence that this was not the position here. Ms Foster was a woman of previous good character, indeed of positive good character and this was her first engagement with the law in any circumstances. The pre-sentence report author noted in April 2023 that Ms Foster was very emotional throughout the interview, and that she had expressed deep and genuine remorse for her actions, which she said would haunt her forever and had experienced extreme trauma “in the aftermath of the reality of her actions”. 34. The letter from Mr Birks, her former partner (with whom she had continued to live) was thoughtful and impressive. It provided evidence of the personal difficulties Ms Foster experienced when she was pregnant as well as during the three years between the offending and sentence. It said in part: “Covid lockdown restrictions added pressure to an already difficult time. Along with financial strain, Carla struggled emotionally nursing her mother through her fight with cancer until she unfortunately passed away. Carla was having constant stomach pains. She had an ovarian cyst while she was pregnant and needed a hysterectomy just after she lost Lily. I believe Carla has suffered some kind of depression at some point each time she has been pregnant. The last three years have been very difficult. Her mental health and outlook on life has progressively diminished since she lost Lily. I’m aware Carla has attended counselling and has been prescribed anti-depressants by her doctor. Knowing this case could be made public and the implications we could face compounds fear anxiety, stress and uncertainty for Carla and our family.” 35. Mr Birks also said this about Ms Foster, and the impact of a custodial sentence on the family and in particular her son with autism. “Carla is decent, hardworking and trustworthy. She currently works part time at … a charity for dogs. She also had a successful cleaning business in and around the village. Customers became friends and spoke very highly of Carla whenever we would meet. Carla developed her own local business so she could take care of our children, she insisted on a good work/home balance because our middle son…has Autism and relies on her for care and support. He becomes anxious and upset about unfamiliar situations and stressed and overwhelmed with the slightest change in his routine. It takes him longer to understand information and we fear even minor changes could lead to problems with his mental health. His mother is involved in all parts of his daily life and gives [her son with autism] the essential support he needs, he relies on her a lot…I would find it difficult to work full time and look after our three sons. Our family is very reliant on Carla. Any sentence would have a detrimental impact on the family’s stability and finances, emotionally and mentally, especially [her son with autism] who would suffer greatly if his mother is sent to prison. Carla is aware she made a bad decision and will live with regret, guilt and loss for the rest of her life. She is ready to accept the consequences for her decision, but I feel like since she lost Lily, and how life is now, she has suffered enough. I’m pleading with the court to show leniency…Carla is an upstanding member of the community. Irreplaceable in everyday life. Generous and thoughtful. Kind and caring a brilliant mother to our three sons.” 36. The judge said in response to the request for reconsideration of the sentence, that he had taken the issue of delay into account when sentencing Ms Foster. The issue of delay did not feature to any extent and only tangentially however in the submissions from the prosecution and the defence at the sentencing hearing, and was not mentioned in the judge’s otherwise very detailed sentencing remarks. From this we infer it was not accorded any real weight in mitigating the severity of the sentence that was imposed. 37. As for the impact on Ms Foster and her family, and in particular, on Ms Foster’s son with autism, the fact that someone is a sole or primary carer for dependent relatives is a factor identified in the overarching guideline as a factor reducing seriousness or reflecting personal mitigation. The online version of that guideline provides a link to an expanded explanation of that factor, which amongst other things emphasises the need for a court to have all relevant information about dependent children before sentencing. It is also important to note that all guidance from the Sentencing Council, whether offence specific or overarching, includes a reference to the Equal Treatment Bench Book before giving specifics in relation to the subject-matter of the particular guidance itself. 38. The overarching guideline is no exception to this. It says at the outset, that “Guideline users should be aware that the Equal Treatment Bench Book [to which a link is provided] covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system.” And that “It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.” These are important words. 39. In the context of this case, we would draw particular attention to the sections of the Equal Treatment Bench Book headed “Women as offenders Who is in prison?” (at paras 115 to 130) and “Dependants and primary carers” (at paras 131 to 135). These sections obviously need to be read as a whole and considered in the context of the specific facts of the individual case, but they say, in part: “116. As is stated in the Introduction to this Bench Book, true equal treatment may not always mean treating everyone in the same way. Treating people fairly requires awareness and understanding of their different circumstances, so that that steps can be taken, where appropriate, to redress any inequality arising from difference or disadvantage. The previous life experiences of women offenders, their reasons for offending, their offending patterns, the impact of custodial sentences on themselves and their dependants, and the long-term effect of prison sentences all tend to differ between men and women. “117. The women’s prison population in England and Wales more than doubled between 1995 and 2010 – from under 2,000 women to over 4,000 at any one time. As at 27 March 2020, there were 3,641 women in prison, about 5% of the total prison population in the UK.” … 121. Women’s offending is commonly linked to underlying mental health needs, drug and alcohol problems, coercive relationships, financial difficulties and debt:85 • Figures from Liaison and Diversion services showed that 69% of adult females in police custody in 2017 had mental health needs. • About half of female prisoners are identified as suffering from anxiety and depression, more than double the rate identified in men. • 46% of female prisoners have reported having attempted suicide at some point in their life, compared with 21% of male prisoners and 6% in the general population…. The impact of imprisonment on women 122. Custody can exacerbate mental ill health, heighten vulnerability and increase the risk of self-harm and suicide. Although women make up approximately 5% of the prison population, they accounted for 18% of all self-harm incidents in the year ending September 2019. From 2010 – 2020, there were 100 deaths of women within prison, 37 of which were self-inflicted… 123. The impact of imprisonment on women, more than half of whom have themselves been victims of serious crime, is especially damaging and their outcomes are often worse than men’s… … 125. Community orders can fulfil the purposes of sentencing. In particular, they can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/or ensuring that the offender engages in reparative activities. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime… 126. Research suggests that women released from prison are twice as likely to reoffend as a comparable cohort of women given community orders… The National Offender Management Service (now HM Prison and Probation Service) says it supports the reduction of the number of women sentenced to custodial sentences in appropriate cases by developing robust community sentences tailored to the needs of the individual women. 127. Alternatively, if a prison sentence is necessary, strong personal mitigation or a realistic prospect of rehabilitation might suggest it is appropriate to suspend the sentence. 128. There is also power to defer passing sentence for up to 6 months under the Powers of the Criminal Courts (Sentencing) Act 2000 , e.g. to allow an offender to undergo addiction or mental health treatment prior to sentencing. 129. In June 2018, the MOJ launched a ‘Female Offender Strategy’ – a wide-ranging scheme aimed at keeping women out of prison through early intervention, partnership working, rehabilitative support and fewer women serving short custodial sentences… 130. The strategy notes that custody is particularly damaging for women and that good community management can in many cases be far more effective. It expresses a view that short custodial sentences should be viewed as a last resort. Decisions on sentencing nevertheless remain the province of judges and magistrates. Dependants and primary carers 131. The existence of dependent children is a factor relevant to sentencing. Sentencing guidelines say being a sole or primary carer for dependent relatives can be a mitigating factor. It is therefore important that courts are informed of the defendant’s domestic circumstances and determine sentence following the steps in R v Rosie Lee Petherick [ [2012] EWCA Crim 2214 ].. Indeed, where the offender is on the cusp of custody and there would be an impact on dependants which would make custody disproportionate, a community order should be imposed rather than a custodial sentence. 132. Sentencing defendants with dependent children or other relatives also engages their right to family life under article 8 of the European Convention on Human Rights, as well as the article 8 rights of those dependants. Imprisonment interferes with, often severely, those rights. In such cases, it is appropriate to ask whether the interference is proportionate giving the various factors including the purpose of sentencing. 133. It is not sufficient to say that the offender should have considered the impact on the children before committing the offence. The court has an independent responsibility to consider the dependants’ rights. 134. Women are much more likely to be primary carers, with children far more directly affected by a prison sentence as a result. A fifth of women prisoners are lone parents and around 17,200 children are separated from their mothers by imprisonment every year. Only 9% of children whose mothers are in prison are cared for by their fathers in their mother’s absence, and only 5% remain in their own home while she is imprisoned…Mothers experience significant emotional distress as a result of separation from their children which prisons are not equipped to deal with. 135. Women tend to be imprisoned further from home than men, due to the small number and geographical spread of women’s prisons. On average, women are imprisoned 64 miles away from home. In Wales, currently there are no women’s prisons. This affects the maintenance of relationships, and means fewer visits being made by children to see their mothers…” 40. Petherick concerned the potential impact of imprisonment on a female defendant and her two-year old child for whom she was the sole carer. That case was decided 12 years ago and prior to the publication of the Equal Treatment Bench Book in its current iteration and some of the guidance from the Sentencing Council to which we refer in this judgment. But the authors of the Equal Treatment Bench Book are right to direct attention to the importance that should be attached to the principles set out in Petherick by sentencers in the Crown Court. 41. As Hughes LJ, the then Vice-President of the Court of Appeal, Criminal Division, emphasised in Petherick at paras 17 to 24: i) First, the sentencing of defendants, inevitably engages not only their own article 8 right to family life but also those of their family, and that includes (but is not limited to) any dependent child or children; and the same will apply in some cases to an adult for whom a defendant is a carer and whether there is a marital or parental link or not. ii) Second, the right approach in all article 8 cases is to ask these questions: A. Is there an interference with family life? B. Is it in accordance with law and in pursuit of a legitimate aim within article 8.2? C. Is the interference proportionate given the balance between the various factors? In sentencing, the first two questions are usually straightforward. It is the third question that calls for careful judgement. iii) Third, where there are dependent children that is a relevant factor to sentencing. iv) Fourth, it follows that a criminal court ought to be informed about the domestic circumstances of the defendant and where the family life of others, especially children, will be affected it will take it into consideration. It will ask whether the sentence contemplated is or is not a proportionate way of balancing such effect with the legitimate aims that sentencing must serve. v) Fifth, the legitimate aims of sentencing which have to be balanced against the effect a sentence often inevitably has on the family life of others, include the need of society to punish serious crime, the interest of victims that punishment should constitute just desserts, the needs of society for appropriate deterrence and the requirement that there ought not to be unjustified disparity between different defendants convicted of similar crimes. Moreover, not only society but also children have a direct interest in society's climate being one of moral accountability for wrongdoing. It also needs to be remembered that just as a sentence may affect the family life of the defendant and of his/her innocent family, so the crime will very often have involved the infringement of other people's family life. vi) Sixth, it will be especially where the case stands on the cusp of custody that the balance is likely to be a fine one. In that kind of case the interference with the family life of one or more entirely innocent children can sometimes tip the scales and means that a custodial sentence otherwise proportionate may become disproportionate. vii) Seventh, the likelihood, however, of the interference with family life which is inherent in a sentence of imprisonment being disproportionate is inevitably progressively reduced as the offence is the graver. viii) Eighth, in a case where custody cannot proportionately be avoided, the effect on children or other family members might afford grounds for mitigating the length of sentence, but it may not do so. If it does, there can be no standard or normative adjustment or conventional reduction by way of percentage or otherwise. It is a factor which is infinitely variable in nature and must be trusted to the judgment of experienced judges. 42. We would add two further points about the imprisonment of female offenders. First, because there are comparatively few female prisons, women held in custody may often be a long distance from their families, which may add to the adverse consequences for them and for the children deprived of their care. Secondly, in accordance with long established principles, the conditions in which prisoners are confined can properly be taken into account in sentencing, including in deciding whether to suspend a sentence. Judges can and in our judgment should therefore keep in mind that the impact of a custodial sentence is likely to be heavier during the present circumstances of overcrowding in the female estate than it would otherwise be: see R v Manning [2020] EWCA Crim, 592 dealing with a different but analogous issue and R v Ali (Are) [2023] EWCA Crim 232 . 43. Returning to the present case, Mr Birks’ letter gave some information about the position of the family from which certain common-sense conclusions could be drawn. But it does not appear that there was any other information on this topic or any real focus during the course of the sentencing hearing itself on the impact of her imprisonment on the family (in particular Ms Foster’s son with autism) and how they would manage in Ms Foster’s absence when Mr Birks was working fulltime. In the circumstances, the judge did not receive as much assistance as he should have done, in formulating and addressing the question he had to consider, namely whether the sentence that he was contemplating was a proportionate way of balancing the effect on Ms Foster’s family with the legitimate aims that sentencing must serve. In consequence, it does not appear that the important issues raised when the court is contemplating a custodial sentence for a woman or for any person with caring responsibilities, received the degree of attention that they demanded. 44. We of course acknowledge that task of any sentencing judge in relation to an offence where there are no offence specific sentencing guidelines, and a paucity of decided cases on appeal, is a difficult one. That is particularly so where the offence raises difficult and sensitive issues, as those committed by women under section 58 (or under section 1 of the Infant Life (Preservation) Act 1929 ) generally do. In that context, previously decided cases on appeal can undoubtedly provide a useful resource. But we would counsel against an overly prescriptive or mechanistic approach in circumstances where the weight to be given to the individual features of such offending can vary to such a significant extent, and where there are so few decided cases on appeal. 45. In Catt for example, the court considered the appellant’s previous obstetric history to be an aggravating feature of the offending, because the criminal acts were done despite considerable experience of pregnancy and its range of consequences. Our approach however to the relevance of that issue in this case (and if the issue is looked at more generally) is not the same. Taking the general issue first, the absence of obstetric experience in a young person charged with a section 58 offence could well amount to a strongly mitigating feature. It does not follow however that the presence of an obstetric history (something most women have) would aggravate the seriousness of the offending, without more. Similarly, whereas in Catt the disposal of the body was a significant aggravating factor (as it prevented post mortem examination with its potential to determine the cause and timing of the death) a court sentencing a young person, who in the agony of the moment disposed or attempted to dispose of the body to which they had just given birth, might very well take a very different view. 46. Turning then to the resolution of this case, we consider that the judge for the most part correctly identified the factors relevant to sentence, but that that the provisional sentence he arrived at – before taking account of the mitigating features - was too high. We also differ from the judge in the adjustment to be made for the mitigating features that were present in this case. As it was expressed in Catt , the harm consisted of the extinguishing of a young life before it had begun. As for culpability, as the judge said, there was the length of gestation, the fact that Ms Foster knew the pregnancy was beyond the legal limit for abortions of 24 weeks and had also lied to bring herself within the services provided by BPAS for early medical abortions. As the judge also said, there was some degree of planning, albeit it was somewhat chaotic. We would add that what planning there was (for obtaining the abortifacients) occurred over a relatively short period of time (between late April and early May); and had to be seen against a background of emotional turmoil and prolonged indecision over many months. 47. The judge said there were no additional aggravating factors. We agree. There was, however, a constellation of exceptionally strong mitigating features, some of which we have highlighted above. Ms Foster was a woman of middle age, with no previous convictions and of positive good character. The events in question happened at the height of the pandemic and the most intense phase of the lockdown during an extremely stressful period of her life when she did not have available to her the support mechanisms normally available to a woman in her position. Though she was not suffering from a serious mental illness at the time, there was evidence of an emotionally unstable personality and there is no doubt that she suffered emotional turmoil throughout. Ms Foster made admissions at any early stage, and it is doubtful she would have been prosecuted had she not done so. In the aftermath of the stillbirth, she was traumatised, and as the judge put it, wracked by guilt and depressed. She was deeply and genuinely remorseful, something noted by the police in her interviews, and by the probation officer who prepared her pre-sentence report. That remains the case today. The overall delay in the proceedings was unreasonable; it meant she was not sentenced until three years after the stillbirth, and as can be seen from Mr Birks’ letter, this period of delay has had a very serious effect on her. Finally of course, Ms Foster is the mother of three children for whom she has primary caring responsibilities. And when considering the length of any custodial sentence, it was important to factor in the effect this would have on her family life, and on that of her children (in particular on her son with autism, who is especially dependent on his mother). 48. When considering what is a just outcome, the court always has to consider which of the five purposes of sentencing it is seeking to achieve through the sentence (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 the offence: see the Sentencing Act 2020 , section 57(2) and the overarching guideline). We had this very much in mind. 49. Though the offence itself was a serious one, and crossed the custody threshold, this was, as we said at the hearing of this appeal, a very sad case that called for compassion, not punishment. And it was one where no useful purpose was served by detaining Ms Foster in custody. 50. After assessing harm and culpability, our provisional starting point was one of three years imprisonment, which was reduced to one of 18 months having regard to mitigation, and then to one of 14 months after giving Ms Foster 20 per cent credit for her plea. The length of this sentence meant it could be suspended and we considered that it should be suspended. We have already referred to the exceptionally strong mitigation. Rehabilitation had already been achieved. Ms Foster presented no risk to her family or the wider public, and there was no prospect of a repetition of this offence. By the time of the hearing before us, it was obvious that custody had had a severely detrimental effect on Ms Foster and on her family. The rehabilitation activity requirement of up to 50 days provided her with an opportunity for various interventions in relation to the offence, designed to assist her, including counselling. 51. We turn finally to the Doctors’ letter. Its co-signatories with Dr Lord were the President of the Royal College of Obstetricians and Gynaecologists, the President of the Faculty of Sexual and Reproductive Healthcare, the President of the Faculty of Public Health, a Past President of the Royal College of Obstetricians and Gynaecologists, the Chief Executive of the Royal College of Midwives, a consultant gynaecologist who is the clinical lead for the NICE abortion care guideline and the co-chair of BSACP (the British Society of Abortion Care Providers) who is also a consultant in sexual and reproductive health. 52. The letter was lengthy. In summary, it said that the provision of a remote consultation care abortion pathway (or telemedicine) had been one of the single greatest advances in the provision of abortion care, since abortion was legalised in 1967, delivering significant medical advantages and improving access to abortion for the most vulnerable girls and women and significantly reducing the numbers of women seeking illicit sources of abortion medication. The authors said they were fearful that a custodial sentence for Ms Foster would risk deterring the most desperate and vulnerable from accessing regulated healthcare. They also asked the court to consider anonymising Ms Foster’s case, given the stigma attached to abortion care and pleaded for leniency for Ms Foster. They asked too for an opportunity to address the court on sentence. 53. We endorse the judge’s response to this letter. He was right to say that this form of special pleading was inappropriate. The same would have true of a letter from a group campaigning for more restrictive laws on abortion, calling for a deterrent sentence in this case and asking for an opportunity to address the court too. It is disappointing and concerning that the authors, all eminent in their own professional fields, did not understand this. Our democratic society of course allows for the open expression of different views on the merits of any sentence that is passed, and we do not doubt that the authors of the letter have the serious concerns to which they refer; but the duty of the independent judiciary, in accordance with their judicial oath, is to sentence according to the law and to apply the law to the facts of the individual case before them, rather than be swayed by the views of special interest groups, however eminent and well-intentioned they may be.

```yaml citation: '[2023] EWCA Crim 1196' date: '2023-10-18' judges: - THE HON MR JUSTICE PEPPERALL - Lord Justice Holroyde, Vice - Mrs Justice Lambert ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200702057 D1 Neutral Citation Number: [2008] EWCA Crim 369 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 12th February 2008 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE KING THE COMMON SERJEANT HIS HONOUR JUDGE BRIAN BARKER QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - R E G I N A v ANDREW BROWN - - - - - - - - - - - - - - - - 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 C Burton appeared on behalf of the Appellant Mr S Requena appeared on behalf of the Crown - - - - - - - - - - - - - - - - Judgment 1. LORD JUSTICE THOMAS: On 1st March 2007, at the Crown Court at Ipswich before His Honour Judge Devaux and a jury, the appellant was convicted of attempting to possess a Class A controlled drug (cocaine) with intent to supply. He was sentenced on the same day to eight years' imprisonment. 2. Issues 3. He appeals by leave of the single judge on two points: first, in relation to the bad character direction and, secondly, the way the judge dealt with the fact that there was before the jury the co-defendant's basis of plea; the co-defendant, Knights, had pleaded guilty on that basis, but at the time of the appellant’s trial no determination had been made as to the acceptance of the basis of plea. 4. The facts 5. The facts can be set out in short order. On 16th March a customs officials in the Federal Republic of Germany intercepted a package in a yellow jiffy bag at Frankfurt Airport. The package came from Peru. It was addressed to "A.Brown, 6 Middleton Close, Ipswich, IP2 0RA". The package was handed to police officers at Ipswich and examined by forensic experts. It was found to contain 476 grams of cocaine at 83 per cent purity. Its street value was in the order of £163,000. 6. On 26th March an exact copy of the package was recreated and a tracking device installed into it. On 27th March, at 7.41 am in the morning, an undercover officer referred to as "Adam" delivered the package to the appellant at his home address. It appears that he woke the appellant up. The appellant took the package from Adam. Later that day at 4.46 in the afternoon, when the appellant was not at home, his co-accused Knights collected the package. The appellant and Knights were both arrested on 28th March. 7. The co-accused pleaded guilty on the basis to which we have referred and to which we have made brief reference; we will set it out in full in due course. 8. The defendant was interviewed following charge. He said during the course of that interview: "I'm not 100 per cent sure I got a package, and if I did I didn't open it. If there were any drugs I would've told the police". It was the appellant's case that he was particularly tired and stressed during the course of that interview because he was contemporaneously being tried at Ipswich Crown Court for an offence of occasioning actual bodily harm. 9. It was for that reason, to explain the circumstances in which he had said what he had said in interview, that the appellant put before the jury his previous convictions. These included not only the matter to which we have referred and of which he was convicted, but offences of excess alcohol, dangerous driving, using abusive words, assaulting the police and criminal damage. There were no previous offences in relation to drugs. 10. The defence case 11. The defence case was that the appellant had not expected a package and he had not entered into any arrangement with Knights to receive a package on his behalf. He did not know that the package contained cocaine. 12. He gave evidence in his own defence that he had been “set up”. He believed the package to be work-related because he was a self-employed electrical contractor who often had packages delivered to his address; they would normally be put in the garage. On the day in question he had left the key to the garage under the mat. He had been at Ipswich Crown for his trial for the offence of assault to which we have referred and things were very chaotic, but he accepted he may have taken delivery of the package as the only other person in the house that morning was his former girlfriend. After the appellant left the house he was aware that Knights went to his house that day. He had spoken to Knights that morning as they had been friends for 20 years and played golf. Knights had wished him luck with his trial and there was no mention of any package. When he was arrested he was shocked and bewildered. It had not occurred to him that the package he had accepted might have contained illegal drugs or that Knights had collected the package from his address. He was provided with the services of a duty solicitor and did not really understand what was going on. He was also tired from having spent time at court in relation to the offence of assault and maintained he was scared and confused in interview which accounted for his probably not telling the truth about receiving the package. His solicitor had advised him to answer: “no comment”. He was fearful that if he admitted receiving the parcel, his explanation that he knew nothing about its contents would not be believed. 13. As we have set out, there are two issues before this court, and we will deal with each in turn before turning to whether our decision on them affects the safety of the conviction. 14. The Bad Character Direction 15. We have already stated that the defence wished to have the previous convictions put before the jury to explain the circumstances of the interview. It is, we think, important that that fact should have been at the forefront of the judge's mind when he came to direct the jury. The direction he gave was the following in explaining why the jury knew of the previous convictions: "Now you do know about the defendant's past history so far as the court is concerned, and you know about it because he has told about it and because [counsel for the appellant] asked [the police constable] about it. It is important you should understand why you have this evidence and how you may use it. You must not convict him because he has been in trouble in the past. However, you may use the evidence of his bad character, if you think it right, when deciding whether or not the defendant's evidence to you has been truthful because a person with a bad character may, and I emphasise 'may', be less likely to tell the truth. It does not follow that he is incapable of telling the truth. Ultimately it's a matter for you to decide to what extent, if at all, his character helps you when judging his evidence. Bear this in mind, that he has no convictions for drugs or drug related offences". It is submitted on behalf of the appellant that the judge should have explained the relevance of the conviction to the jury. 16. When this learned and experienced judge gave his direction to the jury he did not have the benefit of the decision of this court given by Lord Chief Justice in Campbell [2007] EWCA Crim 1472 . As the Lord Chief Justice made clear in the course of that judgment, in passages that are now well-known, it is incumbent upon a judge to explain to the jury the relevance of the previous convictions and why they have been admitted into evidence. As is clear from a number of decisions of this court to which it is unnecessary to refer, if previous convictions or other evidence of bad character have been admitted for one purpose, they can properly be used for any purpose. It therefore seems to us that the learned judge should have explained the relevance of the convictions in very simple terms, namely that they had been put before the court to explain the reason why the appellant said he was confused, bewildered and might have told a lie to the jury. He did not, as is apparent from the quotations from the summing-up that we have read, do so. 17. The judge is also criticised because he gave a direction on credibility; he said that the jury could use the evidence of previous convictions in deciding whether the evidence given was truthful. 18. There are of course observations in Campbell as to the circumstances in which a judge might, in his discretion, wish to do so. Plainly in some cases they may be relevant to the truthfulness, and in this case it seems to us that, in the light of the fact that he was convicted in relation to the assault offence, this was a case where we cannot say that it was wrong for the judge to have said that once these convictions were before the jury they could be used for the purposes of assessing the truthfulness of his evidence. 19. We therefore only accept in part the submissions made on behalf of the appellant. 20. However, even though the judge should, if he had had the benefit of the decision of this court in Campbell , have drawn to the jury's attention more fully, in very simple terms, the reason why the evidence had been admitted, it is quite clear that it must have been obvious to the jury why the evidence had been admitted. We say that for two quite separate reasons: first, this was plainly something that the jury had been told by the defence and the appellant and must have realised, but secondly, and more importantly, although the judge did not explain the relevance when dealing with the previous convictions in the passage from his summing-up which we have set out, he did point out at subsequent passages in the summing-up why the defendant was relying on his previous convictions; and that is that he was bewildered and shocked and tired as a result of his court appearance that day and did in consequence not answer questions in his interview truthfully. 21. That is the first point that is taken. We shall return to consider the effect of the judge's failure expressly to deal with the issue of relevance in relation to his direction on the reason why the convictions were admitted when considering the overall safety of the conviction. 22. The direction in respect of the basis of plea 23. We turn to the second point in the appeal. Paragraph 29 of a document that was placed before the jury headed "Admissions," read as follows: "On the 26th February 2007 Anthony Knights pleaded guilty to a charge of possessing controlled drugs of Class A, namely 476g cocaine, with intent to supply it to another. His plea of guilty was on the following basis: 'Mr Knights has, on a number of occasions, bought sexual stimulants (similar to Viagra but in gel form and with a different trade name) in Spain and has given away and sold these to friends in the UK. In Spain they are inexpensive compared to the UK. During a conversation in a bar in Javier, a man whom he knew told him that he could get the chemical found in sexual stimulants and asked Mr Knights if he could provide an address to which a quantity of this could be sent. Mr Knights gave Brown's address as his 14 year old son was frequently at his address. He believed that the package would be sent from Spain. He collected the package from Middleton Close and later took it to his home address where it was left at the rear of the property awaiting collection as agreed. He had no knowledge the package would contain Class A drugs and he had not conspired to take delivery of or supply Class A drugs. The basis of plea was not accepted by the Prosecution." The remaining paragraphs in the document headed "Admissions" appear all to be the kind of admission that one would expect to find in the statement of formal admissions under section 10 of the Criminal Justice Act 1967 . For example, they deal with the way in which the package had been sent and intercepted; those were ordinary standard admissions and wholly and entirely appropriate for inclusion in a document of this kind. However, it is clear to us that the inclusion of paragraph 29 in the document headed “Admissions”, in the terms in which it was, took place without sufficient consideration being given as to the status of this paragraph when placed before the jury. It appears counsel for the Crown thought Mr Knights might be giving evidence for the defence but that was counsel for the Crown's error, as counsel for the appellant has assured us that he gave no such indication that Mr Knights was to be called. Furthermore, although there may have been a fait accompli as far as the judge may have been concerned if this paragraph was put before the jury without being shown to him, nonetheless when it was clear that Mr Knights was not going to give evidence then the status of this paragraph should have been the subject of discussion before speeches and before summing-up. 24. It seems to us that the only legal basis on which the matters set out in the basis of Knights’ plea could have been put before the jury was on the basis of section 114(1) (c) of the Criminal Justice Act 2003 . That section provides: "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 ... (c) all parties to the proceedings agree to it being admissible..." 25. It is plain that the reason why the appellant wanted this basis of plea put before the jury was because he wanted it put before the jury so that they could accept it as evidence of the facts stated therein which the appellant believed would help him in his defence. This was not put in, and it seems to us difficult to see how it could ever have been put in, to explain the plea of guilty, which would have been admissible under section 74 of the Police and Criminal Evidence Act 1984 . 26. What the judge said in the summing-up about this was as follows: "... why do you know about it? Well, you know about it, and the only reason you know about it is to remove any question in your minds as to why you are not also trying him [that is Mr Knights]. The fact that [Mr Knights] has pleaded guilty is now known to you, but it can have no bearing in your decision, the fact of his plea can have no bearing in your decision in the case of this defendant. The prosecution has to prove its case against this defendant so that you are sure of his guilt just as you would have had to if Mr Knights had not pleaded guilty. And, as a matter of law, I direct you to ignore the basis of plea put forward by Mr Knights, not just because it's not been accepted by the prosecution but because it's not been accepted by the defence either, or at any rate it's not accepted that this business about Viagra could in any way apply to this defendant. Suppose that both men were being tried together and suppose that Mr Knights had implicated this defendant in some way in the course of his interview, I would have directed you that what Mr Knights said in interview could not be used as evidence against this defendant who wasn't there at the time to contradict it or qualify it and so on. And really there is not very much difference between Mr Knights saying something in interview and Mr Knights saying something as the basis of his plea. So you know of his plea of guilty to stop you wondering about him, and that's the only reason you know about it. Please don't use it for any other purpose in this case." 27. It seems to us clear that, as the only basis upon which the basis of plea was before the jury was that it had come in under section 114(1) (c), it was incumbent upon the judge to have explained to the jury the fact that this was hearsay evidence and the use they might make of it. 28. It was submitted by the appellant that the evidence was powerful evidence to support his case that he was not involved at all because there is no reference in Mr Knights' basis of plea to him having informed the appellant about the package; secondly, that it might seem odd that a consignment, if it contained Class A drugs of the quantities involved (which would be extremely valuable) would be left at the premises without any warning or notification having been given to Mr Knights. The fact that it was some form of sexual stimulant of much less value would make it explicable. The basis of plea, as we understand it, was put forward by Mr Knights as a defence to the case because the chemical contained within it which was similar to Viagra was said to be a Class C drug. 29. It seems to us that, given the reasoning that the appellant put forward and given the only basis upon which we think Knights’ basis of plea can possibly have been before the jury, the judge should have given a direction on hearsay. Therefore the failure to give that direction was, in our view, an error. 30. The safety of the conviction 31. But the real question is, do either of these matters to which we have referred, namely the fact that the judge did not properly explain the relevance of the previous conviction to the jury and the failure to give a hearsay direction in relation to the basis of plea, affect the safety of the conviction? 32. Our answer is firmly "no". As to the first point, as we have already endeavoured to point out, the judge made it abundantly clear in later passages in his summing-up that the appellant was relying upon the trial for assault at the Crown Court on the day of his interview to explain his confusion. That point was before the jury, and although it should have been explained to the jury when dealing with previous convictions, we have no doubt that the point was plainly obvious to the jury. 33. Secondly, as regards the basis of plea, we are firmly of the view that, if the judge had given a direction in respect of the hearsay statement, it would have been extremely damaging to this appellant. This can be illustrated by one part of the direction which the judge should have given. The judge would have pointed out to the jury that the weight that could have been attached to Knights’ basis of plea had to be judged by them against the fact that Mr Knights had not come to give evidence. It was perfectly obvious that Mr Knights was in the country and was available to give evidence. It was obvious that he could have given such evidence as this was evidence he was proposing to give at a future time to the court. The direction to a jury that the account was untested in cross examination and there was no explanation as to why the account was not given to the jury by Knights personally, in our view, would have been devastating upon the defence of the appellant. 34. It seems to us therefore that, although the judge did not receive the assistance he should have done in relation to the way in which Knights’ basis of plea came before the court and hence there was a misdirection, it in no way affected the safety of the conviction. 35. The appeal must accordingly be dismissed.

```yaml citation: '[2008] EWCA Crim 369' date: '2008-02-12' judges: - LORD JUSTICE THOMAS - MR JUSTICE KING ```

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. Neutral citation No.  [2023] EWCA Crim 846 IN THE COURT OF APPEAL CRIMINAL DIVISION No. 202300449 A3 Royal Courts of Justice Tuesday, 11 July 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE TURNER HER HONOUR JUDGE MUNRO KC REX V CHINONYE DAVID ANYIAM __________ 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 C. Topolski appeared on behalf of the Appellant. The Crown were not represented. _________ JUDGMENT LORD JUSTICE DINGEMANS: Introduction 1 The appellant is now a 26-year old man who appeals against his sentence of 27 months' imprisonment for offences of: possessing a controlled drug of class B with intent to supply; and offering to supply a class B drug imposed in the Crown Court at Wood Green on 18 January 2023. Those two sentences were made concurrent with each other. That aggregate sentence was ordered to be served consecutively to a sentence of 30 months' imprisonment for offences of violent disorder and possession of a machete imposed on 27 May 2022. It seems that the appellant's release date, having regard to time that he spent on remand and tagged bail for that offence, was 20 May 2023. 2 The appeal raises the issue of totality. Factual Background 3 Police officers were investigating drug dealing on social media in the Hackney area. The police located an account on Snapchat with the name Big Crisis which, between the middle of August 2020 and the middle of February 2021, was repeatedly offering skunk cannabis for sale. Some of the offers appeared to be for sales relating to single kilograms of the drug. There was also a photograph showing five strains of premium skunk cannabis which had been obtained from California. There was a price list for various strains of cannabis, offering them at £25 and £30 per gram and four grams for £110. The starting date for the offences on the indictment was 17 May 2019 and the end date was 7 September 2021. This is significant for the issue of overlap with the other offending. 4 The appellant was identified as using the Snapchat account. He posted images of himself on the account, and advertised a legitimate business selling fruit through that account. 5 On 9 July 2021 a search warrant was executed at the flat. As police were trying to enter the premises, a large laundry bag was thrown from the flat window. That was found to contain some 608 grams of skunk cannabis which had been divided into smaller quantities in freezer bags. The smaller quantities were not street dealing amounts but rather quantities that could be passed on to someone who could then sell them divided into street deals. Essentially, therefore, this was wholesale supply. The estimated value of the 608 kilograms was £2,700 wholesale and £5,500 at street-dealing level. The appellant and a female were present. The police also found a small amount of cannabis, digital scales, £1,500-odd in cash and a number of mobile phones. 6 The appellant was interviewed when arrested. He said the flat belonged to a friend and answered "no comment" in relation to questions about the drugs. He said that the cash had come from his fruit-selling business. He was bailed to live at an address in Leicester. He was then arrested there in January 2022, and an iPhone was recovered from him. The iPhone was unlocked at the time the police seized it. The phone revealed the appellant's involvement in the sale of quantities of cannabis since May 2019, with Snapchat adverts for cannabis and apparent evidence of a lavish lifestyle. 7 The appellant boasted on the phone about using an iPhone as opposed to a "brick" phone that would result in people going to jail. One post put up by the appellant commented on the fact that people say weed is slow money, meaning that it was difficult to make money selling cannabis, and that people who said that never knew money. A letter found in the "notes" section of the iPhone seemed to demonstrate the sale or acquisition of a box or kilogram of cannabis and a further box and two ounces from someone. There was a tick list on the phone, a list of six or more names, and against those names was listed quantities and values in hundreds of pounds. There was a further column which contained amounts in thousands. The sentence 8 The appellant was aged 26 at sentence, having been born on 11 January 1997. He had five convictions for 16 offences, spanning from 2018 to 2022. He had received non-custodial sentences for possessing class B drugs in 2018 and 2019. In 2019, he received a community order for possessing a knife, obstructing a constable and driving offences. 9 On 27 May 2022, he was sentenced to 30 months' imprisonment for an offence of violent disorder and possessing an offensive weapon, offending which occurred on 7 June 2020 in the period covered by the indictment for these offences. In 2022, he was sentenced to 19 weeks' imprisonment for possessing criminal property and 16 weeks' imprisonment for dangerous driving concurrent with any sentence that he was already serving. That offending occurred on 2 March 2020, even earlier than the violent disorder but it was also in the period covered by the indictment for these offences. We will return to these separate offences later. 10 It was apparent, in particular from the number of references that were made available at the sentencing, that the appellant has the potential to become a law abiding and useful member of society. 11 So far as the sentence was concerned, the judge considered that before a discount for a guilty plea the sentence would be one of 36 months. The judge had found that the appellant's role fell in between significant and leading role given that the evidence was that the appellant was dealing in kilo batches and, therefore, wholesale. The appellant was placed at the bottom of leading role and at the top of significant role. The judge identified that for a significant role (category 3 offending) the starting point was one year's custody with a range of 26 weeks to three years, and for a leading role (category 3) the starting point was four years' imprisonment with a range of two years and six months to five years' imprisonment. The judge identified that an aggravating feature was the appellant's attempt to dispose of the evidence by throwing the laundry bag out of the window which contained the skunk cannabis. It seems that the judge must have identified a starting point, before aggravating factors, towards but not at the top of the significant role range and then increased it to 36 months before giving the discount for plea. 12 At the date of sentencing, as already indicated, the appellant was serving a term of imprisonment of two years and six months relating to the violent disorder and possession of an offensive weapon. The judge ordered that the 27 months sentence of imprisonment was to run consecutively to that imprisonment term, having regard, said the judge, to the different nature of the offending. The appeal 13 Miss Topolski, appearing on behalf of the appellant, submits that making the whole sentence consecutive to the sentence of two years and six months for the other offences was wrong in principle and disproportionate, and that there should have been some reduction to reflect totality. We are very grateful to Miss Topolski for her helpful written and excellent oral submissions. 14 The overarching Sentencing Council guideline on totality provides, under the drop-down heading "Sentencing for offences committed prior to other offences for which an offender has been sentenced", as follows: "The court should first reach the appropriate sentence for the instant offences, taking into account totality in respect of the instant offences alone. The court then has a discretion whether to make further allowance to take into account the earlier sentence (whether or not that sentence has been served in full). The court should consider all the circumstances in deciding what, if any, impact the earlier sentence should have on the new sentence. It is not simply a matter of considering the overall sentence as though the previous court had been able to sentence all the offences and then deducting the earlier sentence from that figure. A non-exhaustive list of circumstances could include: a. how recently the earlier sentence had been imposed ... b. the similarity of the offences sentenced earlier to the instant offences c. whether the offences sentenced earlier and instant offences overlapped in time d. whether on a previous occasion the offender could have 'cleaned the slate' ... e. whether taking the earlier sentences into account would give the offender an undeserved bonus - this will particularly be the case where a technical rule of sentencing has been avoided ... f. whether the instant offence qualifies for a mandatory minimum sentence g. the offender's age and health ... h. whether, if the earlier and instant sentences had been passed together as consecutive sentences, the overall sentence would have required downward adjustment to achieve a just and proportionate sentence." 15 In this case, the judge said that the sentence should be consecutive because of the different type of offending between the violent disorder and possession of an offensive weapon and the drugs offences. It is apparent from the Sentencing Council guideline on totality that this is a relevant consideration but it is necessary to consider whether it justifies simply adding on the separate sentence for the drugs offences, about which Miss Topolski complains. 16 Other relevant considerations, however, are the fact that in this particular case the appellant already had the benefit of concurrent sentences for separate offending committed on an earlier date, being possessing criminal property and dangerous driving. If we have regard to a notional situation where the earlier and instant sentences had been passed together, in our judgment, a sufficient account of totality would have been made by imposing: the 30 months for the violent disorder and possession of a machete; imposing concurrent sentences of 19 weeks and 16 weeks for possession of criminal property and dangerous driving; and then imposing consecutive sentences for the drugs offences before us. 17 Taking account of all these factors, in our judgment, the overall effect is that sufficient account has been taken of totality and that the sentence is not disproportionate or wrong in principle. 18 We, therefore, dismiss the appeal. __________

```yaml citation: '[2023] EWCA Crim 846' date: '2023-07-11' judges: - LORD JUSTICE DINGEMANS - MR JUSTICE TURNER ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200805902/A2 Neutral Citation Number: [2009] EWCA Crim 591 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 4th March 2009 B e f o r e : SIR ANTHONY MAY (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MRS JUSTICE RAFFERTY DBE MRS JUSTICE SWIFT DBE - - - - - - - - - - - - - - - - R E G I N A v CHARLES WILLIAM BENNETT - - - - - - - - - - - - - - - - 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 A Davidson appeared on behalf of the Appellant Mr C Hardy (Solicitor-Advocate) appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T 1. MRS JUSTICE SWIFT: On 8th September 2008 at Worcester Crown Court the appellant pleaded guilty to causing death by dangerous driving. On 17th October 2008, before Mr Recorder Crigman QC, he was sentenced to 5 years and 4 months' detention in a young offender institution, with a direction under section 240 of the Criminal Justice Act 2003 that the one day he had spent on remand in custody should count towards the sentence. In addition he was disqualified from driving for 7 years and ordered to take an extended re-test. He appeals against sentence by leave of the single judge. 2. The appellant, who was 17 years old at the time of the relevant offence (he is now 18) and who had passed his driving test only 3 months previously, spent the evening of 8th May 2008 with his best friend, Kieran Powell. They went to a barbecue, then to a bar in Hereford and after that on to a nightclub. They were drinking throughout the night and, by the early morning, they were both said by witnesses to be drunk. 3. The appellant was driving. At about 2.30 in the early morning of 9th May, they left the club and made their way to his car. The intention was that he would drive Kieran Powell back to his father's home at Tillington, a short distance from Hereford. He drove along an A road and then turned left at a junction towards Tillington. While negotiating that junction, his car mounted a mini island in the centre of the road and knocked down a bollard on the island. The impact was sufficient to cause debris from the car and oil to be deposited at the scene. The rear nearside tyre of the car was damaged. Following that incident, the appellant continued on his way. Within 75 metres or so, the damaged tyre had deflated completely, making the car difficult to steer. It veered onto the nearside grass verge before, at a point about 370 metres from the traffic island, travelling on to its wrong side of the road, over the offside grass verge and colliding with a tree, causing the injuries to Kieran Powell from which he died. The appellant himself was rendered momentarily unconscious but was otherwise uninjured. The speed of the car on impact was estimated to be about 22 miles per hour. 4. The emergency services attended. The police spoke to the appellant, who failed a roadside breath test. He was taken to the police station and breathalysed again. His reading was 99 micrograms, the legal limit being 35. When interviewed he admitted that he had been drinking and said that he had little recollection of what had happened after leaving the club. He recalled walking back in the direction of his car, but he could not remember any of the journey. However, he accepted at that early stage that what he had done was wrong and accepted responsibility for his actions. 5. There was available to the Recorder a pre-sentence report, which recognised the likelihood of a custodial sentence. The appellant made clear to the author of that report that he accepted responsibility for his friend's death and wished to be punished for it. The author of the report assessed that there was a low risk of him re-offending provided that he moderated his alcohol consumption. 6. There were 12 character references available to the Recorder, which spoke highly of the appellant's capacity for work, his sporting abilities and his personality. They also stressed the very real remorse he feels for the consequences of his offending. 7. In sentencing the appellant the Recorder referred to the part in these tragic events played by the appellant's decision to drive at a time when he was nearly three times over the legal alcohol limit for driving. He observed that the impact with the traffic island and bollard should have been a shocking reminder to the appellant that he was wholly unfit to drive. However, he had chosen to ignore that warning and to drive on. Several metres down the road he had struck the nearside verge. The marks left on the road showed that his rear tyre had deflated. That would, the Recorder said, inevitably have affected the handling of the car and was a second reminder that he should have stopped. Yet still he had carried on. He had driven a further 250 metres before his car went out of control and crashed. In all he had driven for about a mile-and-a-half in that condition. 8. The Recorder concluded that the offence should properly be categorised as one falling within Level 1 of the Sentencing Guidelines Council's Definitive Guideline for Causing death by driving. The starting point for the sentence was, he said, 8 years' detention after a trial. That starting point must be increased to take account of three factors. The first of those was the fact that, just two weeks before this offence, the appellant had received a fixed penalty for being drunk and disorderly. The second factor was the extremely high level of alcohol in his blood and the third factor was the two warnings to which he had referred and which the appellant had disregarded. 9. The Recorder said that mitigating factors were the appellant's good character, his age, his lack of driving experience, the fact that the victim was his best friend, his genuine remorse and the fact that in every other respect he was a caring, hard working, honest youth. His aspirations to join the Army would be destroyed by the sentence he would receive. He had admitted responsibility and had pleaded guilty at an early stage for which he would receive a full discount. 10. We observe at this stage that cases such as this present judges with very difficult problems in sentencing. It is clear from the moving victim personal statements that we have read that Kieran Powell's family has suffered a devastating loss as a result of the appellant's offence. No sentence imposed by a judge can compensate them for that loss. It is not the purpose of the sentencing exercise to do so. Its purpose is to assess the extent of the offender's culpability and to pass a sentence appropriate to that culpability and in accordance with the relevant sentencing guidance. It is plain from the generous letter which has been written to this court (and which was not available to the Recorder) that Kieran Powell's family fully understand that. In their letter, they express the view that it is not in anyone's interest for the appellant to be in custody for any longer than is absolutely necessary. It is clear from those words that they support him in this appeal. 11. In this case, the relevant guidance is contained in the Sentencing Guidelines Council Definitive Guideline on Causing death by driving. The Guideline identifies the appropriate range of sentences for a first-time offender aged 18 or over convicted after a trial who has committed an offence falling within one of three of defined Levels of seriousness. Levels 1 and 2 are defined thus. “Level 1. 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. Level 2. Driving that created a substantial risk of danger.” 12. The Guideline lists the factors that are likely to characterise a Level 1 offence. The factors of potential relevance to this case are: “• A prolonged, persistent and deliberate course of very bad driving AND/OR • Consumption of substantial amounts of alcohol or drugs leading to gross impairment.” 13. The relevant characteristics of a Level 2 offence include “• Driving whilst ability to drive is impaired as a result of consumption of alcohol or drugs…” 14. The sentencing range for a Level 1 offence is identified in the Guideline as 7 - 14 years’ custody with a starting point of 8 years. The Guideline identifies various additional aggravating and mitigating factors to be taken into consideration when determining the appropriate level of sentence. One such aggravating factor is the disregard by the offender of warnings about his driving. 15. The mitigating features identified in the Guideline include the fact that the victim was a close friend or relative. They also include the fact that the offender's lack of driving experience contributed to the commission of the offence. 16. For the appellant, Mr Davidson does not dispute the decision by the Recorder to characterise the appellant's offence as a Level 1 offence for the purposes of the Guideline. However, he criticises his decision to increase the starting point of 8 years by reason of the three factors cited in his sentencing remarks. 17. As to the first of those factors (the fixed penalty for being drunk and disorderly) he contends that it should not have been taken into account since it was an isolated incident and unconnected with driving. As to the high level of alcohol, Mr Davidson submits that, by characterising the offence as Level 1 rather than Level 2, the Recorder had already taken the alcohol level into account so that it should not have been regarded in addition as an aggravating factor. So far as the two “warnings” were concerned, Mr Davidson suggests that a sober driver may have heeded those warnings and an experienced driver would have appreciated from the feel of the car that the rear tyre had deflated. Given the appellant's lack of experience and drunken condition, however, it is doubtful whether he would have done so. He suggested that the Recorder should not have treated the so called “warnings” as a further aggravating factor. 18. In his compelling submissions before us, Mr Davidson has argued that the Recorder failed to give sufficient weight to the appellant's genuine remorse at having caused the death of his best friend and to his lack of driving experience. In addition he submits that the Recorder failed adequately to take into account the appellant's age and good character and the personal mitigation available to him. He further prays in aid the letter from Kieran Powell's family to which we have already referred. 19. In considering the case we have available to us a prison report which describes the appellant as “pretty much a model prisoner”, who has recently acquired enhanced status and is taking advantage of the educational opportunities available to him. That report, together with the letter from the family, is material which was not available to the Recorder when sentencing the appellant. 20. We agree with the Recorder that the offence was properly characterised as a Level 1 offence and that the starting point for an adult first offender after a trial was 8 years. The judge expressly reminded himself that he must avoid “double counting” the high alcohol level by using it to determine the appropriate Level for the offence and in addition as an aggravating factor. However, he took the view that a distinction must be drawn between the offender whose level of alcohol was twice the legal limit and an offender whose level, like this appellant's, was almost three times the limit. We consider that he was entitled to take that view. We also consider that he was entitled, to the limited extent that he did, to take account of the recent fixed penalty for being drunk and disorderly which, as he pointed out, should have alerted the appellant to the fact that the consumption of alcohol to excess was liable to involve him in serious trouble. The incidents which occurred shortly before the fatal collision demonstrate just how dangerous the appellant's driving must have been. He cannot have been unaware of the collision with and virtual destruction of the bollard on the traffic island and his failure to stop then is, in our judgment, also capable of amounting to an aggravating feature. 21. The question then arises as to whether the Recorder took sufficient account of the very substantial mitigation available to the appellant. The most significant mitigating factor was his age. There was also his remorse at the loss of his best friend. The Recorder accepted that as genuine, as we do and, as it is plain from their letter, do the family of Kieran Powell. He was frank and honest from the first and has acknowledged the justice of any punishment that he might receive. There was then his lack of driving experience which, although not the prime cause of the collision, may have made some contribution. Finally, there was his character, to which a number of witnesses attested, and the effect of this offence on his own life, in particular the loss of his chosen career. In addition, we have the further information about his good conduct and progress in custody which do him credit. 22. The Recorder found in effect that the aggravating and mitigating factors cancelled each other out, resulting in a notional sentence of 8 years’ detention after trial and (having given him appropriate credit for his guilty plea) an actual sentence of 5 years and 4 months’ detention. In our view, having regard in particular to the appellant's age, the mitigating factors were such as significantly to outweigh the aggravating factors, with the result that the starting point used by the Recorder was excessive. In our judgment, the appropriate starting point would have been 6 years’ detention which, after appropriate credit for the appellant's guilty plea, would result in a sentence of 4 years. Accordingly we quash the sentence of 5 years and 4 months' detention and substitute a sentence of 4 years, less the one day spent in custody on remand. To that extent the appeal is allowed.

```yaml citation: '[2009] EWCA Crim 591' date: '2009-03-04' judges: - SIR ANTHONY MAY - MRS JUSTICE RAFFERTY DBE - MRS JUSTICE SWIFT DBE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2012] EWCA Crim 2517 Case Nos: 201200409 D3 201200859 D3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT INNER LONDON His Honour Judge Seed T20107740 & T20117189 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27 November 2012 Before : LORD JUSTICE MOORE-BICK MR JUSTICE COLLINS and HIS HONOUR JUDGE COOKE Q.C. (sitting as a judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - ISMAIL ABBAS and PATRICK ASAFU-ADJAYE Appellant Applicant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. James Scobie Q.C. (instructed by Registrar of Criminal Appeals ) for the appellant Mr. Simon Wild (instructed by Crown Prosecution Service ) for the respondent Mr. Michael Chambers (instructed by Registrar of Criminal Appeals ) for the applicant Hearing date : 8 th November 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moore-Bick : 1. On 16 th December 2011 in the Crown Court at Inner London before His Honour Judge Seed the appellant Ismail Abbas was convicted of two offences of robbery (counts 1 and 3 in the indictment) and one offence of possessing an imitation firearm at the time of committing an offence (count 2). On the same occasion before the same judge the applicant Patrick Asafu-Adjaye was convicted of one offence of robbery, being the offence charged in count 1. 2. Abbas was sentenced to a total of 11 years’ imprisonment. Asafu-Adjaye was sentenced to 4½ years’ imprisonment. In each case the judge ordered that 28 days spent in custody on remand should count towards sentence. 3. Four others were charged on the same indictment, of whom it is necessary to mention only two: the first, Melvin Okeny, was convicted on Counts 1 and 2 and was sentenced to a total of 5½ years’ detention in a Young Offender Institution, a sentence which included a consecutive sentence of 6 months’ detention imposed for four offences of Possessing a Class A Drug with Intent; the second, Joshua Graham-Hanlan, was charged on count 1 as being in league with the robbers, but was acquitted. 4. Abbas now appeals by leave of the single judge against his conviction on count 2, which charged him with possession of an imitation firearm at the time of committing an offence. He also applies for an extension of time of approximately 7 months for leave to appeal against sentence . The Registrar has referred those applications to the Full Court. Asafu-Adjaye now renews his application for leave to appeal against sentence following refusal by the single judge. 5. The offence which formed the subject of counts 1 and 2 in the indictment was committed on Sunday 4 th July 2010 at a T-Mobile shop in Peckham. The Deputy Manager, Ashley Murray, arrived for work between 9:15 and 9:30 that morning. The co-accused, Joshua Graham-Hanlan, arrived shortly after. Murray took Graham-Hanlan into his office to discipline him for persistent lateness when the buzzer at the back door of the shop sounded. Murray assumed that it was one of the other employees arriving late and he asked Graham-Hanlan to answer the door. Murray followed him to the door. Graham-Hanlan opened the door without first checking through the spy-hole and three hooded men burst in. They bundled Murray into the stock room and pushed him to the floor where he was held face down by one of the men. He was kept there throughout the robbery apart from a short period when he was made to get up and open the safe. Murray said that something that felt like the barrel of a gun had been held to the back of his head while he was lying on the floor. 6. The intruders stole 70 Blackberry smartphones from the stock room and a quantity of cash from the safe. They also stole Murray’s and Graham-Hanlan’s watches. As soon as the robbers had left Murray pressed the panic alarm and told headquarters that there had been an armed robbery. 7. There was a CCTV recording of the shop’s car park which showed a car entering just before the robbery and leaving just after it. The quality of the recording was not good enough to enable the registration number of the car to be identified, but the image was consistent with its being a silver-grey Mazda 323 LXI (registration H937 HLF) which police saw Abbas locking and unlocking on 27 th July 2010. On 28 th July the car was used in the robbery of a Texaco petrol station that formed the subject of count 3 of the indictment. It was found abandoned in August 2010 near to where Abbas lived in Streatham. There was evidence that were only three silver-grey Mazdas of that model registered in London, one of which had been off the road at the time. 8. Cell site phone evidence from the morning of the robbery tended to show that Abbas had travelled from his home in Streatham that morning to somewhere in the vicinity of the T-Mobile shop. At 9:30 am his phone received a call from Okeny’s phone which was also in the vicinity of the shop. 9. The offence that formed the subject of count 3 in the indictment was committed on 28 th July 2010. At about 8:15 that morning there was a robbery of a Loomis security van carrying cash at a Texaco petrol station near Streatham Common. Two men armed with hammers attacked the security guards and stole £25,000 and a company mobile phone. One of the guards was struck on the head and the thumb during the course of the robbery. The two robbers got into a car driven by a third man. A Mazda car subsequently found abandoned near Abbas’s address could be linked to the robbery by the fact that its front window had been smashed by one of the security guards during the getaway. In addition, the stolen Loomis mobile phone was found in the vehicle. 10. Abbas was arrested on 2 nd November 2010. No weapons or other items connected with criminal activity were found either at his home address or at a business address with which he was connected. 11. In due course Abbas was convicted of taking part in both robberies and of possessing an imitation firearm at the time of committing the robbery of the T-Mobile shop. Asafu-Adjaye was convicted of participation in the robbery of the T-Mobile shop. It was accepted that at the time of the robbery he had been at university in Hertfordshire and he was not charged with possession of an imitation firearm. 12. The single judge gave Abbas leave to appeal against his conviction on count 2 alone on the basis of grounds settled by counsel who had appeared for him at trial. Those grounds are not entirely easy to understand, but in substance they allege that the judge misdirected the jury on the principles governing joint enterprise as they applied to the charge of possession of the imitation firearm. There was no direct evidence that Abbas had been one of those who entered the T-Mobile shop, although there was evidence tending to show that he had been in the vicinity at the time of the robbery and had been in contact with another of the accused. The Crown’s case was that Abbas was a party to a joint enterprise robbery which had involved the use of an imitation firearm, for which he was fully responsible together with the others. His case was that he had done no more than provide the car. He said that he had not known that a weapon of any kind would be produced. 13. When the judge directed the jury he explained the nature of a joint enterprise and told them that, provided they were sure that any particular accused had been a party to a plan to rob the shop, it did not matter whether he had been one of those who had actually entered the premises. That was correct, but when it came to the use of the imitation firearm (assuming the jury were sure that an imitation firearm had been used) the position was more complicated. Abbas said that he had had no idea that a weapon of any kind would be carried, so before the jury could convict him they had to be sure that he knew that one of the robbers was carrying such a weapon. Unfortunately, when giving directions on this part of the case the judge failed to refer to the need for knowledge on the part of Abbas. That is the point on which leave to appeal was given. However, Mr. Scobie Q.C., who now appears for Abbas, did not feel able to pursue that ground in the light of what had subsequently occurred in the course of the trial. 14. During their deliberations the jury sent the judge a note asking whether it was necessary for a person to have been in the vicinity of the shop in order to be found guilty on count 2. The judge directed them as follows: “If you are satisfied so that you are sure that there was an imitation firearm in the possession of the people who carried out the robbery, then if you are satisfied so that you are sure that anybody who was involved in the joint enterprise in count 1 knew that an imitation firearm was being used in the robbery, then that person can also be guilty of count 2 wherever that person was, providing the person is part of the joint enterprise in count 1 and knew that there was an imitation firearm being used, if you are satisfied so you are sure that one was being used, then that person can, in fact would, be guilty of count 2, but it is a matter for you.” 15. After that, whatever the deficiencies in the original direction, we think that the jury can have been left in no doubt that they could convict Abbas on count 2 only if they were satisfied, first, that he had been a party to a joint enterprise to commit the robbery and second, that he knew that an imitation firearm was being carried. In those circumstances we are of the view that Mr. Scobie was right not to pursue this ground. 16. However, another aspect of the summing up has given us cause for concern, namely, whether there was evidence from which the jury could properly infer that Abbas knew that an imitation firearm was being carried and, if so, whether the judge gave the jury sufficient help in identifying what that evidence was. Having heard submissions from Mr. Wild and Mr. Scobie we decided to give the appellant leave to amend his grounds of appeal to raise these questions. 17. We invited Mr. Wild to identify the evidence upon the basis of which it was open to the jury to infer that Abbas knew that an imitation firearm was being carried. He was not able to direct our attention to any specific material but was able to rely only upon the evidence of ownership of the car and the cell site analysis to which we have already referred. That was adequate to establish a significant role in the preparatory stage of the robbery, but it did not amount to a firm basis for inferring that he knew that an imitation firearm was being carried. It needs to be stressed that even if Abbas had provided the car knowing that a robbery was to be committed and knew that some sort of weapon or imitation weapon might be carried, that would be an insufficient basis for a conviction on count 2 which charged him with possession. There was CCTV evidence available, but not such as to establish that Abbas was present at a time when he must have seen the imitation firearm and the cell site evidence could not, of course, establish that. 18. Where knowledge and proof of joint possession depends upon the drawing of an inference, as it did in this case, we consider that it is incumbent on a judge in summing up to identify the evidence of primary fact upon the basis of which, if it is accepted, a jury might infer knowledge and thus possession. The judge failed to do that and it is not possible to ascertain how the jury may have reached their decision. That state of affairs, coupled with the prosecution’s, and indeed our own, inability to identify a clear and firm basis for the inference of knowledge that an imitation firearm was being carried has driven us to the conclusion that the conviction on count 2 is unsafe. In the particular circumstances of this case, proof of a significant preparatory role and of travel to the vicinity of the robbery does not provide an adequate basis for inferring that the appellant knew that an imitation firearm was being carried. 19. That conclusion obliges us to consider the sentence passed on Abbas. We therefore grant the necessary extension of time and leave to appeal against sentence in his case. The sentencing judge imposed no separate penalty in relation to the possession of the imitation firearm but treated it as an aggravating feature in the robbery. In our judgement it makes little difference. This was clearly a robbery in relation to which it was reasonable to infer that at least the threat of serious violence was a feature. Against that background a reduction in sentence on count 1 of one year is all that is called for. To that extent only the appeal against sentence by Abbas succeeds, reducing the total sentence upon him to 10 years. 20. The applicant Patrick Asafu-Adjaye seeks leave to appeal against sentence on the grounds that the judge took too high a starting point in his case, having regard to the limited nature of his involvement, and that there is objectionable disparity between the sentence passed on him and that passed on the co-defendants. 21. This applicant stood to be sentenced on count 1 only. That is important, not only because he was to be sentenced in respect of only one of the robberies but also because he was not charged with, and therefore was not convicted of, being in possession of the imitation firearm. However, the other aggravating features of the offence are present in his case. 22. The robbery of the T-Mobile shop was clearly a level 2 offence, but we have been urged to view it in the context of the particular part played by this applicant and his personal mitigation. We think that is right in principle, but it raises the difficulty of deciding the nature and importance of the applicant’s role. As far as that is concerned, we have to bear in mind that the judge, who had presided over the trial, was particularly well placed to decide questions of that kind. He obviously considered that the applicant’s role was of sufficient importance, and the aggravating features of the offence of such significance, that a sentence somewhat higher than the starting point of 4 years’ imprisonment was appropriate. 23. The applicant could not claim credit for a guilty plea, but he was able to rely on a good deal of personal mitigation. He admitted to the author of the Pre-sentence Report his involvement in the offence, which appears to have been limited to acting as a link between Abbas and others involved in the robbery, although there were inconsistencies in his account and the judge clearly thought that he was doing his best to minimise his role. Nonetheless, the author of the report described him as naïve and, more importantly, as exceptionally remorseful. 24. The applicant was of previous good character and at the time of the robbery had been in higher education with the promise of a good future ahead of him. He had hoped to qualify as an accountant, but whether he will be able to pursue his ambitions in that respect may now be open to doubt. 25. In our view, having regard to the nature of the offence as we have described it, a sentence of 4½ years’ imprisonment was not of itself manifestly excessive. However, it is necessary to consider the question of disparity. It is difficult to draw any meaningful comparison between the sentence passed on Abbas and that passed on this applicant, not only because Abbas played a leading role, but also because he had to be sentenced for a second robbery. In his case the principle of totality came to the fore and may have influenced the judge’s decision to treat the possession of the imitation firearm as an aggravating feature of the first robbery and to impose no separate penalty in respect of it. That renders any meaningful comparison with the sentence passed on him all the more difficult, if not impossible. 26. Okeny was sentenced to 5 years’ imprisonment for the robbery. The judge said he was significantly involved, but did not describe the precise nature of the part he had played. Although the jury were satisfied that he had been a party to the robbery, the judge does not appear to have been sure whether he was or was not one of those who had entered the shop. It is true that he had convictions for various offences, whereas the applicant was of previously good character, but none were of any great significance in the context of an offence of this kind. 27. In our view the most important factor in determining the proper length of sentence was the nature and extent of the applicant’s involvement. Having regard to the judge’s findings, we do not think that there are real grounds for saying that there is objectionable disparity between the sentence passed on him and that passed on Okeny. Accordingly, the application must be dismissed.

```yaml citation: '[2012] EWCA Crim 2517' date: '2012-11-27' judges: - LORD JUSTICE MOORE-BICK - HIS HONOUR JUDGE COOKE Q.C. ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Case No: 2009/04176 D5 Neutral Citation Number: [2011] EWCA Crim 103 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOD GREEN CROWN COURT HIS HONOUR JUDGE W PAWLAK T20080610 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/01/2011 Before : LORD JUSTICE HOOPER LORD JUSTICE ETHERTON and MR JUSTICE OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - JACK WALKER Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript 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 Andrew Bird and Mr James Brightwell (instructed by Crown Prosecution Service) for the Appellant San Stein Q.C. (instructed by Registrar of Criminal Appeals ) for the Respondent Hearing dates : 24th January 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Etherton : Introduction 1. The short issue on this appeal is whether the Respondent’s interest under a standard form Friends Provident Children’s Trust, which was set up by his grandfather in August 1999 (“the Trust”), is his “free property” and so part of his “available amount” for the purpose of the confiscation provisions of the Proceeds of Crime Act 2002 (“ POCA ”). HH Judge Pawlak, when making a Confiscation Order on 10 July 2009 in the Wood Green Crown Court, held that it was not. The Crown appeals against that decision. The background 2. The Respondent pleaded guilty to 5 counts of possessing a controlled drug with intent to supply, 2 counts of possessing criminal property and 1 count of common assault. In December 2008 he was sentenced to a total of 45 months imprisonment. 3. Directions were made with a view to confiscation proceedings. The confiscation hearing took place on 10 July 2009 before HHJ Pawlak. It was common ground between the parties that the Respondent had a “criminal lifestyle” as defined by POCA because the offences of which he had been convicted are Schedule 2 offences. It was also agreed, and found by the Judge, that the Respondent had benefited from his criminal conduct and that the value of his benefit was £25,854.00. 4. The Court then had to decide the “recoverable amount”. For that purpose, the Judge had to decide the value of the Respondent’s “free property” as at 10 July 2009. It was common ground that he had assets of £9,422.42. The issue between the parties was whether that was the limit of his assets, or whether his interest under the Trust should also be taken into account. The Respondent contended that it should not, and that the available amount was therefore £9,422.42, and so the Confiscation Order should be for that sum. The Crown contended that the available amount should include the sum of £17,606.54 in respect of the value of the Respondent’s interest as a beneficiary under the Trust. If that was correct, the Respondent’s assets would exceed the value of the Respondent’s benefit from his criminal conduct, and the Confiscation Order would be for £25,854.00, being the amount of that benefit. The Judge accepted the Respondent’s contention, and so made the Confiscation Order for £9,422.42. The Crown appeals against that determination. The legislation 5. The provisions of POCA relevant to this appeal are as follows. 6. Section 6(5) , which applies in the present case, provides that, if the defendant has a criminal lifestyle and has benefited from his criminal conduct, the court must decide “the recoverable amount” and make a confiscation order requiring him to pay that amount. The recoverable amount is, so far as relevant to this appeal, defined in section 7 as follows: “7 Recoverable amount (1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned. (2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is— (a) the available amount, or (b) a nominal amount, if the available amount is nil.” 7. The “available amount” is, so far as relevant, defined in section 9 as follows: “ 9 Available amount (1) For the purposes of deciding the recoverable amount, the available amount is the aggregate of— (a) the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and (b) the total of the values (at that time) of all tainted gifts.” 8. The value, for that purpose, is the market value of the property: section 79(2). 9. Section 82 provides that property is free, for these purposes, unless an order is in force in respect of it under any of the legislative provisions specified in section 82(a) to (f). None of those applies in the present case. 10. Property is, so far as relevant, defined in section 84 as follows: “84 Property: general provisions (1) Property is all property wherever situated and includes— (a) money; (b) all forms of real or personal property; (c) things in action and other intangible or incorporeal property. (2) The following rules apply in relation to property— (a) property is held by a person if he holds an interest in it; …. (h) references to an interest, in relation to property other than land, include references to a right (including a right to possession). 11. Section 22 enables a receiver or prosecutor to return to court for a new amount to be paid under the Confiscation Order where, among other things, the original amount was less than the benefit but the defendant has acquired further free assets. 12. If a Confiscation Order is made, and is not subject to appeal, the Court may appoint a receiver in respect of “realisable property”: section 50(1). Realisable property is any free property held by the defendant, and any free property held by the recipient of a tainted gift: section 83 . The Court may confer on such a receiver various powers specified in section 51 in relation to the realisable property, including taking possession of the property, managing or otherwise dealing with it, realising it, and starting, carrying on or defending legal proceedings in respect of it. The Trust 13. Clause 1 of the “Terms and Conditions” of the Trust specified the beneficial entitlements as follows: “1. Beneficial Trusts (i) The Applicant hereby declares that the capital and income of the Trust Fund shall be held in trust for such of the Beneficiaries as shall attain the Specified Age or be living at the expiration of the Trust Period in such shares as the Trustees shall be deed or deeds revocable or irrevocable appoint (regard being had to the law concerning remoteness) and in default of and subject to any such appointment in equal shares per stirpes provided that the Trustees shall not make or revoke any such appointment if to do so would have the effect of increasing the share of any beneficiary who shall have attained the Specified Age. (ii) The share in the Trust Fund of each Beneficiary shall not vest in him or her absolutely on attaining the Specified Age but shall be retained by the Trustees. (a) upon trust to pay the income thereof to him or her during his or her life with power at any time or times during the Trust Period to pay transfer or apply the whole or any part or parts of the capital thereof to him or her or for his or her benefit as the Trustees shall in their discretion think fit. (b) subject as aforesaid upon trust as to capital and income for such of his or her children and remoter issue as shall be living at the expiration of the Trust Period and if more than one in equal shares per stirpes and (c) subject as aforesaid upon the trusts and with subject to the powers and provisions which are then subsisting in relation to the share or shares of the other beneficiary or beneficiaries and if more than one equally between them. (iii) Provided that if any beneficiary shall die under the Specified Age during the Trust Period leaving a child or children who shall attain the Specified Age or be living at the expiration of the Trust Period such child or children shall take the substitution and if more than one equally between them the share to the Trust Fund which his her or their parent would have taken had he or she lived to attain a vested interest under sub-clause (1) above. (iv) Subject as aforesaid the Trust Fund and the income thereof shall be held upon trust for the last of the beneficiaries to die absolutely. 14. By virtue of the definitions in the Trust, the Applicant was the Respondent’s grandfather, Brian Laundy; the Beneficiaries are the Respondent, who was 21 at the date of the Confiscation Order, the Respondent’s sister Daisy, who was 18 at that date, and their cousin Axel, who was born on 28 May 1996; the specified age is 18; and the Trust Period is 80 years. The value of the trust fund, as at 10 July 2009, was £52,819.62. It is or was apparently all invested in the Friends Provident “Capital Investment Bond”, a non-income producing bond. The judgment 15. The essence of the Judge’s decision on the point in issue was that, although the Respondent, having attained 21, had a capital share of one-third of the trust fund, his beneficial interest was not free property because his entitlement to capital was dependent on the exercise of the trustees’ discretion under clause 1(ii)(a). The material part of his judgment is as follows: “I agree and find that this is a closed class of [Beneficiaries]; that the Trustees cannot alienate capital away from him and that he, the defendant, cannot be excluded and, therefore, he will, undoubtedly, receive at least one third of the capital at some time in the future. This issue, whether I can or cannot include that expectation of benefiting from the trust at some future stage, really turns on the meaning of words in section 9 of the Act; namely, whether he holds that asset today, “then held.” I don’t think section 84 really helps me. The thing in action or other intangible or incorporeal property can include the right of a beneficiary under a Trust, but that right has to be exercisable today. I agree with and so find, Mr Bird’s submission that the Trustees have no discretion to alienate him from the property or to pay him anything less than one third of the capital, and that that share will not decrease. I agree with and find it’s not a Jersey discretionary or Red Cross Trust, where total discretion is given to the Trustees not to pay, but I don’t find that it is “free property” held by the defendant as of today. Even if his interest is held today, it’s not free, because of the discretion under sub-paragraph (ii) (a) of Paragraph 1 of the Terms and Conditions. This view is supported, in my view, by the fact that Section 22 of the Act enables the Court to reconsider the available amount and to make a new calculation. In fact, where this section, section 22, applies, the Court must make a new calculation and apply Section 9, as if references to the time the Confiscation order is made were to the time of the new calculation, and as if the references to the date of the Confiscation order were to the date of the calculation. There is no time limit to the making of the Section 22 application; therefore, there is nothing to prevent recovery of the balance of the benefit figure whenever the capital is paid by the Trust.” The Appeal: discussion and conclusion 16. Notwithstanding the Judge’s reasoning and the able submissions of Mr Sam Stein QC, for the Respondent, the Respondent’s beneficial interest under the Trust is plainly, in our judgment, free property of the Respondent within section 82 of POCA . Essentially for the reasons lucidly articulated by Mr James Brightwell, who appeared with Mr Andrew Bird as counsel for the Crown, the Respondent had a vested life interest in possession in one third of the trust fund at the date of the Confiscation Order. 17. When the Respondent attained 18, the grandchildren eligible as beneficiaries became limited to those then alive, namely himself, his sister Daisy and his cousin Axel. He therefore became entitled to one third of the capital, but it did not vest in him absolutely. It was held on the terms of clause 1(ii) and (iii) of the Trust. Under clause 1(ii)(a) the Respondent became entitled to a life interest in his one third share, that is to say, the right to receive the income from that one third for life. The trustees had power to pay, transfer or apply the whole or part of the capital of his one third share to him or for his benefit, but he had no other right to the capital save in very remote and contingent circumstances specified in clause 1(ii)(c) and (iv). 18. While the Respondent’s hope that the Trustees might exercise their power to appoint capital to him was not free property within section 82 of POCA , his vested life interest in one third of the capital of the trust fund undoubtedly was. It was property within section 84(1)(c) and (h) of POCA . 19. Mr Stein submitted that the investment powers of the trustees prevented the Respondent’s interest from being an interest in possession. Those powers of investment are set out in clause 3 of the Trust and are in the usual very wide terms conferring on the trustees the same full and unrestricted powers of investment as if they were the absolute beneficial owners of the trust fund. Mr Stein relied particularly on the express power of the trustees under clause 3 “to invest trust monies in the purchase or other acquisition of real or personal property of any kind whether or not producing income...” He submitted that the power to invest all the trust fund in non-income producing assets precluded the Respondent from having an interest in possession because, by virtue of that power, the Respondent did not have and does not have a present right to present enjoyment of any income. 20. In support of that submission, Mr Stein relied upon the decision of the House of Lords in Pearson v IRC [1981] AC 753 . The question in that case was whether trustees’ power to accumulate income precluded an interest in possession. It was held that it did. Mr Stein referred to passages in the speeches of Viscount Dilhorne and Lord Keith. The question in issue was posed in the following way by Viscount Dilhorne at page 772H to page 773C: “As to that, there are, it seems to me, two possible conclusions. The first is that the power of appointment under clause 2 not having been exercised, the three sisters on reaching that age acquired interests in possession defeasible should the trustees decide to exercise their power to accumulate income. They were then entitled absolutely to the capital and income of the trust fund in equal shares subject to the exercise of that power. The second is that they never secured an interest in possession for they never acquired on reaching that age the right to the enjoyment of anything. Their enjoyment of any income from the trust fund depended on the trustees’ decision as the accumulation of income, They would only have a right to any income from the trust fund if the trustees decided it should not be accumulated or if they failed to agree that it should be or if they delayed a decision on this matter for so long that a decision then to accumulate and withhold income from the sisters would have been unreasonable.” 21. Viscount Dilhorne decided in favour of the second alternative. He said at page 774C: “Clause 3 (a) gives the trustees power to accumulate as they think fit and the sisters’ entitlement depends on whether that power is exercised.” 22. He concluded at page 775E: “In my opinion the words “interest in possession” in Schedule 5 should be given their ordinary natural meaning which I take to be a present right of present enjoyment and as in my view the sisters on attaining 21 did not obtain that, this appeal should succeed and paragraphs 1 and 2 of the commissioners’ determination should be upheld.” 23. Lord Keith said at page 786C/D: “In the present case Fiona certainly did not have an absolute right to any income of the property as it accrued. At that moment her entitlement was qualified by the existence of the trustees’ power of accumulation, to the effect that she had no immediate right to anything, but only a right to later payment of such income as the trustees, either by deliberate decision or by inaction for more than a reasonable time, did not cause to be subjected to accumulation.” 24. There is, in our judgment, a plain difference between Pearson and the present case. In Pearson the court was concerned with the effect of a dispositive power, the power of accumulation, which precluded any right to income at all until the trustees had decided not to accumulate; whereas the present case concerns the effect of an administrative power, the power of investment, which cannot preclude the Respondent’s entitlement to such income as there is, immediately income is produced by the invested assets. So far as the power of accumulation is concerned, the Revenue’s argument in Pearson was recorded as follows at page 756E-G: “The power to accumulate under clause 3 (a) of the settlement is a power over income which is already in the hands of the trustees. When they receive the income they have a reasonable time in which to decide whether to accumulate it or not. Only if they decide not to accumulate it or they fail within a reasonable time to accumulate it are the principal beneficiaries entitled to the income, that is, to demand payment of the income…. Accordingly in the present case Fiona and Serena were not entitled to demand payment as soon as the trustees received income. The position is the same as if clause 3 contained a power to use income to maintain the three beneficiaries and a trust to accumulate the balance....” 25. The investment clause of the Trust is, as we have said, usual. Mr Stein accepted that the Respondent is entitled to any income which arises, at the moment it arises. It is an administrative power. The fundamental difference in this context between dispositive powers and administrative powers was explained as follows by Viscount Dilhorne in Pearson at page 774H to page 775B: “These provisions show that Parliament distinguished between the administration of a trust and the dispositive powers of trustees and in my opinion there is a very real distinction. A life tenant has an interest in possession but his interest only extends to the net income of the property, that is to say, after deduction from the gross income of expenses etc. properly incurred in the management of the trust by the trustees in the exercise of their powers. A dispositive power is a power to dispose of the net income. Sometimes the line between an administrative and a dispositive power may be difficult to draw but that does not mean that there is not a valid distinction. In the present case the revenue contended that the power given by clause 21 to apply income towards the payment of duties, taxes etc. which but for the provisions of the clause would be payable out of or charged upon capital was a dispositive power and that this clause alone would prevent the sisters having an interest in possession on reaching 21. I do not think that this is so. I think this clause falls on the administrative side of the line and merely elucidates the meaning to be given to clause 14.” 26. A helpful and correct analysis is to be found in Thomas and Hudson on The Law of Trusts (2nd ed) at para 34.09 as follows : “The discussion thus far assumes that the assets comprised in the settled fund actually produce income. But what if an asset is non-income producing, for instance a life insurance policy or a capital growth bond which pays no dividend or an interest-free loan which has been made out of the trust assets in favour of the income beneficiary? The answer is that the ‘present right to present enjoyment’, which is the defining characteristic of an interest in possession, includes the right to call for the income, if any [my emphasis], of the settled property and that a beneficiary who would be entitled to call for the income of the settled property if it produced any [my emphasis] is entitled to an interest in possession in such property.” 27. There is no doubt, therefore, that the Respondent’s life interest in possession in one third of the trust fund is free property within sections 82 and 84 of POCA , and hence realisable property within section 83 of POCA . It is a quite different issue what was its value at the date of the Confiscation Order for the purpose of ascertaining “the available amount” under section 9, and hence “the recoverable amount” under sections 6 and 7 of POCA . Ordinarily, a life interest in possession which is capable of assignment has a value. It can be sold. There is nothing in the Trust which precludes the sale of the Respondent’s life interest. As we have said, the trust fund is apparently currently invested in a non-income producing bond, but that does not necessarily mean that the Respondent’s life interest has no value. As counsel for the Crown have observed, the trustees have to exercise the power to invest as fiduciaries, fairly having regard to the respective interests of those entitled to capital and to income: Nestle v National Westminster Bank plc [1993] 1 WLR 1260. A purchaser of the Respondent’s life interest would be entitled to take steps to enforce that fiduciary obligation of the trustees. 28. There is no expert or other evidence before the Court as to the market value of the Respondent’s life interest as at the date of the Confiscation Order. We have to decide what order to make in those circumstances. Section 32(1) of POCA provides that, on an appeal by the prosecutor in respect of a Confiscation Order, the Court of Appeal may confirm, quash or vary the Confiscation Order. Although there undoubtedly is a market for the sale of life interests in possession under trusts, there are complications in the present case. The trust fund is apparently not currently invested in income producing assets. If that is correct, there is a question as to enforcing against the trustees their fiduciary obligations fairly to consider the interests of the person entitled to income. Further, the trustees have a wide discretion under the investment provision, and they must bear in mind the interests of those entitled to capital as well as those entitled to income. It is therefore not easy to predict, even if the trustees did properly fulfil their fiduciary duties under the investment clause, how much income would be produced by the Respondent’s one third share. 29. We have to consider the considerable and disproportionate costs of adjourning this hearing, in order to enable the parties to obtain expert evidence as to the market value of the Respondent’s interest in one third of the trust fund, and of a further hearing, set against the difficulties and imponderables we have mentioned in establishing the market value of a right to income from a modest amount of capital. Taking all these consideration into account, we do not consider it is in the public interest to prolong these proceedings, and shall therefore confirm the Confiscation Order, notwithstanding the Crown’s success on the point of principle. Conclusion 30. For the reasons we have given, we confirm the Confiscation Order in the amount of £9,422.42

```yaml citation: '[2011] EWCA Crim 103' date: '2011-01-24' judges: - LORD JUSTICE HOOPER - LORD JUSTICE ETHERTON - MR JUSTICE OPENSHAW ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200803719/D4-200804149/D4 Neutral Citation Number: [2010] EWCA Crim 970 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 28th January 2010 B e f o r e : LORD JUSTICE LAWS MR JUSTICE BEATSON MR JUSTICE BLAKE - - - - - - - - - - - - - - - - - - - - - R E G I N A v SHABBIR HUSSAIN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr C Draycott appeared on behalf of the Appellant Mr A Bird & Miss F Jackson appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LAWS: On 4th June 2008 before Her Honour Judge Barnes at the Kingston Crown Court Shabbir Hussain was convicted by the jury on five counts of possessing a controlled drug of Class C with intent to supply, and seven counts of evading the prohibition on the unauthorised use of a trademark in relation to goods. The drugs offences were charged as counts 1 to 4 and 6 on the indictment. The trademark offences counts 8 to 14. On 8th July 2008 the appellant was sentenced to concurrent terms of 4 years' imprisonment on each count. There were four co-defendants. The appellant now appeals against conviction by leave of the single judge limited to counts 2, 3 and 6. He renews his application in relation to counts 1 and 4. He also seeks leave to appeal against his sentence, that application having been referred to the Full Court by the single judge. This is the court's judgment on the appeal against conviction and the application for leave to appeal against conviction. 2. The appellant ran a business from his home called AST International, whose trade was the purchase and sale of medicines. He ran it by himself with help as and when from others. Two of his co-defendants, Zaidi and Abbas, were part-time employees. 3. On 13th June 2006 the premises were searched by officers of the Medicines and Health Care Regulatory Products Agency. Only the appellant was there at the premises when they arrived. The officers found a large number of perfectly legitimate products but also quantities of Class C drugs and counterfeit medicines in the shed, garage, loft and kitchen. Some were in boxes, some in bags, some just left open. During the search a man speaking Russian on his mobile and a little later the co-defendants, Zaidi and Abbas, arrived at the premises. The following class C substances (all steroids except for the Diazepam) were found. Drug Units Value (£) Count Diazepam/Valium 4,750 269.72 1 Decca Durablolin 4,995 16,450 2 Oxybolone 109,800 78,101.08 3 Sustanon 30,024 50,489.20 4 Nandrolene Decananoate 12,600 41,454 6 Total Value 186,764 4. Neither the appellant, his co-defendant, nor AST International had the required Home Office licence for the purpose of possessing, supply, importing or exporting any of these Class C drugs. There was a distinction between counts 2, 3 and 6, for which, it will be recalled, the single judge gave leave and 1 and 4 for which he did not. The drugs the subject of counts 2, 3 and 6 were not listed as Class C controlled substance in the Chemist and List Book produced at court by the appellant. His defence in relation to counts 1 and 4 was that he had not been in possession of the drugs covered by those counts at all. It is unnecessary to describe the counterfeit medicines that were found at the premises, there being no appeal in relation to the convictions on counts 8 and 14. 5. Officers seized a number of note pads and documents at the premises. They showed that the illicit products came from a company, Eurogulf, via legitimate couriers. Delivery addresses in the Hendon and Wembley areas appeared on some documents. The drugs had subsequently been taken to the appellant's address. The products were described on the delivery notes as vitamins and food supplements. Other documents recovered however showed the true contents of each of the parcels. A number of the delivery addresses used or said to be used were linked to the appellant and the co- accused. There were also seized a number of documents containing handwritten references to "Valium" and "DD", "Oxy" "Sustanon", "Susta" and "Sus" and also "Deca". However the Crown did not present any expert handwriting evidence relating to these materials. A laptop computer was seized. It showed that the appellant's own email account had been used in connection with the ordering of the illicit products. Some of the email exchanges with other parties continued across a number of months. There were also emails seemingly from the appellant to Zaidi giving him instructions about these products. Two mobile phones had been used, or so it appeared to keep track of the deliveries of the illicit products. Both phones were either registered in the name of the appellant or to his address. 6. The Crown case, on all counts, was that the appellant was running a business in the purchase and sale of Class C drugs. 7. The defence on counts 1 and 4, as we have said, was that the appellant did not know that the drugs referred there to there were on his premises. He ran the same defence on counts 5 and 7, on which he was acquitted. As for counts 2, 3 and 6, he accepted he had been in possession of the relevant drugs but his case was that he neither suspected or believed or had any reason to suspect or believe that the products named in those counts were controlled. 8. The appellant gave evidence in his own defence. He described his business. He said he thought that the drugs charged in counts 2, 3 and 6 were unclassified. He alleged that any illegitimate business, as was apparently disclosed by the documents, was being conducted in his absence by a man called Imran, who together with another man, Jawad, had effectively hijacked his business, taking the opportunity to do so because he, the appellant, had spent a lot of time in Pakistan visiting his sick mother. None of the incriminating emails, he said, had anything to do with him. He had purchased the laptop for Imran's sole use. In short he had never knowingly possessed Class C drugs save for those charged in counts 2, 3 and 6 which he did not realise were classified. 9. In relation to counts 2, 3 and 6 the appellant submitted at trial, at the end of the evidence and before closing speeches, that he could in any event only be guilty of possession with intent to supply, if it were proved that he intended to supply within the United Kingdom. 10. His case was that, as it were, if he intended to supply at all, he intended to send the products in question to third countries outside the European Union via professional courier services, as his skeleton argument before the Crown Court showed. He so asserted in a further (but not the original) defence case statement at trial. 11. His argument on counts 2, 3 and 6, therefore, on which the single judge gave leave is simple to state. The offence with which he was charged, provided for by section 5(3) of the Misuse of Drugs Act 1971 , was possession of a controlled drug "with intent to supply it to another in contravention of section 4(1) of this Act ". The appellant says that on the facts his case contemplated that there would be two transfers of the drugs: (i) the transfer to the courier, that would take place in England and Wales; (ii) the transfer by the courier to a customer abroad. While it is submitted that the first transfer to the courier would not amount to a supply at all within the meaning of Misuse of Drugs Act 1971 (see R v McGuinness [1987] 1 AC 303 ) and the second transfer from courier to customer abroad, while amounting to a supply, would not be in contravention of section 4(1) of the 1971 Act because that provision is of territorial effect within the United Kingdom only (see R v Seymour [2008] 1 AC 713 ). 12. The first point relating to transfer to the courier is clearly made good by what was said by Lord Keith in the McGuinness case. It is replicated in the appellant's skeleton argument. The passage relied on is replicated in the appellant's skeleton argument as appears at page 309 AB, and a further passage at 313D-E. So much then for the first transfer; however in relation to that, might it be said there is a distinction between transfer to a custodian or temporary keeper who is to transfer the drugs back to the person he got them from and transfer to a courier, whose obligation is to pass them onto a third party? That is a factual distinction from the McGuinness case. It seems to us the fact that the custodian may act for profit does not turn the transfer to him into a supply for the purpose of 1971 Act. The essence of a supply on Lord Keith's reasoning is "the transfer must be for the purposes of the transferee". We conclude that it is in effect beyond argument that the prospective transfer to the courier is not a statutory supply. 13. As for the second transfer, to the customer abroad, the appellant relies, as we have said, on R v Seymour [2008] 1 AC 713 , cited in Archbold current edition paragraph 27-70. Seymour was a Privy Council case which concerned Bermudan legislation whose terms were identical to the relevant provision of the Misuse of Drugs Act. The Privy Council held that a supply, if it was to fall with the Bermudan statute, had to take place within the jurisdiction because of the presumption of territorial effect. That presumption of course is a general rule of the interpretation of criminal statutes. 14. There can, in our judgment, be no basis for not applying the reasoning in Seymour to this present case. Accordingly, if the intention may have been to supply customers outside the jurisdiction, no offence such as those charged in counts 1 to 4 and 6 could be committed. The learned trial judge never directed the jury that if they concluded that the drugs may have been intended for foreign customers that would not be a supply within the 1971 Act . No viable distinction can in our judgment be made between counts 1 to 4 and 2, 3 and 6. True it is, as we have said twice, that the appellant ran a different defence in relation to counts 1 to 4: indeed a defence that was inconsistent with his having supplied to anyone including foreign customers. But it is inescapable that if the jury were to convict, they could only lawfully do so on a proper basis, and a proper basis would only be established if the judge gave the jury the sort of direction to which we have just referred. She did not. The Crown submit, in paragraph 15 of their skeleton argument supported by Mr Bird's oral submissions this morning, that there was material to demonstrate that the appellant's account of supplying only foreign customers was false. We are by no means suggesting that there was no case against the appellant in relation to the possible supply of customers within the jurisdiction. As it happens the appellant distanced himself, or sought to distance himself from the incriminating documents at trial. It is entirely possible that the jury accepted that the supplies in the case were intended for third country customers but nevertheless convicted the appellant. They had no guidance as to how to deal with the position if they were satisfied that the supplies were only so intended. If they convicted the appellant while accepting that that is what might have happened, the convictions are unsafe, because they are in effect convictions of an offence not known to the law. 15. For those reasons we grant leave to appeal in relation to counts 1 to 4 and allow the appeal against conviction in relation to all counts to which that appeal relates. 16. We need not go into the details but it appears that subordinate legislation exempts a person in the appellant's position from any criminal liability for simple possession of drugs under the Misuse of Drugs Act such as those charged in counts 2 to 4 and 6, leaving only count 1 which was Valium. So we substitute a simple possession conviction in relation to count 1. The position then is that he stands convicted of simple possession of Class C drugs on count 1, and the convictions for the trademark offences remain. 17. In those circumstances you have an outstanding application for leave in relation to sentence, but quite apart from anything else it no needs to be adjusted given the offence that you are as now as it were relieved of. (Submissions re: sentence followed) 18. LORD JUSTICE LAWS: We turn to the application relating to sentence. We grant leave. 19. The appellant is a man of 53 with no previous convictions. There are before the court as there were below character references in his favour. The judge below rightly emphasised the gravity of the trademark offences as well as those relating to drugs. As is submitted in a further written argument for the Crown, a sentence of 4 years may well be justified on past cases decided in this court for the offences of which the appellant still stands guilty. However, it seems to us that the appellant was sentenced to concurrent terms of 4 years for each of the offences for which he was before the learned sentencing judge, on the footing that was the judge's view of the appropriate totality, in the circumstances of this case. Justice would not be done if we now made no discount for the fact that he no longer stands guilty of possessing drugs with intent to supply. 20. We propose to quash all the sentences passed, to substitute sentences of 3 years' imprisonment concurrent for each of the trademark offences and a further sentence of 12 months' imprisonment, concurrent, on count 1. To that extent the sentence appeal succeeds.

```yaml citation: '[2010] EWCA Crim 970' date: '2010-01-28' judges: - LORD JUSTICE LAWS - MR JUSTICE BEATSON - MR JUSTICE BLAKE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Case No: 201603335 B1 Neutral Citation Number: [2017] EWCA Crim 57 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT IPSWICH Lower Court Judge: MR RECORDER BRYAN Lower Court Case No.: S20150237 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22 February 2017 Before : THE RT. HON. LORD JUSTICE BURNETT THE HON. MR JUSTICE SUPPERSTONE and HIS HONOUR JUDGE DEAN QC - - - - - - - - - - - - - - - - - - - - - Between : JACQUELINE REYNOLDS Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Steven Dyble (instructed by Norton Peskett ) for the Appellant Ms Lynne Shirley (instructed by CPS ) for the Respondent Hearing date : 21 December 2016 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Supperstone : 1. This is the judgment of the court. 2. On 16 September 2015, having pleaded guilty before Magistrates, the Appellant was committed for sentence in respect of three offences contrary to s.112 of the Social Security Administration Act 1992 . 3. On 23 October 2015 at the Crown Court in Ipswich before His Honour Judge Goodin the Appellant was made subject to a community order for 13 weeks with a curfew requirement. She was also ordered to pay a victim surcharge order in the sum of £60. 4. On 24 June 2016 before Mr Recorder Bryan in confiscation proceedings under s.6 of the Proceeds of Crime Act 2002 (“POCA”) the Appellant was adjudged to have received a benefit of £31,785.51 with a recoverable amount of £21,686.73. She was made subject to a confiscation order in the sum of £21,686.73, payable within 3 months and with 9 months’ imprisonment in default of payment. 5. She appeals against sentence, limited to the confiscation order, by leave of the single judge. 6. On 21 December 2016, having heard submissions from Mr Steven Dyble on behalf of the Appellant, and Ms Lynne Shirley on behalf of the Respondent, we directed that the parties file further written submissions. We indicated that we would then consider the totality of the material before us and determine the appeal without there being a further hearing, unless it was absolutely necessary to have one. We consider that there is no need for a further hearing. 7. The facts are these. The Appellant (then aged 59) lived in a three bedroom terrace house in Lowestoft with her husband, aged 66. The house was purchased in their joint names. Their adult children, aged 25 and 23, also lived at the address. 8. The Appellant’s known sources of income were Disability Living Allowance of £21.80 per week; Carer’s Allowance of £62.10 per week and an Occupational Pension of £229.99 per month. 9. Her husband’s known sources of income were Disability Living Allowance of £112.55 per week; State Pension of £113.85 per week and an Occupational Pension of £535.62 per annum. 10. An investigation was started after an allegation of undeclared earnings was received and evidence was obtained which indicated that the Appellant had failed to declare a change of circumstances to the Department of Work and Pensions (“DWP”), namely that her husband had been employed by Wessex Foods from February 2004. Had this fact been known it would have affected her entitlement to benefit. 11. The amount of benefit overpaid related to incapacity benefit (£14,497.21) and pension credit (£13,728.81). The total overpayment was £28,226.02. 12. The Appellant later entered into an agreement with the Benefits Agency for repayment of the overpayment from future benefits which were deducted at source. Approximately £3,000 has been repaid in this way. 13. At the confiscation proceedings Mr Dyble, who appeared on behalf of the Appellant, as he does before us, made two submissions. First, that there was in force a repayment strategy whereby the deficit was being repaid at about £50 per week, which equated to £2,500 per annum. The overpayment would be repaid in 9 years. To make a confiscation order would therefore be disproportionate. 14. Second, Mr Dyble submitted that the order sought would be disproportionate and unfair, particularly having regard to the unchallenged disabilities suffered by the Appellant and her husband. 15. The only asset of any real value of the Appellant is her share in the terraced house. The property was valued at £149,500. It had been purchased many years before the claim for benefits made by the Appellant became an unlawful claim. It was subject to a mortgage (£63,779) and a secured loan for disability improvements (£31,132). After the costs of sale, the net equity divided between the Appellant and her husband was £21,643.05 each (the Crown give a figure of £25,044.50). She also has £40 in sole bank accounts. The confiscation order would be of no value unless it was enforced by an order for the sale of the property, the Appellant having no other significant assets. 16. Mr Dyble further submitted that the court should take into account the consequences of an order upon an innocent third party, in this case the Appellant’s husband, who jointly owned the property, given that an alternative mechanism to secure repayment had been agreed. 17. Ms Shirley, who appeared on behalf of the prosecution, as she does before us, submitted that the existing repayment order was not a relevant consideration. The prosecution would ensure that there was no double-counting; if the confiscation order was made and paid credit would be given for the repayments made under the voluntary agreement. Further the confiscation order was a draconian measure and for that reason the court could not take into account either the personal, physical or medical circumstances of either the Appellant or her spouse. 18. Giving his Ruling the Recorder said that he believed that the correct view of the law, when considering the issue of disproportionality, is that he must not take into account (1) that there is in force a repayment agreement, or (2) the matters referred to as “personal medical situation” of the Appellant, and that the family may have to be re-housed (3A-C). He said that he would expect, as the prosecution had indicated, that those matters would be taken into consideration at the enforcement stage (3D-F). 19. Before us Mr Dyble submits that the Recorder erred in saying that he had no discretion. Further, for the reasons he advanced before the Recorder, Mr Dyble submits that this is a case where the court, in the exercise of its discretion, should not have made a confiscation order. Compensation could have been ordered as an alternative. 20. It was, Mr Dyble submits, disproportionate and unjust on the facts of this case to make an order that would necessitate the sale of the property for the reasons given at paras 14 and 15 above. There is, Mr Dyble contends, no option open to the Appellant other than the sale of the house in circumstances where she has no access to a mortgage or loan facilities. Whilst the loss of a home is draconian, Mr Dyble accepts that it is not of itself an excessive burden (see Parkinson [2015] EWCA Crim 1448 ), however the disability of the Appellant, and that of her husband, is an additional hardship. The loss to them of a home that has been modified at considerable expense to the taxpayer imposes hardship over and above what would normally be encountered. The sale will trigger additional financial loss, namely the repayment of the disability grant and early mortgage redemption. Mr Dyble submits that given these factors and that for over a year there has been in place, at the instigation of the DWP, the statutory mechanism for ensuring repayment the order that has been made is disproportionate. Further it would, Mr Dyble submits, amount to a breach of the ECHR Article 8 rights of the Appellant and her husband. 21. Ms Shirley summarises the Crown’s position as being that the making of the confiscation order was proportionate, just and fair, when considering all of the circumstances in this case, including the medical conditions of the Appellant and her husband and the adaptations made to the property they live in. 22. Ms Shirley submits that there is no general principle, when considering making a compensation order, in relation to the implications of sale of the family home; each case is to be decided upon its own particular facts. 23. Ms Shirley referred to the case of Brian John Roisetter [2004] EWCA Crim 1827 , which concerned s.71 of the Criminal Justice Act 1988 (“ the 1988 Act ”), the predecessor of s.6 POCA, where Stanley Burnton J said (at para 4): “… section 71 confers no discretion on the court to avoid making a confiscation order in circumstances where there is realisable property…” 24. In Michael Richards [2005] EWCA Crim 491 David Steel J, applying Roisetter , held that s.71 (1B) of the 1988 Act requires the defendant to pay the amount of benefit obtained (para 26), and the court is afforded no discretion whatever the impact on the defendant may be (para 33). 25. Ms Shirley submits that the issue of how a confiscation order may be satisfied is only of relevance when and if enforcement proceedings are commenced. That being so it is in a person’s best interests to explore ways of meeting the order once it has been made. It is, she suggests, a matter for the Appellant as to how the confiscation is satisfied. 26. It is not oppressive, Ms Shirley submits, for confiscation to be pursued whilst deductions from benefit are being made. In this case the amount deducted from the Appellant and her husband’s benefits means that it will take in excess of 10 years to recoup the overpayment. That timescale has now increased significantly, given an amendment to the deductions. 27. The jurisdiction of the court to make a confiscation order is set out in s.6 of POCA. Section 6(5) provides that: “If the court decides under sub-section (4)(b) or (c) that the defendant has benefited from the conduct referred to it must— (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount. [Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.]” The words in brackets were inserted by the Serious Crime Act 2015 , Sch.4, para 19, following the decision of the Supreme Court in Waya [2012] UKSC 51 . 28. In Waya the Supreme Court made clear that the Proceeds of Crime Act 1995 (“ the 1995 Act ”): “removed from the Crown Court almost all discretion as to the making or quantum of a confiscation order, if it was applied for by the prosecution and the statutory requirements were satisfied. That remains the position under POCA. The Crown Court no longer has any power to use its discretion so as to mould the confiscation order to fit the facts and the justice of the case…” (per Lord Walker and Sir Anthony Hughes, delivering the majority judgment at para 4). 29. As the Supreme Court emphasised (at para 21): “The purpose of the legislation is plainly, and has repeatedly been held to be, to impose upon convicted defendants a severe regime for removing from them their proceeds of crime.” 30. However the Crown Court has a duty to avoid making a confiscation order which is an infringement of Article 1 of the First Protocol to the ECHR (“A1P1”) because it is disproportionate (see paras 16 and 19 of the majority judgment in Waya ). 31. A1P1 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.” 32. It follows that it is only if the confiscation order would involve a violation of A1P1 by not conforming to the test of proportionality that it is the duty of the Crown Court judge not to make such an order. However the Supreme Court in Waya said: “…it must clearly be understood that the judge’s responsibility to refuse to make a confiscation order which, because disproportionate, would result in an infringement of the Convention right under A1P1 is not the same as the re-creation by another route of the general discretion once available to judges but deliberately removed.” 33. In Paulet v UK [2015] 61 EHRR 39 the European Court of Human Rights stated at para 65: “An interference with art.1 of Protocol No.1 will be disproportionate where the property-owner concerned has had to bear ‘an individual and excessive burden’, such that ‘the fair balance which should be struck between the protection of the right of property and the requirements of the general interest’ is upset. The striking of a fair balance depends on many factors.” 34. Mr Dyble submits that “the fair balance which should be struck between the protection of the right of property and the requirements of the general interest” is upset by the confiscation order made in this case. 35. We are not persuaded that the making of this order does amount to a violation of A1P1. In Parkinson the court did not accept that there is some “general principle” that where a confiscation order would require the sale of the family home a confiscation order will not, or at all events will not usually, be made. Davis LJ, delivering the judgment of the court, said: “31. Overall, … we conclude that in confiscation proceedings of this kind, whilst a potential consequential forced sale of the family home is of course a matter to be taken into account, it is not to be taken as in principle some kind of trump card in resisting the making of a compensation order or a section13(6) direction, let alone with regard to the making of the confiscation order itself.” 36. Lord Justice Davis added: “32. … We suggest that Crown Court Judges should nowadays be a little careful, in the course of confiscation or compensation proceedings, in not too readily assuming that the making of a compensation order in such circumstances inevitably will require a jointly owned property to be sold in order to realise the defendant’s beneficial interest in such property. Commonly, no doubt, that may well be the consequence. But under modern jurisprudence there is at least some prospect, in an appropriate case, for a spouse or partner having the remaining beneficial share in the family home, and perhaps also where there are dependent young children, at least raising an opposing argument as to sale or possession: such arguments being potentially available in the course of enforcement proceedings in the courts which have been subsequently undertaken to realise the value of the defendant’s beneficial interest. Such arguments in opposition are capable of placing reliance, in an appropriate case, on the considerations arising under article 8 of the Convention or on wider equitable principles. At all events, one can perhaps reflect that if the enforcing court in subsequent sale and possession proceedings does not consider it in any particular case to be unjust or disproportionate to order sale and possession, then that is suggestive of it not having been unjust or disproportionate to have made the original compensation order in the first place.” 37. These observations apply equally to the making of the confiscation order itself. We agree with the Recorder that the appropriate time for consideration of whether the house in which the Appellant and her husband live has to be sold is at the enforcement stage, if it be reached. 38. Further, we reject Mr Dyble’s submission that the fact there is in force a repayment agreement makes the confiscation order disproportionate. In Mohid Jawad [2013] EWCA Crim 644 the Court of Appeal considered the relationship between confiscation orders and compensation orders in the light of Waya . Hughes LJ (as he then was) said at para 21: “… we do not agree that the mere fact that a compensation order is made for an outstanding sum due to the loser, and thus that that money may be restored, is enough to render disproportionate a POCA confiscation order which includes that sum. What will bring disproportion is the certainty of double payment. If it remains uncertain whether the loser will be repaid, a POCA confiscation order which includes the sum in question will not ordinarily be disproportionate.” 39. The same considerations apply to the repayment arrangement in the present case. The terms of the voluntary agreement and the financial circumstances of the Appellant make it uncertain that the overpayment will be repaid. In any event the prosecution have given an undertaking that there will be no double-counting. 40. In our judgment there was no error of law made by the Recorder. Accordingly this appeal is dismissed.

```yaml citation: '[2017] EWCA Crim 57' date: '2017-02-22' judges: - THE HON. MR JUSTICE SUPPERSTONE - HIS HONOUR JUDGE DEAN QC ```

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2024] EWCA Crim 38 No. 202302854 A2 Royal Courts of Justice Tuesday, 16 January 2024 Before: LORD JUSTICE POPPLEWELL MR JUSTICE CHOUDHURY HER HONOUR JUDGE ANGELA RAFFERTY KC REX V GARY CUSHEN __________ 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 A. Nurse appeared on behalf of the Appellant. The Crown were not represented. _________ JUDGMENT LORD JUSTICE POPPLEWELL: 1 On 27 July 2023 the appellant, then aged 37, was sentenced by Mr Recorder King in the Crown Court at Basildon to three years' imprisonment for breach of a restraining order. He appeals against sentence with leave of the single judge. 2 The restraining order was imposed on 10 June 2023 and the breach in question occurred by Facebook messages which were exchanged on 21 to 22 November 2023, but the relevant history goes back further than that. 3 The restraining order arose out of a relationship between the appellant and Ms Mance which began in 2020. She bore his son in June 2021, but by that time the Family Court sitting at Southend had already issued a non-molestation order on 29 October 2020 prohibiting the appellant from contacting Ms Mance for one year. 4 That non-molestation order arose out of three offences which had been committed against her, two offences of battery and one of harassment putting her in fear of violence. He was subsequently convicted of those offences on 21 December 2020. The first battery offence occurred on 3 October 2020 when he attended Ms Mance's address and, when asked to leave, pushed her into a bin causing her stomach to be pressed up against the bin. On that occasion he made threats towards her and the unborn baby. The second battery occurred on 20 October 2020 when the appellant grabbed Ms Mance by the arm and shouted in her face, making threats of violence towards her. Ms Mance's daughter was with her at the time and witnessed what happened. The harassment offence commenced on 2 October 2020 and lasted until 14 November 2020, that is to say continuing after the imposition of the non-molestation order. During that period the appellant had tried to call Ms Mance between 20 and 30 times a day as well as sending multiple text messages. The calls and messages involved making threats of violence towards her, threats to damage her property and other distressing comments such as that he hoped that their unborn baby died. 5 He was sentenced to a total of 10 months' imprisonment on 21 December 2020 for those offences and additionally for breaching the non-molestation order by continuing the harassment which had commenced on 2 October after the non-molestation order was in place. He was also on that occasion sentenced for a conviction comprising a breach of the non-molestation order by activity between 8 and 11 December when he attended Ms Mance's address and tried to call her on two occasions. At that time a restraining order was imposed. 6 On 30 April 2022, some 18 months after those offences, he committed further offences against Ms Mance in breach of the restraining order. On that occasion he attended Ms Mance's address unannounced and kicked the door down, causing the door frame to fall off the wall. Ms Mance attempted to call the police in an effort to get the appellant to leave, but he grabbed her around the arm and tried to take her telephone. As a result, she suffered bruising to her forearm and bicep. 7 On 10 June 2022 he was sentenced to 20 months' imprisonment for those offences and a fresh restraining order was made, to continue until further order, which, amongst other things, included a prohibition on contacting Ms Mance directly or indirectly, save via solicitors by order of the Family Court, or via social services for the purposes of child contact. 8 This was the restraining order which he breached in the instant offence which occurred about three weeks after he had been released from custody on licence. 9 At about 5 pm on 21 November 2022 he contacted Ms Mance via Facebook Messenger. The messages began with him saying that he knew it was a risk to message her. He continued by saying that he wanted closure and he apologised for messaging her. The conversation continued with the appellant asking Ms Mance to make sure that their son did not forget him, and then making a request not to tell anybody that he had messaged her. The messages on that day ended with the appellant asking her to give their son a big kiss, which she said she would. That he was missing his son had been a theme throughout those exchanges. 10 She then initiated a further exchange the following day by contacting him and saying: "You've further messed with my head messaging me." Those exchanges became more argumentative and antagonistic, with the appellant asking her to facilitate child contact and to drop the order against him. Ms Mance made repeated requests that the appellant stop contacting her and go through the proper channels in order to see his son. The appellant eventually agreed, stating that she would not hear from him again. 11 Ms Mance described herself as feeling caught off guard, shocked and confused when he contacted her, as she had not been made aware that he had been released. The fact of release had caused her mental health to deteriorate. She said that he made no threats of violence and had purely contacted her in remorse, but she did not believe anything he said. She remained scared that he would turn up at her address and inflict violence, given his complete disregard for the court order forbidding contact. 12 The appellant had previous convictions for 62 offences. Apart from the previous offending against Ms Mance, these also included instances of domestic abuse of another ex-partner, committed in breach of a non-molestation order. 13 There was no pre-sentence report. The recorder had said that no such report was necessary, and the appellant did not seek an adjournment for one to be prepared. That was understandable. His sentencing had been delayed, and having been in custody on remand for seven and a half months, he was anxious to be sentenced without further delay. 14 In sentencing, the Recorder said that if the offending were looked at in isolation, it fell within Category 2B of the Sentencing Council Guideline which has a starting point of 12 weeks and a range from a community order up to 12 months. However, the previous history of non-compliance with court orders, he said, elevated it to a Category 1A offence which has a starting point of two years and a range of one to four years. He identified as aggravating features the previous convictions, a proven history of violence and threats towards Ms Mance, the use of contact arrangements with a child on this occasion as an excuse for making contact, the effect on the victim, and the offence having been committed when on licence. In the context of aggravating features he referred again to breaches of previous orders. He said it was a case that came very close to requiring the maximum sentence because of the appellant’s history of offending and his manipulative behaviour. Having said that he would give a full one-third credit for the early guilty plea, he said that the least sentence which was appropriate was one of three years. 15 On the appellant's behalf, Ms Nurse, in attractive submissions, argues that a sentence (after a trial) of four and a-half years, which is what the Recorder must have taken, was manifestly excessive. It involved double counting in taking the same factors into account in elevating the offence into Category 1A, and then, as further aggravation, so as to increase the sentence from the starting point in that category. Further, she submitted, and, in any event, it was much too high a figure, being beyond the top of the range for a Category 1A offence. 16 We agree. This was the last chapter in persistent and deliberate disregard for court orders, which is serious. It was that aspect which constituted the gravamen of the offence, and that was the chief aggravating feature of the previous offending, which we would agree was such as to justify moving it into Category 1A. However, the previous history of offending did not justify any further significant uplift having been taken into account in this way. This breach offence did not involve any substantive offence committed against Ms Mance. It did not involve the use or threat of violence, and it was she who initiated the contact on the second day. The impact was real, but in so far as it amounted to a fear of violence, that arose largely, although not wholly, out of his previous conduct and the fact of his release from prison, not from this further contact by way of messaging. It was, in our view, a long way from the kind of conduct which would justify a sentence near the maximum for the offence. 17 Taking into account the other aggravating features, and the very limited mitigation, we consider that an appropriate sentence after a trial would have been one of two and a half years' imprisonment, which after full discount for the early plea becomes one of 20 months' imprisonment. 18 We will, accordingly, reduce the sentence to one of 20 months' imprisonment. To that extent the appeal is allowed. _____________

```yaml citation: '[2024] EWCA Crim 38' date: '2024-01-16' judges: - LORD JUSTICE POPPLEWELL - MR JUSTICE CHOUDHURY - HER HONOUR JUDGE ANGELA RAFFERTY KC ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2006] EWCA Crim 3186 Case No: 2006/00996/A6 (1) 2006/03222/A1(2) 2006/04158/A5(3) 2006/04616/A3(4) 2006/04964/A1(5) 2006/02453/C5(6) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT EXETER (1) HIS HONOUR JUDGE GRIGGS ON APPEAL FROM THE CROWN COURT AT STAFFORD (2) HIS HONOUR JUDGE MAXWELL ON APPEAL FROM THE CROWN COURT AT READING(3) HIS HONOUR JUDGE MCINTYRE ON APPEAL FROM THE CROWN COURT AT LIVERPOOL(4) HIS HONOUR JUDGE GLOBE ON APPEAL FROM THE CROWN COURT AT HEREFORD(5) HIS HONOUR JUDGE MATTHEWS ON APPEAL FROM MILITARY COURTS CENTRE CATTERICK (6) JUDGE ADVOCATE CAMP Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/12/2006 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE FORBES and MR JUSTICE ROYCE - - - - - - - - - - - - - - - - - - - - - Between : R - v - Richardson (1) Counsel for the appellant R Camden Pratt QC Counsel for the prosecution A Blake R -v- Sheppard (2) Counsel for the appellant A Molloy Counsel for the prosecution N Williams R -v- Abery (3) Counsel for the appellant P Du Feu Counsel for the prosecution A Blake R -v- Little (4) Counsel for the appellant A Loveridge R -v- Poel (5) Counsel for the appellant S. Mooney R -v- Robertson (6) Counsel for the appellant N Burn Counsel for the prosecution DJ Richards Nicholas Hilliard on behalf of the Attorney General - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Hearing dates : 20 th November 2006 - - - - - - - - - - - - - - - - - - - - - Approved Judgment President of the Queen's Bench Division : 1. As they raised common problems arising from the provisions of s285 of the Criminal Justice Act 2003 ( the 2003 Act ) which increased penalties for driving related offences, these appeals and applications for leave to appeal against sentence were listed together. 2. A narrative account of the development of the relevant legislative provisions governing the offences of causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs is unnecessary. They are described by Lord Taylor CJ in Attorney General’s References Nos 14 and 24 of 1993 [1994] 15 CAR (S) 640 and by Lord Woolf CJ in R v Cooksley [2004] 1CAR (S) 1. Before 27 th February 2004 the maximum sentence for aggravated vehicle taking which involved an accident causing death was five years’ imprisonment, and for causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs it was ten years’ imprisonment. Thereafter the maximum sentence for each offence was raised to fourteen years’ imprisonment. In addition the offences are “specified” violent offences within schedule 15 of the 2003 Act , and the increase in the maximum sentence now means that they are also “serious” offences for the purposes of sections 224 -229 of the 2003 Act . Therefore when these provisions came into effect in April 2005 the offences fell within the ambit of orders of imprisonment for public protection. 3. The issue to be addressed in the present cases is the impact of the increased maximum sentences on the guidance offered to sentencers in Cooksley itself. 4. Statutory changes in sentencing levels are constant. In recent years, maximum sentences have been increased (for example, drug related offences) or reduced (for example, theft). In general, changes like these provide clear indications to sentencing courts of the seriousness with which the criminal conduct addressed by the changes is viewed by contemporary society. In our parliamentary democracy, sentencing courts should not and do not ignore the results of the legislative process, and as a matter of constitutional principle, reflecting the careful balance between the separation of powers and judicial independence, and an appropriate interface between the judiciary and the legislature, judges are required to take such legislative changes into account when deciding the appropriate sentence in each individual case, or where guidance is being offered to sentencing courts, in the formulation of the guidance. 5. In the present appeals the main argument between Mr Nicholas Hilliard on behalf of the Attorney General and Mr Camden Pratt QC on behalf of Richardson, (whose argument was adopted on behalf of the remaining appellants), was whether the increases effected by section 285 of the 2003 Act should normally lead to increased sentences throughout the entire range of the offences covered by the increased maximum, or whether increases should be directed at cases of the greatest culpability, which have caused the greatest harm. The second area addressed by counsel required us to reflect on the relationship between causing death by dangerous driving and causing death by careless driving when under the influence of drink. To date they have been treated, in effect, as if they were virtually identical. 6. The Crown’s contention on what we have described as the main argument is simple enough. The increase in the maximum sentence was intended to reflect the broad view of Parliament that sentencing courts should approach these offences with greater severity than before. That would produce a greater effect in the more rather than the less serious cases, but nevertheless would have some impact throughout the range of sentences. Mr Hilliard did not suggest that there should be a mathematical calculation which, by reference to the increase in the maximum from ten years to fourteen years, should produce a 40% increase in sentence all round, or a re-appraisal of sentencing guidelines to achieve the same effect. 7. Mr Camden Pratt pointed out that the advice of the Sentencing Advisory Panel in February 2003 was based on “an unduly large gap between the maximum of two years for dangerous driving (which may have resulted in an extremely serious injury to one or more victims) and that of ten years for an offence in which the same standard of driving has, by chance, resulted in death.” In its advice the Panel welcomed the proposed five year increase in the maximum sentence for the basic offence of dangerous driving, but was concerned about the proposed increase to fourteen years for causing death by dangerous driving because this focused attention on the fatal outcome of the offence, and disrupted the balance between the culpability of the driver and the consequences of his actions. This “tension” was identified as the “key problem”, and the Panel’s view was that the offender’s culpability should be “the dominant component in the sentencing exercise”. Mr Camden Pratt then submitted that the court in Cooksley was perfectly well aware both of the advice of the Panel, and indeed the then pending legislation. The difficulty with this argument is that notwithstanding the views of the Panel, the legislation, as eventually enacted, did not adopt the views expressed by the Panel, and Cooksley itself was concerned to offer guidance which reflected the sentencing arrangements in force when it was decided. 8. Mr Camden Pratt was however able to deploy a rather more formidable argument when he pointed out, rightly, that for present purposes at any rate, the maximum offence for dangerous driving was left at two years. The fact that the maximum penalty for culpable bad driving was unchanged demonstrated that the increased maximum sentence where death resulted was directed at the consequences of the bad driving, in particular, where multiple deaths occurred. There should be no “creeping” disproportion in relation to the level of culpability. Therefore the logical conclusion was that the increase was directed at cases where the worst consequences had occurred. 9. Mr Camden Pratt pointed out that decisions of this court where the problem had been addressed were all related to cases at the most serious levels of culpability and harm, or both. Therefore, they provided no clear guidance about the proper approach to cases at lower levels of culpability. In essence, he contended that the effect of the legislation was to remove the buffer or constraint at what may be described as the worst end of the scale. 10. An example of such a case is Noble [2003] 1 CAR (S) 312. Noble was convicted of six offences of causing death by dangerous driving, arising out of a single incident. He spent the afternoon drinking with friends, and admitted to having drunk twelve pints of lager, one pint of mixed lager and cider and two Bacardi Breezers. He had participated in a “motorised pub crawl”. He drove at high speed, and eventually, because of speed, lost control of his vehicle. It struck a stone wall on the opposite side of the carriageway, and then continued down the wrong side of the road, until it toppled over on to its side and struck an oncoming vehicle. Three passengers in Noble’s car were killed. Three people travelling in the car with which he collided were also killed. The appellant ran away. When arrested, he asserted that one of his dead passengers had been driving. He agreed that he had been drinking all afternoon, and that he would have been drunk. Eventually he broke down and admitted that he had been the driver. However, at trial, he contested his guilt. He was sentenced to a total of fifteen years’ imprisonment and disqualified from driving for life. The fifteen year sentence was constructed of consecutive sentences. In accordance with principle, the Court of Appeal concluded that as all the offences arose out of a single incident, consecutive sentences were inappropriate. Accordingly the then maximum sentence of ten years’ imprisonment was substituted. It was in the view of the court unrealistic “to imagine a worse case”. Without the advantage of a guilty plea, a dreadful case of this kind might very well attract the new maximum sentence. 11. We have examined the authorities drawn to our attention by counsel. These were Afzal [2005] EWCA Crim 384 ; Martin [2005] CAR (S) 99; Paton [2005] EWCA Crim 2922 ; Gray [2006] 1 CAR (S) 21; May [2006] 1 CAR (S) 29; Evans [2006] 2 CAR (S) 9; Tye [2006] EWCA Crim 112 ; Attorney General’s Reference No 1 of 2006 [2006] 2 CAR (S) 75; Revell [2006] EWCA Crim 676 ; Attorney General’s Reference No 10 of 2006 [2006] RTR 29 ; Attorney General’s Reference No 32 of 2006 [2006] EWCA Crim 1500 , Halsey [2006] 1CAR (S) 39, and Buckland [2006] EWCA Crim 2516 . In other words, in a very short time indeed, this court has reflected on the impact of the increase in the maximum sentence as it affected individual sentencing decisions without, as far as we can see, conclusively deciding the argument currently under consideration. This underlines the urgent necessity for reassessing the guidelines in Cooksley . In the context of a potential “guideline” case we gratefully acknowledge the assistance provided by these references to a number of individual decisions. 12. We were also asked to consider a number of other authorities, including Thirumaran [2004] 2 CAR (S) 33 and Attorney General’s Reference No 58 of 2000 ( Wynne) [2001] 2CAR (S) 107, and indeed various counsel for different applicants drew our attention to yet further sentencing decisions of the same vintage. Their research also revealed the report of the Department of Transport Report on the Review of road traffic penalties in December 2000. We suggest however that any decisions on this subject prior to Cooksley are of no more than historic interest, and should emphasise, yet again, that as a matter of general approach, unless considering broad guidance, this court is not usually assisted by the citation of “authorities” which, in reality, are no more than fact specific examples of individual decisions, and in particular, by their continued citation after this court has already addressed the broad principles in a “guideline” case, or the Sentencing Guidelines Council has provided a “definitive” guideline under s170 of the 2003 Act . 13. We shall avoid an anxious parade of knowledgeable citation of judicial observations from within these authorities. Consistently with our own analysis, the principle to be derived from them is that the primary object of the increase in the maximum sentence was to address cases of the most serious gravity, so as to permit the sentence to be greater than before, and in an appropriate case to be as long as or longer than the previous maximum. However, even in such cases it was not intended that the increase in sentence should reflect the consequences of the increase from ten years to fourteen years in a strictly mathematical proportion. It has long been recognised that mathematics does not provide the appropriate answer to a sentencing decision. That said, appropriate proportionality between the huge variety of offences which come within the ambit of these crimes leads to the conclusion that if the level of sentence in cases of the utmost gravity is significantly increased (as it should be) there should be some corresponding increase in sentences immediately below this level of gravity, continuing down the scale to the cases where there are no aggravating features at all. In adopting this approach, we are following earlier guidance given by this court in Attorney General’s References 14 and 24 of 1993 , where the court addressed the doubling in the maximum sentence from five to ten years’ imprisonment by significantly increasing the higher, but not the lower starting points. 14. We also believe that some proportion needs to be maintained between the levels of sentences for these offences, and the sentences which are thought appropriate for other offences of crimes of violence resulting in death, such as, for example, the sentences for manslaughter following a deliberate, but single violent blow, and manslaughter arising from gross negligence, which is not identical to but certainly not far removed from negligent conduct which falls “far below” expected standards, which is, of course, the criminal ingredient for dangerous driving. 15. At the lowest levels of seriousness, we have also reminded ourselves that the 2003 Act itself requires the sentencer only to impose a custodial sentence if such a sentence is necessary, and if it is, for the sentence to be no longer than necessary to fulfil the statutory purposes of sentencing laid down in s142. For these reasons, at these levels there will continue to be cases in which the broad guidance in Cooksley will remain appropriate, and we should add, exceptional situations where even shorter sentences, or non custodial sentences, may be appropriate. Like the court in Cooksley we can see no advantage in identifying such exceptional situations, which by definition will only arise very rarely. 16. We can return to the guidance offered in Cooksley in the context of s 285 of the 2003 Act , and the remaining provisions in the Act which bear directly on sentencing. It would probably be useful to the understanding of our conclusions to quote in full the passages at paragraph 15 of the judgment in Cooksley which identify without exhaustively defining the most obvious aggravating and mitigating factors. “The Panel sets out a series of aggravating and mitigating factors. These are more extensive than those that were set out in Boswell . We adopt them but they stress that should not be regarded as an exhaustive statement of the factors. In addition it is important to appreciate that the significance of the factors can differ. There can be cases with three or more aggravating factors, which are not as serious as a case providing a bad example of one factor. They are as follows: Aggravating Factors " Highly culpable standard of driving at time of offence (a) the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a 'motorised pub crawl' (b) greatly excessive speed; racing; competitive driving against another vehicle; 'showing off' (c) disregard of warnings from fellow passengers (d) a prolonged, persistent and deliberate course of very bad driving (e) aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking) (f) driving while the driver's attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held) (g) driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills (h) driving when knowingly deprived of adequate sleep or rest (i) driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns Driving habitually below acceptable standard (j) other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle (k) previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving Outcome of offence (l) more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable) (m) serious injury to one or more victims, in addition to the death(s) Irresponsible behaviour at time of offence (n) behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape (o) causing death in the course of dangerous driving in an attempt to avoid detection or apprehension (p) offence committed while the offender was on bail." Mitigating Factors "(a) a good driving record; (b) the absence of previous convictions; (c) a timely plea of guilty; (d) genuine shock or remorse (which may be greater if the victim is either a close relation or a friend); (e) the offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence), and (f) the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving." 17. With these features in mind, we have reflected whether the starting point identified in the form of a range or band of sentences and by the court in Cooksley should be amended so as to identify a single specific starting point for each range, followed by the range itself. Cooksley itself provided a range of sentence in each category which was then described as a starting point. Given the multiple circumstances covered by these offences, and the numerous even if incomplete potential aggravating features, all arising from the single activity of driving a car, it seems to us unwise to be over prescriptive in the identification of a single starting point which would normally be appropriate for the different categories of culpability and seriousness. Cases at the top of any particular level may, with a very minor difference or two (for example, in a case where speed is an aggravating feature, the difference of a few miles an hour on the particular road in the particular conditions) may very well merge into or come very close to the next higher level; similarly, with cases at the lower end of a particular scale. Accordingly, we shall continue to express the guidance provided for the assistance of sentencing judges as it was expressed in Cooksley , with the appropriate ranges directed to the four bands of culpability identified in Cooksley itself. 18. Paragraph 32 of Cooksley represents the final analysis of the different levels of culpability analysed in paragraphs 21-31 of the judgment. “We have set out four starting points ; no aggravating circumstances - 12 to 18 months; intermediate culpability – 2 to 3 years; higher culpability - 4 or 5 years and most serious culpability - 6 years or over. We make clear that starting points only indicate where a person sentencing should start from when seeking to determine what should be the appropriate sentence. There is, however, a danger in relation to the higher starting points of the sentencer, if he is not careful, double accounting. The sentencer must be careful not to use the same aggravating factors to place the sentence in a higher category and then add to it because of the very same aggravating features.” 19. The relevant starting points identified in Cooksley should be reassessed as follows: i) No aggravating circumstances – twelve months to two years’ imprisonment; ii) Intermediate culpability - two to four and a half years’ imprisonment; iii) Higher culpability – four and a half to seven years’ imprisonment; iv) Most serious culpability – seven to fourteen years’ imprisonment. For present purposes we have not considered sentencing guidelines in relation to criminal driving amounting to manslaughter (which does not arise in these cases) nor have we addressed ss224-229 of the 2003 Act , nor disqualification periods. Causing death by careless driving when under the influence of drink or drugs. 20. Throughout this judgment when addressing the issue of impairment as a result of the consumption of alcohol, we are including impairment consequent on drug taking. 21. Cooksley decided that for sentencing purposes these cases need not be taken as a separate category. The court accepted that when a fatality occurred when the driver was under the influence of drink, it was not necessary for his guilt of dangerous driving to be proved before the sentencing court was entitled to take the full culpability of the driving into account without the necessity of proving that the defendant was guilty of dangerous driving. Our attention was drawn to the current charging standards applied by the Crown Prosecution Service to driving offences. These are consistent with the guidance in Cooksley, and indicate that for sentencing purposes the two offences were to be regarded “on an equal basis”, and that where the driving itself was on the borderline between careless and dangerous driving, but the driver’s ability was impaired through alcohol, the appropriate offence would be causing death by careless driving when under the influence of drink. Although, as we have said, this approach was entirely consistent with the guidance given in Cooksley , it is or will shortly become open to question. 22. We shall begin by forcefully emphasising that there must be no doubt and there should indeed now be very few people who still entertain the slightest doubt, that where death arises from a road traffic accident caused when the driver has voluntarily consumed excess alcohol, in culpability terms this is and should be equated with causing death by dangerous driving. The consumption of alcohol is deliberate. Everyone knows, or should know, that the consumption of even small quantities of alcohol undermines the ability of any driver to apply his full concentration to the road. Where the consumption is high, it is effectively extinguished. Alcohol makes a driver personally unfit to drive, and the car of which he is in control becomes as dangerous with him at the wheel as if it were subject to a serious known, potentially fatal, mechanical defect. Looking at the matter broadly, there is never any acceptable excuse for driving a vehicle when the ability to do so properly is impaired by alcohol or drugs. That is the critical ingredient of this offence. Its depressing feature is that it is often committed by men and women who are otherwise responsible drivers, of positive good character, who in the normal course of events would never contemplate committing any criminal offence. After the accident their remorse is instantaneous and genuine. Their own lives are scarred with the knowledge that they have killed another human being when, if they had been completely sober, the fatal accident would probably not have occurred. 23. The message, however is stark and unequivocal. Driving under the influence of drink or drugs is a serious offence. If there is a consequent road traffic accident in which death results, the consequences are catastrophic for the deceased and his or her family, and however excellent the character of the offender, and genuine his remorse, for all effective purposes, a custodial sentence is inevitable. Despite powerful personal mitigation, that indeed was the outcome in each of the cases of causing death by careless driving under the influence of drink which are now before us. 24. At the time when Cooksley was decided, the court did not, and could not have had in mind, the Road Safety Act 2006 . This creates two new offences. The first, causing death by careless driving, without having consumed excess alcohol, (maximum sentence, five years’ imprisonment) the second, causing death when the driver is unlicensed, disqualified or uninsured (maximum sentence, two years’ imprisonment.) In this context the difference in culpability between dangerous driving and careless driving assumes critical importance. The dangerous driver falls “far below” what would be expected of a competent and careful driver to whom it would be obvious that the driving in question is dangerous. In summary, the standard of driving is very bad, and the driver himself should appreciate that it is. By contrast careless driving involves a failure to exercise the degree of care and attention required of drivers, and is an offence designed to address the daily cases which involve “….the kind of inattention or misjudgement to which the ordinarily careful motorist is occasionally subject without it necessarily involving any moral turpitude, although it causes inconvenience and annoyance to other users of the road” (Lord Diplock in R v Lawrence [1982] AC 510 at 525.) 25. Taken on its own, and wholly excluding any element of drink or drugs, careless driving is hugely less culpable than dangerous driving. And the true level of culpability of the driving should always, as Cooksley, approving Locke [1995] 16 CAR (S) 795 demonstrates, be taken into account when sentence is determined. This is elementary. 26. The principle is enshrined in s 143(1) of the 2003 Act , which provides: “In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause, or might foreseeably have caused.” 27. The Sentencing Guidelines Council issued a definitive guideline under s 170 of the 2003 Act entitled “Overarching Principles: Seriousness”. Addressing s 143(1) of the 2003 Act it underlines that: “Assessing the seriousness is a difficult task, particularly where there is an imbalance between culpability and harm: • Sometimes the harm that actually results is greater than the harm intended by the offender; • In other circumstances, the offender’s culpability may be at a higher level than the harm resulting from the offence. Harm must always be judged in the light of culpability. The precise level of culpability will be determined by such factors as motivation, whether the offence was planned or spontaneous or whether the offender was in a position of trust.” 28. Four varying levels of criminal culpability were identified for the purpose of sentence, the first where the offender intended to cause the harm, the second where he was reckless where the harm was caused, the third where he knew of the specific risk of harm, although the harm was unintentional, and fourth, and finally, where he was negligent. Careless driving on its own falls within the fourth, lowest category. Depending on the facts, dangerous driving falls within the second or third categories; so does driving with excess alcohol. 29. As we have already emphasised, driving under the influence of alcohol or drugs, is itself culpable, and, depending on the quantity of alcohol, may be extremely culpable. However, absent the consumption of alcohol, careless driving on its own almost always involves culpability at the lowest possible scale. In one sense, every driver is careless when he makes a mistake. Every driver, even the best, and most experienced, and normally careful, does so from time to time. That does not mean that he has fallen “far below” the appropriate standard. The distinction between careless driving and careless driving under the influence of drink is that drink induced errors amounting to careless driving are culpable in a way which the same errors made by a sober driver are not. We therefore suggest that when the Road Safety Act 2006 comes into force, it will no longer be appropriate for the difference between dangerous and careless driving to be elided. Indeed it will shortly become critical to a fair and balanced sentencing process for the difference to be understood and acknowledged. Finally we must record that these issues, and indeed the various difficult issues arising from driving offences which result in death will shortly be the subject of a fresh public consultation by the Sentencing Advisory Panel. And this may produce further guidance from the Sentencing Guidelines Council. 30. The maximum sentence for causing death by dangerous driving, or causing death having consumed excess alcohol is identical. The natural implication is that they are equated in seriousness. If the level of impairment is only just in excess of the permitted limit, and the driving is otherwise careless rather than dangerous in the sense outlined in this judgment, the consumption of alcohol provides the most significant aggravating element of the offence. If there are no others, it will normally fall within the category of offences of causing death by dangerous driving which lack any additional aggravating features. As the consumption of alcohol increases, so does the relative culpability, and by the time the consumption is at or about double the legal limit, the case would fall within the intermediate category. At higher levels than this, in the vast majority of cases, there is a correlation between amount of alcohol consumed and significantly reduced standards of driving. In the vast majority of these cases, some distinct elements of culpability in the driving itself, identified as aggravating features in Cooksley , are almost inevitable. At these sorts of levels, the result will be dangerous driving of a kind which will take the case into the categories of higher culpability and then most serious culpability. In short, we do not envisage many cases where the alcohol level reaches three times the permitted limit, and the driving itself will be no worse than careless driving. However even if it were not dangerous in this sense, at these and higher levels the sentencing decision would normally fall within the two most serious categories of culpability. 31. We must expressly consider two matters of mitigation. A timely plea of guilty was identified in Cooksley as a mitigating factor. This issue has now been addressed in the definitive guideline issued by the Sentencing Guidelines Council in December 2004, “Reduction in sentence for a guilty plea”. This guideline in its present form, or if amended in its amended form, applies to the offences presently under consideration. We therefore suggest that where there is a guilty plea, the sentencing judge should reach his preliminary conclusion as the appropriate sentence level before taking account of and applying the discount for the guilty plea. Just as care must be taken to avoid double accounting of aggravating features, similar care needs to be taken against double accounting for mitigating features. The second feature which struck us during the hearing of these cases is that it is plainly an aggravating feature of the offence that the defendant behaved irresponsibly at the time of the offence. In our judgement, however, it is a specific mitigating feature, not expressly identified in the guideline, that the defendant behaved responsibly, and took positive action to assist at the scene. It is not a mitigating feature that he merely waited or remained at the scene: we have in mind direct action to assist the victim or victims of his driving. The individual appeals and applications. Jack Richardson 32. Jack Richardson was born in October 1986. He is a young man of good character, and the subject of a number of glowing positive references. 33. On 23 rd December 2005 in the at Exeter Crown Court, he pleaded guilty to causing death by careless diving when over the prescribed limit. On 27 th January 2006, before His Honour Judge Griggs, he was sentenced to three years detention in a Young Offender Institution. He was also disqualified from driving for four years, and until he had passed an extended re-test. 34. He appeals against sentence with leave of the full court. 35. The facts can be briefly summarised. Mr and Mrs Hooper were staying at a hotel in Devon on 9 th June 2005, and after dinner on a fine summer evening, they decided to take a stroll along the pavement of the north side of the old A38 road. 36. They became aware of a car coming towards them. It was a Peugeot 205 driven by the appellant. As it reached a bend in the road, he lost control of the vehicle which left the road at the point where the couple were walking. Mr Hooper was killed almost instantly. Mrs Hooper sustained relatively minor physical injuries. The car then somersaulted into an adjoining field. 37. The appellant was able to leave the car, and he returned to the scene, plainly very distressed, and immediately started to apologise to Mrs Hooper. He admitted to witnesses at the scene that he had been drinking. When the police arrived he immediately admitted his responsibility, and that he had been drinking. He provided appropriate specimens, which showed that his alcohol level was just over twice the legal limit. In interview he made full admissions, and accepted that he was aware that he was over the legal limit when he started driving his car. He admitted that as he approached the point in the road where he lost control of his car, he was travelling at about 70 mph. 38. There was conflicting evidence about speed. The widow of the deceased estimated the speed of the car as it approached her as 100mph. Another witness at the scene described the appellant’s admission that he had been driving at “around about 90”. The applicable speed limit was 60mph, and at that speed there should have been no difficulty in negotiating the bend. The Crown’s case was that the accident resulted from a combination of excessive speed linked with or resulting from the effect of alcohol. 39. Consistently with his actions at the scene, and genuine remorse for the suffering he had inflicted on the family of the deceased, the appellant pleaded guilty at the earliest available opportunity. According to the pre-sentence report there was nothing to suggest that he would re-offend. A substantial and impressive body of character references was provided. This positive material is confirmed by a report from the Prison Service. 40. The trial judge identified the critical aggravating features of this case, speed and alcohol. He also concluded that, following the increased maximum sentence for the offence, the Cooksley guidelines should be treated as amended upwards. 41. It is suggested that the judge’s approach to the facts of the case was wrong. Speed was not an aggravating factor for the purposes of Cooksley . Given the actual speed limit, it could not be described as “greatly excessive”, and the appellant was not racing or driving competitively. The speed was indeed excessive, but not greatly so. On the issue of alcohol, the judge may have disregarded the warning in Cooksley against double accounting. The consumption of alcohol was a critical feature of the case, but it was the significant element of the offence, and therefore should not have been treated as “aggravating” the crime. 42. In our judgment, the judge’s approach was right. He had to examine all the circumstances, and form a broad assessment of the appellant’s culpability. Both drink and speed contributed to this tragedy. If the appellant had been driving a little more slowly, or had been much more experienced, or had consumed less alcohol, or none, the accident would not have happened. If he had not consumed alcohol he would not have been driving too fast to control his vehicle. We agree with the judge’s analysis. 43. Like the judge, we are fully aware of the essential good quality of this young man, but on this occasion his lapse from the high standards which he set and still sets for himself, had catastrophic consequences. The sentence imposed on him was not manifestly excessive. We shall not interfere. The appeal is dismissed Dionne Sheppard 44. Dionne Sheppard was born on 9th June 1980. She is a young woman of previous good character. 45. On 28 th April 2006 at Stafford Crown Court the applicant pleaded guilty to causing death by careless driving when over the prescribed limit, and 9 June, His Honour Judge Maxwell sentenced her to three years imprisonment, and disqualified her from driving for five years and until she had taken an extended re-test. 46. The application for leave to appeal against sentence was referred to the full court by the Registrar. 47. On 5 th October 2005, in the evening, but while it was still daylight, and in good driving conditions, the deceased, then forty five years old and a keen cyclist, was cycling along the A449 in the direction of Stafford. Coming up behind him, and driving in the same direction, there were four cars, the second of which was being driven by the applicant. The driver of the first car noticed the cyclist riding ahead of her near to the kerb. She indicated in good time her intention to overtake, and she did so, and then returned to her original position on the road. Immediately behind her the applicant was driving a Vauxhall Astra, at about 50 mph, in the line of traffic. When the car in front of her overtook the cyclist, the applicant failed to see him, and ran into him from behind. The cyclist was thrown into the air, he landed on the bonnet of the applicant’s car, and then came to rest on the grass verge at the side of the road. 48. The car immediately behind the applicant noticed that she was driving it very close to the kerb on the near side, so close that if there had been yellow lines painted in the road, she would have been driving over them. It was this particular feature of the applicant’s driving that caught her attention. She herself had seen the car in front of the applicant signal to pull out, and then observed the cyclist through the windscreen of the applicant’s car. She saw that the brake lights of the applicant’s car came on, and the car then seemed to jolt away from the kerb into the middle of the road. 49. After the collision, the applicant stopped her car immediately, and walked back to the position where the cyclist was lying. She was clearly upset and distressed, and according to at least one witness, in a state of shock. Within a short time, an ambulance and the police arrived. The ambulance crew attended to the cyclist, and he was taken to hospital. He subsequently died of his injuries. 50. A police officer smelled alcohol on the applicant’s breath. The necessary procedure followed. Her alcohol level was just over twice the legal limit. 51. When first interviewed, the applicant explained that a car travelling in the opposite direction, had caused her to swerve, and so strike the cyclist. Although there was indeed another vehicle travelling in the opposite direction, the Crown did not accept that the accident was consequent on her taking avoiding action. The damage to the vehicles demonstrated that her car had struck the rear wheel of the cyclist with the nearside of her front bumper. The collision was from the rear. It was not a glancing blow. In any event, the Crown relied on the evidence of the driver of the car immediately behind the applicant. 52. The applicant was reinterviewed, and maintained her account that she had been caused to swerve by a vehicle travelling in the opposite direction. She admitted that she had taken one glass of wine about an hour before the accident. She also intimated that perhaps the kind man from a nearby cottage, who had offered her a cup of tea, may have put some alcohol into it. That was investigated. The cup of tea was sweetened, but not otherwise fortified. 53. In due course, she pleaded guilty. 54. The pre-sentence report concluded that the applicant was genuinely remorseful, and devastated by what had happened. There was only a low risk of her re-offending. She suffered from post traumatic stress disorder, to which she had responded well. Specialised psychological therapy was required. Her difficulty in acknowledging that she was over the legal limit for driving was related to her feelings of guilt and worthlessness, rather than a conscious denial of the facts. The report suggested a community order, with a condition for psychiatric treatment. 55. There were a number of positive character references. We have also read a letter from her partner, which emphasises the genuineness of the remorse and the profound sense of guilt suffered by the applicant. 56. The judge’s analysis of this accident was straightforward. The applicant had failed to see the cyclist when she should have done, and she had failed to keep a proper look out because she had not been concentrating. The lack of concentration stemmed from the consumption of alcohol. 57. The judge reflected on the decided cases, and the statutory increase in sentence. Allowing for the severity of the impact on the applicant, the judge imposed the sentence of three years imprisonment. 58. It is submitted that the sentence was manifestly excessive, and that in his sentencing remarks the judge suggested that the length of sentence reflected not the culpability of the applicant, but the grievous loss suffered by the family of the deceased. This criticism is unfounded. The judge was extremely careful to balance the relevant considerations against each other, and it was not unreasonable, and certainly did not amount to a misdirection for him to reflect that from the point of view of the family of the deceased, the sentence would not “really do justice” to their “grievous loss”. In truth, the judge carefully considered all the relevant features, including the severe impact of this tragedy on the applicant, herself a decent young woman, who crashed into a cyclist from behind, at something like 50mph, when she was over twice the legal limit for driving. The sentence he imposed was not manifestly excessive or wrong in principle. Accordingly the application is refused. Lee Abery 59. Lee Abery was born in September 1986. He has five previous convictions for seven offences, one for being drunk and disorderly, but none for driving offences. 60. On 15 June 2006 at Reading Crown Court he pleaded guilty to causing death by dangerous driving. On 14 July, at the same court he pleaded guilty to driving with alcohol above the prescribed limit. He was sentenced by His Honour Judge Macintyre to six years detention in a young offender institution, disqualified from driving for six years and until an extended retest had been taken. No separate penalty was imposed for the summary offence, save for a concurrent period of disqualification. 61. His application for leave to appeal against sentence was referred to the full court by the Registrar. 62. On 3 rd July 2005 the applicant was one of a group of friends living at the YMCA in Newbury who decided to go out drinking. Two of them bought a substantial quantity of alcohol, and met up with another friend, and subsequently with the deceased. A large amount of alcohol was loaded into the boot of the Ford Escort that one of them was driving. The intention was to drive around until a convenient spot was found for a drinking session. 63. Initially the car was driven to Hungerford Common. After that it moved to Donnington Castle in Newbury. Over the next few hours alcohol was drunk and cannabis smoked. Eventually it became cold. The group returned to the car where they remained for some time. 64. The applicant asked if he could drive the car, but the owner said on several occasions that she did not want him to. He said that he would be able to start the car anyway whether she gave him the keys or not, because he would “hot wire” it. He pulled the cover off the ignition, so she handed over the keys to him, on the basis that she would only allow him to drive the car in the car park. 65. The applicant had no licence and no insurance. He drove out of the car park, with wheels spinning. The passenger in the front seat was not herself a driver. She estimated the speed at about 50mph. There were three other passengers in the back of the Ford Escort. 66. At first the applicant drove relatively safely. But then the Escort was overtaken by another car, and the applicant started to race after it. The speed increased significantly. By now the front passenger estimated the speed at possibly in the region of 90mph. They were “flying” down the road. All the passengers were uncomfortable about the speed, and shouted at the applicant to slow down. Eventually he did, but as the car negotiated a nearside bend, he lost control of it. It struck the offside bank, and overturned. One of the passengers suffered fatal head injuries and died shortly afterwards. 67. The applicant left the car, and said “let’s go” to the others, who were still trapped upside down in it. The front passenger, who suffered cracked ribs, and a fracture of the wrist as well as a damaged hand, told the applicant that she would not leave the scene. In fairness to the applicant, he responded that he was not running away, but he was off to get help. One of the other passengers was able to telephone the emergency services. In the meantime, the applicant left the scene to a nearby house, and asked the owner to contact the emergency services, which he did. The applicant was later heard to tell the emergency services that he had been driving and messing about, and he asked about the condition of his friends. 68. The applicant himself had suffered head injuries. His condition deteriorated. He was airlifted to hospital. A blood sample was taken. A back calculation showed that the appellant was just under twice the legally permitted level. When interviewed, the applicant made no comment. 69. The pre-sentence report indicated that the applicant accepted responsibility for the accident, and for the death of a very close friend, for which he expressed huge remorse. Since the offence he had been diagnosed with depression, and medication was prescribed. He appeared to the writer of the report to have matured significantly, and notwithstanding the frequency of his earlier offending, he appeared determined to break the pattern. There was a medium/high risk of re-offending, but the likelihood of the kind of offending with which the court was immediately concerned was assessed at “low”. 70. The judge concluded that this was a very serious offence. The offender was unfit to drive, both because of the alcohol he had taken, and also because he was unqualified to do so anyway. He had been warned not to drive. He had ignored the warnings. He drove far too quickly, for a time at any rate racing another car, or attempting to keep up with it. In truth, these features of the case were, as the judge recognised, self evident. The judge also took account of the fact that the deceased was a friend, and that the applicant was genuinely remorseful. He acknowledged that the applicant had suffered some injuries himself, pointing out however that he might well have killed himself, and indeed other passengers in the car, one of whom suffered post traumatic stress disorder, and another of whom had physical injuries. 71. The sentence imposed by the judge meant that he assessed the case as one within the “most serious culpability” as described in Cooksley . It is submitted that the sentence was manifestly excessive. It was not in the category identified by the judge, and if it was, the sentence was still too high and failed to reflect the early guilty plea. 72. It was also suggested that the warnings given by the fellow passengers should not have been treated as an aggravating feature of the case. All the passengers had put themselves in the position of the applicant, at any rate in the sense of driving to a location, where they all drank, and took cannabis. Someone was likely to drive back. They had then all got into the car voluntarily, and the objections raised by the owner of the car to the applicant’s driving was said to have been not “particularly strong”. There was, in any event, a danger of “double accounting”. The judge may have used the aggravating features of the case, both to assess the level of culpability, and then treat the level as aggravated by the same features. 73. This is the kind of case in which the increased maximum sentence begins to bear significantly on the sentencing decision. The driving was undoubtedly dangerous. It was also prolonged, blatantly disregarding elementary consideration for others, by an unqualified, uninsured driver who had consumed alcohol and cannabis. The sentence reflected the culpability of the applicant, and at the same time made due allowance for his remorse, and the guilty plea. The application is refused. Liam Little 74. Liam Little was born in 1987. He is a man of previous good character, and he was supported by several positive character witnesses. 75. On 20 th July 2006 in Liverpool Crown Court before the Recorder, His Honour Judge Globe QC, he pleaded guilty to causing death by careless driving when over the prescribed limit. On 14 th August he was sentenced to four years and nine months detention in a Young Offender Institution, and disqualified from driving for five years and until he passed an extended test. No separate penalty was imposed for driving without a licence and without insurance. 76. The application for leave to appeal against sentence was referred to the full court by the Registrar. 77. On 6 th November 2005, at about 5.00 am, a car returning to Liverpool along the Formby bye-pass negotiated a roundabout, when the driver, Miss Wang, and her passenger, observed that a BMW 316 car had left the road and struck a tree. When they examined the scene, they observed that the front of the car was extensively damaged, and noticed someone slumped in the front passenger seat. As they approached the car the driver’s door was open, and the defendant emerged from the driver’s side of the car, in the view of one of those present, having been kneeling across trying to get the injured passenger out of the vehicle. 78. The accident occurred when the BMW 316 crashed head on into a tree after it had failed to negotiate a well lit roundabout on the Formby bye-pass, of which ample warning notices were given. Conditions at the time were wet, and the BMW’s wiper blades and headlights were in use. The BMW was driven by this applicant. He had no driving licence, and was driving without insurance. The car belonged to the father of one of the applicant’s friends. He was the injured passenger. 79. At the scene, when the applicant was approached and asked what had happened, he said that he did not know, and sought to give the impression that he had nothing to do with the car. He said he had just come from “there”, pointing in the direction of Formby, and asserted that a fellow had just run off, pointing across a nearby field. He gave the impression that he was clearly drunk, unsteady on his feet and repeatedly asserting that he was not the driver, and that it was not his car. He said that he had just walked there and found the car, and that some bloke had run off. As it had been raining for some time, this seemed rather surprising, and certainly did not fool the witness, Miss Wang. 80. Miss Wang went to assist the passenger, who was still breathing, but in obvious pain. Her friend summoned the emergency services by mobile telephone. Miss Wang told the applicant to help the man she described as “his mate”, and it was obvious to her from the way in which he spoke to the passenger that he knew him. The passenger gradually began to lose consciousness. It was at this stage that the applicant said that he thought he should call an ambulance. The applicant reached for his mobile telephone, and appeared to make a call to the emergency services. In fact he did not do so: at any rate, none was recorded beyond the message that had already been received from Miss Wang’s friend. 81. The emergency services arrived. The passenger had to be cut out from the car. He was transferred to hospital. Unfortunately his injuries proved fatal. 82. The police spoke to the applicant. He insisted that he had just been passing by, maintaining that he had walked from the public house some considerable distance away. Although it was pointed out that this was inconsistent with the dry condition of his clothes, he insisted that he had come across the scene of the accident. He denied driving the vehicle. He said he had been with his girlfriend. He was asked if he knew the passenger. He said that he had never seen him. He was asked if he would assist with the details of the passenger in the car, and responded, “I am only 18 and he is 50, why should I be with him?”. In view of his insistence that someone had run off into a nearby field, the area was searched by the police helicopter and police tracker dogs. No trace of anyone was found in the vicinity. Accordingly the applicant was arrested. 83. He was taken to the police station. On testing for alcohol, his sample revealed that he was a little over twice the legal limit. When interviewed he said that he had been in the rear seat of the car, and that someone else had been driving. This story did not withstand scientific evidence. This strongly suggested that he had been the driver, but still he insisted that he had been the passenger. The other element of the investigation into the crash produced a calculation that at the moment of impact with the tree, the BMW was travelling at not less than 42mph, and that the loss of control occurred when the applicant failed to negotiate a bend, and the wheels of the car clipped the roundabout. 84. The pre-sentence report indicated that the applicant had been invited by the deceased to drive, so he had done so, without thinking about the potential consequences. He said that he could not describe the details, but that he must have lost control of the car as he went into the roundabout. He was a member of a close knit family, of good character, and there was no evidence that he presented a risk to the public. He accepted that he had been foolish, and his remorse appeared to be genuine. 85. In very carefully considered sentencing remarks, the Recorder outlined a number of aggravating features of the offence. The applicant had driven too fast in wet conditions, while over the drink/drive limit. He had never held a driving licence, and so was uninsured as well as unlicensed. For a considerable period after the offence he had denied that he was the driver at the time of the accident, and contined repeatedly to lie in subsequent interviews. A trial date was set as he had continued to deny the offence, and the first indication of a guilty plea did not come until very late. Some credit would be given, but the history behind the plea had to be borne in mind. The judge reflected on the provisions of section 285 of the 2005 Act. He considered the mitigating features, but concluded that only a custodial sentence would be appropriate. 86. The application is based on the propositions that the judge failed to give sufficient credit for the guilty plea, the applicant’s youth and previous good character. It was also suggested that the case should properly be reviewed as one of dangerous driving, at the lower end of the scale, and close to careless driving. We disagree. In view of the constant stream of lies about his involvement in the incident, we cannot reach any clear conclusions on the precise circumstances in which he came to be driving. We shall stick to the known facts. This unlicensed driver must have driven at a considerable, and excessive speed in the conditions. At the risk of repetition, the speed at the point of impact with the tree not less than 42mph. The driving was not at the lowest end of dangerous driving. The discount for the guilty plea was as generous as it could have been. The applicant’s conduct at the scene was discreditable, his concern plainly being for his own position, rather than relief of the pain and injury suffered by his passenger. His subsequent behaviour continued to reflect his own selfish interests, equally indifferent to the impact on the family of the deceased, whose son was his friend. 87. Despite the applicant’s youth, and his previous good character, the sentence was not manifestly excessive. The application is therefore refused. Karole Poel 88. Karole Poel was born in 1958. He is a national of Belgium, and he has spent his entire working life as a driver. He is a man of good character, and given his working life, it is relevant that he is without previous convictions for motoring offences. 89. On 18 July 2006 at Hereford Crown Court the applicant pleaded guilty on re-arraignment to causing death by dangerous driving. On 8 September he was sentenced to three years imprisonment and disqualified from driving for three years and until he had taken an extended re-test. 90. The application for leave to appeal against sentence has been referred to the full court by the Registrar. 91. On 4 th August 2005 this professional driver was at the wheel of an articulated lorry travelling along the M50 motorway. The weather was fine and dry. Conditions were good. He was familiar with the road, which he had driven on many previous occasions, and also familiar with the vehicle he was driving. Shortly before the accident, the radio in the cab had been replaced, and he was not used to it. This led to the subsequent collision. 92. Roadworks, which had been in place for some time, were taking place along the M50. There were a number of signs to bring the traffic down to slower speeds from 50mph, then to 40mph and eventually to 30mph. A queue of traffic had built up as the applicant approached the road works. He was travelling at about 53mph, but his concentration on the traffic ahead was lower than it should have been because he was looking at the new radio in order to retune it. Although he saw the signs to slow down the traffic late, and reduced his speed to about 42mph, he struck the rear of the white van which was in front of him. This in turn collided with the car ahead, which itself then collided with the car in front. The drivers of those two vehicles were not injured, save for one driver sustaining some whiplash injuries, but the driver of the van, whose vehicle did not have a seatbelt or an airbag fitted, was flung forward by the impact. His head collided with the windscreen. He suffered fatal injuries. 93. The applicant himself was also badly injured in the accident. He suffered three hairline fractures to his skull and a crushed leg. His facial injuries required over 100 stitches. 94. The emergency services were summoned. While he was being attended to by paramedics, the applicant made clear in his comments that he had been retuning his radio at the time of the crash, but he had no subsequent recollection of the accident. This lack of memory was entirely consistent with his head injuries. 95. The pre-sentence report confirmed that the applicant was deeply remorseful, and empathetic with the likely impact of the death of the deceased on his family. It was pointed out that he had an excellent driving record for the past 27 years during which he had been driving throughout Europe. It was also accepted that the remorse was genuine, and the court was told, this was reinforced by the personal letter he had written to the deceased’s family. 96. The judge examined the evidence, and concluded that it was not possible to say for how long the applicant had been distracted, but his avoidable inattention must have lasted a number of seconds at least. He was driving an articulated lorry and trailer. Such a vehicle could do terrible damage if it became involved in an accident, and the driver’s duty was to be vigilant at all times. His driving fell within the higher culpability bracket because he deliberately decided to tune the radio, and so take his eyes off the road. Full credit was given for his frankness at the scene, which made it possible for the cause of the accident to be discovered, and for his subsequent guilty plea. The judge also noted that he was a man with an exemplary work and driving record who was genuinely remorseful. The judge would have taken a starting point of four and a half years imprisonment, which was reduced to three years to allow for matters in mitigation. 97. The submissions is that the starting point was too high. It over-emphasised the one aggravating feature of the case, and failed sufficiently to give credit for what was described as extensive mitigation. It was also pointed out that because the applicant was a national of Belgium, he would not be able to take advantage of the schemes for early release which were available for appropriate offenders whose homes were in England. We doubt whether this last consideration has any immediate relevance. 98. In our judgment, however, there is some force in the remaining submissions. The driving was indeed dangerous. It resulted from inattention, which although more than momentary, was not prolonged. The applicant’s culpability was that he allowed himself to be distracted for as long as he did. There was no other element of fault. Such a vastly experienced professional driver should have appreciated that full attention must be given to every aspect of driving, throughout the journey, but it is plain from his outstanding record, that the applicant has been a careful driver throughout his working life. 99. This case lacks the aggravating features which apply to so many cases of this kind. There was real personal mitigation. In our judgment the starting point taken by the judge was too high. This case was at the intermediate level of culpability, with a single aggravating feature. Given the personal mitigation, our conclusion is that the sentence should be reduced from three years to two years imprisonment. 100. The applicant attended throughout the hearing of the application. In those circumstances, we shall grant leave to appeal against sentence, and treat the hearing of the application as the hearing of the appeal. The appeal will be allowed. A sentence of two years imprisonment will be substituted for the sentence of three years imprisonment. Karen Robertson 101. Karen Robertson was born in 1972. She is the wife of and was living with her husband, who was serving in the army in Germany. She was therefore subject to military jurisdiction for offences committed while living with her husband in Germany. 102. On 6 th March 2006 at a general Court Martial held at the Military Courts Centre Catterick, (Judge Advocate Camp) she pleaded guilty to committing a civil offence, causing death by careless driving while under the influence of drink. 103. She was sentenced to two and a half years imprisonment. Leave to appeal against sentence was granted by the single judge. 104. On 8 th July 2005 the applicant, with others, spent part of the evening at two bars within the barracks near Bergen. There was no direct evidence about the amount of alcohol she drank, but by 23.00 she was described as very loud and excitable. The function ended at that time, and afterwards she and others visited the Irish Bar in Bergen itself. She remained until 03.00 that morning. While there she met the deceased, Corporal Payne, a member of the same regiment as the applicant’s husband. In the Irish Bar, one member of the bar staff recalled that she had been served with at least three Bacardi and Cokes. She and Corporal Payne were among the last to leave when the Irish Bar shut. They then went to another bar, but that, too, was closing, and they decided to go and find something to eat. 105. This involved a car journey. The applicant returned to her married quarters on foot and collected the keys to her car. Corporal Payne sat in the front passenger seat. She began the journey from Bergen towards Saltau. 106. At some time between 04.00 and 04.30, when it was starting to get light, the applicant lost control of her vehicle, and struck a tree. The vehicle came to a stop in an adjacent field. Corporal Payne sustained multiple injuries, and died shortly afterwards. 107. A German couple, one of whom spoke fluent English, were the first people on the scene. Mrs Bussmman found the applicant in the field. She was clearly distressed. The applicant explained that she could not hold the car. It felt as though there was ice on the road. She was also expressing great concern about her passenger. Eventually she was taken to hospital. A sample of her blood was taken. At the time of the test (09.38) the blood alcohol level reading was 67mg of alcohol in 100ml of blood. An appropriate back calculation revealed that at the time of the accident, her blood alcohol was between 117-192mg in 100ml of blood, with an average of 157mg of alcohol. The average was virtually twice the legal limit. 108. The scene was examined. The road was wet. There were clear warning signs of a danger of skidding, posted not very far from the point where the collision occurred. The signs were presumably meant to warn against the possible effect of grooves present in the road surface. It was estimated that the applicant was travelling between 100 and 110kph when the vehicle left the road. The speed limit was 100kph. The applicant lost control of the car because of her speed, the curvature of the road, and the grooves in the road surface, which contributed to the car’s loss of stability. 109. When interviewed the applicant described losing control of the vehicle as the back end of the car “swung out”. She was asked if she thought she was below the relevant legal limit. She responded that it was “a case of caught up in the moment, go and get something to eat…. The thought process wasn’t there that I had ever had one…I would not have said that I was drunk and incapable”. She also suggested that her speed was 70kph. 110. When she was re-interviewed, and the results of the analysis of her blood was put to her, she denied that alcohol played any part in what happened. She attributed the loss of control to the conditions of the road surface, when her vehicle had “aquaplaned”. She suggested that the accident would have happened even if she had been sober. 111. The applicant has three previous court appearances for speeding, one in 1995, in this country, and two in Germany in November 2003 and June 2004. There are no other convictions. 112. The applicant and her husband have a six year old child. She has accompanied her husband on posting abroad. Following the accident, the family were obliged to return to England. 113. The applicant expressed great remorse for what happened, bitterly regretting the death of someone she described as a “nice man” and “good friend”, and the impact of his death on his family and friends. She was said to have been “deeply traumatised” by the results of her actions. The risk of future offending was assessed as low. 114. The sentencing reasons identify the excess alcohol as the first aggravating feature of the case. As the judge advocate explained, approaching the matter on the most favourable basis to the applicant, she was one and a quarter times the limit. However she had deliberately returned to her home to get the keys for her car, and did so knowing that she had already consumed alcohol. This was identified as a “conscious and deliberate risk”. The judge advocate recognised speed as a “factor”, but accepted that the evidence did not suggest that it was “grossly excessive”. He also recognised that the loss of control was contributed to by the surface of the road, and the grooves which were found in it. The sentencing bracket was identified as the “higher culpability area”. 115. The judge advocate then acknowledged the genuine and obvious remorse, and allowed a full discount for the plea of guilty. The previous fixed penalties for speeding were said not to have played any “significant part” in the decision. On the whole, the applicant was said to have a good driving record. The court was concerned about the impact of sentence on the applicant’s child. The final consideration was that the applicant’s driving was careless rather than dangerous. 116. The application for leave to appeal proceeds on the basis that in all the circumstances outlined in this judgment, the sentence was manifestly excessive. In particular, the grooves or ruts in the road contributed significantly to the accident, and these were wholly outside the applicant’s control. Moreover, her speed at the time was not significantly in excess of the speed limit. The difficulty with these submissions is that the road was self-evidently wet, and there were ample warning signs of the risk of skidding. In the end, the applicant was driving too quickly for the road conditions, and ignored the warning signs, probably because her ability properly to concentrate was impaired by alcohol. In our judgment the sentence imposed at the court martial was not manifestly excessive. Accordingly the appeal will be dismissed. 117. A separate further point was addressed in the papers before us. In essence, it came to the short proposition that if the applicant had been a German citizen, driving in Germany, the maximum sentence which would have been imposed on her for this offence would have been five years imprisonment. Accordingly, the argument proceeded, the court martial should at any rate have considered that additional feature of the sentencing regime. However, as examination showed, the maximum sentence of five years imprisonment applied to cases where the driver’s ability was not impaired through drink. We simply do not know what sentence the civilian courts in Germany might have thought appropriate for this particular offence. In any event, however, the applicant was subject to the jurisdiction of the court martial. It was not contended otherwise on her behalf. We should also note that in the end, a jurisdictional point was not pursued before us.

```yaml citation: '[2006] EWCA Crim 3186' date: '2006-12-18' judges: - MR JUSTICE ROYCE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2022] EWCA Crim 108 Case No: 2019/03868/B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEEDS CROWN COURT TUDOR EVANS J Ind. Nos. 810041, 814402, 810043, 810044, 810045, 810046, 810047, 810048, 810049, 810050, 810051 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/02/2022 Before : LORD JUSTICE FULFORD, THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) MR JUSTICE HILLIARD and LORD HUGHES - - - - - - - - - - - - - - - - - - - - - Between : TREDGET Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr T Barnes QC and J Gelsthorpe (instructed by Cartwright King Solicitors ) for the Appellant R Whittam QC and Louise Oakley (instructed by Crown Prosecution Service Special Crimes Division Appeals Unit ) for the Respondent Hearing dates : 11th - 22nd October 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment LORD JUSTICE FULFORD : This is the judgment of the court to which all members have contributed. Introduction 1. On 20 January 1981 in the Crown Court at Leeds before Tudor Evans J, the appellant (now aged 61) pleaded guilty to 11 counts of arson with intent to endanger life or being reckless as to whether life was endangered, contrary to section 1(3) of the Criminal Damage Act 1971, and 26 counts of manslaughter, contrary to common law. His guilty pleas to manslaughter were entered on the basis of diminished responsibility and in consequence the Crown did not proceed against him on the 26 counts of murder with which he had originally been charged. 2. On the same day, he was sentenced to detention without limitation of time at Park Lane Hospital, under sections 60 and 65 of the Mental Health Act 1959. 3. The indictments containing the offences to which the appellant pleaded guilty were as follows (all the addresses are in Hull, in the East Riding of Yorkshire): Indictment Address Date of fire Guilty pleas 810041 12 Selby Street 4 December 1979 Count 1 – arson with intent to endanger life or being reckless as to whether life was endangered Counts 2 - 4 – manslaughter 814402 70 Askew Avenue 23 June 1973 Count 2 - arson with intent to endanger life or being reckless as to whether life was endangered Count 3 – manslaughter 810043 33 Glasgow Street 12 October 1973 Count 2 - arson with intent to endanger life or being reckless as to whether life was endangered Count 3 – manslaughter 810044 Humber buildings 19 October 1973 Count 2 - arson with intent to endanger life or being reckless as to whether life was endangered Count 3 – manslaughter 810045 7 Minnies Terrace 23 December 1974 Count 2 - arson with intent to endanger life or being reckless as to whether life was endangered Count 3 – manslaughter 810046 9 Gorthorpe 3 June 1976 Count 2 - arson with intent to endanger life or being reckless as to whether life was endangered Count 3 – manslaughter 810047 43 West Dock Avenue 2 January 1977 Count 2 - arson with intent to endanger life or being reckless as to whether life was endangered Count 3 – manslaughter 810048 Wensley Lodge (All 12 convictions were quashed in 1983) 5 January 1977 Count 2 - arson with intent to endanger life or being reckless as to whether life was endangered Counts 3 - 13 – manslaughter 810049 4 Belgrave Terrace 27 April 1977 Count 2 - arson with intent to endanger life or being reckless as to whether life was endangered Counts 3 - 4 – manslaughter 810050 2 Brentwood Villas 6 January 1978 Count 2 - arson with intent to endanger life or being reckless as to whether life was endangered Counts 3 - 6 – manslaughter 810051 407 Troutbeck House 22 June 1979 Count 2 - arson with intent to endanger life or being reckless as to whether life was endangered 4. It is critical to emphasise at the outset that the case against the appellant was centrally, although not entirely, based on confessions that he was said to have made in interviews with, and in 12 statements under caution provided to, Detective Superintendent Sagar (together with other police officers) in advance of his guilty pleas. Absent that evidence there would have been no case against the appellant, although there was certain other supporting evidence. 5. He was represented at trial by solicitors (Andrew M Jackson & Company) and counsel (Mr Harry Ognall Q.C., later Mr Justice Ognall, and Mr Peter Heppel). Counsel saw the judge in his chambers on 19 January 1980, the day before the pleas were taken. Mr. Ognall took the highly unusual course of indicating to the judge that his instructions caused him anxiety and disquiet. He said it was difficult to get instructions from the appellant who had shifted his ground as to his guilt. The concerns expressed by Mr Ognall included the following: “We for our part are gravely troubled because last Thursday when we saw him last in prison, his clear instructions to us were to plead not guilty to everything on the basis that he had not done anything. When we came to see him this morning as a matter of courtesy, just to explain what would happen to-day he told us he wished to plead guilty. This is about the fourth change of tack . ” 6. Mr. Ognall pointed out that one of the factors that had created anxiety was the conclusion of a public inquiry into the cause of one fire, the Wensley Lodge fire of 5 January 1977, to the effect that it was accidental. 7. Notwithstanding these concerns, the psychiatrists who had been instructed agreed that the appellant was fit to plead (see [144] – [147] below). His pleas, when entered, were clear and consistent and no suggestion has been advanced that they should not have been accepted by the judge. The South Wales Investigation 8. On the 28 June 1982, Mr Vivian Brook, Assistant Chief Constable with the South Wales Constabulary, was appointed to conduct an investigation on behalf of the Chief Constable of Humberside Police into the actions of officers from the Humberside Police which had culminated in the arrest of and conviction of the appellant. This followed reporting by the Sunday Times Insight team – in particular, articles on the 7 March 1982, 14 March 1982 and 18 July 1982 and a “dossier” – which purported to raise doubt as to the appellant’s culpability, notwithstanding his guilty pleas, and advanced a number of alternative theories. It was suggested that the materials which Mr Brook was asked to consider demonstrated a lack of integrity on the part of the investigating officers and especially Detective Superintendent Sagar and Detective Sergeant Martin. Mr Brook submitted two undated, long and detailed reports which refuted the allegations made by the Sunday Times; he found no evidence of wrongdoing on the part of any of the officers (save for limited criticisms of former Detective Sergeant Nesbitt which did not have any impact on the safety of the convictions). Indeed, the considerable body of evidence did not lead him to harbour any material doubt as to the responsibility of the appellant for these crimes. We note that Mr Ognall expressly declined to place any reliance on the theories advanced by the Insight team which, for reasons we need not rehearse, have been comprehensively demonstrated to be unfounded. The Previous Appeal 9. On 9 December 1983 the full court (Ackner LJ, Glidewell and Leggatt JJ) quashed the appellant’s convictions in relation to indictment 810048 (Wensley Lodge: count 2, arson with intent to endanger life or being reckless as to whether life was endangered and counts 3 - 13, 11 counts of manslaughter), and refused the applications for leave to appeal in respect of the other indictments. The appellant’s sentence was unaffected. The appellant has previously used the names Peter Dinsdale and Bruce George Peter Lee, and his appeal in 1983 was listed as R v Bruce George Peter Lee . He changed solicitors, but not counsel, in advance of the appeal. The replacement solicitors were Philip Hamer & Co, Hull. 10. The court handed down four rulings or judgments during the 1983 proceedings. The first was on 21 November 1983 ((1984) 79 Cr App R 108), the court having been asked to give a preliminary ruling as to whether, notwithstanding the appellant's guilty pleas, the court had jurisdiction to hear the application and, if so, whether it could receive fresh evidence. The court decided that the fact that an applicant seeking leave to appeal against conviction a) was found fit to plead at his trial, b) knew what he was doing, c) intended to make the pleas he did, and d) pleaded guilty without equivocation after receiving expert legal advice, although constituting factors that were highly relevant as to whether the convictions, or any of them, were either unsafe or unsatisfactory, cannot of themselves deprive the Court of the jurisdiction to hear the applications under section 2(1)(a) of the Criminal Appeal Act 1968. 11. Given the analysis that it has been critically necessary for this court to undertake as to the circumstances when it is open to an appellant to argue that his or her conviction is unsafe following a guilty plea, it is relevant to note that having determined (as just set out) that the court had the power to intervene when the accused had pleaded guilty, and having referred to Director of Public Prosecutions v Shannon (1974) 59 Cr App R 250 ; [1975] AC 717 and R v Forde (1923) 17 Cr App R 99 ; [1923] 2 KB 400 , the court expressed the circumstances when this opportunity is potentially available as follows (at page 114): “We should however make this observation, about this Court's function in these circumstances. We have set out the relevant terms of section 2 of the Criminal Appeal Act 1968. In Stafford v Director of Public Prosecutions (1973) 58 Cr App R 256 , 290, [1974) AC 878 , 912, Lord Kilbrandon said: “The setting aside of a conviction depends on what the appellate court thinks of it – that is what the statute says. If it were necessary to expand the question which a member of the court, whose thoughts are in question must put to himself, it may be, ‘Have I a reasonable doubt, or perhaps even a lurking doubt, that this conviction may be unsafe or unsatisfactory? If I have, I must quash. If I have not, I have no power to do so.’” To quote the words of Lord Diplock at p.282 and p.906F respectively, but inserting the word “conviction” in place of “the verdict of the jury”: “I agree with them that the statute under which this appeal is brought to this House requires each of us to ask himself the question: Under all the circumstances of the case as it now stands in the light of the additional evidence, am I myself satisfied that the (conviction) was safe and satisfactory?” Thus, in hearing and making our decision in due course on the evidence called before us – which evidence, because of the plea of guilty, has not hitherto been heard by a court – we are not seeking to usurp the functions of a jury; we are carrying out our statutory obligations of either allowing the appeal (assuming, of course, we give leave) because we think that the conviction was either unsafe or unsatisfactory or, if we do not so think, of dismissing it.” 12. It is of note that the court did not analyse whether the correct approach to a conviction based on a plea of guilty is or is not the same as the approach to a conviction based on a jury verdict, save to observe, as rehearsed in the preceding paragraph, that it would be highly relevant that the appellant was fit to plead, knew what he was doing, intended to enter the pleas, and pleaded guilty without equivocation after receiving expert legal advice. This is a critical issue, to which we return later in this judgment (see [148] – [180] below). 13. The court determined that although there is a discretionary power under section 23(1) of the 1968 Act to allow evidence to be heard, the circumstances in which this course would be permitted following unequivocal pleas of guilty will be very rare. The present case, however, was in the view of the court wholly exceptional, if not unique, in part because of the public concern generated by the Sunday Times articles, and it was both necessary and expedient in the interests of justice that relevant and admissible evidence be called by both the applicant and the Crown as to whether the convictions were unsafe or unsatisfactory. Both Detective Superintendent Sagar and the appellant gave evidence to the court, as did experts and lay witnesses concerned with the fires at Troutbeck House and Wensley Lodge. 14. In the second ruling on 25 November 1983, the court indicated that the conviction on indictment 810051 (407 Troutbeck House) was neither unsafe nor unsatisfactory. The court set out the following findings in this context. First, that the appellant had made the statements attributed to him, which were voluntary and properly obtained. Second, what the appellant had said to the police in his confessions was, in substance, the truth. Third, the fire at 407 Troutbeck House was not caused by a cigarette having been dropped. We have considered each of the fires in greater detail below ([51] et seq. ). 15. During the hearing on 25 November 1983, the court accorded significant weight to a letter dated 16 March 1981 (therefore sent just over two months after the appellant was convicted on his own pleas) from the appellant’s former solicitors to the Registrar of Criminal Appeals. It included the following: “We first saw Lee on the 7th June, 1980 following his arrest in Hull and thereafter visited him regularly at the Police Station in Hull or at Leeds Prison until the trial. It is right to say that this Defendant throughout this period failed to give explicit instructions to Defence Solicitors and from time to time vacillated with his explanations until it was difficult to reliably assess which was the truth and just how much was the product of a flight of fantasy. Lee commenced by stating he had not deliberately attempted to cause the death of any person but as time went by he went to great lengths in statements made to the Police to explain just how he had caused the fires and his belief that they would likely kill people.” 16. The letter confirmed that although the view of the psychiatrists instructed on behalf of the appellant and the Crown was that the appellant was suffering from a psychopathic disorder, he was nonetheless fit to stand his trial and to plead, and he was guilty of manslaughter (as opposed to murder) on the grounds of diminished responsibility. The letter continued: “We have now received a letter from Lee in which he requests our assistance, (he) mentions the Members of Parliament who are trying to sort out whether or not he did the fires and he then goes on to say that he had done some of the fires but not all of them and indicates three cases of arson including the Wensley Lodge fire which took the lives of 11 males, which he did not commit. It was no real surprise to instructing solicitors that a letter couched in these terms was written by Lee or on his behalf because ourselves, leading and junior counsel have expressed grave concern as to whether the pleas which Lee insisted on tendering to all the indictments were in every case the proper pleas. This concern was particularly strong in respect of the Wensley Lodge fire.” 17. The court was informed that the appellant had also communicated with Mr Pearce of Philip Hamer & Co in notably similar terms following his conviction. Part of a letter to Mr Pearce from the appellant was read to the court: “ I know there are a few MPs in Hull who are trying to sort out whether I did the fires or not and wish you to act on my behalf. Fair enough. I have done some of the fires but not all of them e.g., Wensley Lodge (the old folks’ home), Askew Avenue and West Dock Avenue. ” 18. It follows that although the use of “ e.g. ” in the letter to Mr Pearce introduces a potential element of uncertainty as to the number of fires for which the appellant was then disputing his responsibility, the matter is essentially put beyond doubt by the unequivocal terms in which the appellant’s instructions are rehearsed in the letter to Andrew M Jackson & Company: he was disputing his guilt only as regards Wensley Lodge and two other fires. In light of that letter, the court indicated that it would only allow evidence to be called in relation to Wensley Lodge and two other fires. Mr Ognall accepted this approach and the court permitted evidence to be called on the three fires selected by the appellant: Wensley Lodge, 70 Askew Avenue and 43 West Dock Avenue. The applications in relation to the other indictments were dismissed. 19. On 2 December 1983 (the third ruling or judgment), the court quashed the convictions on indictment 810048 (Wensley Lodge). The court concluded: “(1) That we have no doubt that (the appellant) made the statements both oral and in writing, attributed to him; that these were voluntarily made; that they were properly obtained by Detective Superintendent Sagar and that he recorded (the appellant’s) words in the way he said he did; (2) that (the appellant’s) statements and in particular such of the circumstantial material which they contained as was accurate, together with his repeated statements in 1978, which is long before his admissions to Detective Superintendent Sagar, made to Miss O’Shea (the house mother of St. Vincent’s Children’s Home) that he knew that the Wensley Lodge fire was not an accidental fire, coupled with his pleas of guilty, persisted in contrary to the advice of his counsel, provide very powerful support for the validity of his convictions; (3) that the doubts we entertain arise essentially from the unsatisfactory state of the scientific evidence given both to this court and in 1977 to the committee of inquiry set up by the Humberside County Council. The committee of inquiry should have been informed that the theory that the plumber’s blow lamp had caused a slow-burning fire to develop under the floor of bedroom 11 which had remained undetected for some 6 ½ hours suffered from the following potential weak points. Although slow smouldering fires produce a substantial amount of carbon monoxide and smoke (a) occupants of bedrooms 11 and 20, immediately above bedroom 11, emerged unharmed by the fire; (b) there was an absence of smoke in bedroom 11 whilst the fire was developing. Had these important points been disclosed by Mr Devonport, the Senior Scientific Officer from the Home Office Forensic Science Laboratory then at Harrogate, the structure of bedroom 11 and those in the immediate vicinity would have been carefully investigated to ascertain whether a flue or vent existed which would have carried away the poisonous fumes and smoke into the roof or out into the air, by-passing bedrooms 11 and 20. At this point in time no certainty can be achieved as to the position. On the basis of plans drawn to our attention by the Crown yesterday all that can now be said is that there may have been an escape route for these fumes and smoke. As to the experiments carried out following the confessions made by Lee, these were based on assumptions that may or may not have been justified. The quite inadequate consideration that was given to the possibility of the fire being a paraffin arson resulted in an inadequate examination being made to the state of the floorboards in bedroom 11 or the adjoining rooms, with the result that there is no evidence of the extent of the gaps, if any, between the floorboards or the precise nature or conditions of the linoleum on that floor. In all these circumstances, none of us think that it would be safe to allow the convictions to stand.” 20. Mr Ognall thereon withdrew the remaining 10 applications. 21. On 9 December 1983 (the fourth ruling or judgment), the court provided its detailed reasons for refusing the applications for leave to appeal (save for Wensley Lodge in relation to which the application for leave was granted and the convictions were quashed). It extends to 66 pages. For the reasons set out hereafter, it is only necessary to provide a short summary of this decision. The court provided a detailed description of the history to this case, some of which we have referred to below (to the extent relevant to the present issues). This included a summary of the fires at Selby Street, Troutbeck House and Wensley Lodge; the history of the interviews with and confessions by the appellant following his arrest on 6 June 1980; the proceedings in the Crown Court and in the chambers of the judge; and the events leading up to the first appeal, along with the grounds on which the appellant then relied. The court referred to the analysis of the law as set out on 21 November 1983 (see [11] above). Against that background, consideration was given to the appellant’s submission – which was rejected by the court – that the evidence generally regarding 10 of the fires was admissible to demonstrate that his confession to the Selby Street fire was false. The court summarised its five principal conclusions as follows: “1. No evidence was called in support of the application for leave to appeal in regard to the fire at Selby Street in December 1979 and we, accordingly, dismissed the application. 2. We heard evidence called on (the appellant’s) behalf and on the Crown’s behalf in respect of the fire at 407 Troutbeck House which occurred on 22 nd June 1979 and concluded that we had no doubt as to the guilt of Lee in respect of that arson and dismissed the applications relative to that fire. 3. In light of the letter of 16 th March 1981, written by Lee’s solicitors on his instructions, and Mr Ognall’s inevitable concession, we formally dismissed the applications in respect of the indictments relative to the fires at 33 Glasgow Street, 50 Humber Buildings, 7 Minnies Terrace, 9 Gorthorpe, 4 Belgrave Terrace and 2 Brentwood Buildings. 4. Having heard evidence in regard to the fire at Wensley Lodge in January 1977, we entertained doubts as to the safety of those convictions and quashed them. 5. Thereafter, Mr Ognall withdrew his applications for leave to appeal in respect of convictions arising out of the two remaining indictments concerning 70 Askew Avenue and 43 West Dock Avenue, and we therefore formally dismissed them.” 22. The Sunday Times was successfully sued for libel by Detective Superintendent Sagar and Detective Sergeant Martin. On 6 October 1987, the Sunday Times agreed a settlement, in which they withdrew their allegations, published a complete apology, met the costs in full and paid substantial damages to both officers. The Present Appeal 23. Before this court, Peter Tredget now appeals against his convictions on the remaining counts on which he was convicted (10 of arson with intent to endanger life or being reckless as to whether life was endangered and 15 of manslaughter) upon a reference by the Criminal Cases Review Commission (“CCRC/The Commission”) under section 9 of the Criminal Appeal Act 1995. The Commission received an application to review the remaining convictions on 28 November 2011, and it released its Statement of Reasons on 23 October 2019. Various strands of fresh evidence, contributing to new arguments, are said to cast doubt on the veracity and reliability of the appellant’s confessions, which essentially comprised the case against him, as summarised below. 24. The appellant relies by way of fresh evidence, first, on evidence from an expert in Forensic Linguistics (Professor Coulthard) to cast doubt on the prosecution’s contention that the various statements under caution taken from the appellant were recorded “ at his dictation ”, and particularly that “[…] there were no questions and answers. It was exactly as he spoke word for word […]”, per the evidence of Detective Superintendent Sagar to this court in 1983. The linguistic analysis is to the effect that the appellant, certainly in part, answered various questions that were put to him. Professor Coulthard additionally noted that the statements contained explicit “defences” against potential challenges to their validity, such as the appellant indicating “ my solicitor […] told me I could make a statement to him denying that the statements […] were true […] but I have told you the truth ”. We set out in detail what the appellant said about his solicitors at [206] – [211] below. Although there were certain points of difference between them, on the central issue regarding whether answers had been given in response to questions, Professor Coulthard and the respondent’s expert, Dr Olsson, were in agreement. It is not suggested that this evidence demonstrates that the police introduced false details or admissions by the process of asking questions but instead it reveals the way in which the account came to be recorded, namely some of the information was the result of questions put by the officers. 25. Alongside this linguistic evidence, the appellant, second, relies on Professor Young, a clinical and forensic psychologist (who was not called to give evidence during the hearing of the present appeal) and Professor Taylor, a professor of clinical psychology and a consultant clinical psychologist. Their evidence is to the effect that the appellant was mentally/psychologically vulnerable at the time of his arrest and conviction. It is suggested this was the result of a neurodevelopmental disorder incorporating perinatal brain damage, intellectual impairment (an IQ of approximately 73), social communication problems and personality disorder characteristics, exacerbated by gross deprivation and abuse during his childhood, epilepsy, and alcohol and drug abuse in young adulthood. Professor Taylor classifies this condition as a neuro-developmental disorder, incorporating intellectual impairment, social communication problems and a grandiose, narcissistic anti-social personality disorder, co-existing with uncontrolled epilepsy, drink/drug abuse and fear of rejection. In his view the appellant had a clinically severe personality pathology immediately pre- and post-conviction. He was likely to have been susceptible to being suggestible, malleable and compliant during protracted questioning by the police. Professor Taylor was of the view that although the risk factors for suggestibility were (only) “ present ”, the appellant’s “ compliance ” was clearly made out, in the sense that he might agree with “ false facts ” in order to “ secure an outcome ”. Professor Taylor emphasised that the appellant had a notion of being serial arsonist which he found rewarding and fulfilling. In his view, therefore, the appellant held on to the persona of a psychopathic arsonist. Professor Taylor agreed in cross-examination by Mr Whittam Q.C. for the respondent that he was not in a position to say whether the confessions were false and, moreover, he accepted that a compliant individual in these circumstances would have known that he was admitting something that was incorrect. In a similar vein, Dr Blackwood, a psychiatrist, called by the respondent, testified that the appellant would have known and remembered what he had done. He was fit to plead and stand trial. Dr Blackwood directed himself more specifically to his intellectual functioning. He attributed some of the poor performance in 1980 to educational deficit, and is of the opinion that the underlying intelligence level, as seen now, is slightly above the average for the prison population. Dr Blackwood is of the view that the appellant was not particularly malleable, compliant or vulnerable and his problems were not markedly unusual. There is a difference between Professor Taylor and Professor Young, on the one hand, and Dr Blackwood, on the other, as to whether the appellant suffered from a neurodevelopmental disorder or a developmental disorder. But the two experts agreed that the IQ measurements made in 1980 suggested that the appellant was below average but probably only on the borderline of what would now be called learning difficulties. His performance, as distinct from the underlying intellectual abilities, had clearly improved somewhat since the 1980s. 26. The appellant, third, relies on Mr Cosslett, an expert in document examination, including evidence which is derived from an electrostatic detection device (‘ESDA’ or ‘EDD’). He agreed, put broadly, with the respondent’s expert in this field, Mr David Browne. Depending on the circumstances in which a document is written, this equipment can assist when the integrity of one or more pages of a multi-page document is questioned if the writing occurred when there were layers of paper, which have survived, underneath the page under consideration. The indentations or impressions identified on the succeeding pages may reveal later alterations. This is a highly sensitive technique which can detect changes several layers below the sheet on which the subject writing appears. In the present case, the ESDA evidence demonstrates that three of the statements under caution had been altered, in that two pages of the statement of the 6/7 June 1980, two pages of the statement of 27 June 1980 and four pages of the statement of 30 June 1980 had been completely rewritten. By way of example, as regards the fire at Selby Street (see [135] et seq. below) in the rewritten part of the statement of 6/7 June 1980 there was included the words, “ I emptied my container through the letter box ” which did not appear in the original. No explanation is offered for the circumstances in which the appellant’s signature appeared on the original version of the relevant statement as well as on the rewritten page. Similarly, in the statement of 27 June 1980 as regards the fire at Wensley Lodge the second version contained the statement, “ I didn’t know it was an old blokes home ” which, on the basis of the indentations, was absent from the original version of the statement. In one instance the added words had clearly been in the original version, but they were located elsewhere on the page. It is emphasised that Mr Cosslett has only been able to observe changes that are revealed by text which it is possible to decipher and that there may have been other, undetected alterations. This evidence is said, therefore, to undermine Detective Superintendent Sagar’s testimony that the statements were written at the dictation of the appellant and that any alterations were evident on the face of the statements by way of the appellant’s initials. It has to be emphasised, however, that the previous versions of those pages, to the extent discoverable, show that the amendments do not alter the sense of the text and the re-writing has not been shown to be sinister. In essence, it involved an element of amplification to the original content. 27. Fourth, there is expert evidence from two experts as to the causes of the fires: Dr Cox, called by the appellant, and Ms Griffiths, called by the respondent. The appellant contends that their evidence tends to indicate that some or all of the confessions are flawed and, moreover, it contributes to the lack of independent support for the appellant’s suggested involvement in any of the fires. Indeed, it is argued that in some instances the evidence demonstrates that accident was a more credible cause than arson. We have reflected the impact of the evidence of Dr Cox and Ms Griffiths in our conclusions on each of the fires, as set out at [51] et seq. below. 28. The court wishes to express its thanks for the helpful joint reports that were prepared by i) Professor Taylor and Dr Blackwood; ii) Professor Taylor and Professor Young; iii) Mr Cosslett and Mr Browne; iv) Dr Cox and Ms Griffiths; and v) Professor Coulthard and Dr Olsson. 29. The appeal, presented with consummate ability and diligence by Mr Timothy Barnes Q.C., who was ably assisted by his junior, Mr James Gelsthorpe, and his instructing solicitors, Cartwright King solicitors, involves consideration of 10 principal points, along with other subsidiary arguments, as outlined by Mr Barnes in his opening. These were essentially a reformulation of the Grounds of Appeal. There is a significant degree of overlap between several of the points. Before we consider the individual fires, it is necessary to provide an outline of the 10 points and the Grounds of Appeal, some of which we have grouped together, in order to set the fires and the arguments in relation to them in the context of the overarching submissions advanced on this appeal. Point 1: the appellant 30. The appellant was 12 years old at the time of the first fire (Askew Avenue). It is suggested he had experienced significant physical and emotional problems. A crime intelligence sheet dated 17 June 1980 describes him as, “ semi-paralysed down his right side, his right arm appears withered and is turned outwards. Tends to limp with his right leg ”. 31. Dr McCulloch, the Medical Director of Park Lane Hospital where the appellant was placed after his arrest in June 1980, gave the following description in a letter dated 4 November 1980 to the Senior Medical Officer at Her Majesty’s Prison Armley: “He is a 20-year-old man who has a right sided hemiplegia and walks with a spastic gait. His right hand is held in flexion. […] His right forearm is shorter than the left as a consequence of his cerebral palsy and he has wasting of the muscles of the right calf. There is some considerable movement in the right arm and hand although he has to open his fingers with his left hand and does have some grip. At a glance he presents as a rather pathetic figure.” 32. In a similar vein, Detective Superintendent Sagar provided the following assessment to his Chief Constable on 16 September 1980: “He was born with congenital right spastic hemiplegia affecting the right hand and leg. This causes him to limp with his right leg and hold his right hand high and crooked across his chest. At an early age he was assessed as educationally sub-normal and has attended special schools for the handicapped.” 33. It is suggested that these physical disabilities would have made committing the various arson attacks, or some of them, extremely difficult or impossible. 34. As already indicated, his IQ was 73. He was described by Mr Would, the Area Manager for Humberside Social Services in a report dated 27 June 1980, as follows: “Throughout his life Peter has repeatedly experienced rejection by his peers and by many adults, particularly his mother who was also in care for a period and who subsequently took up a habit and mode of life which rendered her unfit to have the care of Peter, although attempts were repeatedly made to effect a reconciliation. This young man thus arrived at the age of 18 thoroughly damaged emotionally, unable to make proper and lasting relationships with anyone, over sensitive about his handicap which made him the butt of many cruel remarks from his peers and with little to look forward to in adult life.” 35. We have already provided a summary of the conclusions of Professors Taylor and Young (at [25] above), which it is unnecessary to repeat. It is submitted that the appellant was, therefore, severely psychologically vulnerable at the time of his confessions. Point 2: the centrality of the confessions and Point 5: the court should “consider all the evidence in relation to all the fires” 36. It is highlighted under point 2 that there was no case against the appellant absent his confessions, although there was some supporting evidence. There is a lack of any substantive identification evidence, a factor said to be of particular relevance in light of the appellant’s distinctive physical appearance and the need for him to carry a container of paraffin to the scenes of various of the arsons. It is suggested, furthermore, that if the appellant had been responsible for these offences, in many instances they would have been motiveless, and otherwise only a trivial basis or justification has been identified. 37. It is underscored as regards point 5 that the evidence supporting each of the 11 indictments was entirely dependent on confessions made broadly at the same time to a single police officer, Detective Superintendent Sagar. In the circumstances, if the confessions to any of the fires are demonstrably unreliable, that will have, it is suggested, a “domino” effect on the credibility of the confessions to the other fires. Given what is said to be the strength of the evidence demonstrating that the fire at Wensley Lodge was accidental, the confession to this arson is said to be of particular significance. Point 3: the concerns expressed by Mr Ognall as to the appellant’s reliability and Point 6: the appellant is an unreliable narrator of events 38. Central to the contentions of Mr Barnes on point 3 is that, as indicated by Mr Ognall in an undated Note he provided in the lead-up to this appeal, it is impossible to place any credence on anything said by the appellant, who is said to be a wholly unreliable narrator of events. It is suggested, therefore, that the unsatisfactory nature of the confessions is only truly revealed when they are considered in their entirety. Put otherwise, an overarching assessment is necessary to evaluate the extent to which the individual convictions are unsafe. 39. Mr Barnes summarised point 6 in the following way: “[…] in the period 1980 to 1982 this Appellant gave a variety of mutually inconsistent versions as to which fires he had started or whether he had started any at all, and what his motivations for starting them might have been. He offered many different explanations; a sexual response to the fire (to Dr Snowden), financial gain (to Dr Sasieni), being the accomplice to a more skilled arsonist who introduced him to fire raising (to Dr McCulloch), hating people, problems with his up-bringing, enjoying hearing fire engines and emergency services; fires making him feel relaxed, fires giving him notoriety, fires started when he was drunk or simply because he liked fires.” 40. Dr Neill, in a report of 2 November 1982, indicated the appellant is highly suggestible and unreliable, and that it is difficult to place any credence on what he says. Dr Snowden in a report of 10 June 1981 observed that the appellant veered between accepting responsibility for all, some and none of the arsons. Similar observations come from a variety of different sources. Point 4: 9 of the 10 fatal fires were determined at the time to have had an accidental cause 41. It is suggested that it is a notable coincidence that the appellant set fires which were consistently, save for Selby Street, considered at the time to have been accidental (including Troutbeck House, where there was no inquest given the absence of a fatality). The investigations were not perfunctory or nominal. Dr Cox and Ms Griffiths do not exclude an accidental cause for the fires, excepting Selby Street, and for some of them – albeit there are occasional marginal differences between them – they consider this is the preferred explanation. Point 7: the expert evidence and Point 8: the analysis of the fires 42. It is stressed under point 7, as already rehearsed above, that this evidence demonstrates, first, that three of the statements under caution have been, in part, rewritten (the expert ESDA evidence). There were 12 relevant statements under caution. It is emphasised that during the 1983 appeal, Detective Superintendent Sagar testified that any alterations to the statements were evident on their face, and that in each instance they were initialled by the appellant. It is submitted that the ESDA evidence demonstrates that Mr Sagar lied on this issue. Second, we have already summarised the evidence contradicting Detective Superintendent Sagar’s assertion that the confessions were written in their entirety at the appellant’s dictation, and not including by way of questions and answers (the expert forensic linguistic evidence). Third, the appellant relies on the expert evidence demonstrating the extent of the appellant’s vulnerability and suggestibility at the time of the interviews and statements under caution, which is said to undermine the reliability of his confessions. There is particular focus on his low IQ, his learning difficulties, his personality disorder and other personal characteristics. It is suggested that the psychological vulnerability of the appellant in the context of the confessions was not considered in any sufficient detail at the time of the trial (the psychological evidence). 43. Turning to point 8, it is suggested that the evidence of Dr Cox and Ms Griffiths (the fire experts instructed respectively by the appellant and the Crown) tends to contradict the appellant’s confessions since it demonstrates that accident is a possible and, in some instances, the preferred explanation for the fires (save for Selby Street). Indeed, it is argued that for some of the fires the evidence is compelling that they were not the result of an arson attack but were instead “ accidental ” in origin. This means, therefore, there is no independent expert evidence supporting the appellant’s suggested involvement in the fires. Point 9: the breach of the Judges’ Rules/PACE Codes of Practice 44. It is suggested that there was clear non-compliance with the Judges’ Rules in the course of the interviews with the appellant and when he provided the statements under caution ( viz. the absence of a parent or equivalent adult when he was interviewed, in light of his vulnerability (a mental handicap, applying a “ common sense and fair-minded approach to the issue ”, as Mr Barnes puts the matter); the lack of breaks, including for refreshment; and the failure to provide an opportunity to speak on the telephone to a lawyer or a friend.) It is contended that the appellant was entitled to the protections provided by the Codes of Practice under the Police and Criminal Evidence Act 1984 (“PACE”) and particularly Code C, paragraph 11.15. The essence of the argument is that the fairness of the investigatory process leading to the guilty pleas is to be judged by today’s standards. 45. There is particular complaint about the first interview at Gordon Street Police Station at 20.05 on Friday 6 June 1980 and which continued until 23.35, when the voluntary statement was commenced. That process ended at 01.25 on 7 June 1980 (an overall period, therefore, of five and a half hours). The appellant had clearly been drinking earlier and may well still have been adversely affected at the relevant time. Point 10: the unlawfulness of the appellant’s arrest at about 16.45 on 6 June 1980 46. The CCRC concluded that there was insufficient evidence to justify referring the circumstances of the appellant’s arrest to this court. It is nonetheless suggested by the appellant that he was arrested at the amusement arcade at about 16.45 on 6 June 1980 when there was insufficient evidence to justify this step (rendering it unlawful), given the officers were merely pursuing a then unsupported theory that there was a homosexual connection to the Selby Street fire. In broad terms, Detective Superintendent Sagar’s account was inconsistent, varying between the appellant having requested to be held at Gordon Street; that he was invited to the police station; that he was arrested and brought to the police station; that he was not “ properly arrested ”; or he was detained with other selected men, based on the suggested homosexual link. Inspector Holmes concluded that the appellant had been arrested, albeit he did not say when. Detective Sergeants Young and Harrod were present during the interview on 6 June, and on their account the appellant was cautioned at the commencement of the interview process. The appellant made a voluntary confession to the Selby Street fire, at which point he was arrested and cautioned (for a second time) before the questioning continued. A statement under caution was then taken. 47. It is suggested, therefore, that he may have been arrested prior to being brought to the police station on 6 June 1980 and that this would have been an unlawful arrest. The three police officers who detained him at around 16.45 in the Crystal Room amusement arcade (Harrod, Young and Bacon) did not indicate expressly that they had effected an arrest. DC Bacon referred to an operation in which he was involved “ to apprehend known and believed homosexuals ” (the appellant, however, was spoken to by a different officer, Detective Sergeant Young). 48. There was mention on the custody record at Priory Road Police Station (where the appellant was detained after the first interview) that he had been arrested at the amusement arcade by Detective Sergeant Young. However, Detective Superintendent Sagar made a handwritten amendment to the custody record to the effect that the appellant had been arrested at 23.30 at Gordon Street Police Station. 49. The CCRC concluded that in all the circumstances there was insufficient evidence to determine that the appellant had been unlawfully arrested. 50. The Grounds of Appeal are structured as follows: Part 1 Section A : The Grounds of Appeal relating to the ESDA evidence ( viz. parts of the statements under caution were rewritten: Point 7 ). Section B : The Grounds of Appeal relating to the appellant’s psychological vulnerability ( Points 1, 3, 6 and 7 ). Section C : The Grounds of Appeal as to whether the confession statements were verbatim records of unaided dictation ( Point 7 ). Section D : The Grounds of Appeal indicating that the appellant was an unreliable narrator of events at the time of the confessions and the pleas of guilty ( Points 1, 3, 5, 6 and 7 ). Part 2 The central submission under this head is that (with the exception of the fire at Selby Street) the strong “ likelihood is that all the fires were accidental in origin and not the work of an arsonist ” ( Points 4, 5, 7 and 8 ) . Part 3 It is submitted that the confessions are unreliable, bearing in mind particularly the suggested breach of the Judges’ Rules and the provisions of the Code of Practice, along with the evidence of Professor Coulthard (linguistic analysis) ( Points 1, 2, 3, 5, 6, 7 and 9 . Part 4 It is submitted the appellant was unlawfully arrested ( Point 10 ). The Facts 51. We turn next to a summary of the circumstances of the 11 fires. We note, however, that there are certain generic submissions advanced by the appellant as to the impossibility, alternatively the high infeasibility, of him having committed at least some of these offences. The physical challenges experienced by the appellant, for instance, would have made the process of entering certain of the properties carrying the paraffin container markedly difficult. Similarly, for some of the fires, the process of opening the container, pouring the paraffin and thereafter igniting the fire would have been potentially problematic. It would have been necessary for the appellant, on occasion, to have walked significant distances in a built-up area carrying a paraffin container and it is emphasised that there is wholesale lack of eye-witness evidence to this effect. For many of the fires the appellant would have had the improbable benefit of the absence of anyone, either inside or outside the properties, having been in a position to see or hear him enter and leave; this observation is particularly advanced as regards properties in which there were a number of people at the relevant time. We have not necessarily repeated these generic submissions in the context of our analysis of each of the individual fires. 70 Askew Avenue 52. This fire occurred at 70 Askew Avenue on 24 June 1973 when the appellant was 12. There was one death, Richard Ellerington (aged 6). At approximately 06.40 on 24 June 1973, Lily Irving, who was a neighbour of the Elleringtons, saw a big flash at the back of 70 Askew Avenue (the experts considered this was a “ flashover ” which is a type of rapid fire escalation that typically occurs during the middle stages of a fire’s development). She ran upstairs and saw that the kitchen of 70 Askew Avenue was on fire. At around this time, Samuel Ellerington awoke to find the house on fire. He raised the alarm. The exact cause of the fire could not be established although there were suggestions it may have been a gas leak or Richard Ellington had been playing with matches. The inquest verdict was death by misadventure. 53. On 26 June 1980 at HMP Leeds, the appellant said to Detective Superintendent Sagar, “ there was a boy who went to school (with me). I killed him in his house in a fire at the boy’s house some years ago, a good while ago it was honest I’ll tell you when I see you again, after I have had time to think about it ” . During several further interviews, the appellant continued to admit starting the fire at 70 Askew Avenue. On 27 June 1980 he said: “Down Askew Avenue in school bus once they said this boy had been killed in a fire at night. I just sat on the bus and said nowt when we was at his house and I killed him and it’s been a secret all the time since then.” Shortly afterwards in a written statement he said: “A long time ago when I was about twelve I knew a lad who lived in Askew Avenue. It was about number 70. It was in Summer time and this lad a young lad died. It was quite a few years ago.” 54. On 30 June 1980, he said: “The first one was when I was in a Home when I was twelve. I think I was, yes twelve. I sneaked out of the front door and went to Askew Ave and set fire to that one at number 70. I’ve told you about that one.” 55. On 1 July 1980, he elaborated, as follows: “I know the first time I killed somebody was the fire at Askew Avenue, the lad. He went to Frederick Holmes School and I knew where he lived because the school bus used to pick him up after he picked me up. I can’t remember his name but he was an invalid and fits sometimes. He was an epileptic. It was summer time and I went to his house well night, but it was after midnight when I did it. I think I got in through a window and I seem to remember going in the kitchen and putting paraffin down on the floor there. You know I was about twelve – twelve and a half at the time and the lad who died in the fire was six. I didn’t use a real lot of paraffin but it didn’t need much. I just did it at that house cause I’d seen the house before but I didn’t do that that house for any real reason. The lad was epileptic.” 56. The prosecution suggested he pointed out the house to the police on several occasions whilst driving with officers around the relevant area. The appellant said that he entered the house through an open kitchen window and poured paraffin onto the floor, setting it alight. The kitchen, we note, was the seat of the fire. The prosecution emphasised he had provided the detail that he had been friendly with the child who lived in the house and made a bit of a fuss of him sometimes on the bus. He had a memory, when questioned, of being aware of a dog. He took the paraffin from a gravel box on Hessle Road, which he pointed out to the police. He was vague as to the time of the fire, saying it was “ after midnight ” and in the “ early morning ” and that he had been out most of the night. 57. The experts (Dr Cox and Ms Griffiths) are of the view that the fire most probably started in the kitchen but its exact point of origin cannot be determined. A potential cause was a gas leak at the cooker governor, which was ignited by the pilot light. The experts, however, could not rule out arson. 58. The appellant relies on the fact that the kitchen window provided the only access point to the building. It is suggested it would have presented an awkward means of entering and leaving the property for someone with the appellant’s disabilities, albeit it is not contended that it would have been impossible. The window would have needed to have been tightly closed during the fire or, alternatively, it was tightly fitting even if not completely secured. It is argued the appellant’s account to the police is inherently unlikely and that it contained some notable inconsistencies. Mr Barnes focussed on the absence of witnesses having seen the appellant with a paraffin container, along with the proximity of more feasible target premises to where the appellant was then living at West Dock Avenue. The trip to the grit box to collect the paraffin would have involved walking past 70 Askew Avenue if he had used the direct route from where he was then living. Mr Barnes doubts that the appellant would have been aware of the grit box or whether it contained paraffin. There was evidence that workmen did not use the grit and salt boxes for unofficial storage, although it was accepted there had been rumours to this effect. None of the eight occupants of the house was disturbed. It is suggested it is implausible the appellant would have remembered the house number. Mr Barnes contends there was no apparent motive for the appellant to commit this arson. It is emphasised that Detective Superintendent Sagar had the opportunity to research the circumstances of this fire, providing details of it whilst the appellant was making admissions, although he accepts some of the surrounding or background information would have come from the appellant. 59. The fire experts do not exclude arson. Although the kitchen window may have presented an awkward point of entry, it has by no means been demonstrated that the appellant could not have used that window to enter and leave the premises. Notwithstanding the arguments of the appellant, including the apparent lack of motive and his ability to recall the house number, it has not been established that the appellant either did not commit or could not have committed the offences relating to these premises. Indeed, in relation to this fire, as to others, the appellant’s account to the police suffers from his deficiencies as an accurate historian, which deficiencies are relied on by his counsel. But some of it, which can only have originated from him, is significant evidence suggesting that he was responsible. An example is his recollection of sitting on the school bus near the house and contemplating the death of the boy he had known. 33 Glasgow Street 60. This fire occurred at 33 Glasgow Street at approximately 06.40 on 12 October 1973 when the appellant was 13. There was one death, that of the householder, Arthur Smythe (aged 72). The fire was first noted at 06.45. It was not possible to ascertain the precise cause, but it was thought that Mr Smythe either went to bed without extinguishing a candle or cigarette, or that he had stumbled whilst carrying a naked flame. The inquest verdict was death by misadventure. There was evidence that a few hours earlier the deceased had been very disoriented, and he always used paraffin heaters. 61. The appellant first mentioned the 33 Glasgow Street fire on 1 July 1980 in interview when he was discussing other fires. He indicated that he “ did one down Glasgow Street ’ after he “ did Askew Avenue ”. He said: “[…] this house was down a bit and it was dirty with some windows broken I remember, see I got in through a window put some paraffin about the room. There was flames and smoke. I think there was an old bloke, but I think only, I didn’t see anybody. I think some of the windows had maybe stuff maybe a bit of wood or old curtain stuck on it or somat. Anyway it was a good fire.” 62. He confirmed that he was responsible for this fire in subsequent interviews on 21 July 1980 and 29 July 1980. He gave an accurate description of the house being squalid and being piled up with cardboard. He said he entered by a window (there was evidence of a missing pane of glass which was covered by a piece of old muslin) and he said he left by the front door. The appellant lived about half a mile away from 33 Glasgow Street and he identified the house to Detective Superintendent Sugar whilst being driven round the area. 63. The view of the experts was that that the exact cause of the fire cannot be identified (as the exact origin of the fire is unknown). A number of obvious potential accidental causes were highlighted, such as the accidental ignition of combustibles by a naked flame (such as from a candle, a match, an oil lamp or a cigarette lighter) or an overturned lit paraffin heater. Accidental ignition by a lit cigarette also cannot be ruled out. Dr Cox was of the view that the reported confused condition of the occupier was a factor that increased the risk of some accident occurring, whilst Ms Griffith stressed that there is no evidence to determine whether the victim had been active prior to the fire and hence it is impossible to determine if he had been involved in its ignition. As neither the origin nor the cause of the fire can be identified, there is no evidence that allows an accidental fire to be distinguished from a deliberate fire in this case. 64. The appellant relies on the extent of the fire hazard at these premises, and the consequent likelihood of an accidental cause. This was the contemporary view, as it was concluded at the time that the fire had developed following a period of slow burning. It is emphasised that no one saw the appellant or heard him breaking in. It is suggested that the deceased may have been asleep in a chair immediately inside the window. In relation to the appellant leaving by the front door, there is uncertainty as to whether the front door was locked (there is evidence of someone kicking it in) but the evidence on this issue is unclear. It is suggested that Detective Superintendent Sagar would have been in possession of information about this fire and could have provided relevant details when the appellant was making admissions. 65. The fire experts do not exclude arson, although they describe their conclusions with somewhat different emphasis. It is uncertain what the position was as regards the front door and it has by no means been demonstrated that the appellant could not have used the window to enter, thereafter leaving by the front door. Notwithstanding the arguments of the appellant, and particularly the extent to which the house and the deceased constituted a fire hazard, it has not been established that the appellant either did not commit or could not have committed the offences relating to these premises. His account to the police, and in particular his repeated references to the dirt and messiness of the house, plainly volunteered, is significant. 50 Humber Buildings 66. This fire occurred seven days later, on 19 October 1973, at 50 Humber Buildings, a ground floor maisonette when the appellant was 13 years old. There was one death, that of David Brewer. Mrs Brewer, the deceased’s mother, described how a fire had been lit in the living room. At approximately 16.30 Hilda Lister, a neighbour, heard David Brewer scream and went to investigate. She saw him emerging from the living room engulfed in flames. She originally claimed that he told her that he had been drying clothes on a fireguard which had caught fire, and that he had been burned when he tried to pick up some logs which had fallen out of the fireplace. We note in this context that there was no fireguard in the room. The coal delivery man, Herbert Green, had seen David Green knocking at the kitchen window at about 16.30 and assumed that he was indicating they needed a delivery of coal. There was no smoke or fire at that stage. Shortly afterwards, he heard Mrs Lister shouting and he then saw David Green who was badly burnt and stripped to the waist. He added “ I saw a low fire in the fireplace mainly consisting of glowing coal. I did not see any wood on the fire and there was no damage in any part of the room ”. 67. PC Treece noticed the settee was at an angle with its back towards the fire. He saw scorch marks on the left arm of the settee, on the carpet and on the linoleum, as well on the fireplace. 68. The inquest verdict was death by misadventure. 69. On 10 July 1980 the appellant confessed to starting the fire at 50 Humber Buildings by setting fire to some drying clothes. He stated: “I did a bad fire down Humber Buildings Madeley Street. I crept into this house. I was twelve or thirteen at the time and I remember it, I saw this bloke, not a real old bloke, and he was sat down. I watched him get up and go to his toilet. I was hiding in his kitchen see and when he went to toilet I went into his living room, I can remember it like it was yesterday. You know somat I like people to think I’m thick sometimes and I’ve let people think that and they’ve thought it at times but see I’ve thought to myself if you knew what I have done the bloody damage I’ve done being an arsonist they wouldn’t think I was thick and call me chicken. They used to call me chicken down Bridlington Avenue Way. Well in this house 50 Humber Buildings when this bloke was in toilet I sprinkled paraffin on floor right in the living room where he had some clothes drying and set it alight. I fled out and then I heard this bloke shouting and I was away like a flash. I was out of the house some distance away and I turned and saw him running out of house burning. I don’t think he had all his clothes on. He must have got up to fire and tried to put fire out cause I didn’t set him alight. See I just sprinkled paraffin from a bottle with my finger over top so there wasn’t a lot of paraffin. I don’t believe the whole house would have burned down. When I was a good way from the house I heard ambulance or fire brigade going there. You know its amazing that I can remember all this, but I can you know.” 70. On 21 July 1980, whilst driving with the police, the appellant identified the maisonette as the address where this fire occurred, and he gave broadly the same description of lighting the fire as just set out. On 28 August 1980, the appellant told Detective Superintendent Sagar that he had deliberately poured paraffin over Mr Brewer’s clothes whilst he was asleep in a chair and set him alight, rather than setting fire to the drying clothes as originally stated on 10 July 1980. This matched a later account that Hilda Lister gave on 29 July 1980, namely that David Brewer had said that he “ just woke up and was on fire ”; she also said there was a distinct smell of paraffin or petrol (as opposed to methylated spirits, which the deceased had been using to clean his clothes). On 7 October 1982, Mrs Lister set out in a statement that David Brewer had said to her “ Why would the bastard do this to me Hilda […] Somebody poured something over me through the window and the next thing I was on fire ”. 71. Mrs Lister and her son Shaun later asserted that the appellant, who used to play with Shaun, had, a couple of days earlier, threatened to wring the necks of her son’s pigeons. Mr Brewer had been present during this exchange, had said that he would clout the appellant if he did any such thing, and had thereupon given the appellant a smack around the ear. A fortnight after the fire, her son’s pigeons had been killed. She had accused the appellant of being responsible, but he had laughed and said ‘what are you going to do about it ?’ When, later, the appellant was challenged with not having told the whole truth about this fire, he confirmed that he had resented being clouted on the ear, and this was the occasion of his admitting pouring paraffin onto Mr Brewer himself. The history, if accurate, provides a clear motive. 72. The experts, Dr Cox and Ms Griffiths, agreed there was insufficient evidence to determine whether the fire had been accidentally or deliberately ignited and that arson using paraffin as an accelerant cannot be ruled out. There was very little damage to the room, as might have been expected if drying clothes had burned, nor was there any sign of there having been any such drying clothes. If Mrs Brewer’s evidence is accurate, there were no such clothes. The damage was consistent with the fire having been set on the sleeping Mr Brewer. 73. The appellant relies on his inconsistent confessions, set out in the different accounts he is said to have provided whilst admitting arson. It is suggested the first account allegedly provided by the deceased matched the conclusions reached at the time as to how the fire had started. The appellant would ordinarily have been dropped off by the school bus at between 16.20 and 16.30, meaning he would not have had time to collect the paraffin from West Dock Avenue and reach 50 Humber Buildings in time to set the fire. There was a very short gap between Mr Green seeing Mr Brewer before the fire started and when he heard Mrs Lister scream. The entire scenario is said to be implausible, including whether the appellant would have been able to hide in the kitchen whilst also being in a position to see Mr Brewer leave the living room to visit the lavatory. It is suggested that Detective Superintendent Sagar may well have persuaded Mrs Lister and Mrs Brewer to alter their accounts. 74. The fire experts do not exclude arson. Although there are some oddities as regards the history to this fire, and in particular Mrs Lister appears to be a less than consistent witness, it has by no means been demonstrated that the appellant could not have hidden inside the premises before igniting this fire. Notwithstanding the arguments of the appellant, it has not been established that the appellant either did not commit or could not have committed the offences relating to these premises. 7 Minnies Terrace 75. This fire occurred on 23 December 1974 at 7 Minnies Terrace, the home of Elizabeth Rokahr when the appellant was 14. There was one death, Mrs Rokahr (aged 82). At approximately 20.45 to 21.00 neighbours smelt smoke but a fire was not then visible. At approximately 22.00, however, the fire was noticed. Neighbours attempted entry, but the force of the flames held them back. The front door was broken down. At the time, the seat of the fire appeared to have been at the head of the bed which was in the living room. The fire brigade station officer, Peter Mitchell, suggested that the victim may have been smoking in bed. Alternatively, clothes that were airing over the fireplace may have ignited. The inquest verdict was death by misadventure. 76. Whilst driving in the area on 30 June 1980, the appellant mentioned setting “ one or two ” fires in the area of Rosamond Street, the street on which 7 Minnies Terrace was located. On I July 1980, he set out in a statement under caution, “ the next one I did which was in Rosamond St, I think it was a paraffin job. I got in the house a terrace house, by back way and put paraffin on floor near fire back room. I lit it like with matches and up it went. I think an old woman died there. I was away before it was a real big fire ”. On 10 July 1980 at interview, Detective Superintendent Sagar put it to the appellant that he was responsible for this fire and the appellant agreed. On 21 July 1980, he said to Detective Superintendent Sagar “ I did see someone lying in a bed but I didn’t know if it was a man or a woman I didn’t wake ‘em up to ask, did I? [ … ] I was so attracted to setting it on fire that I didn’t bother about anything else […] I was devoted to the fire and despised whoever was in there, that’s in the Bible, being devoted to one thing and despising another ”. He admitted responsibility again during interview on 28 August 1980. He said that he knew that the deceased kept a door key on a piece of string inside the letterbox, but he entered via an unsecure back door. He saw an elderly person lying in a bed on the ground floor and sprayed paraffin nearby. Although he was not recorded as having been absent that evening from Brook Cottage where he was living, there was evidence that he often travelled into Hull from Brook Cottage “ of his own volition ”. 77. Mrs Rokahr’s daughter, Annie Wainman, provided a statement, indicating that her mother did smoke in bed “ but was careful with them ”. She was later to say her mother never smoked in bed. She told the police that the back door was always left open because of the cat. Her sister, Marjorie Wilson, confirmed that Mrs Rokahr did not smoke in bed and she confirmed that the back door had a loose bolt that meant it was easy to push open, and she agreed that in any event it was often left open for the cat. These details were supported by Mrs Rokahr’s brother, William. Mr Pratt, a neighbour, suggested that Mrs Rohahr’s health was failing, particularly her eyesight and hearing, and he stated (albeit he later denied) that she used to smoke in bed. The appellant had previously lived within 200 yards of Mrs Rokahr’s home. A neighbour, Mr Robinson, tried to open the back door after the fire had taken hold – he pulled it once without success. A police officer, after the deceased’s body had been removed, described the door as in a dilapidated condition and in need of repair. Mr Cowlam, who lived close by, said the back door was locked and he had been unable to gain entrance. 78. The experts, Dr Cox and Ms Griffiths, are of the view that if a fire started by paraffin had simply continued to develop into a flaming fire, this would not have been compatible with the smouldering fire damage reported by the investigators. However, they are unable to rule out either accidental ignition or arson, given that there may have been an initial flaming fire in front of the fireplace that migrated to the bedhead area, where it died and smouldered for a relatively long period, burning through the floorboards causing the asphyxia of Mrs Rokahr, thereafter erupting again before the Fire Brigade arrived. They disagreed as to which explanation was more probable. Dr Cox considers that ignition at the bedhead area as a smouldering fire was more likely than ignition as a flaming fire in front of the fireplace. Ms Griffiths, on the other hand, considers that the various uncertainties make an assessment of the likelihood of either scenario impossible. 79. The appellant relies on certain difficulties as regards timing, in that it is suggested a paraffin-accelerated fire would have needed to have been set close to 22.00 and the last train from Hull to Driffield (where the appellant was living at Brook Cottage) was at 22.15, albeit there was also a bus. The distance between the railway station and Minnies Terrace was 1.3 miles. The appellant did not know Mrs Rokahr. It is suggested there is a real possibility that the rear door was secure at the time of the fire (Mr Barnes argued that the consensus of the evidence is that the door was locked), and even if the appellant entered via that route, it is contended that he would have been unable to secure it afterwards. Mr Barnes argues that the most likely explanation – Mrs Rokahr smoking in bed – is entirely consistent with the likely seat of the fire at the bedhead. 80. The fire experts do not exclude arson. Although there are uncertainties as regards the timing of the fire and the position as regards the rear door is unclear, it has by no means been demonstrated that the appellant could not have entered this house in order to ignite this fire. Notwithstanding the arguments of the appellant including the possibility that Mrs Rokahr had been smoking in bed, it has not been established that the appellant either did not commit or could not have committed the offences relating to these premises. 9 Gorthorpe 81. This fire occurred on 3 June 1976 when the appellant was 15 years old. There was one death, Andrew Edwards (aged 13 months). During the evening of 3 June 1976, Dorothy Stephenson was looking after her great grandchildren, Jennifer Edwards (aged 7), David Edwards (aged 5), and Andrew Edwards at 9 Gorthorpe. According to a statement she made in 1976, at approximately 20.30 Mrs Stephenson took Andrew Edwards upstairs to bed. Some 10 minutes later when she returned downstairs, she saw smoke coming out of the cupboard under the stairs. This was described by Mrs Stephenson as a large/walk-in type cupboard, the back end of which is an extension which runs through to the foot of the stairs. When she opened the cupboard, smoke and flames “ belched ” out, and she saw David, whose hair was on fire, in the rear extension to the cupboard. She managed to rescue both David and Jennifer but not Andrew. She could not understand where David would have obtained matches to light the fire, because the only ones in the house were in her pocket. The fire brigade was called. David Edwards, who had been badly singed, was questioned on the same day by Acting Police Sergeant Blythe (3 June 1976), within half an hour of being rescued. He initially denied having been playing with matches and he said he “ saw the fire ”. Thereafter, in answer to a series of leading questions he agreed with the suggestion that he had been striking matches in the cupboard underneath the stairs and that the matches had set fire to a box of newspapers and comics. The officer confirmed to his senior (Chief Inspector Rodgers) that in obtaining this account he had “ had to lead him in certain parts ”. David Edwards seemingly confirmed this account to a fire officer. His mother, Veronica Edwards, said that because he had a history of playing with matches, they were not allowed in the house. She also indicated that: “I always tried to keep my children out of this cupboard and as a result they never played in it or even went into it. I am satisfied it was never used as hiding place by them.” 82. Furthermore, his father, James Edwards, in a statement dated 5 September 1980 set out: “Due to the traumatic experience of the fire I never asked David about the fire until a few days after it occurred and he was quite adamant that he had not played with any matches. I have never talked to him about it since as I have thought it better to try and forget about it.” 83. The inquest verdict was death by misadventure. 84. On 30 June 1980, the appellant had alluded to a fire that he had set near to a public house with a “big horse” sign (which he thought was a white horse) in Orchard Park, in which a baby had died, and that he believed that they called it “Gorthorpe”. In the account the appellant gave on 1 July 1980, it is suggested he said: “One after that I did was a house up Gorthorpe up Orchard Park. There was this house up there and I know there was little kids in the house because I think I remember kids toys there. See I opened front door to get in and with a bit of paraffin, not much, I set it alight. See when I do a job, a fire like this, I shove everything out of my mind and concentrate hard on what I’m doing. I think this was a quick in and out up Gorthorpe. As I say I know from what I saw it was a house where there was little kids in but being in and out so quick I didn’t see anybody. I don’t know if it was a front or back door because all the doors seem same sometimes. I think it was front. It was a big enough fire or should have been for somebody to have been killed in it. Maybe one of the kids. I don’t know. It was still day light when I did this Gorthorpe house near time to get dark. I know I stood a good few houses away from the house till it was well alight then I panicked in my mind and cleared off. It was stairs, up or should be I mean it was under stairs I started it. I didn’t pick on that house for any particular reason.” 85. On 10 July 1980 when asked “ did you pick that house because perhaps you knew there was a spastic girl living there ”, he replied “ I might have done ”. On 21 July 1980, whilst driving around with the police, the appellant identified the premises as where he had set fire under the stairs and, on 29 July 1980, he confirmed his responsibility for the fire. On 9 September 1980, he indicated that he recalled footsteps upstairs and that the fire occurred shortly before it got dark. 86. The appellant relies on the following principal factors. He was then living at Brook Cottage, the children’s home in Driffield. Driffield is a 30-minute train journey from Hull and 9 Gorthorpe is about 3 miles from Hull Bus and Train station. The accounts of Mrs Stephenson and David Edwards effectively rule out the fire having been set by an arsonist, given David Edwards was at the rear of the cupboard when found by Mrs Stephenson. Furthermore, after some prompting, David Edwards admitted setting the fire to two separate individuals in authority. 87. The expert evidence is as follows: “7.1.4 The most likely potential cause of fire is the ignition of combustible materials by a lit match or matchbox, either mishandled or carelessly dropped by Master David Edwards. 7.1.6 If paraffin had been used and the fire developed then David would not have been able to enter. If he had been close to such a fire, he would probably have suffered much more serious burns than his actual burns (singed hair). 7.1.7 An arsonist would have to travel between 10 and 14 feet (depending on the door of entry) to reach the location of the cupboard. 7.1.8 There is no objective evidence to indicate the use of paraffin in this fire (although that does not exclude that possibility) and nothing to exclude this being an accidental fire.” 88. The experts agree that given Mrs Stephenson was able to pull David out from the rear of the cupboard without sustaining burns, this indicated that the fire was at that point in its early stages of development. 89. Ms Griffiths concludes that a paraffin fire at the entrance of the cupboard could be discounted and that if paraffin had been poured towards the back of the cupboard, it is likely that Mrs Stephenson and David Edwards would have sustained burns. She accepts that if paper and a matchbox were set on fire, this could turn into a flaming fire within 10 minutes. 90. The appellant highlights that the account he allegedly gave of the time of day when the fire occurred – it being near dark (albeit his description of this was somewhat varied) – was incorrect: the fire was more than an hour before sunset. It is suggested that it was implausible that he was aware that a “ spastic ” girl lived in the house or that a baby died in the fire, or that he saw the children’s toys (given they were in the living room). At the time of this fire, the appellant was living at Brook Cottage in Driffield. After a train journey to Hull the appellant would have needed to walk about 3 miles across the city to this address. Given the complicated route to the location of the fire having entered the house, this would not have been a straightforward undertaking for the appellant and it could not have been a “ quick in and out ”. It was extremely fortuitous that the front door was unlocked and that Mrs Stephenson was upstairs at the moment the appellant entered the property. Most fundamentally, it is highlighted that given the seat of the fire was at the back of the cupboard where Mrs Stephenson found David Edwards, it was impossible for the appellant to have set the fire without the appellant and the child seeing each other, and without the latter being badly burnt by the paraffin accelerant. 91. In our view, on the evidence the appellant could not have been responsible for this fire. The accounts of Mrs Stephenson and David Edwards, coupled with the lack of fire-related injuries to either of them, mean that the appellant’s account of starting the fire under the stairs is an impossibility. David Edwards was in the rear of the cupboard, and if the appellant had lit a fire close to the door, both he and Mrs Stephenson would have been badly injured during his rescue. Furthermore, David Edwards would have seen the appellant lighting the fire; instead, he admitted responsibility for setting fire to comics and newspapers in the cupboard that contained the seat of the fire. He made no mention of an intruder. 43 West Dock Avenue 92. This fire occurred on 2 January 1977 at 43 West Dock Avenue when the appellant was 16. There was one death, Katrina Thacker (aged 5 months). On the evening of 2 January 1977, Karen Frasier was in the premises with her three children: Katrina, Anne Marie (aged 3), and Kim (aged 5). At approximately 19.10, Mrs Frasier banked the fire in the dining room and took Anne Marie to the bathroom at the end of the garden. Kim was downstairs and Katrina was in a carry cot near the fireplace. When Mrs Frasier returned from the bathroom – she had been away “ about five minutes at most ” – she saw smoke coming from the dining room and was unable to gain entry. The fire brigade attended and put out the fire. The appellant was seen in the street by Mr and Mrs Hunter when the fire engine arrived, albeit neither of them noted that he was carrying a container. The Station Officer, Mr Clarkson, concluded that the fire was caused by a spark from the unguarded fire (he later changed this view, and in 1980 indicated the fire was consistent with the use of an accelerant). The inquest verdict was death by misadventure. 93. On 26 June 1980, when interviewed, the appellant admitted being responsible for this fire. He said he had killed a little baby in a fire in West Dock Avenue about two years previously. He had entered the premises via a window and had sprinkled paraffin on a carpet and the couch, “ And up it went. The little baby died in it and I killed her ”. This admission was repeated on 27 June 1980: he had “ killed a baby once in a fire ” and “ I got in the house and set the room on fire. I splashed paraffin about the room just as the woman was out and got out quick ” On 30 June 1980 and 1 July 1980 he again indicated he had “ killed the baby in West Dock ” and that he had “ got in through the window and poured a fair bit of paraffin near a fire in living room and on the couch and bit paraffin on chair [ ... ] when I dropped match on paraffin on floor it was one out quick but I didn’t give any thought to people or kids in houses or owt ” . Later that day, he said he thought he entered via the back door rather than via a window. He suggested he had not seen the child and was annoyed with himself when he heard he had killed the baby. He had not looked inside the cot (which he remembered). 94. On 10 July 1980 he gave similar details as to those provided on 1 July. The fire was further discussed on 21 July 1980 and on 23 July 1980 when the appellant continued to maintain his responsibility. The appellant said that in December 1976 he had a disagreement with Peter Thacker, Katrina’s father, which had resulted in Mr Thacker hitting the appellant. The appellant said that he had started the fire for revenge. The appellant had at one stage lived next door but one to the Thackers/Fraisers. This disagreement was verified by Mrs Fraiser, who said Peter Thacker hit the appellant around Christmas 1976. Mr Thacker agreed with this account. 95. There was evidence that the appellant had played with fires on land close to West Dock Avenue. On the day of the fire, he was living just over half a mile from West Dock Avenue. He was seen after the fire standing with others in the street watching it. 96. The joint experts, Dr Cox and Ms Griffiths, are of the view that the origin of the fire was unknown. Its rapid development could have been the result of an accelerant but equally it could have caused by an accidental ignition of a polyurethane upholstered sofa (ignited by an ember or flaming coal from the fire, or from a match carelessly handled by Mr Thacker). They indicate “ there is no compelling evidence either way ”. 97. The appellant, as with many of these fires, relies on what are said to be a fortuitous and improbable number of coincidences which enabled him to set the fire without being detected, and most particularly that his entry occurred exactly as Mrs Fraiser made the trip down the garden. His change of account regarding the method of entry – variously a window and a door – is highlighted, as are his initial description of having poured the paraffin on the carpet and the marked similarities in what he said on the 1 and 10 July 1980. 98. The fire experts do not exclude arson. Although there are contradictions as regards the appellant’s description of this fire, particularly as regards the means of entry to the premises and how he lit the fire, it has by no means been demonstrated that the appellant could not have ignited this fire. Notwithstanding the arguments of the appellant, it has not been established therefore that the appellant either did not commit or could not have committed the offences relating to these premises. Wensley Lodge 99. This fire occurred at Wensley Lodge care home in Hessle, near Hull, on 5 January 1977 when the appellant was 16. 11 residents were killed. There was a major public inquiry into this fire. At approximately 21.30 a care assistant arriving for a night shift saw smoke on the first floor and tried to activate the fire alarm, which did not function. That afternoon, a plumber had been working with a blow torch in the boiler room directly below Room 11. Upon later investigation, it was discovered that a substantial amount of smoke had accumulated in Room 11. Graham Devonport, a senior forensic officer with the Home Office, noticed that there was a large hole in the floorboards of Room 11 and in the ceiling below. He was of the view that what had occurred was symptomatic of a slow smouldering fire having started in the void some hours before it was discovered. Mr Devonport concluded that a spark from the blow torch must have found its way through a crack in the cement and asbestos ceiling, causing the fireboard to catch fire after some hours of smouldering. This conclusion was supported by the Deputy Senior Fire Prevention Officer of the Humberside Fire Brigade. The inquest verdict was death by misadventure. 100. On 27 June 1980, the appellant, when interviewed by Detective Superintendent Sagar and Detective Sergeant Martin said that he “ did the old blokes’ home in Hessle ” and that “ eleven blokes died there ”. On 30 June 1980, whilst driving with the police, he directed them to Wensley Lodge and he provided further details of the fire. The appellant again admitted responsibility for this fire on 21, 25, 28 and 29 July 1980 (on the last occasion in the presence of his solicitor, Mr Gunby, and the latter’s clerk, Mr Pearce). The appellant provided an accurate description of the house and its occupants, and he identified the seat of the fire as being on the first floor. Miss Helen O’Shea, the Housemother at the St Vincent’s Children’s Home gave a statement on 12 July 1983, in which she indicated the appellant told her on numerous occasions that the fire at Wensley Lodge was not an accident. As already rehearsed, on 21 November 1983, all convictions in relation to this offence were quashed by this court. 4 Belgrave Terrace 101. This fire occurred on 27 April 1977 at 4 Belgrave Terrace, the home of Albert and Gwendoline Gould and their children, Lana Gould, and Deborah Gould. Mark Jordan was staying at the house along with his father Peter Jordan and older brother Graham Jordan (the family were moving to Kent the following day). The appellant was 16 years old. There were two deaths, Deborah Gould (aged 13) and Mark Jordan (aged 7). During the evening Mr Gould, whilst smoking, had been “ messing about the electrical wiring ” beneath the tropical fish tank to make the electric fire work. He connected two bare electric wires by twisting them around in his fingers. During the night, Peter Jordan was asleep on a sofa when he woke to a feeling of intense heat. He saw flames in the middle of the living room behind another sofa. He raised the alarm. He made no mention of having smelt paraffin. Following the appellant’s later arrest, Mr Jordan told the police that he had sensed someone moving about the room and that he had heard a distinct bang from the direction of the passage. Mr Jordan, in a statement dated 20 October 1982, said that the appellant (who he knew as Peter Dinsdale) was a friend of Mark Jordan. The appellant had visited the Jordans at the house from which they were moving the day before the fire and he had been told about their imminent move to Kent. The appellant, on the other hand, denied knowing the occupiers. The fire brigade investigation concluded that the most likely cause of the fire was a lighted cigarette having been dropped on the carpeted floor. Graham Devonport, a senior forensic officer with the Home Office, concluded that the fire had started on the settee, probably due to the careless discarding of smoking materials which had smouldered for some time before spreading across the sofa to the armchair. The inquest verdict was death by misadventure. 102. Whilst driving in the area with police officers on 30 June 1980, the appellant told them that he had set a fire near Rosamond Street in which “ two kids died ”. He said: “Take me to Rosamond Street […] down there, Rosamond Street, that’s it. I did one or two down here. One where two kids died and another one. The one with the kids was not long after I did the baby in West Dock Avenue. […]” 103. In his voluntary statement shortly afterwards he said “ There is Rosamond Street, a terrace I think; for all I know they could all have died in it. I didn’t bother […]”. 104. On 1 July 1980, the appellant made reference to “ two kids ” in the Rosamond Street terrace and provided further details of the fire including his use of paraffin. Later that day, he spoke of killing “ two in one fire ” and he gave the following description: “[…] I did another one where two kids died down a terrace in Rosamond Street. See it was about three months after Wensley Lodge or somat like three months. I know West Dock Ave and old blokes home was soon after Christmas then there was a good few weeks before the two kids in the Rosamond Street terrace. See there was a window into a room where they’s maybe knocked a wall out to make a big room instead of two rooms and there was them polystyrene tiles tiles and a couch. There was someone sleeping there I think downstairs I mean and there would be people and kids upstairs asleep. I put paraffin around some near the door and about the floor and set it alight and out through the window. I smashed the glass to get in. I’ve told you that have I. I have now. I think it was front. I remember there was a T.V. and some fish in a tank. I remember seeing them just. See you get used to being in dark room after you’ve been in a place a few minutes and although you can’t see too clearly you can see. […] It was a terrace, you know where the fish tank was that I did the fire. Then see I went a good while before I did another where somebody was killed. Over a year maybe more […].” 105. On 10 July 1980 and 21 July 1980, he gave provided significant further detail to Detective Superintendent Sagar: “Q. In this one you mentioned breaking glass to get in. Was it a door or a window? A. It was a window near the front door, a side window right at side of front door Q. You said in your statement that the fire you started was near a doorway, which door? A. One inside the house, you know, where two rooms made into one [...] Q. Did you believe people were asleep in there? A. Look I got in through the window I broke. See I picked some pieces of glass out after I broke it and climbed in. Q. Had you ever been in the house before? A. No Q. Was there someone asleep actually in the room that you set on fire? A. Might have been someone on the couch but I don’t remember. I know there must have been some more people asleep upstairs [...] Q. Do you remember much about the front door there? A. Glass in it; that’s all [...]” 106. On 29 July 1980 he again confirmed his responsibility for the fire in the presence of his solicitor. 107. Mr Gould made a statement on 17 November 1982 about the windows in the front room which contains the following: “Clearly shown in the photograph is a hole in the upper section of the right hand section of the front bay window viewed from the outside front. I can say that this hole was not present in the window before the fire... I can also say that the hole is situated near the securing stay and I believe the window measured about 18” by 18”. and: “None of the three lower windows sections were designed to open, so anyone entering the living room through the front window would have to get in through one of those top sections of glass.” 108. Thomas Starkey, a local fisherman, in a witness statement dated 7 August 1980, said that when he attended the fire, “The large bay window was intact but the smaller angled window of the bay nearer the door was broken.” 109. On 22 October 1980, Mr Jordan said he thought he would have heard an intruder break the front window to gain entry. 110. The appellant, therefore, seemingly correctly recalled the layout of the house (including that two rooms had been knocked into one), the fish tank, a sleeping figure on the couch and the fact that there were polystyrene tiles on the ceiling. 111. The experts, Dr Cox and Ms Griffiths, are of the view that the fire had started in the middle of the large through living room on the rear side of the dividing curtain. Its origin was somewhere in the area between the hall doorway and the alcove containing the fish tank. The evidence did not lead them to a definite conclusion as to whether a smouldering fire had developed into a flaming fire and, more generally, there was insufficient evidence to establish whether the fire had been accidentally or deliberately ignited. 112. The appellant suggests that he confessed to an offence that was inherently unlikely, indeed one that was in essence impossible. He would have had to climb through an upper broken window measuring only 18” by 18”, situated above a substantial fixed window. It is suggested that would have been, at best, extremely difficult for a fit 16-year-old youth; for one with a withered arm carrying a container of paraffin, it would have been unachievable. Furthermore, it is noted that the sound of breaking glass and the disturbance caused by entering through the broken window did not wake Mr Jordan, a possibility which is said to be wholly far-fetched. It is suggested that it made no sense for the appellant to have walked across the room to ignite the fire close to where Mr Jordan was sleeping, rather than close to the window. 113. In our view, on the evidence the appellant could not have been responsible for this fire. Given his disabilities, we conclude that it was either impossible or, alternatively, a wholly unrealistic suggestion that he climbed through an upper broken window measuring only 18” by 18”, when supposedly entering and leaving these premises. This would have been, at best, a substantial challenge for a fit and slender 16-year-old but an effective impossibility for someone with the appellant’s disabilities. 2 Brentwood Villas 114. This fire occurred on 6 January 1978 when the appellant was 17 years old. There were four deaths: Christine Dickson and three of her children, Mark Dickson (aged 4), Stephen Dickson (aged 3), and Michael Dickson (aged 16 months). Just before noon on 6 January 1978, a fire broke out at 2 Brentwood Villas. Christine Dickson had called upon her neighbour, Kathleen Hartley, sometime between 11.00 and 12.00. When Christine Dickson returned home, Kathleen Hartley noticed thick black smoke coming out of the front door. Christine Dickson then emerged from the property carrying her son Bryan (aged 2 months). She re-entered the property but did not re-emerge, having been fatally engulfed in the conflagration. Mr Dickson described the children as all being mischievous in a “ normal ” way, but Steven was the “ naughtiest ” of all, and he had been caught playing with a cigarette lighter, setting fire to bits of paper in the living room. He had previously thrown socks and a shoe on the coal fire in the living room. Both parents smoked and used petrol lighters. They kept a can of lighter fuel in a kitchen cupboard, out of the reach of the children. Mr Dickson, who had suffered for many years from a nervous disorder requiring regular daily Valium and who slept for much of the day, was not sure what had happened to the new can that had been recently purchased, though he believed it to have been in the kitchen. The previous day Mrs Dickson had given a box of matches to Mrs Hartley so that they would be out of the way of the children. 115. Malcolm Watson, an officer at the Home Office forensic laboratory, attributed the fire to the actions of the children whilst their mother was out of the house. He noted that the extreme rapidity of the spread of the fire was due to the flammability of the modern furniture, with possible acceleration provided by the can of lighter fluid purchased by Christine Dickson the previous day. At the inquest it was noted that Stephen Dickson had a history of playing with fire. The inquest verdict was death by misadventure. 116. The appellant first mentioned this fire on 2 July 1980. He pointed to Brentwood Villas whilst driving with police officers in the area and said that he had set fire to the second house on the right. He suggested this had happened in daytime before dinner. In interview the same day, he claimed that he had started the fire by pouring paraffin through the letter box. He also said that the fire had been set at a time when the firemen had been on strike and the green fire engines were in use (presumably a reference to the Green Goddess self-propelled pumps used by the Auxiliary Fire Service). He said that having bought some paraffin from a hardware store: “I just walked past the school down side of school top of Reynoldson Street and into terrace, saw this door second one on left, no it wasn’t, second on right and quick as a flash poured paraffin into doorway lit a bit of paper put it through letter box and as I say I was away before anybody would know 117. He suggested he had been fed up and a bit bored; moreover, “ fire was in my head and I had to do one that morning ” and he just picked on a house without thinking. 118. In another trip to identify fire sites on 21 July 1980 the appellant again pointed out Brentwood Villas. He provided further details at interviews on 21 July 1980 and 22 July 1980, stating that he had squirted paraffin from a Fairy washing up bottle which he pushed through the letterbox, squirting it left and right and letting it drip back to the letter box before posting a lighted piece of paper through the letter box. He said it “ only takes a second when you know what you are doing ”. When asked if he saw anyone standing about in the terrace, he replied “ No, but you know, nobody takes much notice of anything anyway […] Away like a flash, that’s me ”. He again confirmed his responsibility for this fire during interview in the presence of his legal representatives on 29 July 1980. 119. The experts, Dr Cox and Ms Griffiths, confirmed that the fire started in the front living room. The exact origin cannot be established. No lighter fuel can was recovered, though the fire damage was great. The fire developed rapidly. This could be due to either the involvement of an accelerant (such as introduced paraffin or lighter fluid) or the accidental ignition (or early involvement) of either a latex foam cushion or a polyurethane foam upholstered item of furniture. There was a sofa made of such material just inside the front door. 120. The experts agree that squirting paraffin through the letter box into the room could provide a mechanism by which the majority of the liquid fuel was at a distance from the door (consistent with Mrs Hartley’s recollection as to where she saw the flames and Mr Watson’s opinion as to the seat of the fire). This would have required a near-continuous trail of paraffin which had been ignited by a piece or pieces of lit paper dropped through the letter box. Dr Cox conducted some detailed tests into this suggested mechanism. Dr Cox prefers the explanation of an accidental fire caused by the children if the lighter fuel had been available to them and matches had been involved, given the seat of the fire was not by the fireplace. 121. Notwithstanding Dr Cox’s preferred explanation, the fire experts do not exclude arson. Although the act of squirting the paraffin through the letter box to the right distance, in a near continuous trail, would have been a difficult undertaking for the appellant, we are unpersuaded this would have been impossible for him. He described using the mechanism which Dr Cox demonstrated in his tests, viz. squirting paraffin from a Fairy washing up bottle which he pushed through the letterbox left and right and letting it drip back to the letter box before posting a lighted piece of paper through the letter box. Notwithstanding the arguments of the appellant, it has not been established therefore that the appellant either did not commit or could not have committed the offences relating to these premises. 407 Troutbeck House 122. This fire occurred on 22 June 1979 when the appellant was 18. He lived nearby. There were no deaths. Just after midnight, Rosabel Fenton was in bed when she heard her neighbours shouting that her maisonette was on fire. She got out of bed and saw a fire on the landing. She went into her daughter’s bedroom, and they both managed to escape although both suffered extensive burns. The police and fire brigade attended the premises and concluded that the cause of the fire was accidental ignition of a cardboard box in the hallway from a cigarette end discarded by a Mrs Lenney, a friend of Mrs Fenton, who had left the property shortly before the fire broke out. 123. Mrs Fenton stated that Mrs Lenney left at about 00.10. However, Mrs Lenney, on 23 June 1974, said she left at 23.40. On 26 June 1980 she amended this time of departure to 00.10 (she also denied in this statement that she had been smoking). Mrs King, a nearby neighbour, saw Mrs Lenney leaving at about 23.45 to 23.50 and said she had a cigarette in her hand. Her husband gave the time as 23.40. 124. Shortly after the appellant’s arrest on 6 June 1980, Mrs Fenton contacted Detective Sergeant Martin to state that she had informed Detective Superintendent Sagar some months earlier that she believed that the appellant was responsible for the fire at her premises, and that she also believed that he was connected to the fire at 12 Selby Street. Detective Sergeant Martin took a statement from her on 18 June and 19 June 1980, and from others on 23 June 1980. Following a discussion between Detective Superintendent Sagar and Detective Sergeant Martin, it was agreed that the appellant would be asked about the 407 Troutbeck House fire. 125. On 26 June 1980 the appellant was interviewed at HMP Leeds by both officers. Detective Superintendent Sagar told the appellant that he was of the view that the appellant may have been responsible for the fire at 407 Troutbeck House. After an initial denial the appellant admitted starting the 407 Troutbeck House fire. In answer to questions, the appellant said that “ I did do that one but it wasn’t through the letter box ” and “ it wasn’t a paraffin job either ”. He added “ I just opened the door see, it wasn’t shut properly and I just got some paper, set it alight with my matches and then threw it well inside the door. It went up in no time ”. On 27 June 1980 the appellant made a voluntary statement to Detective Superintendent Sagar in the presence of Detective Sergeant Martin. He is alleged to have said: “I did Troutbeck House, that’s the house where Ros Fenton lives. That house was easy see I had a match and paper, the door wasn’t locked. See I was going to do 301 Seathwaite House but changed my mind. I don’t like the Buckleys at 301 but lucky for them I changed my mind and did Ros Fentons house instead. See someone I know put it in my mind and I just went in her doorway lit some paper with a match of course, dropped it in the passage and when it was well alight I cleared off to a house near there.” 126. The fire experts are of the view that the very short time interval (5 – 7 minutes) as given by Mrs Fenton means that a lit cigarette could not have ignited the fire, since it would have needed to progress from a smouldering to a flaming fire. This interval was insufficient, making this explanation very unlikely. They agree, “ that the reported contents of the shoe box would probably not act to either effectively insulate a discarded lit cigarette or promote a smouldering fire ” . 127. The joint experts studied the relevant photographs following the fire and provided the following analysis of the door: “We agree that these photographs […] show an absence of gross mechanical damage around the mortice lock position in the door and at the corresponding position of the lock keep in the door frame. We agree that this indicates that the mortice lock bolt had not been fully extended and completely engaged in the door frame at the time the front door was opened by neighbours attempting entry during the fire. For these reasons, we agree that the front door could have been closed but insecure prior to the fire.” 128. There was evidence of motive, as the appellant was a friend of Mrs King who was involved in a feud with Mrs Fenton. Mrs Fenton described this in a statement dated 29 September 1980 in which she suggested Mrs King had made threats against her behind her back. The appellant was seen in the near vicinity of the fire both before (in the company of Mrs King) and after it had broken out (with a group of neighbours). If the evidence of Mrs King is accurate, he told her that he had asked Mrs Fenton if he could climb into Mrs King’s flat through the Fenton flat but had been refused. If the evidence of Mrs Fenton’s sister, Mrs Preston, is accurate, on the day after the fire she remarked to the appellant that he had been there. He thereupon said, “ It wasn’t me ”, although she had not alleged that he was responsible. He also added that he had been at home all evening because he had had a fit. 129. The appellant relies on a statement made by Mrs Lenney on 23 June 1974: “From about 11 until about 20 to midnight we both smoked one cigarette. As Rosabelle (Mrs Fenton) was tired I decide to leave earlier than usual and before I went, put a cigarette out in the ashtray. I cannot remember if I lit another cigarette before I left but I was carrying both a handbag and a 1lb of ham as I left by the front door. As I left, as was usual, Rosabelle who was upstairs, asked me take the front door key then lock the door as I left and push the key though the letter box.” 130. Mrs Lenney did as she was asked. 131. The appellant suggests that the alternative times of departure provided by Mrs Lenney (23.40) and Mr and Mrs King (between 23.40 and 23.50) provide a sufficient window of opportunity for the fire from a discarded cigarette to take hold. It is suggested that this could have developed in the area of the cardboard box to the right of the door, which contained shoe polish rags and shoes. It is highlighted that the suggested motive (the feud) only came to light after the appellant’s arrest on 6 June 1980. It appears that Mrs Fenton’s sister visited the police on 10 June 1980 and indicated she hoped the police had not forgotten the fire at Troutbeck House. This prompted a formal police action: “ Recover file on this fire and enquire if Lee can be connected (Det Supt requires this info urgently) ”. Mrs King, in a statement dated 14 July 1980, denied suggesting to the appellant that he should do anything against Mrs Fenton or her family. In all the circumstances, it is suggested that the evidence of motive is slender. Detective Superintendent Sagar raised this fire, which he had been investigating it since the 6 or 7 June 1980, with the appellant on 26 June 1980. 132. The appellant confessed to opening the door and throwing the lit paper inside. It is argued that there is strong evidence to indicate the door was locked. Mrs Lenney had been asked to do this by Mrs Fenton. Mr Coates, a neighbour, was unable to open the door after the fire had started, and he kicked it open. A neighbour, Mr Rudland, saw the door closed after the fire had started. Detective Constable Terry, in a handwritten report about the incident, set out that, “ on the fire being discovered the house was secured with doors and windows locked ”. Mr Simmonds described seeing the door kicked open by Mr Hooper, who in turn could not recall if he kicked the door open or whether he broke the glass. In all the circumstances, it is submitted that the front door was “ secure ” and could not have been used by the appellant to set this fire. 133. It is emphasised that the account concerning this fire in the voluntary statement taken on 27 June 1980 was the subject of rewriting by Detective Superintendent Sagar. 134. The fire experts do not exclude arson. Although there is some uncertainty as regards whether the door was secured, the experts indicate that the door was closed but not secured. Otherwise, it has by no means been demonstrated that the appellant could not have ignited this fire. Notwithstanding the arguments of the appellant, it has not been established therefore that the appellant either did not commit or could not have committed the offences relating to these premises, particularly given (subject to timings) the unlikelihood of the cause of the fire being a discarded cigarette. 12 Selby Street 135. This fire occurred at 12 Selby Street on 4 December 1979 when the appellant was 19 years old. There were three deaths, Charles Hastie (aged 15), Paul Hastie (aged 12), and Peter Hastie (aged 10). In the early hours of the morning, Edith Hastie was woken by intense heat at her premises. Her four sons were also in the premises. She went to the upstairs landing and saw flames moving up the stairs from a fire in the downstairs hallway. Mrs Hastie and her children managed to escape through an upstairs window. Charles, Paul, and Peter, all died in hospital as a result of their injuries. Forensic examination demonstrated that paraffin had been poured through the letterbox and ignited using newspaper. The police opened a murder investigation and the initial lines of enquiry suggested that there was significant local animosity towards the Hastie family. Another possibility was that the arsonist’s intended target was the nearby home of a local criminal. These lines of enquiry were investigated and eliminated. 136. On 3 January 1980 the appellant voluntarily attended Hull’s Central Police Station and told police that he had spoken to a man called “ Steve ” in the Royal Oak Public House, who had told him that he knew who was responsible for the fire. The police did not act on this report. In April 1980, investigation began to focus on homosexual activity in the local area in which it was believed Charles Hastie (aged 15 at the time) may have been involved. On 18 May 1980 the appellant was brought into the police station as a man who had possibly had sexual contact with Charles Hastie. The appellant made a witness statement to the effect that he had been sexually involved with Charles Hastie, who had asked for money following each sexual encounter between them. On 6 June 1980 the appellant was interviewed, along with a number of other local men, at Hull’s Gordon Street Police Station. This was conducted by Detective Superintendent Sagar in the presence of Detective Sergeant Young and Detective Constable Harrod. As set out above, one of the Grounds of Appeal concerns the question of whether the appellant was under arrest at the time. Detective Sergeant Young expressed the view that he was “ well under the influence of drink ” when he was first seen (at 16.45), prior to his arrival at the police station. At the station at 18.00 he was still visibly under the influence of drink. However, by 20.00, when the questioning began, he was deemed to be sober and fit for interview, which was conducted under caution. The appellant said that Charles Hastie had been blackmailing him by threatening to tell the police about their sexual activity. The appellant said he was fed up and angry, and as a result had obtained paraffin from a friend named Thomas Buckley which he used to start the fire at 12 Selby Street. During the course of the interview he said: “I struck another match, it went out. I threw it away and I then got some paper and lit that with another match and that was alright. I put it all through the letter box.” 137. Detective Superintendent Sagar arrested him for murder. The appellant then made a voluntary statement in which he gave a detailed confession about the manner in which he had started the fire and how he had destroyed the paraffin container after he had run off from the scene. Detective Superintendent Sagar said that he contemporaneously recorded this statement which was made between 23.35 on 6 June 1980 and 00.25 on 7 June 1980. On 7 June 1980 the appellant showed police where he said he had destroyed the bottle of paraffin. On the same day, in the presence of his solicitor’s clerk, he identified a plastic bottle that was shown to him by the police as being similar to that in which he had carried the paraffin for the arson, save that his container did not have any moulded rings around the base. On 9 June 1980 the appellant made a second voluntary statement to the effect that he had lied about obtaining the paraffin from Thomas Buckley. He was charged with arson and murder. 138. The appellant highlights that the police were in possession of all the facts set out in the appellant’s confessions, which had been obtained during a 6-month investigation. This particularly relates to the paraffin having been poured through the letter box (a large quantity was used), the spent matches outside the front door, the specific type of matches (Pioneer) that were used, the net curtain inside the door and the pieces of paper found outside the house. It is emphasised that the appellant lied about having obtained the paraffin from Thomas Buckley and the container he claimed he had used and discarded was not found at the location identified by the appellant. The appellant contrasts the different accounts he is alleged to have provided as regards his attitude to Charles Hastie, in that he was inconsistent as to whether he was angry with Charles Hastie or whether he always got on well with him. No one matching the appellant was seen in the vicinity of the fire. It is suggested that it is unbelievable that the appellant remembered details such as the net curtain inside the front door, the paraffin dripping down the outside of the door, the fact that he (definitely) took newspaper with him and that he used Pioneer matches. It is suggested that it would probably have been beyond the physical competence of the appellant to unscrew the cap of the container, push up the letter box, pour in the paraffin, repeatedly light matches to ignite a piece of paper which, when lit, he pushed through the letter box. Doubt is expressed as to the account he gave in interview on this issue: “I just lifted the letter box flap with this hand (indicating his partly paralysed hand) and rested the container on me knee and rested the top on the letter box and poured it in all slow like.” 139. It is suggested there were others with a more compelling motive than the appellant to burn down the Hastie’s home. The appellant, however, showed a close interest in this fire. If their evidence is accurate, on the night of the fire he returned at around 0500 to the friends with whom he was then lodging. He told them, apparently falsely, that he had had a fit and been in hospital (see also a similar explanation given to Mrs Pearson in relation to the fire at Troutbeck House: [128] supra ). The next day he became emotional at reports of the fire and threatened to ‘get’ whoever was responsible. He had admittedly made an anonymous phone call to the police about the fire, and, as set out above, on 3 January 1980 had arrived unannounced at the police station with the story of the man called Steve in a pub. Significantly, this was the first fire to which the appellant confessed. He had previously given an account of his sexual encounters with Charlie Hastie, and there has never been any suggestion that that account was other than truthful and freely volunteered. Hastie’s demands for money associated with those encounters, did, if true, provide a motive for the appellant to set the fire 140. This fire was clearly the result of arson. Although there are arguments to be made regarding the account he gave (including as regards the role of Thomas Buckley), it has by no means been demonstrated that the appellant could not have ignited this fire. Notwithstanding the arguments of the appellant, it has not been established therefore that the appellant either did not commit or could not have committed the offences relating to these premises. Other Events 141. On 10 June 1980 the appellant was produced at Hull Magistrates’ Court and remanded into custody at HMP Leeds whilst police enquiries continued. On 12 June 1980 he wrote to his mother, saying that he had to own up sometime, adding that he was drunk when he did it (clearly a reference to 12 Selby Street). On 14 June 1980, the appellant’s sister visited him at HMP Leeds where he made an implied admission to her that he had set the fire at 12 Selby Street. She asked him whether he had committed the offence and according to her statement to the police, his response was “ do you think I would admit doing a thing like that if I hadn’t done it? ”. On 14 or 16 June 1980 the appellant also wrote to his aunt from HMP Leeds informing her that he had started the 12 Selby Street fire but that he had not intended to kill anyone. 142. During his numerous interviews under caution and voluntary statements, the appellant confessed responsibility for at least 10 other fires which did not form the subject of charges in the Crown Court and which were not formally put to the appellant as offences that he wished to have taken into consideration on sentence. 143. It is of note that the 11 fires covered by the indictment, save for those at 12 Selby Street and 407 Troutbeck House, had been the subject of an inquest that had taken place prior to the appellant’s confessions. In each case the inquest verdict was recorded as misadventure. The fire experts changed their opinions about the cause of the fires after the appellant had confessed. Medical Reports prior to Trial 144. Prior to the appellant’s guilty pleas on 20 January 1981, various medical reports were obtained. Dr McCullough (a psychiatrist) provided a report dated 4 November 1980. He concluded that the appellant suffered from cerebral palsy, had mobility issues and that he had an IQ of 63. Dr McCullough suspected, however, that the appellant functioned at a higher level than his formal IQ. He was able to recall the detail of 17 of the fires, and he told Dr McCullough that there was a sexual element involved when he the set the fires. 145. Dr Sasieni (the senior medical officer at HMP Leeds) wrote reports dated 21 December 1980 and 16 January 1981. In her first report, she recommended the imposition of a hospital order as the appellant suffered from a psychopathic disorder. In the course of her second report, she noted that the appellant said that he had started the fire at 12 Selby Street because Charles Hastie had annoyed him, and that the appellant had said that he had started some of the other fires with another person. 146. Dr Milne (a consultant forensic psychiatrist) provided a report to the defence dated 29 December 1980. He noted that the appellant admitted setting the fires, and that he claimed some of them had been set at the request of others. The motive for the remainder was that the occupants had irritated the appellant. The appellant had also told Dr Milne that the motive for the fire at 12 Selby Streets related to the threats made to him by Charlie Hastie. Dr Milne described the appellant as “ extremely perceptive and alert ”, as well as apt to correct the doctor’s contemporaneous notes by reading them upside down. 147. Prior to the appellant entering pleas of guilty in the Crown Court on 20 January 1981, he was assessed by psychiatrists instructed both for the prosecution and the defence. They agreed that he was fit to plead. Discussion 148. Section 2 of the Criminal Appeal Act 1968 (“ Determination of Appeals ”) (“the 1968 Act”), as amended, provides: “(1) Subject to the provisions of this Act, the Court of Appeal – shall allow an appeal against conviction if they think that the conviction is unsafe; and shall dismiss such an appeal in any other case. (2) In the case of an appeal against conviction the Court shall, if they allow the appeal, quash the conviction. (3) An order of the Court of Appeal quashing a conviction shall, except when under section 7 below the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal.” 149. To follow the cases on appeals after a plea of guilty, it is necessary to sketch, in brief terms, the history to this provision. The Court of Criminal Appeal was created by the Criminal Appeal Act 1907. Section 4(1) provided that the court should allow an appeal if “ the verdict of the court should be set aside on the grounds that it is unreasonable ” or could “ not be supported by the evidence ” or that “ the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law ” or that “ on any ground there was a miscarriage of justice ”. In The King v Forde [1923] 2 KB 400 , 403, Avory J, giving the judgment of the court, seemingly limited the opportunity to appeal under section 4(1) following a guilty plea as follows: “ A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged ”. Such a limitation to these two circumstances alone has, however, not been followed in subsequent cases. 150. By the time of DPP v Shannon [1975] AC 717 ; [1974] 3 WLR 155 , the 1907 Act had been replaced by first the Criminal Appeal Act 1966 and then the Criminal Appeal Act 1968. Those statutes omitted the power to quash a conviction on the ground that a miscarriage of justice had occurred, and the sole available grounds which remained were an unsafe or unsatisfactory verdict of a jury, a wrong decision of a question of law or a material irregularity in the trial. The House of Lords was driven to conclude that the effect of that change was, perhaps inadvertently, to remove the power to entertain an appeal against conviction following a plea of guilty where there was no jury verdict and no wrong decision of law or other material irregularity. The House was considering whether the conviction (upon plea of guilty or otherwise) of one conspirator could in law stand if the only person or persons with whom the indictment alleged that he had conspired is or are subsequently acquitted. The decision of the House was that there was no impediment to the conviction of the first defendant, for the simple reason that the evidence against different defendants may well differ. But Viscount Dilhorne took the opportunity to observe that such a situation was not one that the court in Forde had in mind. His Lordship observed that if, contrary to the decision of the House, the conviction had been vitiated in law “ there can be no doubt that the Court of Criminal Appeal (under the 1907 Act) had power to quash the conviction on the ground that there had been a miscarriage of justice ” (see page 756 F). The statute was later amended by the Criminal Law Act 1977 (s 44) to substitute as the test whether the conviction was unsafe or unsatisfactory, rather than whether the verdict of the jury was, and subsequently the Criminal Appeal Act 1995 (s 2) put the 1968 statute into its present terms. It follows that, except for the period between 1966 and 1977, the Court has had jurisdiction in appropriate circumstances to entertain an appeal against a conviction grounded on a plea of guilty. As analysed below, the authorities reveal that the categories of cases in which an appeal against conviction may succeed following a guilty plea are not closed. 151. Against that background, the focus of the court’s attention in considering an appeal against conviction – indeed, its “ sole obligation ” (per Lord Bingham CJ in R v Hemamali Graham and others [1997] 1 Cr App R 302 , 309) – is on the single question of whether the conviction is unsafe. This determination is dependent on an application of the relevant legal principles to the facts and circumstances of the case. We consider that this, equally, is the correct approach to be applied when determining whether a conviction is safe following an appellant’s guilty plea. Where there has been a plea of guilty, that is plainly a major, and normally a dominant, part of the facts and circumstances of the case. So, it does not follow that the approach to a conviction grounded on a plea of guilty is identical to the approach to a conviction grounded on a jury verdict after a contested trial. 152. As we have set out above at [10], in the course of the judgment in this appellant’s previous appeal, Ackner LJ observed, “Thus, the fact that (an appellant) was fit to plead; knew what he was doing; intended to make the pleas he did; pleaded without equivocation after receiving expert advice although highly relevant considerations to whether a conviction was unsafe or unsatisfactory, cannot of themselves deprive the court of the jurisdiction to hear the applications.” (R v Bruce George Peter Lee [1984] 1 WLR 578, 583; (1984) 79 Cr App R 108, 113). The significance of the guilty plea in this context was reiterated in R v Asiedu [2015] EWCA Crim 714 ; [2015] 2 Cr App R 8 , per Lord Hughes: “19. A defendant who pleads guilty is making a formal admission in open court that he is guilty of the offence. He may of course by a written basis of plea limit his admissions to only some of the facts alleged by the Crown, so long as he is admitting facts which constitute the offence […]. But ordinarily, once he has admitted such facts by an unambiguous and deliberately intended plea of guilty, there cannot then be an appeal against his conviction, for the simple reason that there is nothing unsafe about a conviction based on the defendant’s own voluntary confession in open court. A defendant will not normally be permitted in this court to say that he has changed his mind and now wishes to deny what he has previously thus admitted in the Crown Court.” Later in the judgment: “31. […] Of course a defendant who is confronted by a powerful case may have difficult decisions to make whether to admit the offence or not. He will of course be advised that if he does plead guilty that fact will be reflected in sentence, but that general proposition of sentencing law does not alter his freedom of choice in the absence of an improper direct inducement from the judge, such as there was in R. v Inns (1974) 60 Cr. App. R. 231 . He will always have it made clear to him that a plea of guilty, should he choose to tender it, amounts to a confession. Only he knows the true facts, which usually govern whether he is guilty or not and did so here. If he is guilty, the fact that the choice between admitting the truth and nevertheless denying it may be a difficult one does not alter the effect of choosing to admit it. […]”. 153. In a number of cases, as discussed hereafter, the courts have identified various circumstances when, notwithstanding the admission of guilt, an appellant is entitled to submit that his or her conviction is unsafe. Most, if not all, can be seen to fall into three broad categories of case, albeit we are not suggesting this is necessarily a closed list. The First Category 154. First, there may be a variety of circumstances in which the guilty plea is vitiated. An obvious one is where an equivocal or an unintended plea was entered. Similarly, in R v Swain 1986 Crim L.R. 480 the appellant’s conviction was quashed on the basis of evidence that there was a very real risk that he had been affected by delusion caused by L.S.D. at the time he changed his plea to guilty, and for a short time thereafter. In those circumstances, the court held that the conviction was unsafe and unsatisfactory. 155. Equally, an appeal may be allowed when “ the plea of guilty was compelled as a matter of law by an adverse ( and, we add, wrong) ruling by the trial judge which left no arguable defence to be put before the jury ” (see Asiedu at paragraph 20, as endorsed in R v Fouad Kakaei [2021] EWCA Crim 503 at paragraph 75) . This situation is, however, to be contrasted with the position when there is an adverse ruling by the judge which renders the defence being advanced more difficult, even to the point of being near hopeless, as distinct from unarguable: “ A change of plea to guilty in such circumstance would normally be regarded as an acknowledgment of the truth of the facts constituting the offence charged ” ( per Auld LJ in R. v Chalkley [1998] 2 Cr. App. R. 79; [1998] Q.B. 848, at 94 and 864, and see Asiedu at paragraph 20 ). In such a situation a defendant who contests his guilt can plead not guilty and challenge the disputed adverse ruling on appeal, whereas the defendant who has no defence left to put to the jury cannot. 156. Similarly, a guilty plea might be vitiated by improper pressure, for instance from the judge. In R v Nightingale [2013] EWCA Crim 405 ; [2013] 2 Cr App R 7 , Lord Judge CJ at paragraph 16 observed, “The question is whether (the intervention) by the judge, and its consequent impact on the defendant after considering the advice given to him by his legal advisers on the basis of their professional understanding of the effect of what the judge has said, had created inappropriate additional pressures on the defendant and narrowed the proper ambit of his freedom of choice.” The court determined that the plea of guilty was, in effect, a nullity. And in R v Inns (1974) 60 Cr App R 231, Lawton LJ suggested at page 233 that, “When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter […] is a nullity.” 157. If it is established that incorrect legal advice had been given, this too can result in the conviction being quashed/treated as a nullity, certainly in the restricted circumstances described by Scott Baker LJ in R v Saik [2004] EWCA Crim 2936 : “57. For an appeal against conviction to succeed on the basis that the plea was tendered following erroneous advice it seems to us that the facts must be so strong as to show that the plea of guilty was not a true acknowledgment of guilt. The advice must go to the heart of the plea, so that […] the plea would not be a free plea and what followed would be a nullity.” 158. An appeal can, however, succeed if vitiated by erroneous legal advice or a failure to advise as to a possible defence, even where the advice may not have been so fundamental as to have rendered the plea a nullity, if its effect was to deprive the defendant of a defence which would probably have succeeded. In R v Boal [1992] QB 591 , it was decided that if a possible line of defence is overlooked, exceptionally the court will be prepared to intervene, although only if the defence would quite probably have succeeded and the court concludes, therefore, that a clear injustice has been done (see pp. 599 and 600). This approach was endorsed in R v Mohamed (Abdalla) and others [2010] EWCA Crim 2400 ; [2011] 1 Cr. App. R. 35 (a case in which a defence under section 31 of the Immigration and Asylum Act 1999 had been overlooked) and in R v McCarthy [2015] EWCA Crim 1185 . In the latter case, the court was “ far from confident that when the applicant pleaded guilty to the offence of wounding with intent he had a proper understanding of the elements of the offence ” (see [81]). Similarly, in R v Whatmore [1999] Crim. L.R. 87 the court quashed the appellant’s convictions on the basis that he had received misleading advice on which he relied, rendering the convictions unsafe (he had pleaded guilty to two counts of sexual offences against his daughter, having been led erroneously to understand that those allegations would not, as a consequence, feature as part of the evidence during another trial). Here the pleas were in effect induced by misleading legal advice. Waller LJ indicated at page 9: “[…] the defendant had not admitted his guilt and was pleading on the basis that if he pleaded, the daughter's allegations would never become part of the case at all and he was content, in effect, to take a sentence which he had already served in return for pleading to something which he did not admit. In those circumstances, as it seems to us, it cannot be said that the conviction on those pleas are safe.” 159. In R v P K [2017] EWCA Crim 486 Sir Brian Leveson P. emphasised the approach just described, namely that the Court of Appeal would only intervene on the basis that the conviction was unsafe when it believed the defendant had been deprived of what was in all likelihood a good defence in law, which would quite probably have succeeded and, as a result, a clear injustice had been done. The Second Category 160. There is a distinct category of cases which do not depend on the circumstances in which the plea was entered or indeed upon whether the accused is innocent or guilty, but instead arise when “ there (is) a legal obstacle to his being tried for the offence, for instance because the prosecution would be stayed on the grounds that it is offensive to justice to bring him to trial. Such cases are generally described, conveniently if not entirely accurately, as cases of “abuse of process ”; in these circumstances “ a conviction upon a plea of guilty is as unsafe as one following trial ” (see Asiedu at paragraph 21). By way of example, entrapment, if made out, can amount to unfairness which would render it an abuse of process to try the defendant (see Asiedu at paragraph 25). So, one example of a case coming withing this second category is when an abuse of process is established such that renders it unfair to try the defendant at all. As Lord Woolf CJ observed in R v Togher & others [2001] 1 Cr App R 33 at paragraph 31, “ Certainly, if it would be right to stop a prosecution on the basis that it was an abuse of process, this Court would be most unlikely to conclude that if there was a conviction despite this fact, the conviction should not be set aside”. The court in Togher at page 161 G approved what it described as the “ broad ” approach adopted in R v Mullen [1999] 2 Cr App R 143; [2000] QB 520, per Rose LJ: "... for a conviction to be safe, it must be lawful; and if it results from a trial which should never have taken place, it can hardly be regarded as safe. Indeed the Oxford Dictionary gives the legal meaning of 'unsafe' as 'likely to constitute a miscarriage of justice’.” 161. A further type of case within this category is when there is a fundamental breach of the accused’s right under article 6 of the European Convention on Human Rights to a fair and public hearing by an independent and impartial tribunal. It is unnecessary for the defendant to establish prejudice in this context (see R v Ilyas Hanif [2014] EWCA Crim 1678 and R v Abdroikov, R v Green, R v Williamson [2007] UKHL 37 , in which latter case Lord Bingham observed at paragraph 27 that “[…] even a guilty defendant is entitled to be tried by an impartial tribunal […]”). The Third Category 162. In the case of category 1, the ordinary consequences of the public admission of the facts which is constituted by the plea of guilty are displaced by the fact that the plea was vitiated, whether in fact or by reliance on error of law. In the case of category 2, the ordinary consequences of the public plea are irrelevant, because the defendant ought not to have been subjected to the trial process (or to that form of trial process) at all. But ordinarily, the plea of guilty, by a defendant who knows what he did or did not do, amounts to a public admission of the facts which itself establishes the safety of the conviction. There remains, however, a small residual third category where this cannot be said. That is where it is established that the appellant did not commit the offence, in other words that the admission made by the plea is a false one. 163. In R v John Verney (1909) 2 Cr App R 107 , the appellant’s conviction for sacrilege, on his guilty plea and for which he received 12 months’ imprisonment with hard labour, was quashed on the basis that it was established that he had been in prison on the relevant date and thereby he had been unable to commit the offence. R v Barry Foster [1985] 1 QB 115 ; 79 Cr App R 61 concerned an appellant, a man of previous good character and low intelligence, who in 1977 was interviewed by the police on several occasions concerning the rape and attempted rape of two 10-year-old girls (counts 1 and 4 respectively). He was alone for some of the interviews, and he was otherwise accompanied by his mother or a social worker. He was made the subject of an order under sections 60 and 65 of the Mental Health Act 1959. Thereafter, in December 1981 another man (Pearce) pleaded guilty to six offences against young girls, and he asked for 70 similar offences to be taken into consideration. Pearce’s admissions showed conclusively that he had committed the offence in count 1 (rape) but he denied having committed count 4 (attempted rape). Indeed, during the appeal, counsel for the Crown indicated that he was instructed to say that in the opinion of the Director of Public Prosecutions the appellant was innocent of count 1. Furthermore, on count 4 the Crown conceded the conviction should be quashed and the court thereafter concluded (at page 72) that on the particular facts of the case “ no jury properly directed could safely come to the conclusion that this appellant was guilty of count 4.” Watkins LJ indicated that the court should only intervene in a case of this kind if the grounds were sufficiently compelling (page 67). 164. Scott Baker LJ described the approach to be taken to this situation in Saik at [51] as when there is “ fresh evidence to show he was not guilty of the offence, [which is] a classic case of matters going to the safety of the verdict ”. 165. Similarly, in R v Noel Jones [2019] EWCA Crim 1059 , an appeal was allowed against the appellant’s conviction for manslaughter on the basis that later DNA evidence “ wholly exonerated (the appellant) of involvement in this terrible crime ”. There had been only one attacker, who it was later demonstrated was someone other than the appellant. The latter had seemingly pleaded guilty because of pressure that he felt at the time. 166. There are, however, two somewhat countervailing decisions about which we need to make some observations. 167. The first is R v Lee (the decision of 21 November 1983 in relation to the present appellant, set out above). The court, without considering whether an appeal following a guilty plea is to be approached in the same way as an appeal following a contested trial, adopted at page 114 the formulations provided by Lord Kilbrandon and Lord Diplock in Stafford v Director of Public Prosecutions , an appeal which focussed entirely on appeals following a contested trial (see [11] above). 168. The second is R v Brady [2004] EWCA Crim 2230 . The appellant was identified by a police officer from CCTV footage as one of a pair of robbers at an off licence. She was arrested, confessed to the crime (along with a significant number of other offences) in the presence of her solicitor and pleaded guilty. In due course, two witnesses to the robbery said that they had known the appellant for many years and she had definitely not been one of the robbers. Significant questions arose as to the reliability of the identification by the police officer. This court, on an appeal, did not require the two witnesses or the appellant to give evidence. It was accepted that the evidence of the witnesses was capable of belief. The appellant, for her part, had committed such an abundance of offences she could not recall if this was one of them. The court did not analyse or apparently receive submissions on the test to be applied when it is submitted a conviction should be quashed following a guilty plea. The court simply observed at [14], “ Once (the evidence from the two witnesses) is in and it is accepted that the contents of the statement are capable of belief, it seems to us simply to follow that the appellant’s conviction for robbery is unsafe notwithstanding her plea of guilty ” and at [15] “ If she pleaded guilty out of some motive unknown to the court, it would plainly not save the safety of the conviction ”. This latter passage prompted the editors of Archbold Criminal Pleading, Evidence and Practice 2022 Ed at 7-46 to note that the court in Brady had observed that “ once the fresh evidence had shown the conviction to be unsafe, it mattered not what the reason for an unequivocal plea had been. ” 169. In our judgment, there is a significant difficulty shared by these two decisions ( viz. Lee and Brady ). The question of whether the appellant’s conviction is unsafe – following public pleas of guilty, tendered in open court by a defendant who did not lack capacity, who knew what he had and had not done, and had been in receipt of appropriate legal advice – cannot simply be answered by reference to the approach that has historically been applied to convictions by a jury following a not guilty plea. That would be to ignore the effect of the guilty plea as an informed public admission of the offence. 170. In the context of an appeal against a conviction founded on the jury’s assessment of the evidence, Lord Judge CJ sounded this warning in R v Pope [2012] EWCA Crim 2241 ; [2013] 1 Cr App R 14 : “14. […] As a matter of principle, in the administration of justice when there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury. If, therefore, there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or may be unsafe. Where it arises for consideration at all, the application of the “lurking doubt” concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury.” 171. It can nevertheless exceptionally occur that a reasoned legitimate doubt may be entertained by this court about the verdict reached by the jury following disputed evidence, and this may be sufficient to establish that the conviction is unsafe. But following a freely made guilty plea, the conviction does not depend on the jury’s assessment of disputed evidence. The evidence has never been heard, still less tested. It cannot be appropriate to enquire how it might have emerged and might have been assessed if there had been a trial. A submission that the evidence leaves a doubt about the guilt of the defendant is simply inappropriate. In such a case, of a free and informed plea of guilty, unaffected by vitiating factors, it will normally be possible to treat the conviction as unsafe only if it is established that the appellant had not committed the offence, not that he or she may not have committed the offence. Therefore, the test is not that of “ legitimate doubt ”, still less a “ lurking doubt ”, but instead it must be demonstrated that the appellant was not culpable. This is essentially consistent with four of the authorities set out above. In summary, the decision in Verney was based on the court’s conclusion that the appellant could not have committed the offence because he had been custody at the relevant time. In Barry Foster , although Watkins LJ did not describe the approach in precisely these terms, he nonetheless set a high test when he suggested that no jury could be sure of the appellant’s guilt, adding that the court should only intervene in a case of this kind if the grounds were sufficiently compelling. I n Saik , fresh evidence demonstrating the appellant was not guilty of the offence was said to represent a classic example of material that potentially undermined the safety of the verdict. The DNA evidence in Noel Jones wholly exonerated the appellant. 172. As Lord Salmon observed in DPP v Shannon [1975] AC 717 at page 769, “ a plea of guilty is equivalent to a conviction ”, where entered, we would add, by an individual who knows whether he or she committed the offence. It would be wrong in principle for a defendant to be entitled freely to enter a guilty plea, thereby convicting himself or herself, only later to seek to appeal that conviction simply by producing evidence that might have led a jury to doubt his or her guilt if there had been a trial, or by subjecting the evidence which might have been led at trial to a theoretical paper analysis in the absence of the witnesses. The objectionable nature of such a course is demonstrated in the instant case where many features of the evidence have never been and are now incapable of being tested. Therefore, although we consider the decisions in Lee and Brady were no doubt correctly decided on their facts given the strength of the evidence demonstrating the appellants had not committed the offences in question, the test applied by the court in both cases was incorrect. In consequence, with respect to the editors of Archbold, the observation at 7-46 concerning Brady is in our view unjustified and fails to reflect the correct approach. 173. An important common element across the three categories, therefore, is that the circumstances relied on by the appellant need to be established by him or her. That is merely an application of the normal rule that it is for an appellant to demonstrate that his conviction is unsafe. By way of summary, for the first category, the matters vitiating the plea must be demonstrated ( e.g. that the plea was equivocal, unintended or affected by drugs etc. ; there was a ruling leaving no arguable defence; pressure or threats narrowed the ambit of freedom of choice; misleading advice was provided or a defence was overlooked). For the second category, it must be shown that there was a legal obstacle to the defendant being tried for the offence or there was a fundamental breach of the accused’s right under article 6 (whether he or she was guilty or not), and for the third category, it needs to be established that the appellant did not commit the offence. If that standard is not met, we would not expect an appeal against conviction following a guilty plea to succeed. 174. We have borne in mind that Mr Barnes placed some considerable reliance on R v McKenzie (David Stuart) (Practice Note) [1993] 96 Cr App R 98 . In that case the appellant was convicted by the jury of two counts of murder and two counts of arson. The convictions for murder depended entirely on his confessions to the two murders, in circumstances when he had confessed to 12 other killings, none of which the Crown believed he had committed. The appellant denied responsibility for the killings, suggesting that although he “ felt ” guilty, he knew he had done nothing; he, therefore, drew a distinction between feeling he had done what was charged and knowing that he had not committed the offences. However, it would appear that by the end of his evidence the appellant’s stance had changed in that he said he did not know if he had killed the two victims but felt that he had. The appellant suffered from a significant degree of mental handicap: he had a personality disorder and he was mentally abnormal. 175. The court decided at page 108: “[…] applying the guidance given by this Court in Galbraith (1981) 73 Cr.App.R. 124 ; [1981] 2 All E.R. 1060 , we consider that where (1) the prosecution case depends wholly upon confessions; (2) the defendant suffers from a significant degree of mental handicap; and (3) the confessions are unconvincing to a point where a jury properly directed could not properly convict upon them, then the judge, assuming he has not excluded the confessions earlier, should withdraw the case from the jury. The confessions may be unconvincing, for example, because they lack the incriminating details to be expected of a guilty and willing confessor, or because they are inconsistent with other evidence, or because they are otherwise inherently improbable. Cases depending solely or mainly on confessions, like cases depending upon identification evidence, have given rise to miscarriages of justice. We are therefore of opinion that when the three conditions tabulated above apply at any stage of the case, the judge should, in the interests of justice, take the initiative and withdraw the case from the jury.” 176. The decision in McKenzie accordingly does not assist in the present case. It essentially concerns the admissibility of evidence at trial, as opposed to the wholly different circumstances when a defendant enters public pleas of guilty, which are tendered in open court when he did not lack capacity, he knew what he had and had not done, and he was in receipt of appropriate legal advice. 177. Similarly, the appellant relies on R v King (Ashley) [2000] 2 Cr App R 391, a case in which the appellant – following a trial – was convicted on his own confessions, which had been improperly obtained. The appellant was highly abnormal in ways that cast doubt on the reliability of what he had said. The court determined that in a case in which the only evidence against a defendant was his oral confession which he later retracted, and it appeared that the confession had been obtained in breach of the rules prevailing at the time and in circumstances which denied the defendant important safeguards later thought necessary to avoid the risk of a miscarriage of justice, there would be prima facie grounds for doubting the safety of the conviction. For the reasons we have set out above in relation to R v McKenzie , this decision does not assist in a case in which the appellant freely entered guilty pleas. 178. The error in the argument, tempting as it may appear, is to say that if a proper doubt can be raised about an antecedent confession to the police, this carries over to render unsafe a conviction based not on acceptance by the jury of that confession but on a freely entered unvitiated plea of guilty, tendered after the defendant has been advised that he is not bound by anything said, or alleged to have been said, to the police. That does not begin to follow. 179. In the present case, apart from the new ESDA and linguistic evidence, the material for challenging the admissibility of the confessions was available in 1980 as it is now. It is apparent that the highly experienced counsel acting for the appellant were fully apprised of it. The Judges’ Rules and Administrative Directions, as analysed below at [189] et seq. , were available to be deployed in the submission either that the confessions were not voluntary or that the circumstances amounted to oppression of the appellant and that it would be unfair to him to admit them. It is clear from the evidence of the appellant given to this court in 1983, as well as implicit in what counsel said to the judge in chambers, that their advice to him was that there was ample scope for such challenge, and that he could therefore (and maybe should therefore) plead not guilty. The pleas of guilty were thus tendered when fully advised of the possible available defence and to the effect that he was not bound by the confessions recorded by the police. If there was reason to think that the appellant did not know whether he had committed the offences or not, that might present a different case. But the expert evidence which we have heard and set out above at [25] makes it clear that whatever his intellectual limitations, he knew what he had done and had not. 180. There is no question in this case of factors vitiating the appellant’s pleas of guilty. There is no suggestion that it fell into the class of case where it was wrong in law to put him on trial at all. We are satisfied that on the facts of this case his convictions can only be unsafe if it is established that he did not commit the offence. We set out below, the conclusions which we have reached, together with our conclusions on, Mr Barnes’s 10 points and the grounds of appeal. Point 1: the appellant 181. It is undoubtedly the case that the appellant has experienced physical challenges throughout his life. We have set out a summary of these various difficulties above, based particularly on a selection of the contemporary records. He was, nonetheless, able to walk considerable distances, something he regularly used to do in Hull. There is no evidence demonstrating he was incapable of carrying or emptying a paraffin container or lighting a match. Although we accept that some particularly difficult physical manoeuvres would have been beyond his capability, in our view, in the absence of particular circumstances, the basic steps that would have been necessary to commit arson at domestic premises would have been within the appellant’s capability. There may have been an element of awkwardness, but not such as to prevent him – save in one instance – from igniting these fires. Accordingly, we do not accept – as a broad proposition – that his physical disabilities would have made committing these various arson attacks impossible, thereby bringing the convictions within the category 3 circumstances when an appeal against conviction following an unequivocal guilty plea should be allowed. We repeat that there is one exception to this conclusion, namely 4 Belgrave Terrace. 182. We have equally borne in mind that the appellant was psychologically vulnerable at the time of his confessions. However, that does not detract from the fact that he pleaded guilty to each of these offences of his own free will, having received what would have been careful and accurate advice from eminent and highly experienced leading counsel, supported by junior counsel and solicitors. It is to be emphasised that Mr Ognall’s visit to the judge in chambers reveals the extent to which he was alive to the need to advise the appellant carefully on the implications of his proposed guilty pleas. It is not submitted that he was unfit to plead, that he was incorrectly or poorly advised by Mr Ognall, that he was afforded insufficient time to consider the course that he was going to take or that the judge or counsel put him under any kind of unfair pressure. Point 2: the centrality of the confessions and Point 5: the court should “consider all the evidence in relation to all the fires” 183. The prosecution’s case against the appellant was dependent on his confessions in interview and in the voluntary statements. However, as just set out, the convictions were based on his freely-entered guilty pleas, not on the confessions. The same applies to the absence of other evidence linking the appellant to the fires, such as testimony indicating that someone of his description with a container was seen in the environs of the fires at the relevant time. Similarly, there are only a limited number of instances for which a motive for the arsons on the part of the appellant have been identified. These points would all have been apparent at the time the guilty pleas were entered and the appellant undoubtedly received detailed advice on them from his then legal team. 184. Central to point 5 is the proposition that if the confession to one of the fires is demonstrably unreliable ( e.g. the confessions to Wensley Lodge), this will trigger a “domino” effect, fatally undermining the appellant’s credibility vis-à-vis his confessions to each of the other fires. For the reasons we have already set out, we consider this represents a wrong approach to the question of whether the convictions are safe. The appellant’s personal lack of reliability as a narrator of events does not establish that he was not guilty of these offences, given his unequivocal pleas. We do not in any event endorse the ‘domino’ theory. It is indeed possible to accept that an offender with a personality disorder who has committed a number of offences may be attracted to the image of himself as a serial offender and add confessions to further offences which he did not commit, especially if he is apt to be untruthful or unreliable as a narrator. It does not follow that in doing so he puts in doubt his confessions to all offences and it is much harder to envisage a wholly innocent suspect confessing in considerable detail to a great many offences when he committed none of them at all. Points 3: the concerns expressed by Mr Ognall as to the appellant’s reliability and Point 6: the appellant is an unreliable narrator of events 185. Mr Ognall’s Note has provided support for Mr Barnes’s contention that the appellant is an unreliable narrator of events, as evidenced for instance by the various versions he provided as to what occurred, along with his changes of instruction. He gave mixed accounts as to the reasons for committing the offences and his reactions to some of the arsons. However, although we have reflected on the suggested need to consider his various accounts globally, along with the views of Doctor Snowden, we simply repeat that his guilty pleas were unequivocal. His unreliability as a narrator in the lead-up to his pleas on 20 January 1981 does not establish that he did not commit these offences. Point 4: 9 of the 10 fatal fires were determined at the time to have had an accidental cause 186. Although the contemporary view (save for Selby Street) was that the fires were accidental, and although Dr Cox and Ms Griffiths do not exclude accident as the cause for the remaining fires – indeed, for some of them they prefer that explanation – the critical question in this context is whether it has been established that the appellant did not commit these offences. A possible, or preferred, accidental cause does not lead to that conclusion. Point 7: the expert evidence and Point 8: the analysis of the fires 187. Once again, this material does not demonstrate that the appellant was not guilty of these offences. The expert forensic linguistic evidence, for instance, whilst undermining the suggestion that the confessions were written in their entirety at the appellant’s dictation, fails to demonstrate that he did not commit these various crimes. Similarly, the appellant’s vulnerability at the time of the interviews and statements under caution ( viz. his low IQ, learning difficulties, personality disorder and other personal characteristics), coupled with his potential “ compliance ”, does not demonstrate the appellant was not responsible for these offences, as attested by his unequivocal guilty pleas. The same applies to the ESDA evidence. 188. Save for Selby Street, the evidence of Dr Cox and Ms Griffiths does no more than indicate that accident is either a possible or a preferred explanation for the fires. Point 9: the breach of the Judges’ Rules/PACE Codes of Practice 189. It is suggested that there was clear non-compliance with the Judges’ Rules and Associated Administrative Directions in the course of the interviews with the appellant and when taking the statements under caution ( viz. the absence of a parent or equivalent adult when he was interviewed given his vulnerability (a mental handicap, applying, as Mr Barnes suggests, a “ common sense and fair-minded approach to the issue ”)); the lack of breaks, including for refreshment; the failure to provide an opportunity to speak on the telephone to a lawyer or a friend; and the failure to take down the statements under caution in his own words). It is contended that the appellant was entitled to the protections provided by the Codes of Practice under PACE and particularly Code C, paragraph 11.15. The essence of the argument is that the fairness of the investigatory process leading to the guilty pleas is to be judged by today’s standards. 190. There is particular complaint about the first interview at Gordon Street Police Station at 20.05 on Friday 6 June 1980 and which continued until 23.35, when the voluntary statement was commenced. That process ended at 01.25 on 7 June 1980 (an overall period, therefore, of five and a half hours). The appellant had clearly been drinking earlier and may well still have been adversely affected at the relevant time. 191. Specifically, the appellant contends: (a) that contrary to Administrative Direction 4A, the appellant was interviewed without the presence of some person other than a police officer to look after his interests; this applied to all the interviews except for one occasion, later in the process, when his solicitors attended; (b) that Code C, promulgated under PACE, would have mandated after 1984 the presence of an appropriate adult at the interviews of the appellant; (c) that contrary to Administrative Direction 7(b) the appellant was not informed during the first interviews on 6-7 June 1980, either orally or by way of a notice displayed in the police station, of his right to speak to a solicitor; (d) that contrary to Administrative Direction 3, the appellant was not afforded, at those first interviews on 6-7 June, reasonable arrangements for comfort and refreshment, alternatively that contrary to Administrative Direction 1(b) no record was kept of any breaks or refreshment; (e) that contrary to Rule IV(d), the written statements under caution were not taken down in exactly the words spoken by the appellant, without questions other than such as were needed to make them coherent, intelligible and relevant, and without prompting. 192. The status of the Judges’ Rules was well established at the time of these interviews, and had been for many years. They had existed in their then current form since 1964, and the latest edition had been published in a Home Office circular in 1978. The Rules themselves had been approved by all the Queen’s Bench judges. The Administrative Directions, issued by the Home Office alongside them, were frequently considered by the judges in individual cases. The legal position was oft re-stated in decisions of this court, of which a principal example was R v Prager (1972) 56 Cr App R 151. Notwithstanding their name, the Judges’ Rules were not rules of law. But they, and the associated Directions, were official guidance issued to police officers with the object of providing means of keeping interviews with suspects fair. Infringement of either did not necessarily render the interviews of a suspect inadmissible. The test of the admissibility of any confession was, as the Rules themselves explicitly stated, whether it was voluntary, in the sense that it had not been obtained by fear of prejudice or hope of advantage exercised or held out by a person in authority, or by oppression. But the Rules and Directions were very relevant in two ways. First, a breach might be relied on, and often was, as indicating that the court could not be sure that a confession was voluntary, and if that was the conclusion reached, the consequence would be that the interviews would be excluded as inadmissible. Second, many interviews were relied upon not only as confessions, but for other potential evidential force; for example, as amounting to the advancement of a false account which was subsequently contradicted by other evidence. In either case, the court always retained the power to exclude any evidence relied upon by the Crown on the grounds that its prejudicial effect outweighed its probative value – see Noor Mohamed v The King [1949] 1AC 182 . The subsequent codification of that jurisdiction in section 78 of PACE put the power in simpler language, that admission would have such an adverse effect on the fairness of proceedings that it should be refused, but that did not significantly alter the way it was exercised. The provisions of the Judges’ Rules and associated Directions were thus routinely relied upon in submissions that the circumstances had amounted to oppression of the suspect and/or had amounted to significant unfairness to him, and for the contention that the interview content should as a result be ruled inadmissible. Whether the breach(es) alleged led to exclusion or did not was a matter for the judgment of the trial judge. A supporting person 193. The provisions relating to the presence of a supporting person at interviews were contained in Administrative Direction 4A: “If it appears to a police officer that a person whom he intends to interview has a mental handicap which raises doubt as to whether the person can understand the questions put to him, or which makes the person likely to be especially open to suggestion, the officer should take particular care in putting questions and accepting the reliability of answers. As far as practicable and where recognised as such by the police a mentally handicapped adult should be interviewed only in the presence of a parent or some other person in whose care, custody or control he is or of some person who is not a police officer.” 194. The expression “mental handicap” was not a legal term of art, and the different language of the then Mental Health Act 1959 was not adopted. The key was that the Direction targeted a mental limitation which raised doubt as to the ability to understand questions or which made the suspect likely to be especially open to suggestion. That latter word was used before the much more recent refinement by psychiatrists and psychologists into the separate concepts of suggestibility and compliance (see [25] above); it clearly comprised both, and meant an especial risk that the suspect might be apt to say what he thought the interviewer wanted. The Direction bit when the interviewing police officer realised the existence of the mental handicap. 195. PACE was not passed until some years after this appellant was interviewed, and indeed some years after his trial. The Act preserved the common law rule that a confession was admissible only if shown to be voluntary (section 76), adding the requirement that it should also be shown not to have been made in consequence of anything said or done which might render it unreliable. By very detailed Codes of Practice promulgated under the Act, and made statutorily relevant to any decision on admissibility, there were wholesale new procedures for (inter alia) the conduct of police investigations. The scope of the Codes has increased with the passage of time, but Code C, governing the interviewing and treatment of suspects, has contained since its inception a specific mandatory requirement at C:11.15 that juveniles and persons who are mentally disordered or otherwise mentally vulnerable must not (save for specified exceptional circumstances involving urgency) be interviewed without the presence of an “appropriate adult”. PACE also enacted a new provision in section 77 which required the judge to warn the jury of the special need for caution if the case depended substantially on confessions made by a mentally handicapped person without the presence of an independent person. As with the Judges’ Rules, a breach of the codes of conduct did not necessarily lead to the exclusion of interview evidence, as indeed section 77 expressly recognises, for else it would be unnecessary. The test was (and is) whether the admission of the evidence would be unfair in the context of the proceedings as a whole. 196. Both the extent of any mental limitations on the part of the appellant, and the level of knowledge of them in the police officers dealing with him, were and still are uncertain. The knowledge of the police, and specifically of Detective Superintendent Sagar, will inevitably have developed as he had greater dealings with the appellant. He must have known rather more about him when he embarked on the second stage of the interviews on 26 June 1980 than he did when he first spoke to him on 6/7 June. 197. As at the time of the first interviews, relating to Selby Street, on 6/7 June 1980, the police records contained a statement from Detective Sergeant Spink. He had taken a witness statement from the appellant on 4 January 1980 when he arrived unannounced at the police station and offered to give information about the Selby St fire, about a month after the event. Mr Spink recorded that the appellant “ is obviously of low intelligence ”, as well as that he was under the influence of alcohol but reasonably coherent. It seems likely that the police were also aware that the appellant had had a highly disturbed upbringing and had spent most of his childhood in care; this was referred to in his witness statement of 18 May 1980 concerning his relationship with Charles Hastie. It may well be that it was known that he had attended a special school. 198. By the time of the second stage of the interviews, beginning on 26 June 1980, the police had access to a supplementary witness statement by Mrs Fenton (Troutbeck House) in which the appellant was ascribed the local nickname “Daft Peter”. Mr Sagar had spoken personally to Mrs Fenton on 10 or 11 June, for, following the announcement of the appellant being charged with Selby Street offences, she was accusing him of causing her own fire. It seems likely that she might have told him then of the nickname. It also seems very likely that, having had admissions to Selby Street and intending to interview him about other fires, some research would have been done on his background. There does not, however, appear to have been any formal psychological assessment of his intellectual abilities until later, when Dr Sasieni and Dr McCulloch reported in August and October/November 1980, after all the confessions had been made. 199. Even now, forty years on, the experts differ somewhat in their assessments of the appellant’s intellectual abilities, although it is clear to all that his performance has improved over the years (see [25] above). 200. The experts are agreed that if the stricter rules created by PACE had applied, the appellant could not be interviewed in the absence of an appropriate adult without breach of Code C 11-15. His condition would properly have fallen within the expression “vulnerable” used in that Code. 201. We consider below the consequences of Direction 4A and/or PACE Code C for the present appeal. 202. Quite apart from the appellant’s mental condition, it is relevant to have in mind the circumstances in which the first interviews on 6/7 June 1980 were conducted. The appellant had undoubtedly been drinking. The barmaid Mrs Cooper said that he had already had a lot to drink by about 13.00/14.00 in the early afternoon. When he arrived at the police station later in the afternoon, both Inspector Holmes and Detective Sergeant Harrod saw that he was the worse for drink. He was given until 20.00 to sober up, and the police evidence was that there was by then no indication that he was still adversely affected; he himself assented in the course of the first interview to the proposition that he was alright now. The interview which then ensued ran from 20.05 until 01.25, or a little after. So there was a sustained interview lasting about five and a half hours with a man who had been drunk the previous afternoon. The appellant was not alone in being interviewed; a number of other men who might have had relationships with Charles Hastie were seen also. Except for the obvious usefulness of continuing for at least some time once admissions had begun in order to obtain a single account, there was no particular urgency about the interview taking place that day. Access to a solicitor 203. Administrative Direction 7 stipulated: “(a) A person in custody should be supplied on request with writing materials. Provided that no hindrance is reasonably likely to be caused to the processes of investigation or the administration of justice: he should be allowed to speak on the telephone to his solicitor or to his friends; […] (b) Persons in custody should not only be informed orally of the rights and facilities available to them but in addition notices describing them should be displayed at convenient and conspicuous places at police stations and the attention of persons in custody should be drawn to these notices.” 204. There is no sign that at the time of the first interviews on 6/7 June the appellant was advised of his right to speak to a solicitor if he asked to do so, and because the police station being used was a temporary or semi-decommissioned one without cells there were no notices such as are contemplated by the Direction. On the day after the first interview (Saturday 7 June 1980) Detective Superintendent Sagar spoke to the appellant to advise him that it was in his interests to contact a solicitor and indeed pressed him to choose a name. The Superintendent then set about contacting the chosen solicitor, and on discovering his office was closed for the weekend, liaised with him at home. Mr Sagar’s witness statement recorded that the solicitor came to the police station and saw the appellant at 12.45 that day, who confirmed in general terms that he had told the police the truth; there seems no possible reason to suppose that so specific and checkable an assertion could be false. Thereafter, the same solicitors acted for the appellant throughout; they were kept informed of further interviews, and visited the appellant from time to time. It follows that there was a breach of Direction 7 on 6/7 June, but not thereafter. 205. The solicitors did not attend the further interviews except for the one on 29 July 1980, when the appellant confirmed his admissions to them. They were however clearly in frequent touch with the appellant and saw all his written statements. From time to time in the subsequent interviews he made reference to their having advised him that he need say nothing, and indeed that he could repudiate anything he had said thus far. 206. On the second day of the second tranche of interviews (27 June 1980) he responded to the initial caution in these terms: “Yes, that doesn’t matter cause I’m going to tell you anyway. My solicitor told me not to speak to you if you came to see me, but I’ve got it on my mind; it’s on my mind, not his. He can go and get fucked cause I’m going to tell you in any case.” He went on to make admissions to several further fires, beyond those to which he had confessed the previous day (which had been Troutbeck House, West Dock Avenue and Askew Avenue). 207. Four days later on 1 July 1980 he began a long written statement under caution by saying: “See you know Mr. Gunby by came to see me last night and he told me I could make a statement to him denying that the statements and that I have made to you were true and he said that I could deny doing any of them, but see I have and I have told you the truth.” After finishing that statement, he told the police that Mr Gunby had frightened him by talking of the likely sentence, but that he liked his colleague Mr Pearce. 208. On 22 July 1980, in the course of a long statement under caution dealing generally with fire setting, the appellant said: “You know Mr Gunby and Mr Pearce asked me again if I wanted to retract the statements I’ve made to you well I want you to put this down Mr Sagar I don’t want to retract my statements because they are true.” 209. On 24 July 1980, speaking to Detective Superintendent Sagar about personal matters, the appellant said: “Mr Sagar, Mr Pearce has been to see me and he’s gone through my statements and showed me where I’ve said seven times that I’ve intended to kill people. Well I want to make a statement saying I didn’t intend killing and I don’t think I really said ‘intended to’ in my statements.” 210. As described extensively above, it is the appellant’s case now in 2021 that it is not possible to rely on the integrity of the recorded contents of his statements either in interview or in written statements, because of the combination of the new ESDA evidence, the expert evidence of Professor Coulthard to the effect that the records contain indications of prompting questions and his unreliability as a narrator. However, it is to be noted that when it comes to the observations made about his solicitor, the appellant made it clear in sworn evidence, both written and oral, before this court in 1983, that although he had not said much if not all of what was attributed to him, the exception was a written statement under caution made on 25 July 1980. That latter statement, the appellant told the court, comprised his own words. Those words were: “Yesterday my solicitor came down and saw me and he showed me where I've said in my statement that I meant to kill people and that I'd said it seven times, well what I want to say is that I never intended to kill anybody. I set fire to the houses but my intention was fire and only fire. I just didn’t bother about people who was in the houses. See that’s better. See Mr Pearce has picked out quite a few bits in my statements and told me that in some of my sentences I have been digging my own grave. Well I just want to say that my intention has been fire only. He has told me that it would be best for me to say nothing. He told me that when he first saw me in Gordon Street Police and he told me again yesterday. See Mr Pearce is only trying to help me I know but I'm sick of people telling me what to do. I'm telling truth in my statements so sooner its all over the better.” It must follow that the other observations about his dealings with his solicitors are also genuinely his own. 211. A month after that, on 28 August 1980, in the course of a further interview about Humber Buildings, the appellant repeated the same kind of remark: “See Gunby and Pearce was on about you writing a lot of ‘sees’ in my statements and that I hadn’t said things, but fucking hell I know I talk like that and you two know. I wish you would tell them silly bastards cause it’s true. They seem to think you was making it up.” It must similarly follow that this records the appellant’s genuine protestation. Comfort and refreshment 212. Administrative Direction 3 was in these terms: “Reasonable arrangements should be made for the comfort and refreshment of persons being questioned.” 213. There is no record in any of the interviews or in the contemporaneous statements of the officers to any break for refreshment. The appellant relies particularly on the long first interview on 6/7 June which lasted approximately five and a half hours. A later statement of Detective Superintendent Sagar, made in 1983 for the first appeal, asserted that before the statement under caution was begun cups of tea were brought in for the three participants, but did not suggest any other refreshment or breaks. 214. It follows that there are good grounds for believing that there was a breach of Direction 3. Recording of actual words 215. Rule IV(d) of the Judges’ Rules provided as follows in relation to statements under caution: “Whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters; he shall not prompt him.” 216. As set out above, the appellant relies on the agreed expert evidence now available that various pages of the written statements under caution can be shown by ESDA analysis to have been rewritten. The previous versions of those pages discoverable show amendments which do not alter the sense and the re-writing cannot be shown to be sinister. We have addressed this aspect of the appellant’s submissions above. 217. As analysed above, Professor Coulthard’s evidence is to the effect that at a number of points the written statements under caution display linguistic signs of incorporating responses to questions rather than dictation simpliciter. The examples he has identified are consistent with questions within the scope of Rule IV(d) – i.e. such as were needed to make the statement coherent, intelligible and relevant, although Professor Coulthard suggested that some of them were equally consistent with the introduction by the police officers of anticipatory explanations designed to give a colour of authenticity to the content. The appellant, however, relies on these conclusions to submit that this court cannot be confident that either interview records or statements under caution were honestly made or accurate. Judges’ Rules, Directions and PACE: conclusions 218. The principal submission of the appellant, supported by the reasoning of the CCRC, runs as follows: a. the case against the appellant in 1980 depended on his confessions to the police; without those confessions there would have been no case to answer; b. there were breaches of the Judges’ Rules and Administrative Directions which ought to have led to the exclusion of the evidence of the interviews and statements under caution; if the first interviews on 6/7 June were inadmissible, it follows that the later ones were also – reliance is placed on R v Neil 1994 Crim LR 441; c. even if that were not clear from the Judges’ Rules and Directions alone, the safety of the convictions should be judged by modern standards of fairness, and in particular by PACE Code C which would have mandated the presence of an appropriate adult at the interviews; the absence of such a person means that the police evidence ought to have been treated as inadmissible and without it there was no case to answer; d. as summarised in paragraph 27 above, the court cannot in any event be confident that the interview records and statements under caution are honest and accurate and for this reason also the convictions are unsafe. 219. We do not think that it is nearly as clear as is argued that there were breaches of the Judges’ Rules and/or Directions which ought to have led to the police interview evidence being inadmissible. Put shortly, our reasons are these. a. It does not at all follow that the breaches, at the first interviews only, of the provisions relating to access to a solicitor and refreshment breaks would merit the consequence of inadmissibility. Given the appellant’s receipt of legal advice after those first interviews and before he embarked on quite separate admissions to different fires, and given his declared approach to such advice, it is by no means clear that inadmissibility would follow. b. Even if it did, the inadmissibility of the first interviews, which related only to Selby Street, would not carry with it the inadmissibility of quite separate later admissions to quite different offences. R v Neil did not begin to hold that the inadmissibility of one confession led necessarily to the inadmissibility of a later one; on the contrary, it held that whether it did so or not depended on all the circumstances of the case. It is one thing to say that if a suspect’s first confession to offence X is inadmissible, it may follow that a subsequent admission to the same offence is also inadmissible on the grounds that he might have thought he was bound by the earlier confession. It is quite another to say that subsequent confessions to offences A-H are also automatically inadmissible, and they clearly are not. c. It is far from clear that the appellant’s intellectual powers could properly be described as a mental handicap, as distinct from a significant educational deficit, or that the interviewing officers were aware of there being a mental handicap. d. If they could so be described, it is also unclear that the condition was such that the officers were aware there was doubt that the appellant could understand questions put to him; there was a better case as the interviews went on for the proposition that he might be suggestible in the broad sense of compliant or eager to please, but only as they went on. e. The proposition that the fairness of a trial or of the treatment of a suspect is to be judged by modern standards, whilst generally correct, cannot possibly mean that retrospective force is to be given to the raft of very detailed new provisions (including for example the compulsory audio recording of interviews) introduced by the several codes promulgated under PACE. f. It cannot be overlooked that at the time of these interviews it was conventional for honest police officers to believe that they were obliged to assert that they had recorded the exact words of the suspect and nothing else, when this was in practice very often an unrealistic and unattainable level of perfection – see R v Bentley [2001] 1 Cr App R 21 per Lord Bingham CJ at [114]. g. A fair reading of the interviews and statements under caution by a reader prepared to make the assumption in the appellant’s favour that dishonesty on the part of the interviewing officers cannot be ruled out, can only leave that reader with the clear conclusion that much of the content can only have originated in the appellant’s own words. Some examples are referred to above. Invective about his mother is another. Yet another is the striking miscitation of St Matthew 6 as an explanation for hating those who have houses, several times repeated. h. To the extent that the explanation for the contents of the interviews and statements under caution might be that every incriminating part of them was foisted on the appellant by the police officers, that would postulate a quite remarkable thoroughness and scope of invention. 220. It is, we think correct, that without the confessions to the police there would not have been a case to answer. That is not to say that there was not support in the case of some fires for those confessions, but if there had been a trial we should, we consider, make the assumption that if the whole of the police interviews were inadmissible, the case against the appellant could not have succeeded. 221. For the reasons set out above, however, we reject the arguments that the interviews and the statements under caution should have been excluded because of suggested non-compliance with the Judges’ Rules and the Associated Administrative Directions, along with breaches of the protections provided by the Codes of Practice under PACE and particularly Code C, paragraph 11.15. But this conclusion is secondary to our dispositive analysis that the appellant’s convictions were critically based, not on the interviews and the statements under caution, but on his unequivocal guilty pleas. Potential breaches of the Rules, the Administrative Directions and the Codes of Practice are essentially irrelevant in the face of those formal admissions of guilt. 222. We repeat that in the present case the safety of these convictions does not depend on the acceptance by a jury of disputed confessions obtained in circumstances when there were arguable breaches of the Judges’ Rules or other unfairness. These convictions depend on the public pleas of guilty, tendered in open court by the defendant who did not lack capacity, who knew what he had and had not done, and when he was in receipt of the best legal advice. The Judges’ Rules had no application, any more than PACE has now, to pleas of guilty tendered after careful advice and in open court. Point 10: the unlawfulness of the appellant’s arrest at about 16.45 on 6 June 1980 223. The CCRC concluded that there was insufficient evidence to justify referring the circumstances of the appellant’s arrest to this court. We agree. Given the gap of four decades, it is now impossible to establish with any necessary precision the relevant facts concerning when the appellant was arrested, including the justification for this step. The appellant is, on his own case, an unreliable narrator of events. Detective Superintendent Sagar’s account was inconsistent in this regard. Inspector Holmes concluded that the appellant had been arrested, albeit he did not say when. Detective Sergeants Young and Harrod were present during the interview on 6 June, and on their account the appellant was cautioned at the commencement of the interview process. The appellant made a voluntary confession to the Selby Street fire, at which point he was arrested and cautioned (for a second time) before the questioning continued. A statement under caution was then taken. 224. The high watermark of this submission is that the appellant may have been arrested prior to being brought to the police station on 6 June 1980 and that this would have been an unlawful arrest. As set out above, the three police officers who detained him at around 16.45 in the Crystal Room amusement arcade (Messrs Harrod and Young, and Detective Constable Bacon) did not indicate expressly that they had effected an arrest. Detective Constable Bacon referred to an operation in which he was involved “ to apprehend known and believed homosexuals ” (the appellant, however, was spoken to by a different officer, Detective Sergeant Young). 225. There was mention on the custody record at Priory Road Police Station (where the appellant was detained after the first interview) that he had been arrested at the amusement arcade by DS Young. However, Detective Superintendent Sagar made a handwritten amendment to the custody record to the effect that the appellant had been arrested at 23.30 at Gordon Street Police Station. 226. It was in these circumstances that the CCRC concluded that there was insufficient evidence to determine that the appellant had been unlawfully arrested. In our view it is simply no longer possible to come to reach any firm conclusion on this issue. This supports our observation above that it would be wrong in principle for a defendant to be entitled freely to enter a guilty plea, thereafter appealing his or her conviction on the basis of evidence which might have led a jury to doubt his or her guilt if there had been a trial. On the issue of the lawfulness of the appellant’s arrest, the evidence has never been and is now incapable of being tested; therefore, reliable conclusions can no longer be reached on the issues raised by the appellant in this regard. We are not persuaded, furthermore, that if he had been arrested, but unlawfully, the confessions would have become inadmissible. He was certainly cautioned from the beginning. Moreover, most of the confessions came after the undoubtedly lawful arrest at the end of the first interview and the Selby Street confession was repeated after that. 227. Finally, the safety of these convictions does not depend on whether the appellant was unlawfully arrested on 6 June 1980, given his unequivocal and voluntary guilty pleas. Conclusions 228. For these reasons, we allow the appeals in relation to 9 Gorthorpe (indictment 810046, count 2 - arson with intent to endanger life or being reckless as to whether life was endangered and count 3 – manslaughter) and 4 Belgrave Terrace (indictment 810049, count 2 - arson with intent to endanger life or being reckless as to whether life was endangered and counts 3 - 4 – manslaughter) and the convictions on those counts are all quashed. 229. The convictions on the other indictments are safe. Accordingly, the appellant’s sentences on the counts relating to the other indictments are undisturbed.

```yaml citation: '[2022] EWCA Crim 108' date: '2022-02-08' judges: - LORD JUSTICE FULFORD, THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2009] EWCA Crim 1701 Case No: 2008/04940 C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SWANSEA CROWN COURT HH JUDGE MORTON T2002/7423 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/08/2009 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE RODERICK EVANS and MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - - - - - - Between : MEACHEN Appellant - v - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A Barker QC instructed for the Appellant K Riordan (instructed by CPS) for the Respondent Hearing dates : 28 th July 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Sir Anthony May, President of the Queen’s Bench Division: 1. As Lord Bingham CJ said in R v Steven Jones [1997] 1 Cr. App. R 86 at 93, the provisions for admitting fresh evidence on an appeal in section 23 of the Criminal Appeal Act 1968 were not framed with expert evidence prominently in mind. But it is accepted that section 23 may apply to expert evidence and the court did not wish to circumscribe the operation of a statutory rule enacted to protect defendants against the risk of wrongful conviction. As is well known, the section gives the Court of Appeal a discretion, if they think it necessary and expedient in the interests of justice, to receive evidence which was not adduced in the proceedings from which the appeal lies. Of the matters in section 23(2) to which the court is required to have regard, as Lord Bingham said, the requirement in subsection (2)(a) that the evidence should appear to the court to be capable of belief applies more aptly to factual evidence than to expert opinion, which may or may not be acceptable or persuasive, but which is unlikely to be thought to be incapable of belief in the ordinary sense. The reference in subsection (2)(d) to a reasonable explanation for the failure to adduce the evidence before the jury in the original proceedings again applies more aptly to factual evidence of which a party is unaware, or could not adduce, than to expert evidence, since, if one expert is unavailable to testify at a trial, a party would ordinarily be expected to call another unless circumstances prevented this. Expert witnesses, although inevitably varying in standing and experience, are interchangeable in a way in which factual witnesses are not. But, said Lord Bingham, it would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury. 2. The present appeal against conviction by David Meachen, upon a reference under sections 9 to 12 of the Criminal Appeal Act 1995 by the Criminal Cases Review Commission, would require the court to go further even than Lord Bingham contemplated in R v Jones . It depends on the court being persuaded to admit as fresh evidence under section 23 of the 1968 Act (a) further evidence of an expert witness who was called at the trial, and (b) evidence of a further expert essentially to the same effect as that of an expert witness who was called at the trial. No explanation is offered for the failure to adduce this evidence at the appellant’s trial beyond the feeble supposition that those then representing the appellant did not think of it. As to the evidence of the further expert to the same effect as expert evidence given at the trial, we think it questionable whether this should be regarded as fresh evidence which was not adduced in the proceedings within the ambit of section 23 . It is rather evidence which was adduced in the proceedings, which the jury must be taken surely to have rejected, but which the appellant now seeks to persuade the court to receive again in the mouth of a different expert. It would undoubtedly subvert the trial process, if appellants were able to supplement on appeal opinion evidence which was adduced unsuccessfully in the proceedings with essentially the same opinion evidence from an additional and supposedly more persuasive expert. Admitting such evidence would not afford any ground for allowing the appeal, because the jury by their verdict have already surely rejected the essence of this supposedly fresh evidence. 3. The appellant was convicted by a jury at the Crown Court in Swansea on the 22 nd May 2003 before His Honour Judge Morton on one count (count 3) of causing grievous bodily harm with intent to do so. He was sentenced on that count on the following day to 10 years imprisonment. He had been acquitted on the judge’s direction of a count alleging rape. He had pleaded guilty to counts of indecent assault and inflicting grievous bodily harm following a ruling by the judge about the law relating to consent which this court on 28 th February 2006 held to be erroneous. The court then allowed the appellant’s appeal against his conviction on those two counts, but dismissed his appeal against his conviction on count 3, holding that the judge’s direction as to consent in relation to that count was correct, and that the fact that he had pleaded guilty to the other two counts made no difference. The court’s judgment on that occasion may be found at [2006] EWCA Crim. 424 for further details which this judgment need not contain. 4. The facts are distasteful. On the evening of 4 th August 2002, the 37 year old complainant, who had been out drinking with her boyfriend for the day, went to Carmarthen Town Football Club where she met the appellant, previously unknown to her. They started a conversation. They left together and went back to the house of the complainant’s niece and then, shortly after midnight, they went by taxi to the complainant’s home a mile away. The complainant had no recollection of events after leaving her niece’s house, except that the appellant was at one point on the sofa with her in her living room. The appellant left her home by taxi at 5.10 a.m. that morning. 5. When the complainant woke around 7 a.m. that morning, she was in a lot of pain and was suffering considerable loss of blood from her peri-anal area. She went next door to a neighbour, and then consulted her general practitioner. After being initially sent home from hospital, a subsequent hospital examination revealed that she had extensive bruising of the peri-anal area together with acute splitting of the anal canal extending into the rectum. The injury was so severe that a colostomy was performed and she was fitted with a colostomy bag. 6. The complainant gave evidence that on the day in question she had drunk two glasses of wine, a pint of cider and a double vodka. She was taking tablets for depression. While she was at the football club, she had a further pint and a quarter of cider. It was the appellant’s evidence that during the evening he had obtained, and they had each had drunk, half a cup of liquid gammahydroxybutyrate (GHB), which is popularly known as the “date rape” drug. It is evident that the combination of this and alcohol may have rendered the complainant insensible. 7. Mr Carr was the surgeon who examined, treated and operated on the complainant. He is a consultant colon and rectal surgeon in Swansea with considerable experience of injuries caused in the homosexual community by the practice of “fisting” – thrusting a fist into the anus of another man. Mr Carr told the jury that there was considerable bruising of the complainant’s anus and the area around it. There was splitting of the anal canal both at the front and at the back. The splitting at the back was deep and extensive, extending to the fatty tissues behind the rectum. The sphincter muscle was torn. Mr Carr said that these were very unusual injuries, the most severe he had ever seen. The only comparable injury he had seen was in fisting incidents in the homosexual community. The complainant’s bruising was absolutely horrendous on the buttocks and the anal canal. If the complainant were not anesthetised, the pain would have been absolutely unbearable, inconceivable in fact. 8. The appellant’s evidence was that, when he and the complainant were at her home, they quickly became intimate sexually. She was a willing and active participant. He failed to achieve an erection. She was enjoying penetration of both her vagina and her anus with his fingers. She ended up naked sitting astride him with three of his fingers in her anus and his thumb of the same hand in her vagina. In this state, she was thrusting up and down on his fingers and thumb for some 4 or 5 minutes giving every sign of reaching a sexual climax. After that, she got off saying she was going to bed. She managed to get upstairs. He noticed no injury or bleeding downstairs. It was only when he went upstairs to wash that he noticed blood. He thought she was having a period and said so; to which she replied “It’s only a bit. It doesn’t matter”. He noticed that the bottle of GHB had been moved. He assumed that she had taken a little more. He himself finished the bottle. When he later left the house, he did not know that she was injured. 9. The appellant’s case therefore was that the complainant’s injuries were accidentally caused by consensual penetration of the anus by his fingers in the course of vigorous consensual sexual activity. He had not assaulted her and had not intended to cause her harm. The Crown’s case was that the appellant’s account of how the complainant came by her injuries was untrue. On the contrary, the complainant’s injuries were only consistent with intentional fisting or similarly executed assault to a probably insensible victim and that an intent to cause the really serious harm which in fact resulted could safely be inferred. 10. Mr Carr’s opinion was that the complainant’s injuries which he saw and treated could not have been caused in the way which the appellant described. The appellant called an expert colon and rectal surgeon, Mr Foster, whose opinion was that the injuries could have been caused by the activity which the appellant described. Four or five minutes thrusting onto the appellant’s rigidly held three fingers could have caused the injuries. Mr Foster agreed that, if the complainant was not anaesthetised, she would have suffered severe pain. 11. That being the evidence and those the differing expert opinions, the judge directed the jury that, if the complainant’s injuries were or might have been caused as the appellant said, that is by the appellant’s three fingers in the complainant’s anus and four or five minutes of her jumping up and down on them, they must acquit the appellant of the section 18 charge. Upon this direction, the jury convicted the appellant, and must be taken surely to have rejected the appellant’s evidence and Mr Foster’s opinion. 12. Mr Slaughter specialises in detecting drugs in samples taken from people and from objects such as glasses. He obtained blood and urine samples from both the complainant and the appellant. These were given long after the incident, in the case of the complainant 18 to 20 hours later. Both tested positive for cannabis. The complainant had a low level of alcohol in her urine, which was probably residual alcohol from the time of the incident. Mr Slaughter said in his evidence at the time that he could not do a proper calculation at that distance in time, but that it was probable that at the time of the incident she was highly intoxicated. Being put onto the possibility of GHB at a later date, Mr Slaughter went back to the samples and tested them finding a low level of GHB. He said that it was all very approximate, but that GHB was very rapidly eliminated from the body. He said that, if the incident was 18 to 20 hours before the taking of the sample, and if the complainant had not taken GHB after the incident, she would have taken a high dose of GHB, probably higher than a stupefying dose before the incident itself. The judge reminded the jury that it was the appellant’s evidence that the complainant had taken a top up dose of GHB after the incident. Mr Slaughter gave evidence of the stupefying effect of high doses of GHB. He also said that cannabis has an intoxicating effect roughly similar to alcohol and that the effects of cannabis and alcohol together were cumulative. 13. In making the reference which has resulted in this appeal, the Commission expressed the view that a central issue as to the pain which the complainant endured because of her injuries and her level of consciousness was left, to all intents and purposes, unaddressed. The Commission had therefore obtained additional evidence from Mr Slaughter as to the complainant’s projected level of intoxication at the time she sustained her injuries; and from Professor Payne-James as to the analgesic or anaesthetic effect of a combination of alcohol and GHB, and whether or not the complainant’s injuries could have been caused during consensual sexual activity as claimed by the appellant. The Commission expressly recognised that tendering this evidence might run into the problems which we have identified deriving from R v Jones . But they regarded it as in the interests of justice to have a third medical opinion where Mr Carr and Mr Foster had disagreed. The Commission considered that there was a real possibility that this court would receive this fresh evidence. They reiterated a conclusion that the issue of the complainant’s perception of pain, which was central to both the prosecution and defence cases, was inadequately addressed at the trial. 14. We are unconvinced that the complainant’s perception of pain was central to the cases of either the prosecution or the defence. The prosecution case depended on the extent of the physical injuries which the complainant suffered and which Mr Carr saw and described, and on his opinion as to how they could or could not have been caused. It was his narrative opinion, which Mr Foster shared, that the complainant would have suffered excruciating and unbearable pain when the injuries were inflicted, if she were not insensible at the time; and it was a derivative probability that she may well have been insensible to pain through a combination of alcohol and drugs. But the prosecution case did not need to establish this one way or the other. It was sufficient to establish the fact and extent of the physical injuries and Mr Carr’s opinion as to their cause. As to the defence case, there was perhaps a forensic dilemma. The case was that the injuries, unappreciated by the appellant at the time, were caused by the activity which he described. The dilemma was that the case required the complainant to be sufficiently conscious to be able to thrust herself up and down for 4 or 5 minutes and then to take herself upstairs to bed, but sufficiently intoxicated or drugged not to feel excruciating pain during the 4 to 5 minutes. It remains, however, we think, that the complainant’s perception of pain was not the central issue, which was whether the jury was sure that Mr Carr was right that the complainant’s injuries could not have been caused by the activity which the appellant described. 15. As we have said, Mr Slaughter gave evidence at the applicant’s trial and could quite well have been asked to give further evidence then such as he now tenders at the Commission’s request. No explanation is available for his failure to do so. His fresh witness statement explains that Dr Payne-James had been consulted and had requested a “back calculation” of the alcohol found in the complainant’s urine sample. It will be recalled that Mr Slaughter had said in his evidence at the trial that he could not do a proper calculation of this kind. In the fresh witness statement, he says that it is not possible to say definitely that the level of alcohol detected in the sample was a genuine residue of alcohol consumed. He says that it is not normally the practice of the Forensic Science Service to perform back calculations upon very low urine alcohol levels. He had already said in his evidence at trial that the presence of any alcohol in a urine sample after such a period of time indicates that, assuming the complainant drank no alcohol after the incident, the complainant would have had a highly intoxicating alcohol level in her blood stream at the time of the incident. Mr Slaughter then undertakes a calculation with reference to a number of variables to produce a blood alcohol level of between 150 and 340mg per 100ml with a most probable level of 250mg per 100ml at midnight. He observes that the potential range is very wide, but using elimination rates close to the average gives a highly intoxication level of 3 to 4 times the driving limit. Mr Slaughter then did a calculation based on the amount of alcohol which the complainant said she had consumed. This produced a range of 140 to 170mg per 100ml with a most probable level of 150mg. This showed a considerable discrepancy with the back calculation suggesting that she had probably drunk more alcohol than she said she had. 16. In our view, this is intrinsically unhelpful as potential fresh evidence and it would take an appeal nowhere. It in effect confirms Mr Slaughter’s original evidence that he could not do a proper calculation, certainly not one with any degree of confident accuracy. The possible range is too great for any other conclusion than that the complainant was, as the evidence at trial already indicated, highly intoxicated at the time. It does not take account of the additional effects of cannabis and GHB. 17. Professor Payne-James’ comments include that pain perception can be altered by all three of alcohol, GHB and cannabis; and that the effect of alcohol alone could have resulted in a reduction of pain perception such that in the circumstances it was not perceived in the ordinary way. Considering the complainant’s injuries, he had no doubt that pain would have been experienced, but it was impossible to determine the degree to which intoxicating agents reduced or abolished the complainant’s pain sensation at the time. In commenting on the question whether the consumption of GHB would permit the complainant to be a conscious and active participant, he believed that too much emphasis was placed on GHB alone. He was quite sure that each intoxicating agent on its own would be capable of reducing the perception of pain and the potential effect of alcohol had been explored by Mr Slaughter. In a second report, he commented that there is a huge variation between individuals in response to different levels of drugs and alcohol. It was not known how the complainant may have responded to unknown levels of drugs and alcohol consumed. Sufficient levels for the individual may result in unconsciousness, but equally the possibility of being conscious and actively participating may arise. The back calculation figures provided by Mr Slaughter could potentially put the complainant into a near unconscious level. But the problem was that the possible levels of alcohol and drugs were speculative. In answer to a question about the complainant’s possible levels of consciousness and active participation, he expressed the view that all the scenarios suggested were possible because of the lack of evidence concerning actual amounts of drugs and alcohol. The variability and the effects of the respective drugs and alcohol, alone or combined, did not make it possible to describe a likelihood for each or all of those scenarios. 18. Thus in reality the additional material provided by Mr Slaughter, and Professor Payne-James’ comments arising from it, takes the case no further than it was at trial, where it was established that the complainant was highly intoxicated and may have been insensible; but that, if she were not anaesthetised by drink or drugs or both, she would have suffered excruciating pain. This proposed fresh evidence is not additionally probative of anything, and no case is made out that the court should receive it. 19. The first point emphasised in the appellant’s written grounds of appeal and by Mr Barker QC orally in support of the appeal is that a central issue at trial was how painful the injuries would have been in the light of the quantity of alcohol and GHB taken by the complainant. We have already indicated that we do not agree that this was the central issue. However that may be, we do not consider that the fresh evidence which we have so far considered takes the case materially beyond where it was at trial. 20. The other issue identified in the written grounds of appeal as central was how could the complainant’s injuries have been sustained. We agree that this was the central issue, which turned at trial on a contest of opinion between Mr Carr and Mr Foster. There is no question but that Mr Foster was as competent as Mr Carr to give opinion evidence on this issue, and he did so. 21. On this issue, Professor Payne-James considered the appellant’s description of the sexual activity in which he and the complainant engaged. His opinion was that there was no doubt that this setting created a clear potential for splitting of the anal canal and lower rectal tissues as deep forceful thrusts continued with perhaps part of the palm at the base of the fingers being included in the penetrative act. The length of fingers would adequately explain the splitting of the tissues in the lower rectum. He was unable to see how Mr Carr was able to be certain that these injuries could not have occurred based on the appellant’s account. He believed it was a reasonable possibility that the complainant’s injuries were caused as the appellant claimed. 22. Mr Carr responded to Professor Payne-James’ first report, considering it in some detail, but saying that he still believed that the complainant’s injuries were caused by either a foreign body or really forcible dilation of the anal canal with both hands; and that he still did not believe the account given by the appellant of the complainant thrusting onto three of his fingers. He remained convinced that the appellant would not have inflicted the injuries if he had not intended to do so. He must have been aware of the bleeding, if not the pain. To this, Professor Payne-James responded with the additional comment that there were published cases where profuse bleeding was not immediately evident; and that the appellant may not have noticed blood because of his own intoxication. Mr Carr responded to this, saying, correctly in our view, that causation was the real issue and that he had disagreed with Mr Foster and had no reason to move away from his original opinion. 23. As we have already indicated, we do not regard this part of Professor Payne-James’ reports as fresh evidence not adduced at the trial. It is essentially the same evidence tendered by a different expert. Mr Foster had already expressed the essence of this opinion, as his subsequent letter of 29 th March 2008 to the Commission explains. Just as it would subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury, so it would subvert the trial process, and in substance add nothing, if the defendant were generally free to mount on appeal the same expert case as was advanced at trial with a different and additional expert. The Commission’s idea that it is appropriate to revisit on an appeal an issue upon which experts disagreed at trial, but which the jury by their verdict resolved, with the aid of a third expert is, in our judgment, erroneous. If it were regarded as necessary to bolster an expert opinion by that of a second supporting expert, that should be done at trial, although in this context we are bound to say that a case of this kind is not made intrinsically more persuasive because two experts express the same opinion. We do not encourage parties to expect that public money should be spent on duplicating experts. 24. Mr Barker acknowledges the difficulty from R v Jones in persuading the court to receive this part of Professor Payne-James’ evidence. The essence of his eventual submission was that the pain possibilities were not explored; and that, if they had been, it would have emerged that it was possible for the complainant to have suffered the injuries while remaining sufficiently conscious, but without experiencing great pain. That, he said, applies whatever view is taken about causation. The argument would not provide a challenge to Mr Carr’s evidence, accepted by the jury, about causation, but it would provide a case which questioned whether it was surely proved that the appellant had the necessary intent. 25. As to this submission, it should first be said that it was not the appellant’s case that, if the injuries were caused, contrary to his own evidence, as the prosecution and Mr Carr maintained, he did not intend to cause really serious harm. Second, it was Mr Carr’s opinion that, for the appellant to inflict the injuries in the way Mr Carr maintained, he must have intended really serious harm. Third, the judge’s directions on the law relating to intent were unimpeachable and included a direction that the prosecution case was that the appellant inserted something the size of a fist or greater into the complainant’s anus; and that, if the jury were sure that that conclusion could be drawn, the further conclusion followed as a certainty – that is what the prosecution said – namely, that the appellant must have intended to do really serious harm. Whether the jury were sure that they could draw these two conclusions was entirely a matter for them. The judge did not remind the jury that it was the defence case in the alternative (because it was not) that, even if the jury were sure that the injuries were caused as Mr Carr maintained, the jury could not be sure that the appellant intended to cause really serious harm. In truth, that would not have been a remotely viable alternative case, and the proposed fresh evidence does not make it any more viable. The extent to which the complainant was or was not insensible at the time of the incident was and remains entirely speculative. The inference as to the appellant’s intent, if the jury surely accepted Mr Carr’s opinion as to causation, was and remains secure. 26. Paragraph 8 of the grounds of appeal contains some fringe criticisms of the judge’s summing up which did not feature in support of the Commission’s reference, which were not advanced in the earlier appeal against conviction to this court, which Mr Barker did not dwell on, and which are not persuasive in support of a case that the conviction is unsafe. Paragraph 13 of the grounds of appeal, again not emphasised by Mr Barker, in substance restates a submission which was rejected in the earlier appeal to this court. 27. For the reasons which we have given, we declined to receive the fresh evidence. In our judgment, the conviction under appeal is safe. The appeal is dismissed.

```yaml citation: '[2009] EWCA Crim 1701' date: '2009-08-05' judges: - MR JUSTICE CRANSTON ```

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No: 201802441/A1 Neutral Citation Number: [2018] EWCA Crim 2611 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 17 October 2018 B e f o r e : MR JUSTICE JEREMY BAKER MR JUSTICE GOOSE - - - - - - - - - - - - - - - - - - R E G I N A v JAMIE LEE WILLIAMS - - - - - - - - - - - - - - - - - - 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 S Gladwell appeared on behalf of the Appellant Mr P Reed appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. 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 20 February 2018 in the Crown Court at Lewes, the appellant, Jamie Williams, now aged 28, was convicted of four offences for which he was sentenced on 13 April by His Honour Judge Waddicor. The sentences imposed were as follows: assault occasioning actual bodily harm, contrary to section 47 of the Offence Against the Person Act 1861 (count 1), 4 years' imprisonment; assault by beating, contrary to section 39 of the Criminal Justice Act 1988 (count 2), 3 months' imprisonment consecutively; fraud, contrary to section 1 of the Fraud Act 2006 (count 3), no separate penalty; dangerous driving, contrary to section 2 of the Road Traffic Act (count 4), no separate penalty. The judge disqualified the appellant from driving for a period of 18 months and directed that he be prevented from driving until he passed an extended driving test. 2. After the sentence hearing had been completed, counsel informed the judge, through court staff, that an extension to the disqualification period was necessary, under section 35A and 35B of the Road Traffic Offenders Act 1988 . A suggested disqualification of 43 months was made by both the prosecution and the defence, which the judge directed by way of an amendment to the sentence. 3. The appellant now appeals his sentence with the leave of the single judge. 4. In his grounds of appeal it is argued that the judge should have placed the offending for the section 47 assault in category 2 of the Assault Guideline and not category 1. Further, it is argued that if category 1 was appropriate, it should have been adjusted downwards to reflect the circumstances of the offence. It is argued, therefore, that the total sentence imposed of 4 years and 3 months was manifestly excessive or wrong in principle. 5. The circumstances of these offences can be shortly summarised. On 14 June 2017 the appellant drove the complainant, who was his girlfriend at the time, in a car to Brighton where they met two friends including Reece McCue who joined them in the car. The appellant drove to Essex, stopping briefly to purchase alcohol which was consumed by the appellant and his friends. Later that night, after visiting the appellant's brother in Essex, the appellant started the journey home. In the back of the car was Reece McCue and another friend, both of whom were asleep. An argument developed between the appellant and the complainant. She suspected that the appellant had taken some drugs. The appellant then pulled the vehicle over to the side of the road and turned to punch a forceful blow to the face of Reece McCue whilst he was asleep. The appellant then opened the door and dragged him out of the car, before getting back in the car and driving away, leaving Reece McCue at the roadside. That assault comprised count 2 on the indictment. The argument became more heated in the car between the appellant and his girlfriend after what the appellant had done to Reece McCue. The complainant telephoned the police because she was concerned that Reece McCue had been left unconscious at the side of the road. The appellant did not want the police to be informed and so he punched the complainant to the face, then stopped the car and dragged her out of the vehicle. As he drove the car away he drove over the complainant's right leg causing abrasion injuries and bleeding to the thigh. That assault comprised count 1 on the indictment. Left at the roadside the complainant called the police, the recording of which was heard during the trial and plainly demonstrated the fear the complainant was in. 6. At one point the appellant returned in his car but the judge, after trial, was satisfied that this was out of his own interest to prevent the police from being contacted and not out of any concern for the complainant. Later, the appellant used the complainant's bankcard to steal money from her account. That offence comprised count 3. 7. In a victim personal statement, the complainant described how she had been significantly affected by the assault upon her. She is left with permanent scarring to her thigh as well as significant psychological consequences based on her fear of seeing the appellant again and her reluctance to go out in public. 8. In sentencing the appellant, the judge concluded that the offence of assault occasioning actual bodily harm fell within category 1 of the Assault Guideline, involving greater harm and higher culpability. The assessment of harm was based on the injuries being serious in the context of the offence and higher culpability was based upon the use of the car recklessly as a weapon. The offence was aggravated in its seriousness by the fact the appellant had consumed alcohol, although there is no evidence that drugs had been consumed, and that the complainant was vulnerable at the time of the offence against her. Additionally, the appellant had previous convictions for offences of assault, some whilst as a juvenile, but more relevant were two offences of assault occasioning actual bodily harm in 2009, when the appellant was sentenced to 18 months' custody. The judge concluded that the offence was serious enough to go outside the range within category 1, being between 1 to 3 years custody. The sentence of 4 years’ was imposed for the assault occasioning bodily harm, together with 3 months consecutive for the assault upon the second complainant, Reece McCue. No separate penalty was imposed in respect of the fraud or the dangerous driving offence. 9. We have considered carefully the grounds of appeal and the oral submissions made on behalf of the appellant. Whilst we are not persuaded that the offence of assault occasioning actual bodily harm should have been in category 2 of the Guideline, we are satisfied that despite the aggravating factors identified by the judge, this offence did not merit an increase from the starting point for category 1 of 18 months to a sentence of 4 years' custody. We are conscious of the fact that the judge conducted the trial but, with respect, an increase from a starting point for 18 months for the aggravating factors should not have led to an out-of-category sentence. In our judgment, the sentence of 3 years' custody was appropriate being at the top of the category range after trial. We see no arguable ground against the 3-month sentence imposed consecutively for the second assault. Accordingly, we allow the appeal in respect of count 1, thereby making a total sentence of 3 years and 3 months. 10. We turn to consider the orders made for disqualification. The appellant has previous driving convictions. He was disqualified from driving for a period of 12 months, for driving a motor vehicle with excess alcohol, on 3 December 2015. On 13 November 2017, for two offences of driving a motor vehicle with a controlled drug above the specified limit, he was disqualified for 3 years. The minimum disqualification period, under section 34(3) of the Road Traffic Offenders Act 1988 did not apply to the appellant. The judge ordered that the appellant be disqualified from driving for 18 months and correctly determined that the section 35A of the Road Traffic Offenders Act 1988 required an extended disqualification to be imposed when a custodial sentence was passed at the same time. 11. Unfortunately the judge did not make clear when the disqualification was to start or to give effect to the interim order made on the date of the guilty plea. The judge stated that the disqualification was for 43 months, being half of the custodial term plus the 18-month disqualification. Then she stated at page 7B: "... I am required to say when the disqualification period will run from. Of course, that is rather difficult because in theory he will be eligible for release half way through his prison sentence, but I have no control over whether he will do that, so I am going to say ... it will take effect upon his release..." 12. In the case of R v Needham [2016] EWCA Crim 455 , guidance was given by this court on the approach to be taken when applying section 35A and 35B of the Road Traffic Offenders Act 1988 , dealing with the requirement to extend the disqualification period to take account of a custodial sentence. The appropriate extension to the disqualification period, given a sentence of 3 years and 3 months is 19 months rounded down, being half of the custodial term. Therefore, applying sections 35A and 35B of the Road Traffic Offenders Act 1988 , the 18-month disqualification should have been extended by 19 months, making 37 months. However, the period served under the interim order needs to be taken into account. Accordingly, the extended disqualification is for 36 months. This reflects the reduction in the sentence upon count 1. 13. We should observe that a sentencer is not required to predict the date of release upon an offender when imposing an extended disqualification under section 35A of the 1988 Act. The period of extension is designed to allow the disqualification to bite at the point of automatic release from a custodial sentence. Therefore, the order commences at the date of sentence. 14. Accordingly, we allow this appeal and we reduce the custodial term on count 1, quashing the present sentence for assault occasioning actual bodily harm, we now impose a sentence of 3 years. The sentence on count 2 of 3 months' imprisonment consecutively remains unaffected. We adjust the disqualification from driving to an extended disqualification for 3 years. All other orders remain unaffected. To this extent the appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2018] EWCA Crim 2611' date: '2018-10-17' judges: - MR JUSTICE JEREMY BAKER - MR JUSTICE GOOSE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2019] EWCA Crim 1274 2016/05500/C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 27 th June 2019 B e f o r e: LORD JUSTICE IRWIN MR JUSTICE GOOSE and HIS HONOUR JUDGE POTTER ( Sitting as a Judge of the Court of Appeal Criminal Division ) _________________ R E G I N A - v - ALISON MURPHY ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. __________________________ Non-Counsel Application ______________________ J U D G M E N T (Approved) ______________________ Thursday 27 th June 2019 LORD JUSTICE IRWIN: I shall ask Mr Justice Goose to give the judgment of the court. MR JUSTICE GOOSE: 1. On 3 rd November 2016 in the Crown Court at Carlisle before His Honour Judge Davies and a jury, the applicant, Alison Murphy, was convicted of attempted murder and was subsequently sentenced to seventeen years' imprisonment. Her applications for leave to appeal out of time (4 days) and for leave to appeal against conviction were refused by the single judge. Those applications are now renewed before this court. Further, the applicant, who appears in person, applies for an extension of time (412 days) and for leave to appeal against sentence. Both of those applications have been referred to this court by the Registrar. 3. The applicant is now aged 53, but was aged 51 at the time of the events which took place on 15 th April 2016. She has two sons: Anthony Murphy (the complainant), who was aged 26; and Gary Murphy (the applicant's co-accused), who was aged 22. The applicant lived in Whitehaven, Cumbria. Gary lived in Distington, also in Cumbria. Anthony lived separately in Milton Keynes. The evidence at trial confirmed that Anthony and his brother had a difficult relationship. Anthony had abused both drugs and alcohol from a young age. Gary suffered from Asperger's Syndrome, with suicidal ideation and a desire to harm or kill another person, which centred on his brother Anthony. 5. In April 2016, Anthony Murphy was staying temporarily in the applicant's home as he tried to avoid drink and drugs. On 15 th April 2016, having returned from a trip to Ireland, the applicant visited Gary's home in Distington to collect one of her dogs. When she returned to her home, she discovered Anthony Murphy to have been drinking and smoking cannabis. This led to an argument between them. Contact was made with Gary Murphy via phone calls and text messages. The contents of the text messages were included in a schedule used during the trial. Extracts from the schedule were relied on by the prosecution to demonstrate a clear agreement between the applicant and Gary Murphy to kill Anthony. The significant messages are as follows: Item Time From To Message 44 22:30:41 07495052969 (applicant & complainant) 07884931544 (co-accused) He is still being a total shit I definitely think he should be killed but not sure stabbings is the right method We should make him fall in the harbour or off a cliff 46 22:32:34 07495052969 (applicant & complainant) 07884931544 (co-accused) If you're on the 10.40 bus you'll be at the harbour at 11 47 22:33:29 07495052969 (applicant & complainant) 07884931544 (co-accused) Here at 11.30. I should make him walk towards you 48 22:49:41 07884931544 (co-accused) 07495052969 (applicant & complainant) I'm on the bus. I'm fine with whatever as long as he dies 49 22:52:11 07495052969 (applicant & complainant) 07884931544 (co-accused) I am charging my other phone This one has his sim card in so I will delete these And you delete them then he can play around with this phone like he keeps trying to 51 23:01:56 07341265638 (applicant) 07884931544 (co-accused) Any further messages you should send to this phone as he has the other one 52 22:03:48 07341265638 (applicant) 07884931544 (co-accused) Fucking baby in a mans body he is. I wish I'd never had him. He is a shit offspring and nothing but trouble all his life 53 22:14:24 07884931544 (co-accused) 07341265638 (applicant) Be there in a few minutes 54 22:15:29 07341265638 (applicant) 07884931544 (co-accused) Ok knock loud. He won't shut the fuck up 55 22:19:49 07341265638 (applicant) 07884931544 (co-accused) The door is open so come in and then lock it 6. After the end of the messages, Gary Murphy arrived at the applicant's home with a knife, which he used to stab his brother in the neck, causing an 8.2 centimetre laceration which completely transected the right external jugular vein, causing profuse bleeding. After inflicting the injury, Gary Murphy left the property. The applicant rang the emergency services and, following their advice, staunched the flow of blood from Anthony's neck. That was likely to have saved his life. 8. The applicant and Gary Murphy were charged jointly with the attempted murder of Anthony Murphy. Gary Murphy pleaded guilty at the earliest opportunity. The applicant was convicted after a trial. In her Defence Case Statement and during her evidence, the applicant denied that she had sent the text messages to Gary. She asserted that they had been sent by Anthony himself to his brother in order to cause trouble. During the course of his cross-examination, Anthony Murphy was repeatedly asked whether he had sent the text messages. We have read the transcript of the evidence of Anthony Murphy, during which he repeatedly said that he did not remember sending any text messages because he had been drunk. Nevertheless, it was a clear issue for the jury to determine whether they were sure that the messages were sent by the applicant, rather than by her son Anthony. 10. The applicant's appeal against conviction is made upon a single ground, that fresh evidence, which was not available to the defence at trial, undermines the safety of the conviction. This is based on further statements and interviews of Anthony Murphy since the applicant's conviction. It is argued that if this evidence had been before the jury they would not have been able to reach the sure conclusion that the applicant was party to the attempted murder. 11. In the Respondent's Notice, it is argued that the evidence does not satisfy section 23 of the Criminal Appeal Act 1968 in that it is incapable of belief, such that it cannot establish a ground for appeal. In short, the respondent says that this further evidence does not undermine the safety of the conviction. 12. In refusing leave to appeal against conviction and the extension of time of four days, the single judge, in his succinct reasons, adopted the respondent's cogently outlined submissions that the evidence is not capable of belief. 13. We have considered carefully the representations made by the applicant in the course of a number of letters which she has submitted to the court, and also in her oral observations at court this morning via the video-link. Her primary argument is based upon the application to rely upon fresh evidence under section 23 of the 1968 Act . She argues also that the medical records of Anthony Murphy should be made available because they may demonstrate that the complainant behaved rationally and was not wholly incapable when he was seen by the medical practitioners during his treatment at hospital. However, for the reasons stated by the single judge, we are not persuaded that further evidence from Anthony Murphy, or his medical records, provide fresh evidence to establish any ground of appeal that the conviction of the applicant was or may have been unsafe. We have reached that decision for the following reasons: i. The messages themselves do not appear, upon reading them, to be from one brother to another in the hope of causing trouble. The jury were, no doubt, satisfied that the messages were from the applicant and not her son. ii. During his evidence at trial, Anthony Murphy did not assert that he had sent the messages, despite persistent cross-examination on behalf of the applicant. iii. Anthony Murphy has given his account on a number of different occasions since the applicant's conviction. Most significantly, he was contacted by the applicant in a telephone call from prison on 27 th November 2016 (Exhibit JY/1 of the Respondent's Notice), in which she asked Anthony to go to the police and tell them that he was not excessively drunk. The purpose of this was no doubt so that it might be more likely that he would have sent the messages himself. iv. In his police interview on 12 th December 2016, Anthony Murphy remained vague in relation to the detail of any messages which he believed he may have sent. Further, in a witness statement dated 25 th January 2017, Anthony Murphy, whilst saying that he sent "maybe 10 messages in total", was unable to describe the content of the messages. 15. Accordingly, whilst Anthony Murphy has provided further accounts, which, strictly, might be said to be fresh evidence on the basis that it was not available at trial, we are not persuaded that it is capable of belief. The jury were able to assess Anthony Murphy's evidence during the trial, during which he did not admit that he had sent the messages. Even when prompted by the applicant, he has remained vague in his account. 16. Further, we do not consider that his medical records, which may or may not suggest that he was capable of rational thought rather than being highly intoxicated, would assist on the issue as to who sent the text messages. In these circumstances, therefore, we are not persuaded that there is any merit in the appeal against conviction. We agree with the single judge that leave must be refused, together with the application for an extension of time. 18. We turn to the renewed application to extend time and for leave to appeal against sentence. The applicant seeks to argue that her sentence of seventeen years' imprisonment for attempted murder was manifestly excessive. Her remaining submissions upon sentence appear merely to repeat her arguments concerning her conviction. 19. The judge concluded that this offence was committed by the applicant and her son Gary, with a knife brought to the scene. The weapon was unlike any other knife in the home, and Gary admitted to the police that he had brought it with him. Although the applicant contended that she did not know that he had a knife, the text messages expressly refer to the possibility of killing the complainant by stabbing him. In oral argument the applicant said that because she had been away from the house during the week before the offence, her co-accused could have taken the knife to the house when she was not there and she had no knowledge of it. However, this does not answer the discussion she had in the text messages, of the killing being carried out by stabbing. Nor does it deal with the admission by Gary that he had taken the knife with him. In these circumstances, we are satisfied that the judge was entirely justified, after hearing the evidence in the trial, in reaching the sure conclusion that he did. 22. Even allowing for such mitigation that there was, the sentence of seventeen years was at the bottom of the range of sentencing of 17 to 25 years, provided by the Attempted Murder Guideline, adjusted to reflect paragraph 5A of Schedule 21 to the 2003 Act - see Attorney General's Reference No 63 of 2013 [2014] EWCA Crim 2763 . In these circumstances, we find no merit in the appeal against sentence. Accordingly, we must refuse the application for an extension of time and refuse the renewed application for leave to appeal against sentence. 24. These applications are, therefore, refused. ______________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ________________________________

```yaml citation: '[2019] EWCA Crim 1274' date: '2019-06-27' judges: - LORD JUSTICE IRWIN - MR JUSTICE GOOSE ```

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Neutral Citation Number: [2011] EWCA Crim 649 Case No: 201000323 B2 AND 201001232 B2 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Southampton Crown Court before HHJ Ralls QC On 2 nd December 2009 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/03/2011 Before : LORD JUSTICE PITCHFORD MR JUSTICE TREACY and HHJ KRAMER QC - - - - - - - - - - - - - - - - - - - - - Between : L & R Appellants and REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Matthew Scott ( instructed by Footner & Ewing - Solicitors ) for L Michael Vere Hodge QC and David Reid (instructed by Eric Robinson - Solicitors) for R Christopher Parker QC (instructed by CPS ) for the Respondent Hearing date: 2nd March 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford 1. This is an appeal against conviction with the leave of the full court. The alleged victim is a child born on 31 October 2007 in respect of whom an order has been made under section 39 Children and Young Persons Act 1933 . The appellants are the parents of the child whom we shall call B. For this reason any report of this judgment shall be anonymised and we shall describe the appellants as L and R respectively. 2. The appellants were jointly charged in an indictment containing six counts. They were tried at Southampton Crown Court before HHJ Ralls QC. On 7 th December 2009 L was convicted upon count 3 in which he was charged with inflicting grievous bodily harm to B, contrary to section 20 Offences Against the Person Act 1861 , and count 4, in which he was charged with assaulting B thereby occasioning him actual bodily harm, contrary to section 47 Offences Against the Person Act 1861 . On 26 February 2010 L was sentenced to 30 months imprisonment upon Count 3 and 12 months imprisonment concurrent upon Count 4. 3. R was convicted in count 6 of an offence of cruelty to a person aged under 16 years contrary to section 1 (1) Children and Young Persons Act 1933 . The particulars were that R, between 1 March and 24 April 2008, having responsibility for B, wilfully neglected, abandoned or exposed him in a manner likely to cause unnecessary suffering or injury to health. R was sentenced to 35 weeks imprisonment suspended for two years and was required to undertake 200 hours unpaid work under the suspended sentence order. 4. At the close of the prosecution case L was found not guilty on the direction of the judge of count 1 in which he was charged that on a day in January or February 2008 he inflicted grievous bodily harm on B and count 2 (to which count 3 was an alternative) in which he was charged with causing grievous bodily harm to B with intent, contrary to section 18 OAPA 1861. As to count 5 which charged both L and R that on a day between 12 and 23 April 2008, having the responsibility for B, wilfully neglected abandoned or exposed him in a manner likely to cause unnecessary suffering or injury to health, the prosecution offered no evidence and formal verdicts of not guilty were entered. 5. The full court gave leave to appeal on 13 December 2010. L has leave to argue that the trial judge should not have admitted in evidence, on the application of R, an interview under caution between L and the police which took place at 4.45 pm on 2 May 2008 during which he made relevant admissions. R has leave to argue that in respect of the same interview the judge failed to provide the jury with adequate directions and, secondly, failed to summarise evidence relevant to R’s case to the effect that B bruised easily. The prosecution case 6. When B was born L was aged 19 and R was aged 21. Suspicion as to B’s condition did not arise until April 2008. On 11 April R took the baby to Bitterne medical walk-in centre in Southampton reporting that he had been unwell and vomiting for two days. No external injury was observed. R returned with the baby 8 hours later saying that he was still vomiting. A referral was made to University Hospital, Southampton. A small bruise was found near B’s mouth which R said had been caused by B himself with a rattle. A doctor concluded that B had a cold. On 17 April B was routinely weighed. His weight had fallen but he seemed otherwise to be well in himself. Things were very different on 23 April. When R took B to the medical centre he was found to be vomiting and coughing and he had lost weight. B was emaciated and covered in bruises. R was again referred to the hospital where a full examination took place. It is unnecessary to describe in detail the evidence of the expert medical witnesses since that evidence is largely uncontroversial. In summary it was the prosecution case that: (1) At some time in January or February 2008 when B was aged 3-4 months B had suffered a fractured rib. This injury had formed the subject of Count 1 against L. (2) At some time between late March and about 11 April, B had suffered multiple fractures of his ribs together with pre-retinal and sub-dural haemorrhages. These injuries were consistent with non-accidental gripping and shaking. They formed the subject of Counts 2 and 3 against L. (3) On 17 April, B was weighed naked by a health visitor, Helen Mullins, at a baby clinic held at Allhallows Church. There were no bruises seen. On his admission to hospital on 23 April, B had 20-30 bruises all over his body. They formed the subject of Count 4 against L and Count 6 against R. Investigation and interviews 7. Both parents were interviewed under caution (but not under arrest) on 24 April 2008. At that stage medical investigation was in its early stages and they were asked whether they could explain the bruises on B’s body. Both gave “innocent” explanations for some of the bruises but neither could account for the very considerable number found and neither blamed the other. 8. The results of the skeletal survey were known on 24 April and the police were informed. A decision was made by the investigating officer to withhold this information from the parents until after their arrest on suspicion of causing grievous bodily harm on 2 May 2008. 9. L was interviewed from 10.20 am to 1.25 pm with a break between 11.54 am and 12.16 pm. He declined the services of a solicitor saying that he had nothing to hide. He agreed only that he had tickled B while playing. Possibly, he said, he had caused inconsequential bruising but that was all. 10. L was returned to the cells and R was interviewed. She was the first of the parents to be informed of B’s rib fractures. She could give no explanation and insisted that neither she nor L was responsible. She thought that B might have bruised easily because she did herself, but she could provide no explanation for the number of bruises discovered on 23 and 24 April save for ordinary handling or tickling by L in play, which B seemed to enjoy. 11. L was interviewed for a second time between 4.45 pm and 5.25 pm on 2 May. He again declined the services of a solicitor. He informed the officers that he had heard of retinal haemorrhages from the hospital and looked up the condition on the internet. He knew that they could be caused by shaking. He denied that he had shaken B. He was then told that B had suffered 10 to 12 rib fractures, front and back. L expressed shock. He said he did not have a clue how they were caused. All he had done was to tickle his son. At page 18 of the interview it was L who raised squeezing for the first time. He said, “he would have told me, he would have cried if I had squeezed him”. The officers explored with L the possibility that he could not tolerate the baby crying. He denied it. He told the officers (page 22) that there was an occasion when a plastic nappy box had fallen on R but insisted that could not have caused the fractures. It was believed this incident, about which he had informed R, occurred on or about 9 April. L told the officers of a further occasion, believed to have been on or about 22 April when (pages 23-25), while R was out of the house, the baby had gone floppy in his arms. He had panicked and tapped the baby to get a response. At page 26 DC Scorey said to L: “People don’t do these things on purpose. People do these things in a fraction of a second when, for some reason, the red mist comes down over them and they snap because of the crying and the fact that you have been kept awake by the baby. You have done everything you possibly can to console your baby and you are at the end of your tether because you can’t make your baby quiet.” L replied: “I have got, I have got to admit I have squeezed him ... not hard ... but I have done the full like “Shut up”, sort of thing but I have never, ever, I swear to God I would never do it by purpose, you know.” L went on to explain that B slept in the bedroom with himself and R. One night B woke up crying. While R remained asleep he got up to deal with B. He said he tried to calm him down. L was “really tired” and it was “like he wouldn’t shut up”. L insisted he had not done it on purpose and he denied that he had shaken B. At page 28 L said: “... it was like, “come on, shut up” and that was it and it was like a split second bit of strength, that was it.” At page 29 the following exchange took place: “DC Pain: You have got him out and what have you done? Just tell us what it was? L: Well I was walking round with him and he wouldn’t stop crying, and, sort of, I didn’t think in my head I am going to do it ... I didn’t think that at all. .. like it just happened ... I didn’t say ... squeeze in itself sounds really bad, but put a bit of pressure on that was all ... DC Pain: What was the result of putting that pressure on, did it help. L: No, it yes, no. I just knew I had done bad although I put him back in his cot, and that ain’t it though, I know it ain’t it. I can’t be it.” L demonstrated to the officers how he had held the baby in both arms and squeezed. At page 32 he said he had never told R about this incident because he thought it would cause an argument. He went on: “It’s hard you know. It just happened so quick you know. I was just looking after him. He screamed and screamed and screamed. You know, it’s like ...” Asked when this had occurred, L said he thought it was probably towards the end of February. He said he had felt guilty about it ever since. There had been no repetition. He denied that he had used sufficient force to fracture any ribs and repeated his denial that he had ever shaken B. Application by L to exclude interview 12. L made an application to the judge to exclude the evidence of the 4.45 pm interview. Mr Pascoe QC relied on the psychiatric report of Dr J K O’Shea and the report of Dr Scull, obtained by the prosecution. 13. Dr O’Shea was asked to examine the appellant for his opinion whether he was fit to stand trial. L had first undertaken a series of psychometric tests, including the Wechsler adult intelligence scale. Dr O’Shea concluded that while L was fit to stand trial he had problems with tasks which were largely verbally based. Although he could not make a formal diagnosis, it was his opinion that there were features of the appellant which showed signs of autistic spectrum disorder. He pointed to L’s developmental history of difficulty in coping with groups, understanding the needs of others, a tendency to be in a world of his own, and frustration with other people and his own inability to achieve. In Dr O’Shea’s opinion L could be suggestible particularly when under pressure and when required to respond to complex statements or questions. If L gave evidence Dr O’Shea advised that a confrontational style of questioning, far from eliciting the truth, may make erroneous answers more likely. 14. Dr Scull agreed that the appellant was suggestible. There was a risk that if he was put under pressure he would give answers in which he did not believe. 15. No oral expert evidence was called in the voir dire , although the judge heard evidence from the police officers who conducted the interview. The prosecution and the defence proceeded on an agreed basis. The prosecution accepted that if it had been appreciated at the time the appellant was interviewed that he had suffered these disadvantages (which it had not), it is probable that an appropriate adult would have been requested to accompany the appellant in interview (see code C paragraphs 1.4 and 3.5). By code C, paragraph 11.17 the role of the appropriate adult would have been to (i) ensure that the detained person understood what was happening to him, (ii) support, advise and assist the detained person, (iii) observe whether the police were acting properly and fairly, and to intervene if they were not, (iv) assist with communication where necessary, and (v) ensure that the detained person understood his rights, and the appropriate adult’s role in protecting him. It was conceded that at the commencement of the disputed interview the appellant was told that he was entitled to legal advice but he was not reminded that he was entitled to delay the interview in order to obtain it. This constituted a breach of code C paragraph 11.2. 16. The submission made on behalf of the appellant was that the absence of an appropriate adult rendered the interview process unfair. He had embarked upon the interview without the assistance either of a solicitor or an appropriate adult when the police knew and he did not that B had suffered several fractured ribs. It was submitted that the style of questioning was, on the one hand, confrontational and, on the other, sympathetic in that the officers repeatedly told the appellant that they were not suggesting he had harmed his child on purpose. In view of the agreed expert psychiatric opinion, there was a risk that the admissions elicited in interview were unreliable. The judge was invited to exclude the interview under both section 76 and section 78 Police and Criminal Evidence Act 1984 . 17. In its relevant parts section 76 provides as follows: “(1) In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of the section. (2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained – (a) ...; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof. The court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.” 18. Section 78 provides in its relevant parts: “(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 the court to exclude evidence.” 19. The application was resisted by the prosecution. It was pointed out by Mr Parker QC that the statutory test under section 76 was whether the confession was obtained in consequence of things said or done which were likely to render the confession unreliable. It was submitted that the appellant had himself volunteered his description of the “squeezing” incident. No such event had been suggested to him. Furthermore, the appellant had in other passages of his interview resolutely denied that he had injured his child. Even after his disclosure that he felt guilty about squeezing B he denied that he could have caused injury by that means and repeated his denials that he had ever shaken the child. While it was accepted on behalf of the prosecution that L’s psychometric profile disclosed a tendency to suggestibility, it was not the case that on the present occasion the confession was likely to have been rendered unreliable by things said or done by the officers. As to the disadvantage to L of withholding information until after commencement of the interview, Mr Parker pointed out that the appellant already knew that B had suffered multiple bruising, fluid around the brain, vomiting and weight loss. It was not a foregone conclusion that, even with the assistance of an appropriate adult, the appellant would have sought legal advice or would have chosen not to respond to questions concerning the rib fractures. Judge’s ruling on L’s application to exclude 20. The judge gave a preliminary ruling on the morning of 2 December 2009. He offered to provide full reasons in writing later but the prosecution declined his invitation. The judge said that while he had been minded to admit the evidence he had on reflection changed his mind. He would not himself have spotted that the appellant had an autistic tendency or any other vulnerability but for the views expressed by the experts, he said: “I have to give them very, very serious consideration and when they said that this man can be suggestible under pressure, when he is required to answer complex statements and confrontational style, may in fact give erroneous answers, I am concerned about that in the context of what actually is now known, and I have to take account of the fact that we now know his mental condition and we know also what happened in interview. It seems to me, whilst I make absolutely no criticism whatever of the police, it seemed to me that they were acting in good faith ... in a very professional fashion, nevertheless, the introduction of the further injuries, as it turned out, with a man of this vulnerability was a risk, a risk that they were unaware of, but a risk nevertheless, that seems to me to require me to have the closest scrutiny to what actually happened and what was said. My view is that had there been an appropriate adult, it is quite reasonable to assume ... that the appropriate adult, when he was aware that this new set of injuries was being introduced ... [would] have said that that required some delay and some fresh consideration and advice from a solicitor. The matter now taking on a rather different perspective, and ... had there been a solicitor, bearing in mind what occurred later, ... the solicitor was likely to have said then, ‘I do not think you should answer questions, at least until it becomes clear what the injuries are’.” The judge then referred to the submission made on behalf of L that his answers did not in any event constitute a confession. The judge continued: “... it must be legitimate for the defendant ... to say to the jury ... “don’t accept this as being a confession for there are a number of reasons, (1) because it is ambiguous, (2) it does not amount to more than an admission of some squeezing ... but how then can one deal with that without putting the full picture known to us before the jury, namely in respect of his known medical condition? And as I indicated, it seems to me that that of itself is a real concern, because...the agreed medical evidence is that he is vulnerable, and Mr Pascoe feels obliged to put it before the jury, ... the jury are given information which, notwithstanding the sort of directions the judge would give them about not seeking to hold it against him, it may nevertheless colour their assessment against him in an adverse way and I find that, at the end of the day, clinching it. It seems to me it is a close run thing, if I may say so, and I have to exercise discretion which is a discretion to ensure fairness ... I am satisfied after all that ... that fairness demands that I should exclude it under section 78 . I am less impressed about section 76 but I feel under section 78 ... that the evidence should [not] be admitted.” 21. Before we turn to L’s criticism of the judge’s ruling we need to explain what occurred at the close of the prosecution case. R’s application to admit L’s ‘bad character’ 22. The prosecution case was that the expert medical evidence established that B’s recent fractures, inflicted 4 - 5 weeks before his final admission to hospital, and the constellation of bruises acquired in the few days before his admission, were non-accidental in nature. The jury would be invited to infer that, as between the principal suspects, L was the perpetrator of those injuries. The case against R was that, knowing of L’s propensity to lose his temper, to drink alcohol inappropriately and to handle B too roughly, R had exposed B to harm at the hands of L, by her neglect. In response to the enquiries by the medical professionals and the police, R had throughout insisted that neither she nor L was responsible for the baby’s injuries. There was no explicit allegation of assault against R, either in the evidence or in the indictment. Nevertheless, Mr Vere Hodge QC, on behalf of R, was concerned that L’s denial left open the possibility by implication that R was responsible for at least some of B’s injuries. The possibility that someone other than the parents was responsible for non-accidental injury had effectively been excluded by the evidence. R now wished to establish that as between the two accused, it was L who had caused the injury but that she had no reason to suspect either that he had caused or that there was a risk that he might cause injury. She wished to rely upon L’s admission that he had not informed her of the “squeezing” incident as justification both for her defence and her willingness to defend L during the medical and police investigation. 23. R applied for the admission of the excluded interview between L and the police through the gateway provided by section 101(1) (e) Criminal Justice Act 2003 : “(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if – (a)–(d) ... , (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, (f) ..., or (g) ... .” 24. Secondly, Mr Vere Hodge sought the admission of the interview under section 76 A Police and Criminal Evidence Act 1984 which in its relevant parts reads: “(1) In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. (2) If, in any proceedings where a co-accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained – (a) ...; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence for the co-accused except in so far as it is proof to the court on the balance of probability that the confession (notwithstanding that it may be true) was not so obtained. (3) Before allowing a confession made by an accused person to be given in evidence for a co-accused in any proceedings, the court may of its own motion require the fact that the confession was not obtained as mentioned in sub-section (2) above to be proved in the proceedings on the balance of probability.” 25. We have been provided with Mr Vere Hodge’s skeleton arguments in support of the applications. He submitted a skeleton argument in respect of the application under section 76 A and a separate skeleton argument in support of the application under section 101(1) (e). Both are dated 3 December 2009, the day after the judge had exercised his discretion under section 78 PACE 1984 to exclude the interview. The application was made on 7 December 2009 immediately before the opening by Mr Pascoe of the case for L. As to the application under section 76 A, paragraph 2 of his skeleton reads: “On 2 December 2009 the court excluded this confession under the discretion of section 78 PACE 1984 . The court also heard an application on behalf of L to exclude the confession under the provisions of section 76 PACE 1984 ; it refused so to do.” It was contended that “responsibility for [B’s] injuries will be a matter in issue between the defendants. [L’s] confession in his police interview that he [squeezed] [B] on one or two occasions is relevant to that issue and prima facie admissible under section 76 A(1) of the Act .” 26. The applicant accepted the burden, to the civil standard, of establishing that the confession was not obtained by things said or done which, in the circumstances, was likely to render the confession unreliable. R observed that the medical evidence relating to L’s mental state had not been served on her. R had never been a party to any agreement as to the state of that evidence. At paragraph 11 of the skeleton it was asserted: “11. To make it clear, so far as [R] is concerned any medical evidence which might support the contention that the police ought to have, but failed, to ensure that [L] had the benefit of legal representation and/or an appropriate adult during interview and/or that his confession in that interview is unreliable, is disputed.” Mr Vere Hodge adopted the prosecution’s arguments upon the voir dire already held and continued at paragraph 13: “13. On the question of whether [L’s] confession is rendered unreliable by virtue of his suggestibility, those representing [R] respectfully adopt the arguments put forward by the Crown ... and ask the court to recall the playing of the tape of the interview concerned and [L’s] answers and demeanour demonstrated therein. 14. The court can therefore be satisfied on the balance of probabilities that [L’s] confession was not obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render it unreliable.” 27. In his second skeleton argument submitted in support of his argument under section 101(1) (e) Mr Vere Hodge sought to adduce evidence not only of L’s disputed interview but also of his three previous convictions in 2003, 2005, and 2009. Further, he sought the admission of evidence relating to 12 previous incidents between 2003 and 2005 during which, it was revealed by social services files, L had behaved while in care in an aggressive or violent manner, particularly in response to provocation by other residents. Mr Vere Hodge sought the admission of L’s disputed police interview as evidence of bad character “should the court rule that the conduct concerned has nothing to do with the alleged facts of the offences with which [L] is charged” . The skeleton argument proceeded to explain the probative value of the evidence in relation to the matters in issue between the defendants. It was pointed out that if the disputed interview was admissible under section 101(1) (e) the court had no discretionary power of exclusion. Anticipating an argument that the application was made out of time, it was submitted that the defence of R reasonably assumed that L’s interview would be admitted in the prosecution’s case and had no reason to make such an application until the judge had exercised his discretion to the contrary under section 78 . This Court has been provided with a transcript (volume II) of the discussion and ruling made by the judge. At page 4 Mr Vere Hodge explained that if the application for admission of the disputed interview was successful he would not seek the admission of the further aspects of bad character upon which R relied. Mr Pascoe invited the judge to defer consideration of both applications and to permit him in the meantime to open L’s case in order “to give us time to decide whether or not to pursue it” (page 5A). The judge indicated his preference for giving a ruling before the trial proceeded further. Mr Vere Hodge introduced his application in the alternative: either the evidence was admissible under section 76 A or it was admissible under section 101(1) (e). The judge was taken to section 76 A and he observed (page 14E-F): “It seems to me that the position under section 101 is different. It seems to me [that with] bad character on the face of it, as was said in Musone , there are no controls provided it meets the criteria.” Mr Vere Hodge said: “Well we take your Honour to this because we see there being two separate routes and it would be wrong to mention one without the other.” Mr Vere Hodge went on to point out that the judge had not so far made a ruling under section 76 , an observation which the judge acknowledged. Mr Vere Hodge submitted (page 15E-G) that the evidence sought to be admitted was a confession within the meaning of section 82 PACE 1984 which provides: “(1) In this part of this Act ... “confession” includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.” He then directed his submissions to section 101(1) (e) of the 2003 Act . 28. Mr Pascoe’s response was not that the judge had already ruled the confession admissible under section 76 but (at page 21B-D) he pointed out his intention to argue that the replies given by L in interview did not constitute a confession. He proceeded only to address the judge as to the applicability of section 101(1) (e). His principal submission was that it was not the purpose of L’s defence to undermine the case for R. Mr Pascoe said nothing at all about his preparedness to adduce his expert psychiatric evidence in view of R’s refusal to agree it. In his skeleton argument in support of his resistance to the application Mr Pascoe made no reference to section 76 A and confined his submissions to the “important matter in issue”. His skeleton argument concluded with the submission that if the evidence was now to be admitted before the jury, L could not receive a fair trial. Judge’s ruling on R’s application to admit 29. The judge gave his ruling at the close of argument (page 27F) but indicated his intention to provide his reasons in writing. He concluded (page 28E) that R’s case was that B’s injuries were accidental. If they were deliberately caused then it was not she but L who was responsible. Her case was that she was not guilty of Count 6 because she was unaware of the risk that B would suffer injury as a result of L’s conduct. The “confession” evidence provided an instance of non-accidental force applied by L to B which L conceded was wrong but which he had kept secret from R. This evidence tended to advance R’s defence. The judge found (page 28G-H) that he had no residual discretion to exclude the evidence. Although he had earlier ruled that the confession could not be adduced by the prosecution “the position now is a different position”. The judge provided counsel with his written reasons on 17 December 2009. They were: “The application concerns the admissions made by [L] in his police interview on 2 May 2008 when he said that he had squeezed [B] on at least one occasion ... I had already ruled that this interview should not be introduced as part of the Crown’s case pursuant to my powers under section 78 of the Police and Criminal Evidence Act. My ruling in respect of that matter is on the record and need not be repeated here. The application to re-introduce this interview as relevant bad character evidence, at the behest of a co-defendant, raises different issues. I have no difficulty in concluding the facts admitted (relating to the squeezing incident) themselves constitutes reprehensible behaviour and come within the definition of “bad character”.... It seems obvious that, in the circumstances described, the jury will need to ask themselves whether they are sure that the injury is non-accidental and then, if so, by whom they were caused. This is clearly at the centre of the case and constitutes “an important matter in issue between the defendant and the co-defendant”. Furthermore, during this interview [L] also told the police that at the time of the squeezing incident [R] was in bed asleep and unaware of what had happened. He also stated that he had never mentioned it to her until the interview on 2 May. In my judgment this is an important issue which she can rely on in putting forward her defence to charge of cruelty. I have no doubt that these are matters of substantial importance in the context of [the] case as a whole. I conclude therefore that they should be admitted under section 101(1) (e). The court has no power to exclude evidence of bad character which is admissible at the behest of a co-defendant once it has passed the test set out above. In particular the court has no power under section 101(3) or section 78 PACE 1984 . See R v Musone [2007] 2CrAppR 29.” The judge accepted Mr Vere Hodge’s argument for the extension of time for the application beyond the prescribed time limit under Rule 35.8Criminal Procedure Rules 2005. 30. Contrary to the indication given by Mr Pascoe’s skeleton argument, no application was made on behalf of L for the discharge of the jury and separate trials. Mr Pascoe proceeded to open L’s case and L gave evidence. Summing up 31. The judge was faced with giving directions to the jury which did justice to both defendants in these rather unusual circumstances. In the course of summarising L’s interviews with the police he said (summing up transcript volume 3, page 49D-50D): “In relation to his third interview, ... it is very important that you understand that while it may be said he has made comments that are adverse to himself, i.e. he has made admissions that he has on one occasion squeezed the child ... he has not made what one could describe as a confession. I say that because even though he accepted in the course of that interview that he had squeezed the child on more than one occasion, he was careful to qualify that admission by saying that that squeezing was for a split second and that the force used was nowhere near enough to cause these injuries, and that it occurred in circumstances where he had no intention to cause any harm or hurt. ... I am not for one minute suggesting that you cannot properly take it into account. I am just asking you to approach it in a measured way, fairly. That is all it comes down to.” The judge described L’s explanation for this part of his interview at transcript volume 3, page 53G-54C: “As for squeezing he said it is not as it sounds in the tapes. He said, “I was simply holding him a little tighter than usual. I was not squeezing him.” He told you what happened. He said he had been walking around the flat. The baby was crying. R was in bed asleep and perhaps for about 45 minutes. He said, “I brought him up close to my chest a bit tighter than usual and then I put him back in the cot”. And he said, “I did have patience with him”. The reason he said it to the police, he said, “I thought it would be an end to it. The fact that I said I felt bad was not true. I didn’t feel anything. I didn’t feel guilt. I exaggerated because I thought it would be over”. You may remember that he demonstrated what he said he meant by the expressions he had used and how he held the child, cradled in his arms and demonstrated what he did.” L agreed in evidence with Mr Vere Hodge that he had not informed R about the squeezing incident. He said to Mr Parker in cross-examination that he saw no significant changes in B after “he had done it”. 32. As to R’s evidence, the judge reminded the jury (volume 3 page 64E) that in answer to Mr Pascoe R had said, “I accept now that the injuries were not accidental injuries. I believe it was L. I believe in a split second he got angry”. She said that she had never witnessed anything that had made her believe that L had injured B (page 53E). L’s ground of appeal 33. Mr Scott argued that the judge ruled that L’s confession would have been admissible on an application of section 76(2) (b) when, upon the findings he made in relation to the application to exclude under section 78 , he should have ruled it inadmissible. In the alternative, Mr Scott argued that in consequence of a misunderstanding counsel had assumed that the section 76 A issue had effectively been foreclosed by the decision the defence believed the judge had made under section 76 , namely that the prosecution had shown beyond reasonable doubt that the confession was not likely, in the circumstances existing at the time, to have been unreliable in consequence of things said or done. 34. This Court invited Mr Scott to consider what steps the defence of L would have taken had it been aware that the issue under section 76 A was a live one. Mr Scott replied that he would have made sure that Dr O’Shea was available to give evidence in the voir dire . Discussion 35. We have no doubt that the judge had not made a ruling upon the defence application under section 76 PACE 1984 . We can only conclude that Mr Scott’s recollection is at fault. We cannot accept that counsel for L were unaware that the judge, counsel for the prosecution, and counsel for R were all of the same mind, namely that no such ruling had been given. Were it not for the fact that the application which was made on behalf of R was put in the alternative, we would have little difficulty in concluding that the defence for L saw tactical advantage in not attempting to justify with medical evidence its resistance to Mr Vere Hodge’s application under section 76 A. That tactical advantage would have been obtained in consequence of Mr Vere Hodge’s undertaking not to pursue his wider bad character application if he was successful in re-introducing the “confession”. Mr Pascoe appears to have confined his submissions to (1) an assertion that L’s replies did not constitute a confession and (2) that L’s defence did not put in issue any responsibility of R for causing B’s injuries. Having regard to the way Mr Vere Hodge and the judge both appear to have approached the application, namely that section 101(1) (e) CJA 2003 was conclusive, we have a lingering concern that Mr Pascoe may have been misled into thinking that unless he could resist gateway (e) the evidence was bound to be admitted. 36. The judge and defence counsel appear to have approached the issue of admissibility of the “confession” as if there were two separate and alternative routes to admission, either (1) as evidence relevant to an important matter in issue between the defendant and a co-defendant ( section 101(1) (e)) or (2) as evidence of a confession proved on balance to be admissible under section 76 A(2)(b). We can think of no other explanation for the judge confining his consideration of admissibility to the terms of section 101(1) (e). Had the judge understood that Mr Vere Hodge was conceding that it was necessary for him to satisfy the terms of section 76 A, it would have been inevitable that he would have required him to do so and would have given a ruling upon the issue. Whether as a consequence of Mr Pascoe’s misunderstanding or of the judge’s failure to apply section 76 A(3), we conclude that the appellant was denied a ruling as to the reliability of the confession which he should have received. 37. In our judgment, therefore, Mr Parker’s submissions for the respondent in this appeal are correct: (1) No ruling was made by the judge under section 76 or section 76 A; (2) If the evidence whose admission was sought by R was evidence of “confession” within the meaning of section 82 (which it plainly was) it could only be admitted if R satisfied the condition precedent provided by section 76 A(2)(b), whether or not the evidence also happened to satisfy the terms of section 101(1) (e); (3) Section 98 Criminal Justice Act 2003 defines evidence of bad character for the purposes of section 101 as follows: “98. “Bad Character” 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 charge, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence.” In interview L was being asked whether he had any explanation for B’s rib fractures, injuries with which he was charged in count 3 with causing. He admitted on one occasion squeezing B with such pressure that he regretted what he had done and felt guilty about it. He had not told R. While L denied that he could have caused these injuries by squeezing B as he had described, it is, in our view, clear that the evidence was of misconduct which “had to do with the alleged facts of the offence with which” L was charged. For that reason the interview was not evidence of bad character for the purposes of section 101 and if admissible at all, it was admissible because (1) it was “relevant to any matter in issue in the proceedings” ( section 76 A (1) PACE 1984 ) and (2) it was proved to the court on a balance of probabilities that the confession was not likely to be unreliable in the circumstances by reason of anything said or done ( section 76 A(2)(b)); (4) The “confession” was plainly relevant to a matter in issue in the proceedings for the reasons explained by the judge. (5) L did not invite the judge to exclude the confession under section 76 A and the judge did not, of his own motion, invite submissions directed to it. 38. What are the consequences of these findings? The confession was admitted without a finding by the trial judge whether it satisfied the terms of section 76 A, while the judge had earlier regarded the question of admissibility under section 76 as at least arguable. R was required only to satisfy the civil burden of proof and the judge had expressed himself as “less impressed” with the argument under section 76 than he had been with Mr Pascoe’s analysis of section 78 unfairness. The judge had not, however, heard evidence from Dr O’Shea upon the question whether the contents of the disputed interview fell into the category of circumstances in which he would regard the replies made by L as the possible consequence of his suggestibility. No application has been made in the appeal to adduce the oral evidence of Dr O’Shea upon this issue. It is simply asserted by Mr Scott that upon the agreed evidence the judge ought to have found that the prosecution had failed to discharge the burden of proof. Had the judge made such a finding, we are invited to infer, he would also have found that R had failed to establish on a balance of probability that the replies given in the disputed interview were not likely to have been rendered unreliable, in the circumstances existing at the time, by reason of things said or done. 39. We are quite unable to accept these submissions. However, our rejection of Mr Scott’s principal submissions do not dispose of the appeal. His eventual assertion is that the evidence was admitted without a finding under section 76 A one way or the other. In the circumstances as they existed at trial, it was in our view incumbent upon the learned judge to reach a decision under section 76 A. The court has considered with some anxiety whether, in those circumstances, the judge would have or should have concluded that the burden upon R had been discharged. 40. It is accepted by Mr Parker on behalf of the respondent that evidence of the confession should have been admitted, if at all, as evidence of a confession by L pursuant to section 76 A of PACE 1984 . Notwithstanding this concession Mr Parker submits that the judge achieved balance and fairness in his directions to the jury which renders the verdicts of the jury safe. It is not seriously contended by Mr Parker that the admissions made in the disputed interview were anything less than a significant signpost for the jury in its deliberations. Having considered the learned judge’s summing up with some care we have no doubt that these admissions must have formed one basis for the acceptance by the jury that L had used at least reckless force in his handling of the child. If those admissions were not properly evidence to be considered by the jury then it must follow that L did not receive a fair trial. This court is not in a position to second-guess the judge’s putative decision. The judge did not hear evidence which would have been required for the assessment to be made under section 76 A and we are in no better position to make the judgment for ourselves. We can conclude only that by reason of the unfortunate turn of events at trial the verdicts of the jury in the case of L are unsafe. The judge had earlier ruled that the admission of the disputed interview would have been unfairly prejudicial to him. The consequence of the judge’s subsequent ruling was that the unfairness which he anticipated was realised when no proper basis for admitting the evidence had been established. R’s grounds of appeal 41. Mr Vere Hodge submits that having admitted the disputed evidence, the jury required careful directions as to its relevance in the case of R. In his anxiety to restore fairness as between the prosecution and L, the judge deprived R of the value of the evidence. The effect of the judge’s directions was to diminish the significance of the “squeezing” incident to R’s case. 42. Secondly, Mr Vere Hodge argued that the judge should have reminded the jury of evidence which suggested that B had been bruised during expert but careful professional handling at hospital on 23 April 2008. This evidence, it was submitted, enhanced R’s explanation that her baby bruised easily. If the jury accepted her evidence in this respect they would have been more likely to have accepted the evidence of both defendants that the bruises were caused either accidentally or in consequence of normal handling. The jury should further, it is submitted, have been reminded of the evidence of an expert to the effect that R’s evidence that B bruised easily could not be excluded. 43. None of these criticisms would, either individually or cumulatively, have caused us to doubt the safety of R’s conviction upon count 6 in the indictment provided that we could be sure that in the absence of the disputed interview the conviction of L for deliberately or recklessly injuring the child was safe. However, the full court anticipated when giving leave to appeal in R’s case that consideration of the safety of the verdict upon count 6 might well be affected by concerns in the case of L. As we have said, the prosecution set out to prove against R that (1) the injuries suffered by B were non-accidental, (2) the injuries were caused, deliberately or recklessly, by L, and (3) R, by neglect, exposed B to injury at the hands of L. The disputed admission went to all three of these issues. Of particular relevance to R’s case was the capacity of the admission to explain the cause of the fractured ribs or the bruising or both (notwithstanding L’s estimate in interview that the squeezing incident occurred in late February). The Court has no means of being sure that if L had successfully resisted the admission of this evidence under section 76 A PACE 1984 the jury would have dismissed his primary defence that B’s bruises may have been accidental in origin. We appreciate that R chose to seek the admission of the evidence and, having done so, gave evidence that she believed the injuries had been caused by L when he had lost his temper, but we do not conclude this is an adequate basis on which to allow one appeal in respect of counts 3 and 4 but not the other in respect of count 6. Had the confession not been adduced in evidence there is a prospect, if only a small prospect, that the jury would have returned a verdict of not guilty upon count 6 on the ground that they could not be sure that B’s bruises had been deliberately or recklessly caused. It was only if the jury could be sure that R had exposed B to the risk of harm at the hands of L that they could return a guilty verdict against her upon count 6 (see paragraph 6(3) above). For this reason we regard the verdict in R’s case as unsafe. We may be giving R an undeserved benefit in the light of her own tactical decision at trial but in our view it is a decision which is required in order to do justice in her case. 44. For these reasons both appeals will be allowed and the convictions of both appellants quashed. The respondent will have 14 days within which to make a written application to the court for a re-trial in either or both cases. The court has no provisional view to communicate to the parties. Should such an application be made the respondent must given notice of its application to the appellant or appellants concerned and the court will consider the written submissions of each relevant party. Should an oral hearing be required by any party, that application should be made explicit in writing.

```yaml citation: '[2011] EWCA Crim 649' date: '2009-12-02' judges: - LORD JUSTICE PITCHFORD ```

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Case No: 2007/3863/A9 Neutral Citation Number: [2008] EWCA Crim 119 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 18 January 2008 B e f o r e : LORD JUSTICE TUCKEY MR JUSTICE SAUNDERS MR JUSTICE COULSON - - - - - - - - - - - - - - - - - - - - - R E G I N A v CRAIG GRIFFIN - - - - - - - - - - - - - - - - - - - - - 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 S O'Neill QC and Mr W Walsh appeared on behalf of the Appellant Mr A Orchard appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE SAUNDERS: On 4th May 2007 at the Central Criminal Court, this appellant was convicted of manslaughter and sentenced to imprisonment for public protection. The appropriate determinate sentence decided by the judge was one of seven years, so the period to be spent in custody before the appellant become eligible to apply for parole was three-and-a-half years, less the period already spent in custody. He appeals against that sentence by leave of the single judge. 2. The killing occurred on 18th February 2006 at the house of the deceased, a man called Johnson. The appellant knew the deceased somewhat and had gone to his house that night to return a coat that he had borrowed. The appellant remained at the house for some time with the deceased and another man. Some drink was consumed but the appellant's case was that he was not drunk. 3. Shortly after 1 o'clock in the morning the appellant decided to leave and a taxi was called. The arrangement made with the taxi driver was that the taxi would take the appellant to Bromley. The taxi driver also agreed to get some cigarettes for Mr Johnson and then take them back to him. Mr Johnson gave the taxi driver £50 for this purpose. According to the appellant, Mr Johnson also lent him and let him use his credit card to withdraw some cash which he needed from a cash machine -- cash which was presumably to be a loan from Mr Johnson. In the event the appellant did not go to Bromley but tragically, as it turned out, returned to Mr Johnson's house because he had entered the wrong PIN number in the cash machine which had therefore kept the card. 4. What exactly then went on at the house is not clear, but there was an argument and during the course of that argument the appellant stabbed Mr Johnson to death with a kitchen knife which was in Mr Johnson's house. There were only the two of them present at the time of the killing, that was the appellant and Mr Johnson. 5. The appellant's account was that when he was about to go and when Mr Johnson was accusing him of short changing him, Mr Johnson had attacked him (the appellant) with a knife. The appellant indeed had a cut to his right hand which was consistent with being a defensive injury and supported his suggestion that it was Mr Johnson who had started the attack. However, the appellant said that he lashed out at Mr Johnson causing him to drop the knife. The appellant then picked the knife up and used it to stab Mr Johnson, probably first in the back causing minor damage to the lung, but then stabbed him in the eye, the knife may well have come in and out more than once in the course of that stab. The blow to the eye was said by the pathologist to be delivered with severe force because it penetrated the skull and went into the brain. The handle of the knife actually broke off leaving the blade protruding from the eye socket. The point was made in the course of the evidence by the defence to the pathologist, and was accepted by him, that part of the severity of the force needed could have been caused by Mr Johnson actually coming on to the knife as the blow was struck. 6. At trial the appellant faced a single count of murder. After discussion with counsel (before speeches) it was decided that the judge would also leave manslaughter to the jury as an alternative on two possible bases, namely lack of intent and provocation. 7. On the third day of their retirement the jury indicated to the judge by a note that they were unable to agree on murder but had reached a verdict on manslaughter. This scenario raises considerable difficulties for judges, but by agreement with counsel a second count of manslaughter was added at that stage to the indictment. The jury were discharged from giving a verdict on murder and they returned a verdict of guilty on manslaughter. The jury were not asked to return a special verdict, nor are we suggesting they should have been, indicating the basis on which they returned their verdicts of manslaughter. 8. The judge considered it necessary as part of the sentencing process to decide on what basis he should sentence for manslaughter. Whether in the event it would have made any difference may be uncertain. Miss O'Neill submitted to the learned judge that he should sentence on the basis that the necessary intent had not been proved. She argued this way, that as the jury were agreed on manslaughter they could not all have agreed on provocation because inevitably, had that been the case, that would necessarily involve their agreement on the murder charge as well. If, however, they had all agreed that this was an unlawful killing but were split over whether the necessary intent was proved, then that would explain their unanimous verdict on manslaughter and their failure to agree on murder. The prosecution however submitted to the learned judge that the judge should make up his own mind on the basis of the verdict of manslaughter because Miss O'Neill's analysis of the jury's verdict on manslaughter and lack of agreement on murder was not the only possible explanation. It may have been, the prosecution pointed out, and it seems Miss O'Neill conceded in front of the learned judge, that some of the jurors might have found manslaughter by reason of provocation, others on the basis of lack of intent, and some were not agreed that intent had been proved. The learned judge accepted the prosecution's submissions. The judge made up his own mind that he should sentence on the basis of provocation. The judge was satisfied on the evidence that the appellant had clearly demonstrated an intention at least to cause really serious bodily harm by stabbing Mr Johnson in the eye. 9. We are satisfied that the judge was perfectly entitled to do what he did and reach the conclusion that he did. We accept that if there is only one possible interpretation of a jury's verdict then the learned judge must faithfully sentence on that basis, whether he agrees with it or not. But we do not accept that in this case there was only one possible interpretation of the verdict that the jury brought in, ie their failure to agree on murder but their agreement on the manslaughter verdict. 10. In those circumstances, where there is more than one possible interpretation the judge is perfectly entitled, indeed must make up his own mind, on which basis he should sentence and decide that on his view of the evidence. We do also take the view, which we canvassed during argument, that in this case it is likely to have made little if any difference to the decision that the judge had to make and with which we have to deal, ie the decision to impose a sentence of imprisonment for public protection. Miss O'Neill accepts that the notional determinate sentence of seven years taken by the learned judge was appropriate on either basis ie provocation or unlawful act manslaughter. But she argues that the judge would have been less likely to have passed a sentence of imprisonment for public protection on the basis of lack of intent than he would have been on the basis of provocation. With respect we do not agree. Indeed arguably it may be a stronger indicator of dangerousness if the judge had sentenced on the basis that the appellant had caused these injuries in the way he did, but at the time he had no intention to cause grievous bodily harm. That may well support a suggestion that he was dangerous because he lacked insight into the consequences of his own actions. 11. Coming then to the learned judge's decision to pass a sentence of imprisonment for public protection and whether that can be properly criticised before this court. Manslaughter is a serious specified offence by virtue of section 224 of the Criminal Justice Act 2003 . Therefore the judge was bound to consider the question of dangerousness and, if the learned judge decided that there was a significant risk to members of the public of serious harm occasioned by him of further specified offences, then he was bound by section 225 to pass a sentence of either imprisonment for public protection or life imprisonment. 12. Further, in April 2005 the appellant had been convicted of racially aggravated threatening behaviour and given a community rehabilitation order. That offence is a specified offence under the Criminal Justice Act 2003 and therefore by virtue of section 229 of the Criminal Justice Act 2003 the judge must assume that there is such a risk unless, when having considered all the information about the offender, the judge considers it would be unreasonable to conclude that there was such a risk. As has been pointed out by this court in the case of Lang , that it is not by any means automatic that when there is a previous specified offence the judge must reach the conclusion that the offender is dangerous. But as is also made perfectly clear in the case of Johnson , the Act does require the judge to follow this process and to assume that there would be such a risk unless it was unreasonable to conclude that there was one. 13. Clear guidance, as we have said, has been given to judges in the cases of Lang and Johnson , as to how they should approach those provisions and it is clear that the judge was well aware of that guidance and applied it, the cases indeed having been referred to during the course of the sentencing process. 14. One of the matters which the learned judge took into account, as you would expect, was the contents of the pre-sentence report and the assessment of risk made by a probation officer. It is unlikely that any judge would sentence without having the benefit of such a report and such an assessment. However, it is the way that assessment was carried out which forms another basis of the criticism made by Miss O'Neill of this sentence. In making the assessment the author of the report used two separate risk assessment tools. The OASys risk assessment tool which is commonly used by the probation service and also one called the Thornton Risk Matrix 2000, another assessment tool developed by the Home Office. 15. In the first report which was produced it appeared that the probation officer made her risk assessment on the basis of the Risk Matrix 2000 risk assessment tool only. That report was withdrawn by the probation officers at the Central Criminal Court and a new report was prepared which made use not only of Risk Matrix 2000 but also OASys. 16. The probation officer assessed that the appellant posed a high risk of harm and a high risk of causing harm of serious injury. She concluded that the risk was posed to members of the public and known adults and that the nature of the risk is that the appellant would physically assault members of the public leading to injury or death. At Part 4 of her report the probation officer made clear the matters she had taken into account. She said this: "In assessing risk of harm I have taken into account the nature and circumstances of the current offence, the nature and circumstances of the previous offending behaviour, the escalation in the seriousness of the defendant's behaviour, and the fact that the current offence was committed whilst [he] was wanted on warrant for breach of a community order. I have also taken into consideration the judge's remarks that provocation contributed to the defendant's behaviour, and the fact that the defendant appears to be remorseful for the offence. Given all of the above it is my assessment that the defendant poses a high risk of harm. Mr Griffin should focus on the appropriate offending behaviour work as outlined in the supervision plan in order to lower this risk. The risk is posed to members of the public and known adults. The nature of the risk is that the defendant will physically assault them leading to injury or death. The risk is likely to be higher in the community than it is in custody. Risk is not assessed as being imminent. Circumstances likely to increase risk are alcohol consumption, Mr Griffin fearing for his safely (whether that fear is justified or not), an ongoing dispute between Mr Griffin and a known adult, and the presence of a weapon." She then goes on to detail factors which could decrease that risk. 17. It is obviously important that the learned judge should be able to see the matters which inform the probation officer's opinion and her conclusion because it is, as has been said more than once, he who has to make the decision making use of course of all the information which is put before him. 18. In addition to that, in assessing what score or what importance to attach to individual factors, the probation officer used the Risk Matrix 2000 risk assessment tool. Miss O'Neill has criticised the use of it. It is right to say that it is a risk assessment tool which is developed primarily to help assess risk when dealing with sex offenders. But in the introduction it does go on to say 'that it has also been tested with adult males serving a prison sentence following conviction of an offence of non-sexual violence and with a heterogenous group of prisoners who are participating in cognitive skills programmes. It is therefore reasonable to use it with adult males who have been sentenced for serious non-sexual violence'. 19. So it is, on the basis of that introduction at least, appropriate to use it, perhaps along with the OASys risk assessment tool as well, in considering these sort of cases. The use of risk assessment tools by the probation service is clearly necessary for them because risk assessment is an extremely difficult task and the use has been approved by this court in R v Boswell [2007] Crim EWCA 1587. There was no evidence placed before the judge in this case, as opposed to criticisms made by counsel, to justify the claim that the probation officer had made inappropriate use of the Risk Matrix 2000 system. The learned judge had in mind the criticisms made by Miss O'Neill of that particular risk assessment tool and he heard from her the dangers of the use of it. In any event, it is perfectly clear that the learned judge made his own assessment, as is required by statute, no doubt making use of the contents of the report but attaching such weight to them as he thought fit in the light of the criticisms that were made, but it is, as required by statute, he that had to make the assessment. 20. In his sentencing remarks, at page 6A, having set out the basis on which he was going to sentence, he said this: "Because of the nature of the offence you have committed, I have to consider whether it is necessary to pass a sentence of imprisonment for public protection. If I decide there is a significant risk to members of the public of serious harm caused by you committing further specified offences, I must pass such a sentence. Because you have previously been convicted of a specified offence, I must assume there is that risk unless it is unreasonable for me to do so. I have considered the nature of this offence, indeed all the circumstances relating to the offence, your past history which shows an escalating pattern of violence, albeit on a much lesser scale, and indeed the conclusion in the pre-sentence report, which state that you pose a high risk of harm to members of the public and known adults. It is stated that the nature of the risk is that you will physically assault others, leading to injury or death from offences of violence. I accept that I am not bound by that assessment, and I have listened with care to the criticisms your counsel have leveled at that assessment; in particular that it is simplistic in the extreme and makes assumptions without looking at the good features in respect of your personality and conduct. However, when taken together with these other matters, it seems to me you do pose a significant risk to members of the public of serious harm. In those circumstances I must pass a sentence for public protection." 21. We have listened with great care to the criticism made of the learned judge's assessment, but in our judgment, on proper analysis, his findings are unassailable. Not only did he have all the relevant factors in mind but he had the great benefit which we do not have of observing this appellant during his trial and hearing him give his evidence. He clearly applied the correct test. He took into account the Court of Appeal authorities to guide him, and he reached his conclusion, on perfectly proper factors, in our judgment, that the appellant was indeed dangerous and accordingly the sentence of imprisonment for public protection had to be passed, if not a life sentence. 22. In those circumstances we do not feel it is appropriate for this court to interfere and accordingly the appeal against sentence is dismissed. 23. MISS O'NEILL: My Lord, may I mention one matter? Forgive me for doing so. I mention Mr Walsh being here with me as my junior. He was of enormous assistance to me both during the trial and in the preparation of this appeal. The representation order is for me alone today. I invited the Registrar to extend it to include Mr Walsh. That was declined but we were told that we could renew the application before my Lord. I hope my Lord does not think it an impertinence if I do so. 24. LORD JUSTICE TUCKEY: Of course it is not an impertinence to ask. We were even warned that you would. 25. MISS O'NEILL: He has been of very considerable assistance to me, my Lord. It is an unusual case as far as the risk assessment and the Thornton Matrix 2000 matters was concerned, which is where he has been of particular assistance to me. 26. LORD JUSTICE TUCKEY: No doubt he has been of assistance to you. (Pause) I am sorry, Miss O'Neill, we think it might set a precedent. As you understand normally it is for one counsel and exceptionally leading counsel on an appeal against sentence and much though we appreciate the fact that you have had that assistance we do not think we can extend the representation order.

```yaml citation: '[2008] EWCA Crim 119' date: '2008-01-18' judges: - LORD JUSTICE TUCKEY - MR JUSTICE SAUNDERS - MR JUSTICE COULSON ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2013] EWCA Crim 2574 No. 2013/03341/A3 & 2013/02224/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Wednesday 9 October 2013 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Thomas of Cwmgiedd ) MR JUSTICE HENRIQUES and MR JUSTICE BLAKE _______________ ATTORNEY GENERAL'S REFERENCE No. 36 of 2013 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 _______________ R E G I N A - v - GRAHAM STUART OVENDEN __________________ 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) __________________ Mr D Penny appeared on behalf of the Attorney General Mr S Heptonstall appeared on behalf of the Crown Mr C Quinlan QC appeared on behalf of the Offender/Applicant __________________ J U D G M E N T ( As Approved by the Court ) __________________ Wednesday 9 October 2013 THE LORD CHIEF JUSTICE: Introduction 1. On 2 April 2013 in the Crown Court at Truro before His Honour Judge Cottle and a jury the applicant was convicted of six counts of indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960 and one count of indecent assault (count 9) contrary to section 14 of the Sexual Offences Act 1956 . He was acquitted on other counts for reasons to which we will refer later. 2. On 4 June 2013 he was sentenced to twelve months' imprisonment on each of the counts, suspended for two years. 3. The court has before it two applications. The first is by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer the sentence to the court as unduly lenient. The second is an application by the applicant for leave to appeal against conviction which has been referred to the Full Court by the Registrar. The factual background 4. The applicant is an artist and photographer. He is well-known for landscape work, both painting and photographic, and for the photographing of children. Until the beginning of the 1970s he lived in London. In 1972 he moved to Barley Splatt, Cornwall, a house on Bodmin Moor, where he continued his career. 5. The allegations against him at trial related to matters said to have occurred between 1972 and 1987. In 1993 the police had investigated the applicant and searched Barley Splatt. Statements were taken from one of the complainants in the trial before Judge Cottle which supported the applicant's view of his own conduct. At that stage he was not charged. 6. In November 2006 a search warrant was again executed at Barley Splatt. The applicant's computer was seized. A number of "pseudo images" were recovered. We shall have to refer to these in due course. On that material he was charged with making or possessing indecent images of children. 7. A trial commenced before His Honour Judge Elwen in October 2009. The jury were discharged because of the way in which the Crown had conducted disclosure. A new trial began in May 2010. Some of the witnesses did not attend. The judge stayed the indictment for an abuse of process. 8. It is important to refer to those previous matters, partly because the material found on the execution of the search warrant became highly material in the trial before Judge Cottle; and secondly, because at one stage it was submitted to Judge Cottle that the fact that the Crown had acted in the way in which it had amounted to an abuse of process. That allegation is no longer pursued. 9. The trial at Truro before His Honour Judge Cottle began on 26 March 2013. The Crown relied on the evidence of witnesses who had been children during the relevant period. That evidence can be summarised in relation to each of the counts in the indictment as follows. It is necessary to refer to it in some detail as it is relevant to both of the applications before us. 10. Counts 1 and 2 involved offences of indecency with a child, SM, when she was about 10 years of age. Count 1 alleged that the applicant had taken photographs of her at a time when he still lived in London. The photographs were taken in a studio in an empty bedroom of his house. Her evidence was that the applicant told her that he wanted to create a story about a blind girl. She sat on the floor, naked. The applicant put white sticky tape over her eyes. As a result she could not see, but she heard him breathing as if he was holding his breath and exhaling. No such photograph was produced at the trial. 11. Count 2 related to another photograph of SM, when she had visited the applicant's house on Bodmin Moor with her family. On that occasion he photographed her out of doors, naked. Her evidence was that she recalled lying on her backs across rocks, stretched out in certain poses and feeling vulnerable. Again, there was no photograph of that before the court. SM made no complaint at the time. She was approached by the police in March 2009. She had been identified by a photograph in the applicant's possession. 12. Two further photographs of SM were produced during the trial. They did not form the basis of any charge. One was adduced by the Crown and the other was adduced by the defence. 13. The second series of counts, two of indecency with a child and one of indecent assault, related to another child, JB. JB's mother had been friendly with the applicant's wife. During her childhood they would visit the applicant's home address. JB gave evidence that on one occasion in 1980 or 1981, when she was about 6 years old, she was having a bath with the applicant's daughter who was about 5 years of age. The applicant entered the bathroom, naked. He got into the bath. His penis was erect. He kept asking them to wash his penis. The applicant's daughter wanted to wash his beard, but he kept saying that he wanted her to wash his penis. JB recalled feeling uncomfortable at his daughter washing his penis. He then got out of the bath and left the bathroom. He returned with a camera and photographed JB and his daughter wrapped in a green towel. He was charged with gross indecency with a child. He was convicted on this count, which stands apart from the other counts as it involved conduct quite different to that charged on counts 1 and 2 (taking a photograph) and on the other counts of gross indecency, which also involved taking photographs. 14. The second matter involving JB occurred in 1984/1985 when she was about 10 years old. She had been sitting on the landing at the applicant's home. The applicant approached her from behind and cupped her breasts in his hands. He said to her, "Come on, come on, let's have a feel". JB elbowed the applicant by moving both her arms back, kicked him in the shin, and told him to get off. This was charged as indecent assault. He was convicted of that count. 15. The third count involving JB (count 8) has assumed some importance on this application. It related to what was referred to at the trial as the "tasting game". It was said by JB that the applicant had asked her to taste various things. He then placed his penis into her mouth. He was acquitted of that offence. We shall return to the reasons why that is important. 16. JB contacted the police in 2008. She made a formal complaint in October of that year and provided a formal statement in 2009. 17. Counts 10, 11 and 12 charged indecency with a child, all of which related to the taking of photographs. Between the years 1979 and 1987 the applicant took photographs of another child, EE, both clothed and naked. EE gave evidence that she would dress up in Victorian clothes and the applicant would pose her. He would either move a garment off her shoulder, or tell her to move it or take it down. Most of the sessions ended with her naked. On occasions the applicant would direct EE to move her knee or her leg in a certain way, or he would physically move them so that her genitalia would be exposed. 18. Three particular occasions were charged in the indictment: one, an occasion between 1979 and 1985 when she was aged between 6 and 8; one between 1985 and 1986, when she was aged between 9 and 11; and one between 1986 and 1988, when she was aged between 11 and 14. Two of those photographs were before the jury. They showed her sitting with her legs apart. These were originally charged as indecent assault (counts 4, 5 and 6 of the indictment). It must have been evident at an early stage, in the light of the authorities, that charges of indecent assault were unlikely to succeed. Nonetheless, the Crown persisted in them. When Mr Quinlan QC, who represented the applicant, made a submission of no case to answer, he was successful. 19. The Crown then applied to amend the indictment so that the very same matters were charged as counts 10, 11 and 12, gross indecency, in the same way as counts 1 and 2 had been charged in respect of SM. The way in which those amendments were made is relied upon as one of the grounds of appeal. 20. It is clear that EE made no complaint at the time. She did not think that there was anything wrong with what the applicant was doing. As we have said, she made a statement earlier in which she took that position. It was only later that she changed her mind. In 2009 the police contacted her, having identified her from a photograph in the applicant's possession. 21. The fourth child was CM. The applicant was acquitted on count 3 in relation to her. This count arose out of the evidence that she gave. She had visited a house within the grounds of Barley Splatt on Bodmin Moor. CM's mother had given the applicant permission to photograph her. She said that he made her change into a nightdress and covered her eyes. In the course of a "tasting game" he placed his penis into her mother. He was acquitted of that charge. We shall return in a moment to the circumstances of the acquittal, which is one of the grounds of appeal. 22. The Crown also called evidence from the mothers of both CM and JB, and from a police officer about the making of the complaints and the taking of the statements. 23. More important was the evidence before the court in relation to the pseudo-photographs to which we have already referred. There were a very substantial number of such images. They numbered 138. It appears that they had been created by use of a computer software programme which enabled photographs to be manipulated or to be brought together to create images. A schedule was put before the jury which described them. Two were shown in photographic form to the jury. In view of their importance it is necessary to read out the agreed description as illustrative of these matters. The first, number 23, is described as follows: "Depiction of a girl. Naked. Partially bending forwards, legs parted, exposing her vagina and anus which appears open. An erect adult penis is next to her bottom. There is semen dripping from her anus over her vagina. Girl's mouth is open wide." Image 52 is described in this way: "Depiction of a girl, naked, lying on her back on a bed. Legs apart with an erect adult penis inserted into her vagina. There is semen on her vagina. Legs are held apart by a male adult hand. There is another penis near to and above her head being squeezed tightly by another adult hand." 24. Both of those images were before the jury. We set out their detail for two reasons. First, from the descriptions that we have given it is plain that they were highly prejudicial. Secondly, they were relied on by the Crown as evidence to show that the applicant's interest in young girls was not artistic, but sexual. 25. The defence case was that the applicant had a great interest in photography. His house on Bodmin Moor was an open environment with lots of visitors, including adults, children, artists, musicians and writers. He accepted that he had taken photographs of naked children but he denied that he had any sexual interest in them. When asked why he took photographs of naked children, he said: "A child in a state of grace is a thing of beauty. There is no shame in oneself as one is. We are born naked into the world. It is abhorrent to me that a naked child is something to be frowned upon." He added that he abhorred the witch hunt, as he saw it, surrounding photographs of naked children. He described the children in the photographs (other than the pseudo-images) as "beautiful", "lovable" or "elegant". 26. The applicant's explanation as to the pseudo-images which we have described is that they were made to show the state of moral corruption to which children could be subjected, in contrast to the "state of grace" in which he had photographed the children. He explained that he had created the pseudo-images in 2006 for the purposes of a forthcoming publication. They were all sketches; nothing more was intended. They were part of his artistic purpose. They had been intended for a book, but nothing had gone forward. He denied having any sexual interest in children. He denied the count that related to the bath incident and to the counts where it was said that he had put his penis into the mouths of CM and JB. 27. Poweerful evidence was called on the applicant's behalf from witnesses who attested to his good character and reputation in the artistic world. The issues 28. In the applications before us we have to consider two matters: first, whether we should grant the Attorney General leave to refer the sentence as unduly lenient to this court; and secondly, whether we should allow the appeal against conviction. We put the applications in that order because the operation of the statutory provisions provide that if we were to order a retrial, the sentence available on retrial would be the sentence imposed at the original trial. If that sentence had been unduly lenient, at any subsequent trial the judge would be bound by the original sentence unless this court had increased it. 29. For the reasons we shall give, we grant the Attorney General leave to refer the sentence and we refuse the applicant's application for leave to appeal against conviction. APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION 30. We deal first with the application for leave to appeal against conviction. At the outset we would like to pay tribute to the careful way in which Mr Quinlan has prepared the papers for this court and for the restrained yet eloquent way in which he has put the points before us. We take each in turn. (1) Ingredients of the offence of indecency with children 31. The first ground which was argued before us (the second in the grounds of appeal) relates to the question whether the actions in taking photographs amounted to indecency with children (counts 1, 2, 10, 11 and 12). There is no dispute, nor could there be, that the incident in the bath, if the jury accepted the evidence of JB, amounted to gross indecency with a child. Mr Quinlan submits that the judge should not have permitted counts 10, 11 and 12 to be added to the indictment; that there was no evidence in respect of those counts (or in respect of counts 1 and 2) that enabled the Crown to satisfy the statutory offence set out in section 1 of the Indecency with Children Act 1960 . Reliance was placed on the decision of this court in R v Colin Leslie Francis (1989) 88 Cr App R 127 . 32. The offence of indecency with children is defined in the Act as follows: "Any person who commits an act of gross indecency with or towards a child under the age of 14, or who incites a child under that age to such an act, with him or another, shall be liable on conviction ...." 33. It is clear from the decision of this court in Director of Public Prosecutions v Burgess [1971] QB 432 that the offence under the Act was one of committing an act of gross indecency involving a child, that is to say, that the words "with or towards a child" must be read as one phrase. That case was considered in Colin Leslie Francis in which the Court of Appeal had to decide whether the judge had properly directed the jury in relation to the Act . As the court clearly pointed out, the issue was whether the children were involved in the gross indecency. That case involved masturbation in a public changing room. The court observed that, if a man masturbated in the presence of children in circumstances where he believed they were not observing what he was doing, there would be no question that his actions involved the children, or that he acted with or towards them. On the other hand, there could be circumstances where a man who masturbated in the presence of children, knowing that they were watching him, could truly be said to be have committed an act of gross indecency towards the children as he would have involved them. Various statements made by the court in that case were relied upon by Mr Quinlan in his submissions. 34. In R v Sutton (1977) 66 Cr App R 21 , the court had to consider whether the appellant, who had taken photographs of young boys in his home, partially clothed or naked, had committed an offence of indecent assault under the Sexual Offences Act 1956 . The court concluded that he had not. The court added: "The proper course, where there is an act which no one in their right mind could call an assault, but which takes place in an indecent situation, is to prosecute under the Indecency with Children Act 1960 ." 35. It was argued before us that we should approach the matter on the basis of the observations of the court in Francis . There are a number of ways in which we would examine that submission. First, it seems clear that what the court was concerned with in that case were the particular circumstances we have outlined. 36. Second, after hearing argument from counsel, Judge Cottle directed the jury as follows: "To convict the [applicant] of the allegation in this count you will have to be sure that such an event occurred, and secondly, that the act of taking a nude photograph of her in those circumstances was an act that right-minded people would regard as an obviously indecent act towards her." The judge added nothing to that direction. It seems to us, first of all, that the Act requires the proving of an act of gross indecency; and secondly, that it involved the child. As the judge's direction in his summing-up encapsulated those two points, there is every reason to say that the judge was correct. 37. However, it is necessary for us to consider two alternative submissions on the facts of this case. Following the receipt of a note from the jury, the judge went on to say that the offence had one additional ingredient. He answered the jury's question as to what was necessary to be proved in this way: "To prove the offence, the prosecution must prove (1) that the [applicant] committed an act with, or towards, a child that right-minded persons would regard as obviously indecent; and secondly, that the [applicant] did the act intending to derive sexual satisfaction from the knowledge that the child was watching him." It seems to us that if the second direction given by the judge, was the correct direction to be given, then there was plainly evidence before the jury from which they could have inferred that the act was one from which the applicant intended to derive sexual satisfaction from the knowledge that the children were watching. Although in our judgment it was sufficient for the judge to have directed the jury in the terms in which he originally dealt with the matter, it seems to us that if this second direction was one that the law required, there was plainly evidence for it. There was no misdirection. 38. It has been submitted by Mr Quinlan that what the judge said in his second direction was not correct; that what the Crown had to prove was not merely that the applicant did the act intending to derive sexual satisfaction, but that he actually obtained sexual satisfaction. 39. It was submitted on behalf of the Crown Prosecution Service that if that was the law, there was sufficient evidence in this case on which the jury could have come to that conclusion. We agree with that submission. We have already referred to some of the evidence that was available to the jury. Although there was plainly evidence that would have satisfied that further requirement, we do not consider that that was a necessary further ingredient of the offence. (2) The addition of the further counts to the indictment 40. We turn, under the head of this first submission, to one further point. The circumstances as we have described them in which the Crown had originally charged these matters were plainly unsatisfactory. However, it is clear from the transcripts that the judge took steps to ensure that the Crown understood the way in which the case should be put when he ruled that there was no case to answer. The complaint is, first, that the judge had to steer the Crown to the right charge; and secondly, that the Crown had hitherto nailed its colours to the mast of a charge of indecent assault. 41. It is regrettable that the judge had to intervene as he did. However, a judge's task in a matter such as this is to ensure that justice is done. Plainly, if any prejudice had resulted from the way in which the Crown had conducted its case, the judge should not, and we are sure he would not, have allowed the amendment, given the very careful way in which the judge conducted the trial. 42. We have examined afresh whether there was any prejudice. We cannot find any. First of all, it is suggested that the complainant concerned (an adult lady when she gave her evidence) could have been asked about her attitude at the time. We cannot see how that could have been relevant. Secondly, it seems to us that any prejudice in that respect was cured by the ability to re-examine. We understand why that was not extensively taken up. 43. We conclude, first, that there was ample evidence of the acts which amounted to the offence under section 1 of the 1960 Act ; secondly, that the judge correctly directed the jury; and thirdly, that there is nothing in the point that the judge should not have allowed the amendment. (3) T he pseudo images: bad character 44. We turn to the second matter argued before us (the third ground of appeal). We have already set out in sufficient detail the evidence in relation to the pseudo-images. They were put before the court as evidence of bad character. As we have already observed, there can be no doubt that this evidence was highly prejudicial. That is no doubt why the judge took the step of saying that, apart from the two images to which we have referred, the other images should be described in the schedule of 138 such images. If the evidence was relevant, it seems to us that the judge took every proper step to limit the prejudice in accordance with the suggestions of this court. But it is argued, first of all, that the evidence was not relevant because it went to show only that the applicant had an interest in the naked form of the child and not to a sexual interest in children; and secondly, that as the images had been created in 2006, they could not be relevant to matters that had taken place in the period that ended nineteen years earlier. 45. It seems to us that neither of those points can properly be argued in this court. First, bearing in mind the issues as we have already outlined them, the pseudo-images were plainly relevant to the question whether the applicant had a sexual interest in children for the purposes of the photographs at the time the evidence was admitted and, bearing in mind the depictions in the pseudo-images, were plainly relevant to what are described in the vernacular as the "tasting" counts. Secondly, as regards the time, the recent decision of this court in R v B [2011] EWCA Crim 1630 shows that images that were created afterwards can be relevant. It is, as the court pointed out, clear that the fact that someone has an interest in pornography some years later is relevant because it would be unreal to suggest that such an interest did not exist earlier. The extent and weight to be attached to it is a matter for the jury, but it seems to us that it is relevant. 46. For those reasons, therefore, we consider that the judge was right to admit the evidence. He took every step possible to reduce what undoubtedly was their highly prejudicial effect. Furthermore, it is said that the judge misdirected the jury. We have carefully considered his direction in this respect. We can see no fault in it. (4) Other grounds 47. The fourth ground of appeal relates to the photograph of SM, which we have already described, which was adduced into evidence but did not form the basis of counts 1 or 2. As is accepted, in the light of our decision on the third ground of the appeal (the second argued in this court), that matter falls away. 48. We turn to the fifth and sixth grounds of appeal which relate to the good character direction that was given. The good character direction contained three limbs. It is accepted that no criticism could be made on the first and second limbs. However, it is suggested that the third limb was put in restricted terms. The judge said: "You must also have regard to the fact that it is not alleged that [the applicant] has committed any offence, let alone a sexual offence, since the period covered by this indictment." Complaint is also made that, after the judge had given that direction, he went on to dilute it by saying that, in assessing good character, the jury should take into account the admitted fact that the applicant had created the indecent pseudo-images of young girls on his computer prior to his arrest. It is suggested that the judge did not tell the jury how to do this and that in the circumstances it was unfair to have watered down the direction. 49. It seems to us, from a reading of the summing-up as a whole, that it was perfectly obvious how the jury were to take into account the finding of the pseudo-images on the computer. There can be no criticism whatsoever of the judge's watering down. The creation of those images, depending on whether the jury accepted the explanation given by the applicant, could plainly amount to evidence of reprehensible conduct which plainly affected his otherwise good character. 50. The final ground of appeal relates to the suggestion that there were inconsistent verdicts. We have already set out the fact that the applicant was not convicted in respect of the "tasting" counts. The position in respect of those is as follows. When JB gave her evidence she said that she was blindfolded. She could not therefore be sure that the applicant had put his penis into her mouth. As that was her evidence, it is hardly surprising that, as the jury were told they must be sure, they acquitted him on that count in relation to JB. We cannot therefore see how that verdict can be inconsistent with the other verdicts in relation to JB. 51. As regards the inconsistency that is said to arise in respect of the applicant's acquittal in relation to CM on the "tasting" count, her evidence was much more definite. However, she was a different child. The jury may have taken a different view of her. The more likely explanation is that she asserted that she, as an adult, was sure that a penis had placed into her mouth. The jury would have to ask themselves the question: could that amount to evidence all those years later when CM could not remember or did not know what it was at the time? We can see no inconsistency in the verdicts. 52. We have, as is our duty, considered all of the voluminous evidence in this case. We have examined the photographs and the schedule. We have considered all the matters that were before the jury. We have concluded that the jury had ample opportunity to assess the victims and assess the applicant. They were properly directed in respect of all the matters which they had to consider. They had to decide whether the applicant was lying in respect of the counts, or whether he was telling the truth. They had to assess whether his actions were grossly indecent. There was ample evidence to support their conclusions which they reflected in their verdicts. These convictions are safe. Accordingly, the application for leave to appeal against conviction is refused. THE REFERENCE BY THE ATTORNEY GENERAL 53. We therefore turn to consider the appropriate sentence. At the sentencing hearing the court had before it victim impact statements from SM, EE and JB. It is important to refer to them. 54. SM said that giving evidence had been the worst experience of her life. She had struggled with a vague feeling throughout her life that she had been taken advantage of. Throughout her life she had felt loneliness and isolation. She felt alone in her relationships. 55. JB said that since the matter had been brought to her attention she had suffered from sleepless nights. She also had found that giving evidence at court had been the worst experience of her life. 56. EE stated that the handing round of nude and explicit photographs of her had deprived her of her dignity. She had also suffered significant financial loss. 57. There was before the court no pre-sentence report as it was decided that one was not necessary. The judge had before him the very strong good character evidence that had been given in respect of the applicant at the trial. 58. Having heard submissions from counsel, the judge took the view that the offence of indecent assault (the touching of the breasts) was in terms of culpability at the lower end of the scale. However, he expressed the view that the incident in the bath (count 7) was a serious offence. He pointed out that if that had occurred now, it might well have been charged as inciting a child to engage in sexual activity - an offence that carries a maximum sentence of fourteen years' imprisonment. 59. In relation to the other offences, the following is clear: (1) The girls had at the time the acts were committed no understanding of the true purpose behind what the applicant did. (2) There was no doubt that his purpose was sexual. (3) There was no doubt that he had a sexual interest in children. The jury had disbelieved his assertion that he had an artistic interest in naked children. (4) The judge described the collage as "truly disgusting". It involved young female children and adult males engaged in sexual activity. He expressed the view that the account that the applicant had given was transparently false. 60. However, the judge took into account a number of matters: the applicant was over 70; the offences were committed between 25 and 40 years ago; he had no previous convictions; he had a reputation as an eminent landscape artist; others had spoken highly of him, not only of his artistic ability, but of his kindness and generosity. The issue was whether the custodial sentence that the judge considered appropriate could be suspended. There were four bases on which he considered it could be: first, the age of the applicant; second, the age of the offences; third, the applicant's considerable artistic reputation and the fact that he had suffered punishment from the loss of that reputation; and fourth, that he did not now pose a risk to children. He considered, therefore, that the appropriate sentence on each count was twelve months' imprisonment, but that it could be suspended. 61. Her Majesty's Attorney General has submitted that the sentence was unduly lenient. The judge failed to have regard to the terms of the statute in that exceptional circumstances were required before a sentence could be suspended. The judge had also failed to have regard to the extent and scope of the offending, the number of victims, the impact of the offending upon them, and the aggravating factors that were present. As the applicant had justified the photographic posing as being part of his artistic endeavours, it was wrong to suspend the sentence on grounds connected with his loss of reputation as an artist. 62. We have carefully considered those submission, as we have the submissions of Mr Quinlan who has essentially said that the judge was in the best position to have judged the applicant; that he had been right to take into account his age and the fact that these offences were committed such a long time ago; and the fact that the applicant no longer posed a risk to children. 63. In considering what is the appropriate sentence, we have regard, first, to the fact that the only mitigation that the applicant has were his former good character and his age. As against that, there are a large number of aggravating factors: first, there was the contrast in age between the victims and the applicant at the time the offences were committed; secondly, the number of victims who were involved; thirdly, the serious abuse of the position of trust that he had occupied in relation to the victims - his reputation as a landscape artist enabled those who were close to the children to trust him; and finally, the serious impact on the victims, magnified by the way in which he had grossly manipulated and degraded them by the photography in which he had engaged. 64. It is right that we should add that we have before us a report in which the applicant claims that he has done nothing wrong. He maintains that he is an artist who seeks to "capture the innocence of children in a state of grace before the biblical fall". That is exactly what he told the jury. They disbelieved him. There was ample evidence for that conclusion. 65. There can be no explanation for the incident in the bath, other than a perverted sexual interest in children. The jury's verdict is clear: that his claim that he did what he did for the sake of art was not only a lie, but a cover to induce parents to trust their children to him. It enabled him to take advantage of that trust and to abuse the children in the way described. 66. In our view the applicant's position seriously aggravates the offending. He shows no contrition at all, but claims that he is the victim of a "global witch hunt" against artists, which includes agencies, Child Exploitation & Online Protection Centre (CEOP), the police, and the British press. He seeks to blame others and asserts conspiracies against him. It is self-evident that he has no understanding of the very serious harm he has caused to the victims by his grave criminal misconduct. He still asserts that it is art that is being put on trial. Such an assertion is nonsensical, bearing in mind the facts as we have set them out. 67. It appears that he has some mobility difficulties. He suffers from age-related illnesses. We take those into account. 68. Against that background we come to the following conclusions. The judge rightly identified that count 7 (the incident in the bath) was a very serious offence. The maximum penalty for that offence was, as for all offences of gross indecency with children, two years' imprisonment. The photographs which formed the basis for the other counts of indecency were taken for purely sexual and not artistic purposes, but must fall into a less serious category of offence than the bath incident. 69. In the result, we consider that the seriousness of count 7 should be marked by a sentence of 18 months' imprisonment, and that the offences of taking photographs should be marked with a consecutive sentence. However, having regard to the principle of totality, the applicant's age and condition, and the other matters, we consider that the sentence on each of those counts should be nine months' imprisonment, concurrent with each other but consecutive to the sentence of 18 months' imprisonment. We consider that the count of indecent assault should be subject to a term of six months' imprisonment, but that will be made to run concurrently with the other sentences. 70. In the result, therefore, we consider that the sentence should not have been suspended and that, in place of the suspended sentence of twelve months' imprisonment, the applicant must serve a total sentence of two years and three months' imprisonment. There is no basis, and there was no basis, for suspending the sentence. 71. It follows from what we have said that the sentence imposed was unduly lenient. It will be quashed and the sentences we have set out will be substituted. _____________________________

```yaml citation: '[2013] EWCA Crim 2574' date: '2013-10-09' judges: - MR JUSTICE HENRIQUES - MR JUSTICE BLAKE - THE CRIMINAL JUSTICE ACT 1988 ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2021] EWCA Crim 1874 Case No: 2021 00183, 01818, 01796, 01804, 01805, 01807, 01836, 02940 & 03403 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/12/2021 Before : LORD JUSTICE HOLROYDE MR JUSTICE PICKEN and MRS JUSTICE FARBEY DBE - - - - - - - - - - - - - - - - - - - - - Between : ROGER ALLEN and OTHERS Appellant - and - POST OFFICE LIMITED CROWN PROSECUTION SERVICE Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - T Moloney QC and Ms K O'Raghallaigh (instructed by Hudgells Solicitors ) for Roger Allen and Alan Robinson Ms K O’Raghallaigh (instructed by Hudgells Solicitors ) for the Pauline Stonehouse, Angela Sefton, Janine Powell, Anne Nield, Gregory Harding, Marissa Jane Finn and Jamie Dixon S Baker QC, Ms J Carey and Ms Brewer (instructed by Peters & Peters Solicitors LLP ) for the respondent Post Office Limited T Little QC and J Polnay instructed by Crown Prosecution Service for the respondent Crown Prosecution Service Hearing date : 22 November 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Holroyde: 1. On 22 November 2021 the court considered the cases of nine former sub-postmasters and sub-postmistresses (“SPMs”) who sought to appeal against their convictions many years ago for offences of dishonesty. In two of the cases, namely those relating to Roger Allen and Alan Robinson, we reserved judgment. In the remaining seven, we allowed the appeals and indicated that we would give our reasons in a written judgment at a later stage. This is the judgment of the court, to which each of us has contributed. 2. Each of the applicants contended that his or her conviction was unsafe on grounds relating to the reliability of the computerised accounting system, “Horizon”, which was at all material times used by their employer, the Post Office (“POL”). Issues relating to Horizon have been considered by this court in two previous cases earlier this year: The Queen v Josephine Hamilton and others [2021] EWCA Crim (“ Hamilton ”) and The Queen v Robert Ambrose and others [2021] EWCA Crim 1443 (“ Ambrose ”). In Hamilton we set out the circumstances in which issues had arisen as to the reliability of Horizon, and we referred to two of the judgments given by Fraser J in civil proceedings brought in the High Court by claimants representing hundreds of SPMs. We also explained why it was possible in law for appeals to come before the court many years after the convictions concerned, and why the fact that an applicant had pleaded guilty was not necessarily a bar to a successful appeal. 3. Our judgment in Hamilton reflected on the legal principles applicable to the two grounds of appeal which had been advanced by all the appellants in that case, namely (1) that the reliability of Horizon data was essential to the prosecution and, in the light of all the evidence including Fraser J’s findings in the High Court, it was not possible for the trial process to be fair (“category 1 abuse”); and (2) that the evidence, together with Fraser J’s findings, showed that it was an affront to the public conscience for those appellants to face prosecution (“category 2 abuse”). We used the shorthand term “Horizon case” to refer to a case in which the reliability of Horizon data was essential to the prosecution, and in which there was no independent evidence of an actual loss from the account at the branch post office concerned, as opposed to a Horizon-generated shortage. We found that 39 of the appeals were “Horizon cases” and allowed the appeal in each of those cases. We dismissed a number of appeals in what we found were not “Horizon cases”. 4. Similar grounds of appeal were put forward by those whose applications we considered in Ambrose . Each of those was a “Horizon case” and each of the appeals was allowed. 5. Two of the present cases, those of Mr Allen and Mr Robinson, were prosecuted by the Department for Work and Pensions (the “DWP”). The other cases were prosecuted by POL. In each of the cases, the principal issue is whether the case was a “Horizon case”. 6. It is unnecessary for us to repeat all that was said in our previous judgments, to which reference should be made for further detail. For present purposes it is sufficient to say that in Hamilton we were satisfied, in relation to Ground 1, that throughout the relevant period there were significant problems with Horizon, which gave rise to a material risk that an apparent shortfall in the accounts of a branch post office did not in fact reflect missing cash or stock, but was caused by one of the bugs, errors or defects which (as Fraser J had found) existed in Horizon. We also concluded that during the relevant period POL knew that there were serious issues about the reliability of Horizon, and had a clear duty to investigate all reasonable lines of enquiry, to consider disclosure and to make disclosure to the appellants of anything Gwhich might reasonably be considered to undermine its case. POL failed adequately to consider or to make relevant disclosure of problems with or concerns about Horizon, and instead asserted that Horizon was robust and reliable. We were also satisfied that POL had consistently failed to be open and honest about the issues affecting Horizon and had effectively steamrolled over any SPM who sought to challenge its accuracy. 7. At paragraph 123 of our judgment in Hamilton we expressed the following conclusion about the pervasive failures of investigation and disclosure which went to the heart of the prosecution in the “Horizon cases”: “Whatever charges were brought against an individual appellant, and whatever pleas may ultimately have been accepted, the whole basis of each prosecution was that money was missing from the branch account: there was an actual shortfall, which had been caused by theft on the part of the SPM, or at best had been covered up by false accounting or fraud on the part of the SPM. But in the “Horizon cases”, there was no evidence of a shortfall other than the Horizon data. If the Horizon data was not reliable, there was no basis for the prosecution. The failures of investigation and disclosure prevented the appellants from challenging, or challenging effectively, the reliability of the data. In short, POL as prosecutor brought serious criminal charges against the SPMs on the basis of Horizon data, and by its failures to discharge its clear duties it prevented them from having a fair trial on the issue of whether that data was reliable.” 8. We went on, in that judgment, to rule that the same acts and omissions may in law provide a basis for a finding of both of the categories of abuse of process to which we have referred. In the successful appeals in Hamilton , and again in Ambrose , we concluded that POL’s failures of investigation and disclosure had been so egregious as to make the prosecution of any of the “Horizon cases” an affront to the conscience of the court. In Hamilton , at paragraph 137, we concluded: “By representing Horizon as reliable, and refusing to countenance any suggestion to the contrary, POL effectively sought to reverse the burden of proof: it treated what was no more than a shortfall shown by an unreliable accounting system as an incontrovertible loss, and proceeded as if it were for the accused to prove that no such loss had occurred. Denied any disclosure of material capable of undermining the prosecution case, defendants were inevitably unable to discharge that improper burden. As each prosecution proceeded to its successful conclusion the asserted reliability of Horizon was, on the face of it, reinforced. Defendants were prosecuted, convicted and sentenced on the basis that the Horizon data must be correct, and cash must therefore be missing, when in fact there could be no confidence as to that foundation.” 9. The judgments in the two earlier cases have informed the approach taken by the solicitors and counsel for all parties in their preparation and presentation of the applications in the present cases. We are again very grateful to them, and to the officials in the Criminal Appeal Office who have had conduct of these appeals, for the care, thoroughness and professionalism which they have shown throughout. The court has been greatly assisted by the cooperative approach which all those involved have taken. 10. The present cases come before the court by differing routes. Mr Allen’s case was referred to this court by the Criminal Cases Review Commission (“CCRC”). Mr Robinson’s case was a renewed application for an extension of time and for leave to appeal against conviction, following refusal by the single judge. We will return to those two cases later in this judgment. 11. It is convenient to consider first the applications for extensions of time and for leave to appeal against conviction made by Ms Stonehouse, Ms Sefton, Ms Nield, Ms Powell, Mr Harding, Ms Finn and Mr Dixon. Those applications were referred to this court by the Registrar, having been identified by POL as cases in which the respondent did not oppose the appeals. 12. POL have accepted that each of these seven cases was a “Horizon case” in which there was no independent evidence of the loss which was asserted by the prosecution on the basis of Horizon data, and in which it was or may have been the case that the investigation, and the disclosure of material relating to the reliability of Horizon, fell short of what was required. In two of the cases, those of Gregory Harding and Jamie Dixon, it is accepted that the prosecution at the time imposed an improper condition on its acceptance of their respective guilty pleas, namely that nothing should be said in mitigation to cast doubt on the reliability of Horizon. 13. It is right to record that in the brief oral submissions made by counsel on behalf of these seven applicants, each expressed gratitude to POL’s legal representatives for the way in which they have dealt with these applications and for their assistance in enabling the court to bring the appeals to a conclusion much sooner than might otherwise have been the case. In these, and the earlier, appeals, POL has been diligent in conducting a most extensive disclosure exercise, has rightly acknowledged the serious failings in the original prosecutions and has fairly made important concessions. 14. It is of course for the court to decide whether a conviction is unsafe. Having considered the written and oral submissions, and taking into account the difficulties caused in some of the cases by the loss of relevant documents and/or the lack of available material, we were satisfied that the decisions not to oppose the appeals in these seven cases were realistic and appropriate, and that the appeals should succeed. Although it was not practicable to give a full judgment, it was clearly appropriate for the court to announce its decisions immediately and so bring an end to the long period during which the applicants had borne the burden of their convictions. In each of these seven cases we therefore granted the applications for an extension of time and for leave to appeal against conviction and quashed the convictions. 15. We can now go into a little more detail about the individual appellants in those seven cases. The cases which are unopposed Pauline Stonehouse 16. On 7 July 2008, in the Crown Court at Newcastle Upon Tyne before HHJ Faulks, Pauline Stonehouse pleaded guilty to six counts of false accounting. POL alleged that she had made false cash declarations on branch trading statements on six different dates. On 1 August 2008, in the Crown Court at Durham, she received a six-month community sentence order with a supervision requirement. There was no order for confiscation, compensation or costs because Ms Stonehouse had by then been made bankrupt and her home had been repossessed. 17. On 18 April 2007, a POL representative had attended Ms Stonehouse’s branch to provide her with Horizon training at her request. She had reported large discrepancies and believed that she could be doing something wrong. Having observed her, the POL representative considered that she was using the Horizon system correctly. He recommended certain steps including a visit by an engineer to check some hardware. After a POL event on 29 May 2007, Ms Stonehouse broke down in a conversation with a Business Development Manager. She said that she was losing thousands of pounds and was repaying large losses from her salary. She blamed Horizon. 18. On 31 May 2007, Ms Stonehouse spoke to another Business Development Manager following which she signed a handwritten statement saying that she had incurred losses for the last few months which she had rectified on Horizon without putting in cash. POL then carried out an audit of the branch and a total shortfall of £15,699.16 was identified. Call logs show that Ms Stonehouse had before then phoned POL’s National Business Support Centre Helpline to report and seek advice about discrepancies and shortages showing on Horizon. 19. On 7 June 2007, Ms Stonehouse was interviewed. She agreed that she had inflated her cash figure to conceal the shortfall. She denied stealing any of the money. She said that she knew it was wrong to declare a false figure but she did not know what else to do. 20. In a defence statement dated 15 February 2008, Ms Stonehouse denied dishonesty and expressly raised the reliability of Horizon. She said that she would require an expert to analyse the POL accounts and the accounting system which was open to abuse. In correspondence of the same date, her solicitors emphasised concerns about Horizon: “we are not satisfied…that the Prosecution’s case about discrepancies in the balances are indeed accurate and there are, as we understand it, concerns nationwide with regard to the reliability of [Horizon]…” 21. It appears that ARQ data relating to the period of the six charges was obtained and served on the defence. POL made arrangements for a defence forensic accountant to view the Horizon hard drive. A POL memo indicates that Ms Stonehouse pleaded guilty on a basis of plea, accepted by POL, that she had been covering up a shortfall. 22. POL accepts that this was an unexplained shortfall case and that evidence from Horizon was essential to the prosecution. She was entitled to a proper investigation into the reliability of Horizon and to receive disclosure in relation to Horizon issues. POL accepts that this did not happen and that Ms Stonehouse’s prosecution was therefore both unfair and an affront to justice. In our judgment, notwithstanding her guilty pleas, Ms Stonehouse’s convictions are unsafe. We extend time, grant leave to appeal and allow the appeal on Ground 1 and Ground 2. We quash her convictions. Angela Sefton and Anne Nield 23. On 11 April 2013, in the Crown Court at Liverpool before HHJ Hatton, Angela Sefton and Anne Nield each pleaded guilty to one count of false accounting with which they were jointly charged. The allegation against them was in short that between 1 January 2006 and 6 January 2012 they had falsified giro deposit entries on Horizon in relation to the receipt of £34,115.50 in donations made to the charity Animals In Need. 24. On 13 May 2013, Ms Sefton was sentenced to six months’ imprisonment suspended for 12 months. Ms Nield was sentenced to five months’ imprisonment which was also suspended for 12 months. They were each made the subject of a twelve-month supervision requirement and a requirement to complete 20 sessions on the Women’s Turn Around programme. 25. Ms Nield was employed as the branch manager in the Fazakerley Post Office where Ms Sefton was employed as a clerk. Their employer was the SPM but he was rarely at the branch owing to illness. In 2006, the SPM identified an unexplained shortage of £4,000. He paid half of the shortage and they paid the other half. He told them that, from then on, they would be responsible for all losses. 26. In December 2011, Santander bank contacted POL following a complaint to Santander by Animals in Need that there was a significant delay between money being deposited in the Fazakerley Post Office and payment into the charity’s bank account. This triggered an investigation. 27. POL audited the branch on 6 January 2012. During the audit, 40 giro deposit slips and a number of cheque envelopes were recovered from a cupboard which showed suppressed deposits in the sum of £34,219. Ms Sefton and Ms Nield handed the auditor a jointly-signed letter in which they said that they had tried to repay shortages by using their own credit cards and their holiday money. They had eventually run out of funds. As a result, they began to cover up shortages by delaying the processing of business deposits to Santander and to one other bank. They could not explain the shortages. They had reached “breaking point” in that their lives and health had been deeply affected. 28. On 20 January 2012, Ms Sefton and Ms Nield were each interviewed. Ms Sefton said that they had only ever delayed payments and had never withheld them. Animals in Need had been significantly affected because the charity had continued to use giro deposit slips which needed a date stamp rather than (as in nearly all other cases) moving to a swipe card or bar code system. She and Ms Nield did not report the losses because they were “too terrified.” It appears that Ms Nield gave a broadly similar – or at least consistent – account. She said that she did not know where the shortages were coming from. 29. Both Ms Sefton and Ms Nield submitted defence statements which questioned whether the losses were genuine or Horizon-generated. They requested relevant disclosure and access to Horizon for the purpose of examination by a forensic accountant. In a letter dated 28 August 2012, solicitors on behalf of POL asserted that material relating to Horizon was not disclosable because the case turned on the deposit slips which formed no part of Horizon. 30. Ms Nield repeated the disclosure request with the result that POL agreed that a defence expert should be allowed to attend the branch to analyse the data. POL served a witness statement by Gareth Jenkins in which he maintained that there was no problem with Horizon. 31. Call logs show that some difficulties with Horizon had been sporadically reported to POL between 2005 and 2011. Other records show numerous difficulties with Horizon in 2009. 32. POL accepts that this was an unexplained shortfall case and that evidence from Horizon was essential to the prosecution both of Ms Sefton and of Ms Nield. POL failed to carry out a proper investigation into Horizon issues and failed to disclose full call logs and other records indicating that there had been problems with Horizon at the branch. In addition, Mr Jenkins had informed POL’s solicitors that he had “no information regarding complaints or investigations into Horizon, and it has already been established that it is not possible to examine the original Horizon system that was operational until 2010. Similarly, I have not been presented with any audit data relating to any of these cases to examine.” These defects in Mr Jenkins’ evidence were not disclosed. Nor were two earlier, relevant reports disclosed. 33. In these circumstances, POL accepts that the prosecution of Ms Sefton and of Ms Nield was unfair and an affront to justice. In our judgment, notwithstanding their guilty pleas, their convictions are unsafe. We extend time in both cases, grant leave to appeal and allow the appeals of Ms Sefton and Ms Nield on Ground 1 and Ground 2. We quash their convictions. Janine Powell 34. On 25 September 2008, in the Crown Court at Exeter before HHJ Elwin, Janine Powell was convicted of theft. The shortfall alleged was £71,228.14. On 23 October 2008, she was sentenced to 18 months’ imprisonment. The documentation relating to her prosecution is incomplete but the following picture emerges. 35. On 21 February 2007, Ms Powell’s branch was audited revealing the shortfall. Transaction logs showed that a £70,000 cash discrepancy had arisen in her stock account about a week before the audit and just before Ms Powell had taken a week’s leave from work. A POL “Interim Investigation” regarded the combination of the discrepancy and Ms Powell’s absence from work as suspicious. On the afternoon of the audit, Ms Powell attended the branch. She said that she could not explain the shortage. Subsequent analysis of Horizon data revealed further cash discrepancies and, following further enquiries, the inference was drawn that the cash figures on branch trading statements were being manipulated in order to balance the books. 36. On 26 February 2007, Ms Powell was interviewed. She said that she had made the £70,000 transfer but did not know why she had made it. She was interviewed again on 20 April 2007 primarily in relation to two cheques written out to POL for £30,000 which she stated were not connected to the £70,000 transfer. 37. In her defence statement dated 28 February 2008, Ms Powell took issue with the allegation that over £70,000 was missing. In June 2008, ARQ data was provided to the defence. On about 16 August 2008, Ms Powell served a supplementary defence statement which again challenged the alleged loss. On behalf of POL, Mr Jenkins provided a witness statement (which is no longer available). He was not required to give evidence. 38. Given that Ms Powell accepted making the £70,000 transfer, we agree with POL that the fact of that transfer was not dependant on the reliability of Horizon data. However, POL does not now know whether there was any independent evidence of an actual loss; and the reliability of Horizon was in issue. 39. In these circumstances, and based on the facts of this particular case, POL is prepared to accept that this was an unexplained shortfall case and that evidence from Horizon was essential to the prosecution. POL accepts that Ms Powell’s prosecution was unfair and an affront to justice. In our judgment, her conviction is unsafe. We extend time, grant leave to appeal and allow the appeal on Ground 1 and Ground 2. We quash her conviction. Gregory Harding 40. On 16 September 2010, in the Crown Court at Bradford before HHJ Rose, Gregory Harding pleaded guilty to one count of false accounting. The particulars of the offence were that between 30 September 2005 and 30 September 2009, he had falsified branch trading statements. A further count of theft was ordered to lie on the file. On 5 November 2010, Mr Harding was sentenced by Recorder Keen to 20 weeks’ imprisonment suspended for 12 months with a requirement of 200 hours’ unpaid work. No confiscation order was made because Mr Harding had by then repaid in full the alleged shortfall of around £20,000. He was ordered to pay POL’s costs in the sum of £1,948. 41. The shortfall was identified during a branch audit on 30 September 2009. Mr Harding was interviewed on 6 October 2009. He denied stealing money. He said that he had experienced losses over four years but could not explain how they had happened. He had thought that the losses would sort themselves out by way of transaction corrections. He admitted to balancing the apparent losses by falsifying the figures. 42. There are no POL call logs to show that Mr Harding reported unexplained shortfalls but there are some records indicating that the branch had some balancing problems. 43. POL accepts that this was an unexplained shortfall case and that evidence from Horizon was essential to the prosecution. Mr Harding had clearly stated to POL that he had experienced unexplained losses for a period of four years and stated that he had had to falsify the branch trading statements only in order to balance the branch accounts. 44. These factors are sufficient for the court to quash Mr Harding’s conviction on both Grounds 1 and 2. We were however presented with further information which bolsters our conclusion that Mr Harding’s prosecution should not have been pursued and which forms an additional basis for POL’s concession under Ground 2. Prosecution Counsel’s note from the hearing at which Mr Harding entered his guilty plea states that he pleaded guilty on the basis that the money was lost through neglect without any suggestion of fault in Horizon. A handwritten note, written by a POL prosecution lawyer on the case, recorded a conversation with Prosecution Counsel. It records that POL would not accept any claim that Horizon was to blame and that Prosecution Counsel was asked to resist this. It appears that the defence were informed that the guilty plea would not be acceptable to POL if Mr Harding sought to blame Horizon for the losses. 45. As POL accepts, it was improper to make the acceptance of a guilty plea conditional on not blaming Horizon. In our judgment, this additional factor is in itself bound to bring the justice system into disrepute, providing further strong reason to allow the appeal under Ground 2. We conclude that, notwithstanding his guilty plea, Mr Harding’s conviction is unsafe. His prosecution was unfair and an affront to justice. We allow his appeal on Ground 1 and on Ground 2. We quash his conviction. Marissa Finn 46. On 15 September 2009, in the Crown Court at Durham before HHJ Lancaster, Marissa Finn pleaded guilty to one count of false accounting. She was sentenced to 26 weeks’ imprisonment suspended for six months with supervision and residence requirements. She was ordered to pay £27,407.43 compensation and £500 towards POL’s costs. 47. The prosecution was based on a shortfall discovered during a branch audit in August 2008. Ms Finn told the auditor that she expected to be around £25,000 short in cash. She admitted that she had inflated the cash on hand figure to balance the overall figures, saying that she might have thrown away £25,000 in cash with the rubbish. She had piled money intended for the ATM on the floor when a bin bag had split causing rubbish to spill out of it. We understand her to have meant that the rubbish and the ATM money became intermingled on the floor so that the money was accidentally thrown away with the rubbish. 48. Ms Finn was interviewed on 5 September 2008. She denied having stolen the money. She repeated her account of the bin bag. She said that she usually put around £140,000 into the ATM. Given that large amount, she did not notice at the time that some of the money on the floor had been lost. The rubbish had been collected before she had discovered the shortfall. She had made a declaration as if the cash was still there because she thought that it might turn up. She continued thereafter to make false declarations to cover up the loss. 49. There are no call logs to suggest that Ms Finn reported any Horizon problems or unexplained shortfalls. It does not appear that ARQ data was obtained. 50. POL accepts that this was an unexplained shortfall case and that evidence from Horizon was essential to the prosecution. While POL does not accept that she advanced an honest account in interview, it is accepted that she could have been attempting to provide a sympathetic account of an unexplained shortfall rather than saying that she could not explain it at all. 51. In these circumstances, POL accepts that Ms Finn’s prosecution was unfair and an affront to justice. In our judgment, notwithstanding her guilty plea, Ms Finn’s conviction is unsafe. We extend time, grant leave to appeal and allow the appeal on Ground 1 and Ground 2. We quash her conviction. Jamie Dixon 52. On 30 May 2013, in the Crown Court at Exeter before HHJ Gilbert QC, Jamie Gilbert pleaded guilty to one count of false accounting. The particulars were that between 5 January 2011 and 18 August 2011 he had made false cash declarations on branch trading statements such as to overstate the branch balance by £14,222.02. He was sentenced on the same day to 12 months’ imprisonment suspended for two years. There was no order for compensation or confiscation but, by the date of sentence, Mr Dixon had already paid around £9,000 towards the alleged shortfall and had agreed to pay the balance. He was ordered to pay £500 in costs. 53. At a branch audit on 18 August 2011, Mr Dixon had said that he expected the branch to be around £5,000 short. In a letter to POL written shortly after the audit, Mr Dixon stated that he had not taken any money and that he had always made good any losses shown on Horizon. 54. In his interview on 13 October 2011, he gave detailed answers to questions. He accepted that he had deliberately inflated the cheque figures on some branch trading statements in order to get a larger cash remittance into the branch as he did not always have enough cash to operate. He had entered incorrect figures on daily cash declarations in order to ensure that a higher cash remittance was received. He denied stealing any money or falsifying accounts to cover up shortages. 55. In October 2011, the POL investigator requested ARQ data for Horizon covering the period from 4 January 2011 to 18 August 2011. Analysis of that data caused the investigator to infer that Mr Dixon was trying to hide a branch shortage in order to avoid his contractual duty to make good any losses. 56. In his defence statement dated 24 July 2012, Mr Dixon denied dishonesty. He attributed any loss to confusion on his part (owing to the effects of illness) and a lack of understanding of the accounting system. He challenged the alleged £14,222.02 shortfall. He said that he did not have confidence in Horizon and disputed that money was missing. 57. Mr Dixon entered a plea of not guilty to a count alleging fraud at a hearing on 3 August 2012. We have been told that there was reference during that hearing to the fact that criticism of Horizon was likely to form part of the defence case. It appears that the judge directed POL to provide copies of the daily transaction reports for the indictment period to enable a defence forensic accounting expert to prepare a report. By letter dated 31 August 2012, Mr Dixon’s solicitors complained to POL that they had not received adequate disclosure. POL obtained a witness statement from Mr Jenkins which asserted the general reliability of Horizon. It is no longer clear whether that report was served on the defence. 58. POL accepts that this was an unexplained shortfall case and that evidence from Horizon was essential to the prosecution. POL accepts that Mr Dixon’s apparent admissions in interview amounted to him giving his best guess as to the cause of the alleged losses rather than a definitive explanation. He made clear that he could not explain the majority of the transactions he was being asked about or the overall shortfall. He had expressly raised the reliability of Horizon both in his defence statement and in open court on 3 August 2012. Given that POL knew that Horizon reliability was in issue, POL was under a duty to investigate and make disclosure of what was known at the time that could have undermined its own case about the reliability of Horizon. That did not happen. 59. These factors are sufficient for the court to quash Mr Dixon’s conviction on both Grounds 1 and 2. We were however presented with further information which bolsters our conclusion that Mr Dixon’s prosecution should not have been pursued and which forms an additional basis for POL’s concession under Ground 2. On 15 February 2013, Mr Dixon’s solicitors wrote to POL’s solicitors asking whether a guilty plea to false accounting rather than fraud would be acceptable. On 25 February 2013, the defence was informed that a guilty plea to false accounting would be acceptable to POL on the conditions that Mr Dixon continued to make repayments and that it was confirmed in writing that there would be “no criticism made towards the functioning and reliability of the Horizon system.” 60. In a written basis of plea dated 26 March 2013, Mr Dixon accepted that he had dishonestly made false entries on Horizon in an attempt to conceal the shortfall. He confirmed that he was repaying the alleged shortfall. He stated that he made “no criticism of the function and reliability of the Horizon accounting system”. POL accepted his plea on this basis. 61. As POL accepts, it was improper to make the acceptance of a guilty plea conditional on not criticising Horizon. In our judgment, this additional factor is in itself bound to bring the justice system into disrepute, providing further strong reason to allow the appeal under Ground 2. We conclude that, notwithstanding his guilty plea, Mr Dixon’s conviction is unsafe. His prosecution was unfair and an affront to justice. We allow his appeal on Ground 1 and on Ground 2. We quash his conviction. The cases which are opposed 62. We turn next to the cases of Mr Allen and Mr Robinson. As we say, these were both prosecuted not by POL but by the DWP (represented before us by the CPS, acting by Mr Little QC). Mr Allen appeals against conviction pursuant to a reference by the CCRC, whereas Mr Robinson renews his application for leave to appeal against conviction after refusal by the single judge. Both additionally make applications to adduce fresh evidence. Roger Allen 63. On 13 February 2004, in the Crown Court at Norwich before HHJ Curl, Mr Allen pleaded guilty to the theft of £37,250.71 between 30 June 2000 and 10 November 2002. He was subsequently, on 7 April 2004, sentenced to six months’ imprisonment and also ordered to pay £12,500 in compensation. 64. This is a case in which there is very little by way of surviving paperwork. What there is consists of a draft indictment, the Crown Court log and a call log relating to certain calls which were made to POL, together with a pre-sentence report dated 9 March 2004 which was prepared for the purposes of Mr Allen’s sentencing hearing and a letter dated 9 September 2003 by Mr Allen’s then solicitors, Hatch-Brenner, after an earlier hearing before the Crown Court which took place on 5 September 2003. These latter two documents were produced shortly before the hearing of the appeal, having been located in a file retained by Mr Allen’s daughter who lives in Australia. 65. Mr Allen was at all material times a SPM at St Johns Close in Norwich. Not long after Horizon had been introduced at his post office there, Mr Allen made a telephone call to POL, on 10 August 2000, in which he referred to a £30 bounce back from Horizon/Reversals. Other than that, there is no evidence that he made any other call to POL and/or the Horizon helpdesk to complain about Horizon. A telephone call was made, however, not by Mr Allen but by somebody else, on 28 October 2002, referring to a Horizon balancing issue shortfall at the St Johns Close post office. 66. Later that same year, most likely in November 2002, Mr Allen was interviewed under caution in relation to allegations of fraud and theft. During those interviews, Mr Allen was shown a large number of unsigned pension dockets. 67. On 7 March 2003, Mr Allen and his wife were committed for trial to the Crown Court. 68. On 11 July 2003, Mr Allen and his wife were arraigned on a single count indictment containing the theft count to which we have referred. They each pleaded not guilty. 69. On 13 February 2004, as far as can be ascertained the day of trial, Mr Allen changed his plea to guilty, the prosecution deciding on that basis not to proceed further against his wife. 70. There was no appeal against conviction or sentence. However, much later, Mr Allen made an application to the CCRC. In support of that application, Mr Allen provided a statement dated 17 December 2018, in which he had this to say concerning Horizon: “I found the Horizon system had some flaws, I would find that [with] the weekly accounting balance was often over or there was a short fall, anything between £200-£500 a week. After advice I was told that this was normal and that it usually corrected itself the following week.” 71. In giving its reasons for the referral, as set out in a document dated 12 January 2021, the CCRC had this to say at paragraph 12: “… the CCRC … understands from Mr Allen that the prosecution case against him featured evidence of unsigned pension dockets. Mr Allen has informed the CCRC that ‘many customers were drawing other people’s pensions’. In the absence of any case files for Mr Allen’s case, it is unclear to the CCRC how bugs, errors or defects in the Horizon system might have affected pension payments. The CCRC has attempted to clarify this with Mr Allen, but the point has remained unresolved …”. 72. The CCRC went on, in the next paragraph (paragraph 13), to describe its decision to make a referral as being “finely balanced”, before then saying this at paragraph 14: “… having considered the available information, the CCRC has concluded that there is a real possibility that Mr Allen’s conviction would be overturned by the Court of Appeal. On the information which is before the CCRC, it appears that unexplained balancing problems when using the Horizon system were an important part of the context to Mr Allen’s guilty plea to theft. Although Mr Allen has referred to prosecution evidence regarding unsigned pension dockets, the CCRC does not consider that anything in Mr Allen’s recent correspondence contradicts his assertion that balancing problems in the branch accounts were the result of flaws in the Horizon system. In the view of the CCRC there is a plausible scenario in which the losses in this case were indeed Horizon-related, if Horizon errors resulted in the recording of pension payments that had not in fact been made and so were not supported by signed pension dockets.” 73. On that basis, the CCRC explained, in paragraph 15, that it considered “that the reliability of Horizon data was essential to the prosecution and conviction of Mr Allen” and that the abuse of process arguments which we have described in paragraph 3 above “are applicable to this case”. 74. On 16 July 2021, and so after we handed down our judgment in Hamilton , Mr Allen submitted Grounds of Appeal based on the reasons advanced by the CCRC in its referral. At the same time, Mr Allen also made an application to rely upon fresh evidence in the form of his statement dated 17 December 2018. 75. Mr Allen additionally seeks to rely upon three expert’s reports from Mr Ian Henderson, the forensic accountant who gave evidence both before Fraser J and before us in Hamilton (see the judgment at [383]) who is also a director of Second Sight, the company which was appointed by POL to conduct an independent inquiry between 2012 and 2015 and which was involved in the associated mediation scheme. These reports were dated 19 August 2021, 31 August 2021 and 29 October 2021. 76. The prosecution, for its part, has its own fresh evidence application under which it seeks permission to adduce fresh evidence from the original DWP investigator, Mr. Stephen Allsop, in the form of a statement dated 19 May 2020 and a further statement dated 19 November 2021. 77. We will return, in a moment, to the evidence which we permitted to be given before us on a de bene esse basis at the hearing of Mr Allen’s appeal by both Mr Allsop and Mr Henderson. Before doing so, however, we should explain that Mr Allen also sought to rely upon a further statement made by him, dated 9 July 2021, in which he sought to address the contents of Mr Allsop’s statement dated 19 May 2020 by describing his practice as being to record pension payments manually and not by way of scanning pension claimants’ books. Mr Allen added in this statement that he retained “paid dockets” in order to reconcile them. Mr Allen believed that in his statement Mr Allsopp was describing mechanisms which were introduced after the indictment period in his case. 78. It is this dispute between the respective witnesses as to the particular way in which Horizon featured (if it featured at all) in the transactions in question, which lies at the heart of Mr Allen’s appeal. This is because it is only if Mr Allen can show that his was a “Horizon case” in which there was no independent evidence of the loss which was asserted by the prosecution on the basis of Horizon data that his appeal can succeed. 79. Having considered the material which was deployed before us, including not only the contents of Mr Allen’s two statements but also the evidence (both written and oral) which was given by Mr Henderson and Mr Allsop, we are wholly unpersuaded by the suggestion made by Mr Moloney QC on Mr Allen’s behalf that this is, indeed, a “Horizon case”. We say this for a number of reasons. 80. First and most fundamentally, even assuming that Mr Henderson were right when he suggested that Horizon played a role in the scanning/recording of pension payments, it does not follow that any defect in Horizon is the explanation for the shortfalls which resulted in the proceedings which were brought against Mr Allen. Nor, in our view, is that even arguably the case. 81. We observe, indeed, that it was Mr Allen’s own evidence, as contained in the statement dated 9 July 2021 in which he dealt with the explanation given by Mr Allsop to the effect that there was a DWP barcode computer system separate and apart from Horizon, that there were no facilities to scan at all (whether, it seems, as part of Horizon or as part of a separate DWP system). On the contrary, according to Mr Allen, he did not scan but instead payments were “recorded in the Horizon system manually as opposed to being automatically recorded after scanning the books”. If Mr Allen is right about that, then, it is difficult to see, and has not been explained, how Horizon can be responsible for any shortfalls. 82. As far as the evidence which was given by Mr Henderson is concerned, he was asked by the solicitors acting for Mr Allen to report on the processes which were in place at the relevant time (2000 to 2002) relating to the activation and use of pension and allowance books and specifically how Horizon operated in relation to them. To this end, he looked at various Horizon-related documentation. That included an extract from sub-section 9 of the Horizon System User Guide, which he considered shows that procedures relating to the activation and use of pensions and allowance order books were an integral part of the Horizon computer system as early as July 2000. Specifically, he stated as follows in paragraph 21 of his first report: “The element of Horizon dealing with the activation and use of Pension and Allowance. Order Books is known as the Order Book Control Service or ‘OBCS’. This is an automated system for checking bar-coded order books against an electronic stop list. Normally, order books would be scanned using the Horizon bar-code scanner, but if the scanner was not working, or if Horizon was off-line, order books could be checked against a printed copy of the stop list generated by the Horizon system.” 83. He referred also in the same report to a further manual concerned with “P&A_Girocheques&MilkTokens” dated December 2004. He explained that this describes the procedures to be used for activation and use of pension and allowance books in 2004, adding that he assumed that similar procedures were in place throughout the period from 2000 to 2004. His conclusion, set out at paragraph 27 of that report, was as follows: “There is substantial evidence that throughout the period 2000 to 2004, barcode scanning of order books was an integral part of the Horizon computer system and not a stand-alone system.” 84. Mr Henderson was clear that Mr Allen cannot be right to say that he engaged in manual processes as opposed to scanning. He reiterated this when he came to give oral evidence before us. We share his assessment. In any event, as we say, if Mr Allen were right about this, it would not assist his case on this appeal. That, contrary to Mr Allen’s recollection, there must have been scanning, rather than manual input, is nonetheless not the end of the inquiry. This is because, we repeat, it was Mr Allsop’s evidence before us that there was a separate DWP barcode scanning system which was not linked to Horizon. It was that other (DWP) system, Mr Allsop went on to explain in his second statement and in his oral evidence, which the SPM would use to scan the order book before then entering the transaction into Horizon separately in order to create a separate Horizon record. It was the DWP system, not Horizon, which would then be the subject of any subsequent DWP investigation and which would serve as the evidence used for the purposes of any DWP prosecution. 85. We have not found it easy to decide what in this respect the position was. We bear in mind that Mr Henderson has only been able to make an assumption that the position as described in the December 2004 document would have been the same in earlier years since he has not been able to locate a previous version which deals with the prior period. We nonetheless consider there to be substance in a point made by Mr Henderson when giving his oral evidence, namely that it is difficult to see why there would be a separate system to Horizon given what Horizon was intended to do. It would have made little sense, in particular, to require SPMs to have to engage in two separate scanning processes. Nor, we are bound to observe, is there any suggestion in the documentation which Mr Henderson has looked at that there was a separate scanning system also in operation. 86. In the circumstances, whilst we have no reason at all to suppose that Mr Allsop’s recollection was anything other than genuinely held, we conclude that he must have been mistaken when he recalled there being two scanning systems. It does not follow, however, that this is a “Horizon case”. The fact that at the time of Mr Allen’s prosecution and the events which gave rise to it, Horizon was in its infancy does not make it such a case. Nor does it matter that it is now known that Horizon had the difficulties which were highlighted by Fraser J in the civil litigation. Nor does it matter that there is evidence, which we have accepted, that Horizon played a role in the operation of scanning or recording of pension payments. 87. This is because it is not sufficient that Horizon merely played such a role; what is required in order for this to be a “Horizon case” is that it be demonstrated that Horizon reliability was essential to the case against Mr Allen. We do not consider that this has been demonstrated by Mr Allen. This is not a case involving a Horizon-generated shortfall. It is not a case, for example, in which the amount of cash or stock held at the branch did not match what Horizon recorded should be present. On the contrary, as Mr Allsop explained and, in truth, as Mr Little submitted, whatever the correct position as to the scanning of bar codes, the DWP investigation “involved the irregular encashments of DWP benefits and allowances order books” after they “had been reported as not received by their intended recipient” and for which there were “loss reports (BF143) completed by benefit claimants” which were “exhibited in the prosecution file”. The simple fact, then, is that there was evidence before the court which supported the prosecution case and which did not depend on Horizon being reliable, still less essential to that case. 88. There is, however, a further matter to be considered. This is that, as Mr Allsop pointed out in evidence which went unchallenged, the offending largely took place on a Saturday. This is significant because it was Mr Allen’s evidence, both in his statement dated 17 December 2018 and in the form which he completed when he first approached the CCRC, that it was only on Saturdays that he worked after returning to work after a period of absence due to ill health. On other occasions, Mr Allen employed other staff to keep the post office open and running. Mr Allsop’s (again unchallenged) evidence was that “encashments took place [when] only the Postmaster and his wife were present”. This is striking since it is hard to see how Horizon would be the cause of what happened on a Saturday yet not also on other days when Mr Allen was not working. 89. Secondly, although Mr Moloney understandably placed reliance on the fact that Mr Allen made a call to the Helpline about a balancing issue during the period covered by the indictment, it needs to be appreciated that this was a single (and isolated) call. Moreover, it was a call which was made as late as 28 October 2002 and so at the very end of the period covered by the indictment. If Mr Allen really was encountering Horizon difficulties such as to make this a “Horizon case”, it would be expected that there would have been earlier calls to the Helpline rather than just the one call. Furthermore, it is apparent that the call had nothing to do with any Horizon-generated shortfall or, indeed, any shortfall at all. The call instead related to a reversal on a BT phone bill which the “system was stopping him [Mr Allen] from putting any details in”. 90. Thirdly, it is telling that in neither of the statements which Mr Allen has prepared for the purposes of the appeal proceedings is any mention made of there being any Horizon shortfalls. Nor, we observe, did Mr Allen apparently seek to blame Horizon when he spoke to the author of the pre-sentence report. As Mr Little pointed out, in an email to the CCRC sent on 24 October 2020, Mr Allen stated that he was unaware of discrepancies with balances on Horizon over a two year period. This is wholly inconsistent with any suggestion which might now be sought to be made that Mr Allen was raising the issue of Horizon-generated shortfalls. 91. Fourthly, we do not overlook the fact that missing order books - those that had been reported as not received - were found when the post office premises were searched. This somewhat underlines the point that, whatever might now be suggested, Horizon’s reliability was not essential to Mr Allen’s prosecution. Indeed, again as Mr Little pointed out, Mr Allen accepts (in a letter to the CCRC dated 9 August 2020) that many dockets were shown to him by the DWP’s investigators which were not signed. 92. Fifthly, Mr Allen’s health difficulties during the time period covered by the indictment, which required him to employ staff, allied with the expenditure he was having to incur more generally at the post office provided him with a demonstrable motive to steal. He has not put forward any reason or explanation for the theft of the money which he accepted he had stolen through his ultimate guilty plea. The pre-sentence report states, in terms, that Mr Allen was “unwilling to discuss how the … monies came to be deposited in his personal bank account or for what purposes he intended to use the funds”. 93. In conclusion, therefore, we consider that this is a case in which an appellant has tried to shoehorn this case into a Horizon matrix by arguing that Horizon capability was poor when the real question is whether it can properly be said that the reliability of Horizon was essential to the case which was brought against him. We are satisfied that it is not such a case. It follows that this is not one of those exceptional and rare cases in which it would be appropriate to conclude that Mr Allen’s conviction is unsafe on either of the abuse of process grounds which are advanced. 94. We would just add that we need not, in the circumstances, express any view as to whether, had Mr Allen’s been a “Horizon case”, this would have been a category 2 abuse case in addition to being a category 1 abuse case: see Hamilton at [59] and [65]. We merely note for present purposes that Mr Moloney was inclined to concede that, since Mr Allen was prosecuted not by POL but by the DWP, this is not a category 2 abuse case. 95. It follows that Mr Allen’s appeal must be dismissed. That is the case having taken fully into account all of the evidence that was placed before us, including therefore the fresh evidence which each side sought to adduce and which we considered de bene esse . We need not, in the circumstances, make any order concerning the admissibility of such evidence for the purposes of section 23 of the Criminal Appeal Act 1968. Alan Robinson 96. Turning to Mr Robinson’s case, we remind ourselves that this is a renewed application for leave to appeal against conviction after refusal by the single judge, combined with applications both for an extension of time (some 6,256 days) and for leave to introduce fresh evidence under section 23 of the 1968 Act. 97. Mr Robinson, who worked as the SPM at Illingworth Moor Post Office in Halifax, having previously pleaded guilty to one count of theft before the Crown Court at Bradford was subsequently, on 31 March 2004, sentenced to 12 months’ imprisonment. That count alleged that he stole £43,518.10 belonging to the DWP between 31 July 2001 and 22 April 2003. 98. Again, the case against Mr Robinson related to order books which were issued by the DWP and which were stored at the post office prior to issue to customers. In essence, when customers visited the post office to collect their books, they were told that the books were not at the post office despite the fact that they were. This would then be reported to the DWP with the result that replacement books were issued to them. Given the number of reports by customers that their order books were not at the post office for collection, the DWP carried out an investigation which found that Mr Robinson stole 32 order books and dishonestly obtained money by cashing orders from the stolen books. 99. In the pre-sentence report prepared in respect of him, Mr Robinson told the report writer that, having taken over management of the post office in 1992, he almost immediately noticed that there were severe anomalies in the accounts. This resulted in him being held accountable for £4,260 which had to be repaid through his salary. There then followed a number of years where the business ran smoothly and there were no further problems with accounting. However, in 1996 a further £2,500 could not be accounted for. Then, three years later, in 1999, a further £2,200 went missing. Mr Robinson was, again, held responsible for the repayment of the money. He went on to describe to the report writer having little faith in his employees and being consistently unable to account satisfactorily for the financial running of his post office. 100. As the financial problems deepened, Mr Robinson became more and more dependent on alcohol, although he now disagrees with the author’s characterisation of the extent of his alcohol problem. The report also notes that Mr Robinson told the writer that the amounts which he stole were only sufficient to maintain the lifestyle that he and his wife already enjoyed. Again, this is something which Mr Robinson now disputes having said, producing evidence of an NHS pension and the prosecution’s statement for the ensuing confiscation proceedings to show his wife’s financial position. Be that as it may, by 2001 Mr Robinson found himself in a position where he could no longer afford to keep paying for the shortfall in his business and recognised an opportunity to make good his losses. It was at that time, he told the report writer, that he began cashing customers’ weekly dockets from the DWP. As he put it, he was having to “rob Peter to pay Paul”. He intended at the outset for the deception to be short-lived. However, since the shortfalls continued, so did his deception. He acknowledged culpability whilst at the same time seeking to attribute some responsibility to POL for failing to support him through his financial difficulties. 101. On Mr Robinson’s behalf, Mr Moloney submits that his is a “Horizon case” and, as such, a category 1 abuse of process case. He points in this respect to the unexplained shortfalls which Mr Robinson had experienced throughout his time as SPM and which Mr Robinson highlighted at the time. He refers, in particular, to a statement which Mr Robinson made in support of his application for leave to appeal, a statement which is undated but which appears to have been made in July/August 2021. In that statement, Mr Robinson described having “regular contact” with his Area Line Manager, Mr Peter Leskovac, concerning shortages which were experienced after the introduction of Horizon. He explained that, as far as he was concerned at the time, these were the result of “staff taking the money”. As a result, he “regularly discussed with Peter Leskovac about obtaining cameras in the shop”. He added that these were promised but that ultimately POL did not install them. 102. Mr Robinson went on to refer to certain specific shortages as follows: £752.81 on 15 August 2002; £201.54 on 18 March 2002; £600.00 on 31 July 2002; and £18.76 on 22 January 2003. He explained that, when he became aware of these shortages, he asked POL for more information but was told that this would entail his having to pay £2,000 were there to be an investigation. 103. Accompanying Mr Robinson’s statement were a series of calendar entries referring, in places, to “Peter” or “Pete” and in one case to “Cameras”. In addition, there were reports of the specific shortfalls which he identified. We do not, however, find this documentation especially revealing. We struggle to see, in particular, how the former provides any meaningful support for Mr Robinson’s evidence that he raised the issue of shortfalls with Mr Leskovac at any material time. 104. We do not, in the circumstances, accept that Mr Moloney can be right when he submits that there is evidence from which it can be inferred that Mr Robinson noticed and complained about unexplained Horizon-related shortfalls from the outset. Indeed, it is striking that not even in his statement prepared for the proposed appeal does Mr Robinson state that he told Mr Leskovac that the shortfalls were the result of Horizon. It is also highly instructive that Mr Robinson did not seek to adduce evidence before us from Mr Leskovac to support his assertions, or to put forward any explanation as to why Mr Leskovac could not provide any evidence. 105. We would add that, as to the four shortages which Mr Robinson identified in his statement, these add up to just £1,573.11, and so nothing like the £43,518.10 which, through his guilty plea, Mr Robinson accepted having stolen. Although Mr Moloney makes the point that the shortages adding up to £1,573.11 represent only those cases where there are reports still available and so it should not be assumed that they are the only such instances, we are not persuaded that this much assists Mr Robinson in circumstances where there is no evidence at all (even, we repeat, in Mr Robinson’s own statement) that there were shortfalls which were Horizon-related. 106. Nor is there even the slightest hint in the pre-sentence report that Mr Robinson was saying that the shortfalls were the result of Horizon. On the contrary, he was describing shortfalls which, at least in part, pre-dated Horizon’s introduction and was offering an explanation as to their cause (staff theft) which had nothing whatever to do with Horizon. 107. Additionally, as Mr Little points out, Mr Robinson has proffered no explanation as to why he entered a guilty plea if, as he now insists, what he did was the result not of criminality on his part but of Horizon. 108. For all these reasons, we are quite clear that Mr Robinson has failed to establish that his is a “Horizon case” or even, indeed, to show that it is arguably such a case: this is not a category 1 abuse case; as before, we say nothing about category 2. We agree, therefore, with the single judge’s assessment that leave to appeal should be refused. We agree also that the applications for extension of time and under section 23 of the 1968 Act should likewise be refused. Conclusion 109. For the reasons we have set out above, the appeal of Roger Allen is dismissed. The applications of Alan Robinson for an extension of time and for leave to appeal are refused. 110. In each of the cases of Pauline Stonehouse, Angela Sefton, Anne Nield, Janine Powell, Gregory Harding, Marissa Finn and Jamie Dixon we have ordered that: i. The application for an extension of time is granted. ii. The application for leave to appeal against conviction is granted. iii. The appeal is allowed on both grounds. iv. All of their respective convictions are quashed.

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You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200603224/3744/4551/4512/A4 Neutral Citation Number: [2006] EWCA Crim 3239 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 13th December 2006 B E F O R E: LORD JUSTICE LATHAM (Vice President of the Court of Appeal Criminal Division) MR JUSTICE MITTING MR JUSTICE TEARE - - - - - - - R E G I N A -v- CLIFFORD HART CHRISTABELLE GEORGE JASON CLARKE DARREN JUNIOR BROWN - - - - - - - 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) - - - - - - - NON-COUNSEL APPLICATIONS - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: These four applications have been listed together before this court in order that this court can consider whether or not it would be appropriate to exercise its powers under section 29 of the Criminal Appeal Act 1968 to direct that the period, or a part of the period, served by the applicant since he was sentenced should not count towards his sentence on the grounds that his or her application lacks merit. This court has been concerned by the fact that despite repeated reminders it remains the case that a significant number of applications for leave to appeal against conviction or sentence, which are wholly without merit, are taking up the time of single judges dealing with the applications under section 31 and are being renewed to this court. 2. The position is clearly set out in the Practice Direction (Criminal Proceedings Consolidation) [2002] 1 WLR 2870 , and II 16 provides as follows: "Both the court and the single judge have power in their discretion to direct that part of the time during which an applicant is in custody after putting in his notice of application for leave to appeal should not count towards sentence. Those who contemplate putting in such a notice and their legal advisers should bear this in mind. It is important that those contemplating an appeal should seek advice and should remember that it is useless to appeal without grounds and that grounds should be substantial and particularised and not a mere formula. Where an application devoid of merit has been refused by the single judge and a direction for loss of time has been made, the full court, on renewal of the application, may direct that additional time should be lost if it, once again, thinks it right so to exercise its discretion in all the circumstances of the case." 3. This court last considered this matter in a decision of 12th April 2005 in R v Herbert K [2005] EWCA Crim 955 . In that case this court, presided over by the Lord Chief Justice, reiterated the provisions of section 29 and the contents of the Practice Direction to which we have referred. 4. The position is, as we have indicated, that, despite those exhortations, the number of applications totally without merit is so substantial that it is necessary for this court to consider with greater frequency than it has in the past the cases in which the power under section 29 should be exercised. We take this opportunity, therefore, in these four applications to indicate some of the circumstances in which it may well be appropriate to exercise that power. 5. The first application is the application in Hart. He was convicted on 19th May 2006 in the Harrow Crown Court after a two day trial of exposure contrary to section 66(1) of the Sexual Offences Act 2005 and was subsequently sentenced to 21 months' imprisonment. 6. He applied for leave to appeal against both conviction and sentence. He also had to apply for an extension of time, which was 13 days, to make those applications. They were refused by the single judge. He has renewed those applications to this court. 7. The facts of the offence were that on the prosecution case the applicant had exposed his penis to the complainant on a bus, masturbating until he ejaculated. The witness, who was satisfied that he was doing it deliberately, in her view, and described that he had used Vaseline. She reported the incident to the driver. The applicant then got off. The complainant disembarked at the next stop, confronted the applicant, and asked people in the street to help. While she talked to him he dropped some photographs which turned out to be pornographic photographs. Passers-by assisted in apprehending the applicant until police arrived. When he was arrested by the police, he was found to have other pornographic pictures on him. His clothing was in disarray; his trousers were undone; his underpants exposed; and he had a jar of Vaseline with him. 8. In the course of the trial the prosecution applied for leave to put before the jury evidence of the applicant's previous conviction in 2000 for sexual offences involving a nine year old girl, which was granted. The applicant denied that he had exposed himself. He explained the fact that his clothing was in disarray on the basis that it had become disarrayed when he was apprehended by the members of the public who assisted the complainant. He kept the jar of Vaseline with him because he suffered from dry skin. 9. The judge in sentencing him to 21 months' imprisonment described the offence as one of the most serious types of indecent exposure, bearing in mind the circumstances, namely that it was done in full sight of a woman in a public place, namely the bus. 10. The applicant, in grounds drafted by himself originally made five complaints about the conviction. Firstly, he complained that counsel did not properly conduct his case. Secondly, he complained about the admission of the previous conviction. Thirdly, he complained that the CCTV camera on the bus, which had in fact identified him, did not show him masturbating. The applicant further complained about the use of some material in the interview, which should not have been used and then further complained about some evidence relating to a mobile telephone as to which he had been asked questions both in interview and at trial when he gave his evidence. Further, the applicant complained that the sentence that was imposed was manifestly excessive. 11. In refusing leave to appeal the single judge said: "I have considered the papers in your case and your grounds of appeal. You were convicted of exposure contrary to section 66(1) of the Sexual Offences Act 2003 . The exposure involved masturbation in front of a young woman on a bus. Conviction You seek leave to appeal your conviction on the basis that your barrister did not properly conduct your case (ground 1). I have seen the response from your barrister (Mr Wadling) and your comments on that response. I do not consider that there is any arguable basis of appeal on this ground. In relation to the particular matters raised in your grounds: 1. The fact that your previous convictions were mentioned (ground 2). There are no proper grounds of challenge. 2. Evidence by the victim of what she said to the police (ground 3). There does not appear to be any evidence of a conversation with you in her statement or before the court. It raises no arguable ground of appeal. 3. Evidence that you were going to take your son to play football (ground 4). The judge summed up your evidence which was not challenged and this does not raise a possible ground of appeal. 4. Evidence to the purchase of the mobile phone (ground 5). The judge summed up your evidence as to which there was no dispute and this does not raise a possible ground of appeal. If there had been arguable grounds of appeal, I consider that an extension of time of 13 days would have been appropriate given the matters set out in your letter of 15th July 2006. Sentence You were sentenced to 21 months' imprisonment. This was an offence which was aggravated because it was carried out against a woman on public transport. It is also aggravated because of your previous convictions. The judge took into account mitigation and I consider that the offence justified a high sentence and that there are no proper grounds to appeal the length of sentence of 21 months. In the circumstances, no question of granting bail arises." 12. Subsequent to the single judge's refusal of permission the applicant has added two further grounds in a letter of 16th November 2006. Firstly, he says that he could not have unzipped his trousers with his right hand as he had been left with partial palsy in his right hand as a result of a car accident in 1992. Secondly, the applicant was wearing a short jacket which would not have covered his movements in a public place. 13. In our judgment, in relation to the original grounds of appeal, both against conviction and sentence, the judge was entirely correct to describe them, in effect, as without merit. As far as the two further grounds are concerned, those are matters which could have been dealt with at the trial; but, in any event, in the context of the evidence at the trial, as to which we have had an opportunity to see the account in the summing-up by the judge, it is quite plain that those were matters which could not have in any way affected the verdict of the jury. 14. As far as this court is concerned, accordingly, it sees no reason which could have justified the applicant renewing his application for leave to appeal against either conviction or sentence, having been firmly and clearly told by the single judge that it had no merit. This is a case in which it is clear that the applicant did not have any support from counsel to the effect that there were any arguable grounds of appeal. 15. In the circumstances, in the absence of there having been such advice, and in the face of the clear indication by the single judge as to the merits of the appeal, we consider that the renewal of this appeal falls into the category of a renewal of an appeal without merit which justifies this court in exercising its powers under section 29 . We do so by ordering that 28 days of the period spent by the applicant since his conviction should not count towards his sentence. 16. We turn then to the second application which is the application of George. She appeared on 2nd February 2006 at the Leicester Magistrates' Court, pleaded guilty and was committed to the Crown Court for sentence, and two offences of assault occasioning actual bodily harm and assaulting a constable. On 29th June 2006 at the Crown Court at Leicester she was sentenced as follows. In relation to the assault occasioning actual bodily harm, an extended sentence of four years pursuant to section 227 of the Criminal Justice Act 2003 , comprising a custodial term of three years' imprisonment and an extension period of 12 months. As far as the assault on a constable was concerned, no separate penalty was imposed. 17. She renews her application for leave to appeal against sentence after refusal by the single judge. 18. The circumstances of the offence for which she was sentenced were as follows. Steven Jeggo was a probation officer based at a probation hostel in Leicestershire. Whilst he was working on Christmas day 2005 he answered a knock at the door. He opened the door and found the applicant standing there. He recognised her because she had been a resident in the hostel a year or so before. She said that she had come to pick up a library book that she had left at the hostel. Mr Jeggo said there would be no record of a book being at the hostel. The applicant then lunged at him with a knife. She appeared to aim for his upper body. He put his hands to his chest. The knife caught his hand. He shouted to his colleague to call the police. He then tried to pin the applicant against a wall to restrict her movements and prevent further injury. The knife fell to the floor. The applicant then left. Mr Jeggo sustained a half inch cut to the middle finger of his left hand and a small cut to his thigh. He was seriously affected by that incident. 19. About a half an hour after the attack on Mr Jeggo the applicant was arrested. During the course of her being searched in order for the police to look for concealed weapons the applicant punched a female police sergeant to the face, causing swelling and a half inch cut to a finger that bled. 20. When she was interviewed by the police as far as the offences were concerned she made no comment, but in the interview for the pre-sentence report she described in more detail the circumstances which led up to the offence. She said she was alone in her flat. She had thoughts of revenge against the probation service and as a result she decided to go to the bail hostel with a knife and injure the first person who opened the door. No one in particular was targeted. She just wanted retribution for the harm that she felt that the probation service had caused her. 21. She is a woman of 38 years of age with a significant number of previous convictions and has served lengthy sentences of imprisonment. Her offending has involved assaults, arson and similar matters. The reports make it clear that she has felt resentment towards those in authority over a substantial period of time and that that resentment has been particularly directed towards the probation service. It was in those circumstances that the judge concluded that the sentence should be one of four years' imprisonment and justified the imposition of an extension period by reason of not only the offence itself but her background. 22. The single judge in refusing leave to appeal said as follows: "This was an attack with a knife with intent to injure the head, committed by someone with numerous convictions for violence. The pre-sentence and psychiatric reports were unhelpful to the defendant. There was no alternative to a substantial custodial sentence. Three years was not too long." 23. In this case the applicant had received advice from counsel. Counsel had put forward in her advice two potential grounds of appeal. Firstly, that the recorder failed to give any, or any due, consideration to the defendant's guilty plea. Secondly, that he failed to give due, or any, consideration to the substantial mitigation forwarded on behalf of the defendant. 24. Whilst we have no doubt that the decision of the single judge was entirely correct and that the use of the court's powers under section 227 was appropriate, it is important to point out that in this case the maximum determinate sentence that could be imposed on this applicant was one of five years' imprisonment. In those circumstances, since the judge in the face of a plea of guilty had only made a reduction of one year, it is difficult to say that the application was totally devoid of merit; and the applicant had had the benefit of advice from counsel to the effect that we have indicated. In those circumstances, we do not consider that in this case it would be right for us to exercise our powers under section 29 . 25. We turn then to the application of Clarke. The applicant pleaded guilty on 12th April 2006 to two offences of possession of a class A drug, one being crack cocaine and the other being heroin, with intent to supply. On 27th June 2006 the applicant was sentenced to three years' imprisonment with 41 days spent on remand to count towards sentence on both counts to be served concurrently. 26. He renews his application for leave to appeal against sentence after refusal by the single judge. 27. The facts can be shortly stated as follows. On 19th January 2006 police officers were on mobile patrol in the Shirley area of Croydon. They saw the applicant walking along the road. He seemed to realise that he was being observed and he started to fiddle with his left hand jacket pocket. One of the officers opened a car window and called out to the applicant to stop but the applicant kept walking and then started to run. He took his hand from his pocket, put it up to his mouth and then removed his hand. As he ran he turned his head and appeared to spit into a garden. Eventually he was stopped. Nothing was found on him, but when the officers went back to the garden, into which the applicant had appeared to spit something, six clingfilm wraps could be seen. When he was confronted with that the applicant replied, "I am just a user. I don't deal." He was arrested. When interviewed he said he had just obtained the drugs for himself and a friend. He had bought the drugs in Croydon and was on his way home. The drugs were for his own use and his friend's use and he was not a dealer. Four of the wraps contained crack cocaine and two wraps contained heroin. 28. The judge acknowledged that this was a very small scale possession with intent to supply at the very bottom rung, but the applicant had a bad record, including a number of offences relating to drugs and possession of drugs with intent to supply. He gave, he said, full credit for the guilty pleas, and in those circumstances considered that a sentence no longer than three years' imprisonment was appropriate. 29. The grounds of appeal were settled by the applicant himself, reflecting the fact that his counsel had advised that there was no prospect of persuading this court that the sentence was manifestly excessive. In those grounds of appeal essentially the applicant submitted that insufficient credit was given for the guilty pleas, insufficient account was taken of the fact that he had remained drug free for a significant period. He considered that the pre-sentence report was biased and had not explained that he was remorseful. Further, he had a different barrister for sentence from the barrister whom he had first seen, and, although there had been a psychiatric report ordered, he did not consider that that was of any relevance to him. 30. The single judge said as follows: "You were sentenced on the basis that this was a very small scale intended supply, an intended commercial supply at the bottom of the rung of the supply of class A controlled drugs -- four wraps of cocaine and two wraps of heroin. The sentence imposed was in all the circumstances (including the aggravating and mitigating factors) within the appropriate sentencing bracket. As the judge pointed out in his sentencing remarks, you have a bad record, including a number of offences in relation to drugs and possession of drugs with intent to supply. You received (in my view rightly) a negative advice on appeal from counsel. The sentence imposed was not manifestly wrong or excessive in principle." 31. With those remarks we entirely agree. This was a sentence which could not in any way be criticised, not only in relation to the offence itself against a plea of guilty, but also bearing in mind the applicant's previous convictions. He had received, as the single judge noted, an advice from counsel that an appeal would not succeed. 32. It seems to us in those circumstances that this is a case where the application for leave to appeal is entirely without merit. Against the background we have described of a negative advice from counsel and a clear statement by the single judge that this application was unarguable, we consider that we should properly exercise our powers under section 29 and direct that 28 days of the period served since he was sentenced should not count towards his sentence. 33. Finally, we come to the application of Brown. On 11th May 2006 this applicant pleaded guilty to one count of theft and on 1st August 2006 he pleaded guilty to an offence of sexual assault on a female. He was committed to the Crown Court for sentence and on 18th August 2006 he was sentenced to 12 months' imprisonment for the theft and 12 months' imprisonment consecutive for the sexual assault. 34. He renews his application for leave to appeal against sentence after refusal by the single judge. 35. As far as the theft was concerned that occurred on Saturday 22nd April 2006. An 84 year old lady was, while shopping in Epsom town centre, taking a rest on a bench. She took out her purse to check what was on her list for the day when the applicant snatched the purse from her hands and ran off. Passers-by, one of whom was an off-duty police officer, chased and caught the applicant. The purse, which contained money and stamps, was found in his possession. Not surprisingly he made full admissions of the offence in interview. 36. As far as the sexual assault was concerned, that occurred on 25th May 2006, which, it will be noted, was just a fortnight after his first appearance before the court in relation to the charge of theft. A 13 year old girl was on her way home from school. When she got off the bus she saw the applicant coming toward her. He asked her for a pen and paper and then asked her for a mobile telephone. The girl said no. He persisted. She became scared. She thought, not surprisingly, that the applicant was going to rob her. In fact what he did was to put his arm round her shoulders, hold her tightly and then lent forward and kissed her cheek. She was meanwhile trying to escape from him which eventually she did. She ran home and told her brother what had happened. The applicant was stopped later that day. When interviewed he said he had not been planning to rob the girl. He was just going to kiss her, but he accepted that she had made it plain that that was not welcome to her. 37. It was against that background that he was sentenced. The judge expressly considered alternatives to custody, but noted that he had been sentenced to a community order in December 2005 for an offence of attempted robbery and he had not complied with the order. 38. The psychiatric report put forward a number of alternatives, but other than custody the judge did not consider that any of those would be appropriate for these two offences. 39. The applicant had the benefit of advice from counsel who settled two grounds of appeal, firstly, stating that there was no complaint about the sentence of 12 months' imprisonment imposed for the theft, but that the sentence of 12 months' imprisonment for the sexual assault was manifestly excessive on the basis that it did not reflect the low level of the offence, and, secondly, that the starting point for the sentence was too high. 40. The single judge in refusing leave to appeal said as follows: "1. You have a bad record especially for thefts before you committed these offences against vulnerable people. The victim of the theft was an 84 year old lady who felt 'very upset and shaken' by this incident. The victim of the sexual assault was 13 years old and she was in tears after your assault. 2. There is nothing wrong with the total sentence of two years even though it could have been made up differently by a sentence of 18 months for the theft and six months for the sexual assault." 41. Once again, we entirely agree with the remarks of the single judge. The application for leave to appeal is without merit. However, we do not consider that this is an appropriate case in which to exercise our powers under section 29 . The applicant did have the benefit of an advice from counsel which pointed out what may have been an arguable criticism of the sentence, which was that the sentence of 12 months' imprisonment for the sexual assault was manifestly excessive. Counsel had not, however, applied her mind properly to the fact that this court considers the totality of the sentence rather than merely the individual make-up of the sentence as the single judge pointed out. Nonetheless, it would be harsh to categorise this application as one which had no prospect of any success to an extent which would justify the exercise of our power under section 29 . 42. We should not leave this case without referring to the fact that in counsel's advice at paragraph 8 counsel said as follows: "Accordingly I attach grounds of appeal. Mr Brown should be advised that it is open to the Court of Appeal to increase sentence but I think it unlikely in this case." 43. This court has not had the power to increase sentence for a long time, but it has the power which we have exercised today in relation to two of the applications. We hope that both applicants and counsel will heed the fact that this court is prepared to exercise its power and will do so more frequently in the future than it has done so in the past. The mere fact that counsel has advised that there are grounds of appeal will not always be a sufficient answer to the question as to whether or not an application has indeed been brought which was totally without merit. It should not be thought that this court will not exercise its power on other occasions even if there is an advice from counsel supporting grounds of appeal.

```yaml citation: '[2006] EWCA Crim 3239' date: '2006-12-13' judges: - LORD JUSTICE LATHAM - MR JUSTICE MITTING - MR JUSTICE TEARE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

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. NCN: [2019] EWCA (Crim) 1930 IN THE COURT OF APPEAL CRIMINAL DIVISION No. 201903312 A4 Royal Courts of Justice Tuesday, 22 October 2019 Before: LORD JUSTICE SIMON MR JUSTICE GOOSE MRS JUSTICE COCKERILL DBE REGINA V DAVID WEATHERALD __________ 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 A. BOYD appeared on behalf of the Appellant. THE CROWN did not attend and were not represented. _________ J U D G M E N T LORD JUSTICE SIMON: 1 On 8 August 2019, having pleaded guilty in the magistrates' court, the appellant was committed for sentence to the Crown Court at York. On 29 August he was sentenced by his Honour Judge Hickey on the two committal offences: committal offence one, making indecent images of a child, Category A, contrary to section 1(1) (a) of the Protection of Children Act 1978 , a term of ten months' immediate imprisonment; committal offence two, the same charge but in relation to category C images of children, a concurrent term of two months. Various ancillary orders were made and consequences flowed from the sentence; but the issue that arises on appeal for which leave was given by the single judge is whether the sentence should have been suspended. 2 The appellant is 61 and of previous good character. On 15 November 2017 police officers from the Harrogate On-line Abuse Team executed a search warrant at his home in Knaresborough. They seized computer equipment and the appellant was interviewed the next day. He gave no comment answers to all questions put and it was after this that his computer equipment was examined. 3 Committal offence one related to the contents of a USB stick found plugged into the back of a television that contained 11 Category A videos, three of which were described as "of an extreme nature". One was 38 minutes long, one was 24 minutes long, but they were all lengthy videos, and the officer accepted he could not summarise them all because they went on too long. Since no issue arises as to the categorisation of the videos as category A, the most serious nature of this type offence, it is unnecessary to give a further description. They involved young children, oral sex, sexual touching and anal rape. 4 Charge two related to three category C images on the same USB stick as contained the eleven Category A videos. An examination showed that the USB stick had first been used on 24 July 2017 and last used on 7 October 2017. The images were in fact deleted on the USB stick, a matter of which Mr Boyd has reminded us. 5 The second item seized was a tablet computer. An examination of the tablet showed that search items on the internet had been used which indicated an extensive search for child pornography, including extreme child pornography. Over 3,598 URLs were found under the general category of pornography. Not all were illegal. A second laptop was examined and within the recycled bins were titles suggesting extreme Category A pornography. Further examination showed links to an android device that was not recovered and the possibility of a further USB stick. 6 The appellant was interviewed again in June 2019 with the forensic evidence and made admissions. He said he had viewed material using torrent websites and that he had downloaded the material from the computers to the USB stick so that he could watch the material on television. He accepted that he had become sexually aroused by watching the material and said that the children he looked at were aged between six and thirteen. 7 The Pre-Sentence Report set out the appellant's explanation of how he started watching adult pornography, but then moved on to interfamilial sex. He was excited by viewing extreme images of violence against women and was curious to see what was contained in such videos. He was aroused at the children in the images being forced to have sex. He showed some understanding of the impact on child victims and demonstrated some empathy and remorse. He was assessed as a low risk of reoffending and a medium risk of harm. That risk could be safely managed in the community and an eighteen-month community order with requirements was proposed. 8 The judge acknowledged the substantial mitigation of the appellant's good character at the age of 61, and his personal mitigation was substantiated in the Pre-Sentence Report. He had also pleaded guilty at the first opportunity and had made early admissions to the pleas by the date of the second interview. The judge acknowledged that he was a hard worker, that he had stopped working out of a sense of shame, and that his partner was standing by him. The videos were first used in July and over the next few months into October. They were then deleted. In terms of the aggravating features, there were moving images of an extreme nature, the victims were in discernible pain and distress, and there had been searches for extreme matters that showed his perverted interest in young people. 9 The judge acknowledged that he had been assessed as being a low risk of danger to the public, that there was a realistic prospect of rehabilitation and that he had reasonable personal mitigation, but continued in these terms: But I am afraid I take the view that the factor outweighing all of those is that it would not be appropriate to suspend a custodial sentence because of the extreme images and their extreme nature. The appropriate punishment can only be achieved by immediate custody. 10 The short point taken by Mr Boyd in the grounds of appeal and in the oral argument before us today is that the sentence should have been suspended. 11 This was serious offending. The Sentencing Guidelines for possession of Category A images indicate a starting point of one year’s custody and a range of twenty-six weeks to three years. The judge took a starting point of fifteen months, doubtless because of the two offences. He does not appear to have given credit for any other mitigation before giving a full one third reduction for the plea. 12 He went on to consider the guidelines on the imposition of community and custodial sentences. He recognised that there were two factors pointing to the suspending of the custodial sentence, the realistic prospect of rehabilitation and the strong personal mitigation. He also recognised that there were two factors that did not indicate an immediate custodial sentence: the appellant presented no significant risk to the public and he had no history of poor compliance with court orders. Nevertheless, he concluded that the appropriate punishment could only be achieved by immediate custody. 13 The Sentencing Council Guidelines for sentencing offenders for possession of indecent images under the Protection of Children Act indicates that where there is sufficient prospect of rehabilitation, a community order with a sex offender treatment programme under section 202 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length of custodial sentence and that was the recommendation in the Pre-Sentence Report. We note that the appellant had no previous convictions at the age of 61 and had worked his entire adult life. The offences occurred 22 months before the sentence and there was no suggestion of further offending. The Pre-Sentence Report assessed him as a low risk of general and sexual offending. While he was assessed as a medium risk of serious harm, the risk was likely to decrease if focused work was carried out. The probation service had assessed that the appellant's offending could be managed in the community and suggested an appropriate community order. The videos had been used during a confined three-month period and the material had then been deleted. 14 This was a case in which the Pre-Sentence Report made a realistic recommendation that addressed the seriousness of the offence and the risk the appellant posed to the community, and which should have been forwarded. He has spent the equivalent of three months in prison, and in these circumstances we will quash the sentence of ten months’ imprisonment, and substitute a sentence of six months' imprisonment, suspended for twelve months, with a condition that up to 25 Rehabilitation Activity Requirement days be completed within that period. To that extent the appeal is allowed.

```yaml citation: '[2019] EWCA Crim 1930' date: '2019-10-22' judges: - LORD JUSTICE SIMON - MR JUSTICE GOOSE - MRS JUSTICE COCKERILL DBE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2023] EWCA Crim 954 Case No: 202300268 B4 IN THE COURT OF APPEAL, CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT MANCHESTER, CROWN SQUARE HH Judge Henshell T200375433 Royal Courts of Justice Strand, London, WC2A 2LL Date: 07/08/2023 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MR JUSTICE GOOSE and SIR ROBIN SPENCER - - - - - - - - - - - - - - - - - - - - - Between: ANDREW MALKINSON Appellant - and - THE KING Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Edward Henry KC and Max Hardy (assigned by The Registrar of Criminal Appeals ) for the appellant John Price KC and Peter Grieves-Smith (instructed by CPS Appeals Unit, Special Crime Division ) for the respondent Hearing date: 26th July, 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in paragraphs 2 and 3 of the judgment. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Lord Justice Holroyde: 1. Twenty years ago, on 19 th July 2003, a young woman was attacked and raped as she walked to her home in the early hours of the morning. We shall refer to her as “C”. On 10 th February 2004 Andrew Malkinson (“the appellant”) was convicted of attempting to choke, suffocate or strangle C with intent to commit an indictable offence, namely rape, and of two offences of rape. He was subsequently sentenced to life imprisonment. He has always denied committing any of the offences. He now appeals against conviction, putting forward five grounds of appeal. At the conclusion of the hearing on 26 July 2023 we announced that his appeal would be allowed on the first of those grounds, and his convictions quashed. We indicated that we would give our decision on the other grounds of appeal, and our reasons, in a written judgment. This we now do. 2. C is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992 . Accordingly, during her lifetime no matter may be included in any publication if it is likely to lead members of the public to identify her as the victim of the offences. 3. A further reporting restriction applies to this case. Another man, to whom we shall refer as “Mr B”, is now implicated in the offences. In order to avoid a substantial risk of prejudice to the administration of justice in a prosecution of Mr B we have made an order, pursuant to section 4(2) of the Contempt of Court Act 1981, that no report of these proceedings or of this judgment shall include the true name of Mr B, or any detail which may lead to the identification of Mr B. This order shall remain in force until further order of this court or, if earlier, until 16 August 2023. Summary of relevant facts 4. The facts of the offences are shocking. For present purposes, it is sufficient for us to outline them briefly. C was attacked from behind and forced to a secluded place. She did not know her attacker, but was later able to give the police a description of him. He ordered her to throw away her mobile phone. He removed his shirt, restrained C on the ground, straddled her and choked her. Despite her entreaties, he continued to apply pressure to her throat. In her efforts to resist she believed she scratched his face. She then lost consciousness. Whilst unconscious, she was raped both vaginally and anally. 5. C suffered a number of serious injuries. In particular, her left nipple was partially severed, this injury being consistent with a bite. She was medically examined, and forensic samples taken, by a deputy police surgeon, Dr Anderson. The injuries recorded by Dr Anderson in a witness statement included “broken fingernail middle finger right hand”. The samples taken included fingernail scrapings from both hands, and fingernail cuttings from the left hand. 6. On the afternoon of 19 July, and on 23 July 2003, a police crime scene investigator, Ms Evans, took photographs of C’s injuries. Ms Evans’ witness statement records that she gave all the resultant photographic negatives a single exhibit reference number, and that the negatives were processed and “made up into albums”. 7. Two police officers, who had spoken to the appellant in relation to a traffic stop some weeks earlier and recalled his appearance, visited him at his place of work on 20 th July 2003, only hours after the offences were committed. He had no visible injury to his face. He was arrested on 2 nd August 2003. From the outset, and when interviewed under caution, he denied the allegations. He agreed to take part in identification procedures and to give DNA samples, saying that scientific evidence would show his innocence. 8. At a video identification procedure on 3 rd August 2003 C picked out the appellant, saying that she was sure he was her attacker. 9. Two other persons, Michael Seward and Beverley Craig, told the police that they had been out together in the early hours, and had seen a man and a woman near the scene of the crimes. They each gave a description of the man. 10. On 3 rd August 2003 Beverley Craig took part in a video identification procedure. After viewing the parade tape twice, she asked to look again at the images of the men numbered 1 and 4. The appellant was number 4. Beverley Craig picked out number 1. Immediately after the procedure had ended, however, she told a police officer that she had picked the wrong man and that she was sure that number 4 was the man she had seen. 11. Michael Seward did not attend an identification procedure until 14 th January 2004, by which time he had read descriptions of the attacker in the press and had seen an e-fit drawing of the attacker. He picked out the appellant. The trial 12. The appellant was charged with four offences: attempting to murder C (count 1); attempting to choke, etc, C (count 2, which was an alternative to count 1); vaginal rape (count 3); and anal rape (count 4). He stood trial before HH Judge Henshell and a jury in the Crown Court at Manchester, Crown Square. It was not in dispute that C had been attacked and raped. The prosecution case was that the appellant was the rapist, and that he had worn a condom so as to avoid leaving any evidence by which he could be identified. 13. C gave evidence describing the attack upon her. She said that she had scratched her attacker’s face on the right side, from near his eye down towards his jaw, and must have caused some sort of scratch or mark because she had dug her nail in. She said that in doing so, she had broken the nail on the ring or middle finger of her left hand. 14. The prosecution relied on the evidence of C, Beverley Craig and Michael Seward to prove the identity of the attacker. Those three witnesses were cross-examined on the basis that they were mistaken in their identification of the appellant. As the judge reminded the jury in his summing up, it was accepted by the defence that all three witnesses were honest: it was not suggested they were lying. It was also accepted by the defence that the man seen by Beverley Craig and Michael Seward – whoever he was – must have been the rapist. 15. We need not go into detail about the other evidence on which the prosecution also relied, save to mention that the statement of Dr Anderson was read to the jury by agreement, and that a small number of photographs of C’s injuries were shown to the jury. As we understand it, these had been taken from one of the albums prepared by Ms Evans, and were limited to images showing C’s face and body, but not her hands. 16. There was no scientific evidence which could support the identification of the appellant. Although DNA profiles had been detected in samples recovered from C or her clothing, it was only possible to identify a major contribution from C herself, with no clear profile of any other donor. At the time of the police investigation and the trial, the limits of DNA analysis did not permit any further findings. 17. The appellant, then aged 38, gave evidence in his own defence. He denied any involvement in the offences, and said that the identifications of him by the three witnesses were mistaken. He told the jury that he had one previous conviction for an offence of criminal damage many years ago, and had been imprisoned in another country for a passport offence, but had no previous convictions for any sexual or violent offence. 18. The judge in his summing up emphasised that the central issue in the case was as to identification, and that the jury must come to their own judgement as to whether a witness was honest, accurate and reliable. He directed the jury: “Have the Crown proved – and when I say ‘proved’, I always mean made you sure – that the defendant was the attacker? If you cannot be sure of that, then you must acquit the defendant of all of these allegations. … The case against the defendant depends wholly on the correctness of the identification of him by [C], Beverley Craig and Michael Seward, which he alleges, in each case, to be mistaken.” 19. The judge went on to direct the jury, in conventional terms, about the special need for caution before convicting a defendant in reliance upon evidence of identification. He reminded the jury of the circumstances in which each of the witnesses had seen the man they alleged to be the appellant. He pointed out, as weaknesses in the identification evidence, the facts that the appellant did not have a cut on his face; that the appellant had tattoos on both his arms, a feature not mentioned by C; and that Beverley Craig had changed her mind at the identification procedure. He directed the jury that there was no scientific evidence which could support the identification evidence, but that the evidence of each of the three witnesses was capable of supporting the evidence of the other two, provided the jury were sure that each was an honest and reliable witness. 20. We need say no more about the judge’s directions of law. They were appropriate and correct on the basis of the evidence given at trial, and are not criticised in the grounds of appeal. 21. When reminding the jury of the evidence, the judge referred to C’s belief that she had scratched her attacker’s right cheek with the middle finger of her left hand. He pointed out that the defence emphasised the fact that the appellant had no trace of any such injury. He recalled that when giving her evidence about scratching her attacker’s face, C – who told the jury she was right-handed – had held out her left hand and indicated the middle finger. He then reminded the jury of Dr Anderson’s evidence that the fingernail was missing from the middle finger of C’s right hand, and invited the jury to consider what that told them about C’s memory of this particular detail. He continued: “Does she really remember scratching the right side of the face of her attacker with her left hand? At the end of her evidence, she said that the scratch which she thought she had inflicted was the only time she had touched him and she said this, that it was the last lash-out as she was being strangled; it was the last thing she did before she became unconscious. If she may have scratched the attacker, then the person responsible for the attack cannot be the defendant. If, after examining all of the evidence, you are sure that she is mistaken on this detail, then you may safely exclude it, but notice the words I use. If and only if you are sure she is mistaken on that detail may you safely exclude it.” 22. In the course of their retirement, the jury sought the judge’s help on a number of matters. One of their notes to the judge requested him to “re-read summing up in relation to the scratch”. 23. The jury found the appellant not guilty of attempted murder, but convicted him of the other three offences. He was, as we have said, sentenced at a later date. Although the minimum term of his life sentence was specified as 6 years and 125 days, he in fact remained in custody for some 17 years before being released on 18 December 2020 subject to the conditions of his life licence. Throughout those many years, the appellant adamantly maintained that he was innocent of the crimes and had been wrongly convicted. He did so in the knowledge that he was thereby delaying his release from prison. Attempts to overturn the convictions 24. An appeal against conviction, on grounds different from those advanced today, was dismissed by this court in 2006. The judgment of the court on that occasion is publicly available under neutral citation number [2006] EWCA Crim 1891 . 25. The appellant, assisted by his present legal representatives, thereafter made two unsuccessful applications to the Criminal Cases Review Commission (“CCRC”). We need not go into the details of the matters raised in those applications. The CCRC’s reference 26. The appellant then made a further application, relying on developments in DNA analysis, and in particular on the possibility of carrying out DNA analysis focusing on the Y chromosome, which targets exclusively the DNA left by male contributors. This led the CCRC to commission further scientific investigations. Important exhibits, including C’s vest top and other items of her clothing, had by this time been destroyed by the police; but fortunately, samples which had been recovered from the clothing had been preserved in a forensic archive. 27. Cellular material, in which DNA was detected, was recovered from a sample of what could be saliva taken from the left upper front of C’s vest top and from a sample taken from the left cup of her bra: it will be recalled that C had sustained an injury to her left nipple which was consistent with a bite. The analysis of the sample taken from the vest top indicated the presence of DNA from at least two males. Some of the male DNA could have come from C’s partner. Some could have originated from a man who could also have contributed to male DNA in a sample recovered from the left cup of C’s bra. A check against a police database showed that the DNA profile on those samples matched the DNA profile of the man we have referred to as Mr B. 28. The key scientific findings may be summarised as follows. None of the additional testing provided any indication of DNA from the appellant on any of the samples. The findings therefore provided no support for the view that the appellant had been in contact with any of the items examined. However, all of the Y-STR DNA components detected could be accounted for by contributions from C’s partner and Mr B. The very experienced scientist who conducted the testing and analysis (including by the use of techniques which were not available at the time of the trial) estimated that the findings would be at least one billion times more likely if the DNA detected had originated from C, Mr B and another unknown person rather than if it had originated from C and two other unknown people. 29. In addition, some of the male DNA extracted from another sample from the left upper front of the vest top could have originated from Mr B. The estimated frequency of occurrence for the components not accounted for by DNA from C’s partner, and assumed to represent DNA from one other male, was approximately 1 in 28,000. Some of the DNA detected in cellular material recovered from the left cup of the bra could also have originated from Mr B, the findings being within the range of the scientist’s expectations if Mr B had been in contact with C at some time. 30. Further, Y-STR profiling revealed DNA which could have come from Mr B in nail cuttings or scrapings taken from C’s left hand, and in three other samples taken from C or from an item of her clothing. In addition, further testing commissioned by the respondent detected DNA which could have come from Mr B on a speculum used during the internal examination of C. 31. The CCRC considered that the presence of identifiable and unexplained DNA on the vest top, which might be crime specific and which did not match the appellant, gave rise to a real possibility that the convictions may be overturned. They rightly noted that the significance of the findings in the appellant’s case did not depend on whether or not Mr B was charged with the offences. They concluded that if the DNA now available had been available at the time, there is a real possibility that the appellant may not have been convicted, and indeed may not have been prosecuted at all. 32. The CCRC referred the case to this court, pursuant to section 9 of the Criminal Appeal Act 1995 , because they concluded that there was a real possibility that new evidence would be received by this court on appeal and that, if it were received, this court would find the convictions unsafe. 33. In their careful Statement of Reasons, the CCRC focused on the new scientific evidence as the basis of their decision to refer to case to this court. They referred to two additional issues which contributed to the conclusion that the convictions would be found unsafe and were therefore supportive of the referral. First, the new scientific evidence included further DNA findings which, although of very limited probative value, could have come from Mr B. Secondly, photographs of C’s hands which were taken shortly after the incident, but which may not have been disclosed to the defence prior to the trial and have only recently come to light, were relied on by the appellant’s advisers as contradicting Dr Anderson’s evidence and supporting C’s account of scratching with her left hand. 34. The CCRC also considered submissions on behalf of the appellant in relation to the criminal records of the witnesses Beverley Craig and Michael Seward. The CCRC found no clear evidence as to whether or not this information had been disclosed to the defence prior to the trial; but even if it had not, the CCRC concluded that the information did not give rise to a separate ground for referral, though it might be supportive of the sole ground for referral. 35. We have summarised very briefly the long series of endeavours which have ultimately resulted in the present appeal to this court, and the mass of scientific and other evidence which has been considered. For present purposes, it is unnecessary for us to do more. We must, however, add two observations. First, we pay tribute to the determination and persistence shown by the appellant and by his legal representatives in their protracted efforts to bring the case before this court. Secondly, we emphasise that the new medical evidence has become possible through a combination of scientific developments and the retention and preservation of the relevant samples. The scientific analysis which is now relied upon could not have been made at the time of the trial, or for many years thereafter. The grounds of appeal 36. By section 9(2) of the 1995 Act , a reference to this court by the CCRC shall be treated for all purposes as an appeal under section 1 of the Criminal Appeal Act 1968 . It follows that, in relation to the one ground on which the convictions have been referred by the CCRC, the appellant did not need to apply to this court either for an extension of time or for leave to appeal. 37. The effect of sub sections 14 (4A) and 14(4B) of the 1995 Act is that the appeal may not be on any ground which is not related to any reason given by the CCRC for making the reference, unless this court gives leave. 38. On behalf of the appellant, Mr Henry KC and Mr Hardy submit that the convictions are unsafe. They argue that the crucial issue at the trial was as to identification, and that the new scientific findings discredit the evidence identifying the appellant. They put forward five grounds of appeal, and seek to adduce fresh evidence in support of those grounds. Ground 1 39. The first ground, which does not require leave, is that referred by the CCRC: namely, that the fresh DNA evidence provides no support for the prosecution evidence identifying the appellant and, on the contrary, implicates Mr B. In relation to the key finding of the scientist, it is submitted that the location of the cellular material recovered from the vest top was consistent with the depositing of saliva when C’s left nipple was bitten. Other significant findings could also be regarded as relating to DNA from cellular material recovered from crime-specific areas. It is further submitted that Mr B lived at the time close to the crime scene, fitted C’s description better than did the appellant, had relevant previous convictions and had no clear alibi. 40. The remaining four grounds, all of which it is acknowledged require leave, are relied on individually and collectively as showing that important material which undermined the reliability and credibility of identification evidence was not disclosed to the defence, with the result that the appellant did not have the fair trial to which he was entitled under article 6 of the European Convention on Human Rights. The grounds are as follows. Ground 2 41. It is submitted that there was material non-disclosure of the photographs of C’s hands, which it is said show that the fingernail of C’s right middle finger was not damaged, but that the nail on her left middle finger was noticeably shorter than her other fingernails. It is submitted that these photographs contradict the evidence of Dr Anderson, on the basis of which the jury could have doubted C’s evidence that she recalled scratching her attacker’s face. The significance, it is submitted, is that the judge directed the jury that they must acquit the appellant if C may have scratched her attacker’s face. Although the CCRC could not establish conclusively whether the photographs were disclosed, the court is invited to infer that they cannot have been. Ground 3 42. It is submitted that there was material non-disclosure of the records of previous convictions of Beverley Craig and Michael Seward, despite a written request for such information in relation to all prosecution witnesses. It is submitted that each of those witnesses was put forward at trial as an honest person acting out of a sense of civic duty, whereas the records show that each had been convicted of offences of dishonesty. Although there is a written record of disclosure of previous convictions in relation to other witnesses, there is no such record in relation to these two witnesses. Again, the court is invited to infer that disclosure cannot have been made. Ground 4 43. It is submitted that there was material non-disclosure of the fact that Michael Seward, both at the time when he came forward as a witness and at the time when he attended the identification procedure, was facing charges of motoring offences, for which it is said he received lenient penalties. It is submitted that, had these facts been known at the time of the trial, defence counsel would have applied to exclude Michael Seward’s evidence and, if unsuccessful in that application, would have been able to suggest to the jury that his evidence was tainted by an improper motive. Ground 5 44. It is submitted that new evidence is available showing that Michael Seward had been a chronic user of heroin and cannabis for years before he picked out the appellant at the identification procedure, and had used other controlled drugs. Application is made to adduce the evidence of a witness who is a postdoctoral researcher with expertise in psychopharmacology and forensic psychology, which it is submitted shows that Michael Seward’s memory could reasonably have been impaired by his drug use. The witness refers to research showing that deficits of memory and cognition are pervasive amongst populations of chronic users of heroin and cannabis. She notes that it is unclear whether Michael Seward was under the acute influence of any drug at the time when he said he saw the appellant. She concludes that it is possible that he could have an accurate memory of the event, but also possible that gaps or errors in his memory could occur due to drug use. 45. Taking grounds 3-5 together, it is submitted that the result of the non-disclosure was that the jury were given a false impression of the character and reliability of the only two witnesses who were relied on as supporting C’s evidence of identification. The respondent’s submissions 46. Mr Price KC and Mr Grieves-Smith informed the court that, after careful consideration, the respondent does not feel able to oppose the appeal on ground 1. They accordingly did not oppose this court receiving the fresh evidence which underlies the first ground of appeal, and invited the court to find that the evidence renders the convictions unsafe. They stated that, if the appeal were allowed, no application would be made for the appellant to be retried. 47. Mr Price acknowledged the importance of vindication when considering whether the court should address grounds 2 to 5, and submitted that, if upheld by the court, ground 1 offered a vindication of the appellant in a way which the other grounds of appeal did not. When asked by the court whether the respondent wished to say anything about Mr Henry’s submission, that if the new scientific evidence had been available twenty years ago the appellant may not have been prosecuted at all, Mr Price replied – “My Lord, it is a fair and cogent submission. … It is difficult to see how a responsible prosecution lawyer, looking at this evidence in the round including all of the scientific evidence, it is difficult to see how they might consider that the Code for Crown Prosecutors’ test is met.” 48. Grounds 2-5 are, however, opposed by the respondent. It is submitted that the court should either decline to consider them, because it is not in the interests of justice to do so when the appeal will succeed on ground 1, or alternatively should reject them. 49. As to ground 2, the respondent accepts that the photographs were not adduced at the trial, and does not oppose their admission as fresh evidence in this appeal. It is, however, submitted that this evidence alone would not render the convictions unsafe. Mr Price points out that the obvious conflict between C’s evidence and Dr Anderson’s evidence was not explored at trial. He submits that in any event, the jury had to consider all the evidence in deciding whether C may have been mistaken in her recollection of scratching her attacker’s face. 50. As to ground 3, the respondent again does not oppose the records of previous convictions being admitted as fresh evidence, but submits that such evidence was irrelevant to the issues at trial because only the reliability of Beverley Craig and Michael Steward was in issue, not their honesty. Mr Price submits that there was no basis for the defence to suggest that the witnesses were dishonest in their evidence, and the fact of their previous convictions could not provide such a basis. 51. It is submitted that ground 4 is without substance, and that ground 5 adds nothing to ground 3. Analysis 52. We are very grateful to counsel for their written and oral submissions, and to all those who have assisted them in preparing and presenting this appeal. In particular, the oral submissions of both leading counsel, delivered in contrasting styles, were of great assistance to the court. We have summarised the arguments very briefly, but we have reflected upon all the points made on each side. 53. Before stating our conclusions, we emphasise that our focus must be on the safety of the convictions in the light of the submissions now made and the additional evidence and information now available. It is apparent that the appellant and his advisers have very serious concerns about the manner in which the police investigation was conducted and the prosecution pursued, and about the response of the CCRC when the first two applications to that Commission were made. We make clear that it is no part of our function to enter into those issues in this judgment. Nor, indeed, would we be in a position to do so, for the submissions on both sides have very properly been confined to the issues which the court must resolve. Ground 1 54. We have no doubt that the concessions made by the respondent in relation to ground 1 were properly made; and we agree with the answer fairly and properly given by Mr Price, which we have quoted in paragraph 47 above. The new scientific evidence is undoubtedly admissible as fresh evidence in accordance with section 23 of the Criminal Appeal Act 1968 : it is clearly capable of belief; it affords a ground for allowing the appeal; it would have been admissible at trial; and there is a reasonable explanation for the failure to adduce it at trial, namely the advances in DNA analysis since that time. The evidence clearly shows the convictions to be unsafe. The judge properly directed the jury about the special need for caution when considering evidence of identification, and there is no reason to doubt that the jury loyally followed his directions. But what the jury did not know – and could not have known – was that more advanced scientific techniques would later result in DNA findings which both seriously undermine the case against the appellant and directly implicate another man. Given that neither C’s evidence, nor any other evidence in the case, suggests that more than one man was involved in the offences, the evidence now available gravely weakens the case against the appellant; and that is so, regardless of the outcome of any prosecution of Mr B. The stark reality is that the appellant has spent very many years in prison, having been convicted on identification evidence which he always disputed and which cannot now be regarded as providing a safe basis for the jury’s verdicts. We regret that this court cannot alter that fact; but – as we indicated at the conclusion of the hearing – we can and do admit as fresh evidence the further scientific analysis, and allow the appeal on ground 1. Should the other grounds also be considered? 55. Having already reached the decision that the appeal must be allowed on ground 1, two questions immediately arise: should grounds 2-5 be considered? And if so, should the appeal also be allowed on all or any of those grounds? 56. In Hamilton and others v Post Office Limited [2021] EWCA Crim 21 it was held that if this court concludes that an appeal must be allowed on one ground, it is not obliged to hear argument on any other ground of appeal, but may in its discretion do so. At paragraph 36 the court stated that the guiding principle in such circumstances is that it must act in the interests of justice, and identified a non-exhaustive list of factors which the court would usually wish to consider in deciding whether to exercise its discretion. 57. Making the necessary fact-specific evaluation in the present case, we are satisfied that in the interests of justice we should exercise our discretion in favour of determining grounds 2-5. We take into account in particular the overall importance of the case; the article 6 rights of the appellant in circumstances where he has spent long years in custody; the importance of maintaining public confidence in the criminal justice system; and the fact that consideration of these further grounds does not result in any undue delay to this appeal. 58. We accordingly turn to consider those grounds. Ground 2 59. We have referred earlier in this judgment to the albums of photographs taken by Ms Evans. We have been provided with copies of two photographs in particular, and an enlargement of part of one of those images. Both the photographs (which are very similar) show C’s right arm and hand, and we infer that they were taken in order to record a number of abrasions on the inner aspect of the right forearm. Some of the fingers of the right hand can be seen, though they are curled and not fully visible. The thumbnail is not visible. The fingernails of the right ring, middle and little fingers are clearly shown: they are of roughly equal length and are all in good condition, with no damage. On one of the photographs it is possible to see part of the fingernail of the right forefinger, but in our view it is not possible to assess the condition of that nail. It might be thought to look shorter than the nails of the other fingers, but the angle at which the photograph was taken may be deceptive in that regard. 60. On one of the photographs, it can be seen that C’s right arm was resting on a hand: by inference, C’s left hand. The inner aspect of part of the tips of three fingers – probably the forefinger, middle and ring fingers – can be seen. The enlarged image is of this part of the photographs: the nails of two of the fingers appear to be of roughly equal length. It is possible that the nail of the other finger (probably the middle finger) is shorter; but again, the angle at which the photograph was taken may distort the view, and we cannot agree with the submission that the nail of the middle finger is “noticeably shorter”. 61. At the time of the trial, there was not and could not be the scientific evidence now available in relation to the recovery of a DNA profile from samples taken from C’s left hand. 62. The counsel and solicitor who represented the appellant at trial have indicated that they did not receive disclosure of photographs of C’s hands. The respondent is unable to produce any documentary evidence to the contrary. We proceed on the basis that the two photographs which we have seen, and any others which had been placed into the same album, were not disclosed before or during the trial. We do not know exactly which other photographs were either exhibited or disclosed as unused material. Nor do we know whether any specific enquiry was made, given C’s evidence that she damaged a fingernail on her left hand, and given that the appellant on arrest had no relevant facial injury. 63. There was plain inconsistency between C’s evidence of scratching with her left hand, and Dr Anderson’s evidence of a damaged nail on the right middle finger. Given that Dr Anderson’s statement was read to the jury as agreed evidence, and meaning no disrespect to counsel on each side at the trial, we think it may well be that the inconsistency went unnoticed until the judge referred to it in his summing up. An alternative explanation may be that the inconsistency was regarded as being unimportant in the context of the case as a whole. No criticism is or could be made about what the judge said, which was an accurate reference to the evidence before the jury. 64. Whatever may be the explanation for the course taken at trial, we have to consider whether the failure to disclose the two relevant photographs renders the convictions unsafe. We understand why Mr Price submits that this is a minor point, and that the jury had to consider all of the evidence in deciding (as the judge’s direction rightly required them to do) whether they could be sure that C did not scratch her attacker’s face. We bear very much in mind that the absence of any visible injury to the appellant’s face may be thought to be a strong point in the appellant’s favour, whether or not the photographs were disclosed. Mr Henry has, however, persuaded us that the failure to disclose these photographs was highly material. 65. We do not think that the photographs alone could have enabled the jury to make any confident finding that C damaged one of the fingernails on her left hand. They would however have provided strong evidence that she did not damage any fingernail on her right hand, and that Dr Anderson’s note must have been inaccurate in that respect. Dr Anderson’s statement on that point would therefore not have been agreed; and if Dr Anderson had been called to give oral evidence, she would surely have accepted that the photographs showed her to have made a mistake. C’s evidence of scratching would then not have been undermined, and Dr Anderson’s evidence would not have provided any basis for the jury to think that C’s recollection of scratching was unreliable. The judge’s directions required the jury to consider whether they were sure that C did not scratch her attacker’s face and that she was correct in her identification of the appellant. Those directions would have been the same whether or not the photographs were disclosed, and it would have been open to the jury to conclude that they were sure of those matters. We are, however, persuaded that in the very particular circumstances of this case, the non-disclosure of the two relevant photographs prevented the appellant from putting his case forward in its best light, and strengthened the prosecution case against him in a manner which the photographs show to have been mistaken. We accept Mr Henry’s submission that, if the photographs had been disclosed, the jury’s verdicts may have been different. 66. For those reasons we regard the convictions as unsafe on ground 2. Ground 3 67. It is clear that the criminal records of Beverley Craig and Michael Seward were not disclosed to the defence before or during the trial, notwithstanding the request which had been made. We are satisfied that they should be admitted as fresh evidence pursuant to section 23 of the 1968 Act . 68. The trial took place before the provisions of the Criminal Justice Act 2003 , governing the admissibility of evidence of bad character, had come into effect. We accept that, under the law in force at the time of the trial, defence counsel would have been entitled to cross-examine Beverley Craig and Michael Seward about their respective previous convictions, provided only that they were relevant to an issue in the case. Counsel did, indeed, cross-examine two other witnesses about their previous convictions (which had been disclosed). It does not appear that there was any challenge to the relevance of that line of cross-examination, notwithstanding that the evidence of the witnesses concerned were by no means central to the case. We accept that the failure of disclosure denied defence counsel of an opportunity, which he would have wished to take, to question Beverley Craig and Michael Seward about their previous convictions, and to make appropriate submissions to the jury about those convictions. We also accept that the concession made by defence counsel at trial, that the two witnesses were giving evidence honestly, would not have been made if the previous convictions had been disclosed. The importance of these matters is that the support which the identification by one witness could provide for the identifications by others was predicated on the basis (conceded by the defence, on the basis of the evidence and information available to them at trial) that each of the witnesses was honest. 69. We must then consider whether the defence case would have been materially assisted if the records of previous convictions had been disclosed. They show that, at the time of the trial, Beverley Craig had only three convictions for theft and one for fraud, the latest of those offences having been committed in February 2000. Michael Seward had a much more substantial criminal record, which at the time of the trial included a number of offences of dishonesty, but the most recent of those was a shoplifting offence committed in 1994. If proper disclosure had been made, the jury would also have been made aware that Michael Seward had been convicted of motoring offences, and cautioned for possession of heroin and amphetamine, during the currency of the prosecution of the appellant. Mr Henry’s submissions persuade us that cross-examination about the witnesses’ previous convictions would have been capable of casting doubt on their general honesty and capable of affecting the jury’s view as to whether they were civic-minded persons doing their best to assist. 70. C’s evidence of identification was based on observations of her attacker which she had made in very difficult circumstances. Beverley Craig and Michael Seward provided the only evidence which the prosecution could rely on in support of C’s identification. In our judgement, the challenge to the character and credibility of those two identifying witnesses would have been capable of affecting the jury’s overall view as to whether they could be sure that the appellant was correctly identified. 71. If ground 3 stood alone, we would not regard it as sufficient to cast doubt on the safety of the convictions; but when taken in conjunction with ground 2 we conclude, with some hesitation, that the appeal should succeed on ground 3 also. Ground 4 72. We are unable to accept Mr Henry’s submissions as to ground 4. We are not persuaded that there was, even arguably, material non-disclosure in the respect alleged in this ground. There are a number of unsatisfactory features about the sequence of events relating to Michael Seward, in particular the passage of six months before he attended an identification procedure and the fact that he had seen images of the appellant during the intervening period. We understand why it is suggested that the timing of his eventual participation in the identification procedure, viewed against the dates of court appearances in respect of the criminal charges which he was then facing, might be thought suspicious. We are, however, satisfied that this amounts to no more than speculation. There is an absence of detail about the various charges which makes it impossible to draw any inference as to whether the pleas which were ultimately entered, and/or the penalties ultimately imposed, were so favourable to Michael Seward as to raise concerns. 73. The non-disclosure referred to in ground 3 deprived the defence of an opportunity to challenge the honesty and credibility of Beverley Craig and Michael Seward. It seems to us that in reality the basis of ground 4 is an assumption that, given disclosure of the relevant material, the defence would have been able to go beyond that challenge and allege that the witnesses were deliberately giving false evidence for a reason which in some way implicated the police. That assumption is in our view incorrect. Any attempt to make such an attack would have been largely speculative. 74. We are satisfied that the criteria for admitting as fresh evidence the material underlying ground 4 are not met, and that ground 4 cannot in itself provide any basis for doubting the safety of the convictions. Ground 5 75. The first question we must consider in relation to ground 5 is whether the expert evidence would have been admissible at trial. We are not persuaded that it would have been. The witness is able to identify some frequently-observed effects of long-term drug use; but she is not able to link those effects to the actual state of Michael Seward’s memory at the material time, and no other evidence assists in drawing such a link. In any event, the high water mark of her evidence would be that Michael Seward’s memory may or may not have been affected, but it is not possible to decide either way. Such evidence, even if it were admissible, could not assist a jury, and does not even arguably cast any doubt on the safety of the convictions. 76. The appellant can in our view derive no assistance, in relation to this ground of appeal, from a statement recently made by Michael Seward’s brother Brian. The two brothers had mostly been apart since their childhood, and Brian Seward is not able to provide any evidence as to whether, around the time of the offences and the trial, Michael Seward’s memory was affected by drug use. Michael Seward himself admitted (many years after the events with which we are concerned) that he had been a chronic user of heroin for a long period going back to a time before those events; but again, that cannot assist in determining whether his memory was impaired at the material time. 77. Having reached those conclusions about grounds 4 and 5 individually, we have considered their collective effect. Even taking them together, and even treating them as an adjunct to grounds 2 and 3, they are not, in our view, capable of casting doubt on the safety of the convictions. Conclusion 78. For those reasons, we reiterate that we have at the conclusion of the hearing admitted the fresh evidence which underlies ground 1, allowed the appeal on that ground and quashed the convictions. 79. We admit the fresh evidence which underlies grounds 2 and 3, grant leave to appeal on those grounds, and allow the appeal on those grounds. Thus the appeal succeeds on grounds 1, 2 and 3. 80. We decline to admit the proposed fresh evidence in relation to grounds 4 and 5 and refuse leave to appeal on those grounds.

```yaml citation: '[2023] EWCA Crim 954' date: '2023-08-07' judges: - SIR ROBIN SPENCER ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 2007/4711/C5 Neutral Citation Number: [2007] EWCA Crim 3150 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 4 December 2007 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE OPENSHAW HIS HONOUR JUDGE STEPHENS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - R E G I N A v M.K. PROSECUTION APPEAL UNDER S.58 CRIMINAL JUSTICE ACT 2003 - - - - - - - - - - - - - - - - - - - - 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 TEMKIN appeared on behalf of the Applicant Crown MR M LAVERY appeared on behalf of the Respondent Defendant - - - - - - - - - - - - - - - - - - - - Judgment 1. LORD JUSTICE RICHARDS: This is a prosecution application for leave to appeal against a terminating ruling under section 58 of the Criminal Justice Act 2003 . The ruling was made by the trial judge, Mr Recorder Narayan, on 21st August 2007 in the course of the defendant's trial in the Crown Court at Burnley. Following the ruling the prosecution sought an adjournment to consider whether it wished to appeal. The jury was discharged. On the following day the prosecution told the judge that they wished to make an application for leave to appeal. Leave was not sought, as it should have been at the time, from the Crown Court, but we ourselves have now granted leave. No dispute has been raised before us that the conditions for an appeal to this court are satisfied. 2. The defendant is charged on count 1 with being concerned in making an offer to supply a controlled drug of class B, namely amphetamine, on 20th September 2005, on count 2 with being concerned in the supply of amphetamine on 30th September 2005, and on count 3 with possessing amphetamine with intent to supply on 19th April 2006. 3. The charges arise out of an undercover investigation into the supply of controlled drugs in East Lancashire. The prosecution case is that the defendant was holding a supply of drugs for a dealer called Kevin Barski who has since been convicted in relation to the supply of drugs to the undercover officers and that the defendant had sufficient control over the supply to be able to dictate the prices at which the drugs were to be offered. 4. The first incident to bring the defendant to the attention of those carrying out the investigation was on 20th September 2005. Undercover officers assuming the identities of "Sean" and "Eddie" had established themselves at an address near Orchard Drive in Oswaldtwisle and had identified amongst others that Barski was a person engaged in the supply of controlled drugs. It was against that background that arrangements were made for Barski to attend at the address used by Sean and Eddie on the afternoon of 20th September 2005, ostensibly for the supply of a quantity of amphetamine to "Roy", who was in fact a third undercover officer. 5. Contact was made with Barski a little after 3.44 pm. He arrived at the address a short time later. At 3.50 pm, prior to his arrival, he had been seen to emerge from an alleyway that runs along the rear of the defendant's address in Spring Hill Road. He was seen to be carrying a white carrier bag. When he arrived at the address used by the officers he handed over a carrier bag to "Roy" in exchange for £950. The bag was subsequently found to contain 559 grams of amphetamine at 4% purity. 6. Consequent upon that transaction there followed discussion as to whether Barski would be able to make further supplies of amphetamine of better quality. It was in the context of this conversation that Barski made a telephone call to ascertain the availability and cost of amphetamine paste. We will come back to that call in a moment. Having made the call, Barski indicated the price at which he could supply amphetamine. 7. On 30th September Barski had repeatedly attended the address occupied by the officers, negotiating the further sale of amphetamine. He initially arrived at approximately 11.50 am. He left and then returned with a sample of amphetamine some 10 minutes later. He was observed walking between Orchard Drive and the defendant's address in Spring Hill Road on a number of trips both in the late morning and in the course of the afternoon, and was seen actually leaving and re-entering the defendant's address. At 5.00 pm he was observed leaving the defendant's address carrying a yellow and black carrier bag. He walked towards Orchard Drive. He arrived at the address near Orchard Drive maintained by the undercover officers a little after 5.00 pm and delivered a carrier bag which was subsequently found to contain 508 grams of amphetamine at 8% purity. Having completed the transaction he was seen to return to the defendant's address soon afterwards. 8. It was many months later, on 19th April 2006, that a warrant was executed at the defendant's address at Spring Hill Road. During the search of that address there was recovered a plastic box found to contain 531 grams of amphetamine at 2% purity. 9. That is the chronology of events. We come back to the telephone call on 20th September. The call was made at 3.55pm. It was of 38 seconds duration and on the prosecution case can be shown by telephone records to have been made from Barski's mobile telephone to a mobile telephone that was recovered in the search of the defendant's address on 19th April 2006. The defendant also admitted in interview that the telephone recovered at his address belonged to him. 10. The call itself was captured at Barski's end of the conversation by covert recording equipment, which again, according to the prosecution, reveals the apparent immediacy of the recipient's response, with no surprise or confusion at the nature of the enquiry. The relevant part of the transcription of the call reads as follows: "(Makes phone call) Hiya, it's me what can you get on the paste, a price on the paste? Yeah the paste, the Billy, the paste on a Ki?" The prosecution applied at trial to adduce evidence of that telephone call, including those words as spoken by Barski. The defence was prepared to admit the bare fact of the call from Barski's telephone to the number of the defendant's telephone and the duration of the call, but the application to adduce evidence of what had been said by Barski during the conversation was resisted by the defence on the ground that the words spoken by Barski were hearsay within section 114 of the Criminal Justice Act 2003 , had not been subject to hearsay notices and should not be admitted. The Recorder accepted the defence submission and ruled that the evidence was hearsay. That is the ruling against which the appeal is brought. The prosecution's position is that exclusion of what was said by Barski in the telephone conversation left it with no evidence to identify the defendant as the source of supply of the drugs on count 1 and that in reality there would have been insufficient evidence against him on counts 2 and 3 as well. 11. The statutory provisions in respect of hearsay evidence are contained in Chapter 2 of Part 11 of the 2003 Act . In particular, section 114(1) provides that 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, it gets through one of the specified gateways. By section 115(2) a statement is any representation of fact or opinion made by a person by whatever means. By section 115(3) a matter stated is one to which Chapter 2 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. 12. The grounds of appeal formulate the question of law for this court as follows: "Whether evidence may be adduced at trial of words spoken (namely a request for an indication of the price for a quantity of drugs), not spoken in the immediate presence of the defendant, made by a person not called as a witness, as a basis for inviting the jury to draw an inference from the fact that the words were spoken (namely that the person to whom those comments were addressed was a person concerned in the supply of drugs)." The submissions advanced by Mr Temkin on behalf of the prosecution are as follows. It is said first that the relevant part of the conversation contains no representation of fact or opinion save for the caller's assertion that he was "Kev" - that is to say Barski - of which direct evidence is available. This was no more than an enquiry as to the availability and cost of specific drugs. Further, if there was a representation of fact or opinion it did not relate to a matter stated within section 115(3). Accordingly, it is said the evidence does not fall within the hearsay provisions of the 2003 Act . The evidence is relied upon as a basis for drawing the inference that the person to whom the comments were addressed was a person concerned in the supply of drugs. It is said to be a clear example of what was analysed in Kearley (1992) 95 Cr.App.R 88 as an implied assertion: in this case an implied assertion by Barski that the person to whom the comments were addressed was his supplier. As such, under the common law rules applied in Kearley , it would have been hearsay. But it is submitted those rules have been abolished by the 2003 Act , save to the extent preserved by section 118. 13. In R v Sukadeve Singh [2006] EWCA Crim. 660, [2006] 2 Cr.App.R 12, Rose LJ giving the judgment of the court said this at paragraph 14: "When sections 114 and 118 are read together they, in our judgment, abolish the common law hearsay rules (save those which are expressly preserved) and create instead a new rule against hearsay which does not extend to implied assertions. What was said by the callers in Kearley would now be admissible as direct evidence of the fact that there was a ready market for the supply of drugs from the premises, from which could be inferred an intention by an occupier to supply drugs. The view of the majority in Kearley, in relation to hearsay, has been set aside by the Act ." In Sukadeve Singh various telephone entries were held not to be a matter stated within section 115 but to be implied assertions which were admissible because they were no longer hearsay. 14. The submission made on behalf of the Crown is that the reasoning in that case is applicable here and compels the conclusion in the present case that the relevant part of the conversation is not hearsay and is accordingly admissible without having to meet the conditions in section 114 of the 2003 Act . 15. For the defendant, Mr Lavery submits principally that the words attributed to Barski in the relevant part of the telephone conversation do relate to a matter stated within the meaning of section 115(3) because Barski's purpose in making the statement was both to cause the officers to believe that he could get drugs at the prices in question and to cause the officers to act on the basis that the matter was as stated, that is to say to make purchases accordingly. 16. For our part we have no hesitation in rejecting that submission made by Mr Lavery. We think it plain that the only purpose of the call and of the relevant words of Barski in that call was to discover the availability and price of the amphetamine. It was, as is submitted by Mr Temkin, no more than an inquiry as to availability and price of specific drugs. 17. It seems to us that the submissions made by Mr Temkin as to the inapplicability of the hearsay provisions of the 2003 Act in this case are well-founded. We agree, for the reasons submitted by him and that we have already sufficiently set out, that the evidence to which the prosecution application related was not hearsay and that it was therefore admissible without having to comply with the statutory provisions relating to hearsay. Accordingly, we consider that the Recorder's ruling was wrong in law and we will reverse that ruling. We will hear from counsel as to whether the appropriate further order is that a fresh trial take place in the Crown Court. 18. MR TEMKIN: My Lord, I would make that submission. 19. LORD JUSTICE RICHARDS: Is there anything you can say against it? 20. MR LAVERY: My Lord, I think in my initial application I detailed the strength of the evidence in any case saying there was no direct link to the defendant in this case. I do not know if your Lordships would wish to hear me on that or if you feel that is a matter that should be aired before the trial judge. 21. LORD JUSTICE RICHARDS: Before the trial judge. 22. MR LAVERY: I am grateful. 23. LORD JUSTICE RICHARDS: Accordingly we will make an order that a fresh trial take place in the Crown Court. We are satisfied that it is in the interests of justice for such an order to be made. Is there any further matter? 24. MR TEMKIN: No, my Lord. 25. LORD JUSTICE RICHARDS: The question of reporting restrictions. What, if any, reporting restrictions should be put in place? That there should be no report of the judgment of this court until the fresh trial has taken place? 26. MR LAVERY: Yes, please. 27. LORD JUSTICE RICHARDS: That must be so. (Pause) The point that Openshaw J rightly raises with me is will this evidence not be there in any event before the court at the trial? 28. MR TEMKIN: My Lord, yes. In fact nothing that has been said in open court today was not said in opening and argument at the Crown Court in August. On reflection perhaps there is no reason for reporting to be prevented at this stage. 29. LORD JUSTICE RICHARDS: The case is listed under initials rather than the name, and if that were maintained it would provide a degree of protection. 30. MR JUSTICE OPENSHAW: I can see that there may well be cases where that would be a necessary protection of the process of a fair trial, but I cannot see that that really applies in this case. 31. MR LAVERY: Not given the context of the ruling. 32. LORD JUSTICE RICHARDS: In that case we will make a reporting restriction to the extent that it continues to be referred to as R v MK , but beyond that we will impose no restriction.

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Neutral Citation Number: [2020] EWCA Crim 1633 Case No: 201901854 C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK HIS HONOUR JUDGE HAMMERTON Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/12/2020 Before: LADY JUSTICE ANDREWS DBE MRS JUSTICE CUTTS DBE and THE RECORDER OF WORCESTER HH JUDGE BURBIDGE QC - - - - - - - - - - - - - - - - - - - - - Between: JOHN PORCH Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - James Elvidge (initially instructed by Kaim Todner Solicitors ) for the Appellant Geoffrey Porter (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 19 November 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment LADY JUSTICE ANDREWS: 1. On 12 th February 2016 in the Crown Court at Snaresbrook, before HH Judge Hammerton and a jury, John Porch, now aged 34, was convicted on a majority verdict of blackmail (count 1) and assault by beating (count 2). His co-accused Katie Ling, his former partner, was also convicted of blackmail. He was sentenced to a total of 5 years’ imprisonment and Ms Ling to 2 years’ imprisonment. 2. Mr Porch seeks an extension of time of 1164 days in which to apply for leave to appeal against his conviction. He also seeks to adduce fresh evidence in support of his application, pursuant to section 23(1) of the Criminal Appeal Act 1968 . These applications were referred to this court by the single judge. For reasons that will appear, we granted the extension of time, leave to adduce the fresh evidence, and leave to appeal. 3. Having heard full argument on the appeal from Mr Elvidge for the appellant and Mr Porter for the Crown, we announced at the end of the hearing that we allowed the appeal and quashed the convictions, for reasons to be supplied in a written judgment which would be handed down as soon as practicable. 4. Mr Porter indicated that the Crown would not seek a retrial and undertook that steps would be taken to notify Ms Ling of the outcome as soon as practicable, so that, if so advised, she could make an application for leave to appeal against her conviction and for an extension of time in which to do so. Having taken instructions, Mr Porter also helpfully indicated that the Crown would not seek to resist those applications or any appeal by Ms Ling. We have directed that any such appeal (or a rolled-up application for leave with the appeal to follow, and a direction that the respondent shall attend the hearing) shall be listed before a constitution that includes myself or Mrs Justice Cutts, or preferably both of us. Background 5. The complainant, Frederick Rawlinson, was at the relevant time a very good friend of Mr Porch. They spent a significant amount of time in each other’s company drinking and taking drugs in Mr Porch’s flat in Canning Town. The flat was about 20 minutes’ walk away from Mr Rawlinson’s parents’ house, where he was then living. 6. The prosecution case was that in June or early July 2015, Mr Porch and a group of three other men, including a man named James Gent, had given Mr Rawlinson some boxes to store in his parents’ garage for a few weeks. The boxes contained shotgun cartridges. Mr Rawlinson felt unhappy about doing this, but Mr Porch told him that he had to store the boxes whether he agreed to or not and “if he did not store the boxes, that was it”. About two weeks later, in mid-July 2015, Mr Rawlinson went to Mr Porch’s flat one evening to tell him that he wanted the boxes taken out of the garage. Mr Gent, who Frederick Rawlinson disliked, came round to the flat while he was there. 7. Frederick Rawlinson alleged that he overheard Mr Gent persuading Mr Porch that £2000 worth of drugs had gone missing, and that Mr Rawlinson was responsible for the theft. Whilst he was sitting on the sofa, Mr Rawlinson was threatened and physically assaulted by both men. Mr Porch punched him in the face and grabbed him round the throat and squeezed his neck. Mr Gent stuck a knife in Mr Rawlinson’s ribs and threatened to kill him. Then both men punched him in the face. He said they threatened to burn down his parents’ house with them inside if he did not pay back the money. They then backed off and told him to go out and get some cigarettes; they took his mobile phone away so that he would come back to the flat. However, instead of going to buy the cigarettes, he ran home and woke his parents up and explained to them what had happened, including the threats to burn their house down. He did not explain the reason for the alleged debt. He asked his mother if he could pay the £2000 to Mr Porch and Mr Gent to get rid of them. She initially refused, but later changed her mind. 8. Frederick Rawlinson did not go in to work the following day, claiming to be too unwell. He was sacked. He left home shortly afterwards and went to live elsewhere. 9. There was no dispute that Frederick Rawlinson’s mother, Susan, paid £900 in cash to Katie Ling on various occasions between 24 July and 15 August 2015 (during which time Mr Porch was serving a short custodial sentence on an unrelated matter). She noted down the instalment payments in a notebook. Ms Ling had gone to the Rawlinsons’ home on 22 July to collect £2,000 which she said Frederick Rawlinson owed Mr Porch. It was the prosecution case that on that occasion, in response to a question from Mr Rawlinson’s father Terence as to why Mr Porch did not come to collect the money himself, Ms Ling had said that if John went round to their house there would be a “bloodbath”. Mr Rawlinson had left it to his wife to speak to Ms Ling, and that is how the arrangement to make payment by instalments had come about. 10. On the morning of 19 August 2015 Mrs Rawlinson called the police to her home address where she said that Mr Porch was outside trying to kick down the front door. She claimed that he had been shouting threats such as “Fred, I know you slept with my girl when I was inside, I’m going to kill you” and “I’m going to kick the door in and kill you”. He also shouted to a neighbour that Frederick owed him money. 11. When the police arrived, Mrs Rawlinson reported that her son had told her that Mr Porch had threatened to burn down the family home if he was not paid £2000; that Katie Ling had visited their address and asked for the money; that Ms Ling had given Mrs Rawlinson her mobile telephone number to make arrangements to meet up with her in order to make the payments, and that Mrs Rawlinson had paid her a total of £900 in cash, £600 on 24 July from her pension and three further instalments of £100 each. 12. Boxes of shotgun cartridges were subsequently found in the Rawlinsons’ garage; they were not prohibited ammunition. Terence Rawlinson gave evidence that he had noticed the boxes in the garage around four or five weeks before the evening on which his son came home and said he had been assaulted. He did not know what was inside the boxes until after Mr Porch was arrested, and his son told him on the telephone that it was something to do with guns; once he had opened them up he told the police, despite Frederick’s protestations that this would put his (Frederick’s) life in danger. 13. When she was interviewed on 19 th August 2015, Ms Ling provided a prepared statement in which she denied making any threats. She accepted that she had collected money from Mrs Rawlinson on behalf of Mr Porch but said that she believed that Frederick Rawlinson owed him money. 14. Mr Porch was interviewed on 20 August. He accepted going to the Rawlinsons’ house the previous day, which was the day after his release from prison. He said this was because Katie Ling had told him that Frederick Rawlinson had sent her provocative texts of a sexual nature whilst he was in custody. He accepted that he was shouting, but denied trying to kick down the door of the Rawlinsons’ home or making any threats of the type described by Mrs Rawlinson. He denied forcing Frederick Rawlinson to take custody of the boxes of shotgun cartridges. He accepted that he knew a man called James Gent, but denied assaulting Frederick Rawlinson on the last occasion that he saw him, and denied making any threats to burn down the Rawlinsons’ house or to kill Frederick Rawlinson. 15. He also initially denied that Frederick Rawlinson owed him any money or sending Ms Ling to collect it, but after he was told that she had accepted collecting money on his behalf, Mr Porch said that Frederick Rawlinson owed him money for damage he had caused to his car in an accident that had occurred the previous year. He said that if Frederick Rawlinson was paying the money to Ms Ling then he knew nothing about it. 16. A quantity of cash was found at Ms Ling’s address, and in the kitchen and in her bedroom the police found and seized a total of 19 mobile telephones. A statement from PC Hobbs, one of the officers who attended that address, dated 19 August 2015, described and exhibited each of those phones and stated the location in which they were found. 17. The three phones which matter for the purposes of this appeal are respectively a Huawei Ascend Y330–U01, a Huawei Ascend G6205, and a gold coloured Samsung Galaxy model SM-G900F. The G6205 phone belonged to Frederick Rawlinson and the other two phones belonged to Mr Porch. According to PC Hobbs’ contemporaneous statement, all the Samsung phones that he seized were found in a kitchen drawer and all the Huawei phones were found in a bag of clothes in the bedroom. 18. None of the telephones taken from Ms Ling’s house was interrogated by the time of Mr Porch’s trial. On 21 August 2015, two days after they were seized and exhibited to PC Hobbs’ statement, they were placed in storage at Forest Gate Police Station and remained there in their individually sealed exhibit bags until May 2017. We were told that Ms Ling and Mr Porch each had a mobile phone on them when they were arrested; neither of those phones was interrogated and neither became an exhibit in the case. Of course, there is no general obligation on the police or the prosecution to arrange for the forensic interrogation of every mobile phone that is seized from a suspect in a criminal case; but there may be cases in which it is apparent, or becomes apparent that a mobile phone which the police have retained may contain information of relevance, including information that may potentially assist the defence. This was such a case. 19. The Court does not have the benefit of a transcript of the evidence given at trial. However Mr Porch’s evidence, as summarised by the judge in his summing-up, was that Frederick Rawlinson had borrowed his car, a Ford Ka, which he had purchased in October 2014, and that it had been damaged in a collision. Mr Porch had obtained a quote from a friend who said it would cost between £5,000 and £6000 to fix the car. Frederick Rawlinson had offered to pay him the £6000 in instalments. Initially he would pay it at the rate of £250 per week but this had been recently increased to £300 per week. Mr Rawlinson would visit Mr Porch’s flat on Wednesdays, after he received his wages, in order to pay over the money. He had paid back around £4000 of the debt by July 2015. 20. Mr Porch said that three other men were responsible for requiring Frederick Rawlinson to store the boxes of ammunition in his parents’ garage, and that he had nothing to do with it. On the last occasion when Frederick Rawlinson came to his flat, Mr Porch was alone. There was no assault. Terence Rawlinson had called round at about 9pm to find out why Frederick had not come home for his dinner. Mr Porch said that Frederick went out to speak to his father; Terence Rawlinson’s evidence was that he only spoke to Mr Porch, who said that Frederick would be home later. 21. Sometime later that evening, Mr Porch said the atmosphere changed. Mr Porch had confronted Frederick Rawlinson about sending provocative texts to Katie Ling and to his current girlfriend, Stacey, and Frederick became distressed and said that the women were lying. Mr Porch told him to go and get some cigarettes from the corner shop and gave him £20 to do so. Mr Rawlinson left the flat in a hurry and it was only after he failed to return and Mr Porch tried to text him to find out what had happened to him, that Mr Porch realised he had left his mobile phone behind. He sent two messages to Frederick Rawlinson via Facebook on 19 and 21 July because he was worried about him. The message on 19 July told him not to worry and to get his phone. Those messages were in evidence at the trial. 22. Mr Porch was due to attend the magistrates’ court on 22 July 2015 because he had breached his terms of probation. He was concerned that he might be sent to prison, which in the event he was (for 8 weeks). He rang Katie Ling on a couple of occasions, once from HMP Thameside, and told her that Frederick Rawlinson owed him money and suggested that she should go to collect it so that she could support herself and their child whilst he was in prison. Although they had split up, they were still on good terms and he was giving her some financial support. He said that he had initially denied that she was collecting money for him when he was interviewed by the police, because he wanted to protect her. 23. Mr Porch was released from custody on 18 August 2015 and spent the night sleeping in the garage at his mother’s address. He said that he went round to the Rawlinson family house the following day to collect his money and to obtain a new telephone number for Frederick. He called through the letterbox. A neighbour came out and asked what was going on, and he explained that Frederick owed him money. He accepted that he shouted, but he denied making any threats or kicking the door. The application to adduce fresh evidence 24. Mr Porch seeks to rely upon messages that were downloaded from the three mobile telephones. Mr Elvidge submitted that this information, had it been available at trial, would have significantly undermined Frederick Rawlinson’s evidence and the credibility of his account. 25. Pursuant to directions given by the single judge, the parties have produced a joint document setting out areas of agreement and disagreement between them. It is agreed that the messages were downloaded from three mobile telephones, two of which (including the gold Samsung Galaxy) are properly attributed to Mr Porch and the third is properly attributed to Frederick Rawlinson. It is also agreed that the downloads have been properly collated and served. 26. Section 23(1)(c) of the Criminal Appeal Act 1968 gives the Court of Appeal a discretion, if it thinks it necessary or expedient in the interests of justice, to receive any evidence which was not adduced in the proceedings from which the appeal lies. Section 23(2) sets out a list of four specific matters to which the court is obliged to have regard when considering whether to receive any fresh evidence, namely: 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 grounds 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. 27. Much of the argument before us understandably focused upon why the evidence was not adduced at trial and whether the prosecution failed in its duty of disclosure. However, it is well established that even if there is no reasonable explanation for the failure to adduce the evidence at the trial, the interests of justice are a paramount consideration: see e.g. R v Sales [2000] Cr App R 431 . The power to receive fresh evidence represents a potentially very significant safeguard against the possibility of injustice. Ultimately the question for this court is whether, in the light of the additional evidence, the convictions are unsafe. That can be tested by asking what impact that evidence might have had on the mind of the jury, or whether there is a real possibility that, if defence counsel had been in the position to use that material at trial, the jury would have arrived at a different verdict. 28. Therefore if, having considered all the circumstances, the court is of the view that the fresh evidence is of such a nature as to give rise to concern about the safety of the conviction, it ought to exercise its discretion to admit it. It is normally the practice of the court to examine the evidence on which the appellant seeks to rely de bene esse in order to see whether it may have made a material difference to the outcome of the trial. We took that course in this case. 29. The evidence consists of messages that have been downloaded from the three mobile telephones; it is very fairly accepted by Mr Porter that they would have been admissible at trial and there is no issue as to their credibility, in the sense that they are authentic messages sent on the dates and at the times they bear, though there may have been some argument about how the messages should be interpreted and what inferences could properly be drawn from them. Indeed, Mr Porter conceded that if the mobile phones had been interrogated prior to the trial, as the CPS had asked the police to arrange, the CPS would have been under an obligation to disclose the results of that interrogation to the defence. He was plainly right to make that concession. How, then, did it come about that the evidence was not in the possession of the defence at the time of the trial? 30. Mr Porch’s case is that he had provided instructions to his legal team at trial that his telephone, which the police had seized, would contain relevant material to support his defence. However, Mr Porch had more than one telephone, and the relevant telephones were both left by him at Ms Ling’s house. As we have already noted, a different mobile phone was in his possession at the time when he was arrested, and that phone was given back to him. 31. The following chronology indicates what efforts were made to obtain the telephone data before and after Mr Porch’s trial. Although there is no suggestion of bad faith, it does not make happy reading. 32. After Mr Porch and Ms Ling had been arrested and interviewed, despite the fact that this was allegedly a joint enterprise blackmail, and Ms Ling had made contact with Mrs Rawlinson by phone to arrange to meet to receive the payments, Ms Ling’s mobile phone was restored to her when she was released on bail. The police also gave back the mobile phone which was in the possession of Mr Porch when he was arrested; that was taken with him to the prison when he was remanded in custody, and obviously he was not in a position to access it thereafter. It was confirmed to the court in the course of the hearing of the appeal that the custody record for Mr Porch did have a reference to that phone and it had a different IMEI number from the gold Samsung Galaxy phone that was seized from Ms Ling’s house. 33. In her witness statement dated 4 December 2019 the officer in the case, who was involved in the investigation from the onset, states that CPS advice was given which suggested that the mobile phones seized from the defendants should be interrogated and any evidence presented, and that she was aware of that advice. That communication from the CPS was sent to the police at some unidentified point prior to 21 January 2016. The officer says she remembers checking the phones taken from Ms Ling’s address when Mr Porch and Ms Ling were first arrested on 19 August 2015. She says that she noted that they were all very old and appeared broken, or had sim cards or batteries missing. She did not believe that anything of relevance would be held on them. That view was reinforced by the fact that Ms Ling had been communicating with Mrs Rawlinson on her current mobile phone and that she did not live with Mr Porch. 34. It appears that the officer took it upon herself to decide that the telephones seized from Ms Ling’s address would have no relevant material upon them and that no attempt should be made to interrogate them. She plainly did not revise her view in the light of the CPS advice or think to go back and look at the phones again. It would also appear that she did not discuss this matter with the CPS, despite their specific request that the mobile phones that were seized be interrogated. That request could not reasonably have been interpreted as relating to the two phones that the police had already been given back to the defendants. Even if the officer mistakenly interpreted the advice as relating to those two mobile phones she did nothing at all about arranging for them to be interrogated – had she done so, she would have found out, or been reminded, that they were no longer in the possession of the police. 35. It is no excuse that the defence had not mentioned mobile telephone evidence or made a request for such evidence at that stage. The CPS had identified mobile telephone evidence as potentially relevant and they were plainly right to do so. As we now know, it was possible to interrogate the three mobile phones that have yielded the further evidence on which Mr Porch seeks to rely; one of those phones belonged to Frederick Rawlinson and was in use by him up to and including the first two weeks of July 2015. 36. The prosecution’s case, based on Frederick Rawlinson’s witness statement, was that Frederick Rawlinson’s phone had been taken from him by Mr Porch in Mr Porch’s flat on the night of the alleged assault. The police knew that a search of Mr Porch’s flat, and his mother’s house where he had stayed the night before his arrest, had revealed no phones, but his ex-partner’s house had 19 phones, all of which were seized and exhibited to PC Hobbs’ statement. Astonishingly it appears that it occurred to no-one that Frederick Rawlinson’s phone might be among them (as in fact it was). 37. The CPS served an unused material schedule in October 2015; there was no mention in it of mobile telephones. On 19 November 2015 Mr Porch and Ms Ling were arraigned. They both pleaded not guilty to the counts that they each faced. The case was placed in the warned list for the week commencing 8 February 2016. Mr Porch served a defence statement which we have read. In it, he said that Mr Rawlinson borrowed his car in January 2015 and crashed it. As a result, Mr Rawlinson owed him the value of the car (about £6,000) plus other money that Mr Porch would habitually lend him on nights out. There was an agreement that Mr Rawlinson would pay him back from his wages, initially at £250 per week and then rising to £300 per week. When he went to prison for a short time in July 2015, he asked Katie Ling to collect the money on his behalf. It was a debt legitimately owed and no threats were made. The defence statement also refers to Frederick Rawlinson lending Mr Porch his car (a Fiesta) for a period before July 2015. 38. Mr Porch also suggested that Frederick Rawlinson had fabricated the allegations because he wished to hide his drug consumption from his parents and because he had been sending suggestive text messages to Mr Porch’s current and former partners. Disclosure was sought of bank statements and pension statements from the complainant and his mother over the relevant period. It was believed that these might show repayments of the debt on a regular basis from January 2015 onwards. 39. At the same Plea and Trial Preparation Hearing, the prosecution indicated that further evidence was likely in respect of the notebook entries from Mrs Rawlinson relating to the payments to Katie Ling, and mobile telephone downloads. The mobile telephones that the prosecution expected to be interrogated were not specifically identified. However, as we have said, the only phones that were in the possession of the police (and potentially disclosable as part of the unused material) were those which had been exhibited to PC Hobbs’ witness statement. It can be inferred that at that stage, the officer in the case’s decision that there was no point in interrogating or attempting to interrogate those phones had not been communicated to the CPS and they were still expecting this to be done. 40. The prosecution was directed to serve any further evidence by 17 th December. When no evidence was served on that date, Mr Porch’s solicitor sent an email to the CPS which specifically reminded them that the potential phone evidence had to be served by 17 December and stated that they did not appear to have had a response to the defence case statement nor had they received the Notice of Additional Evidence. A chasing email was sent on 5 th January 2016 in which the solicitor complained that he was “still in the dark regarding the complainant’s telephone evidence and his bank statements.” It appears that they had not received a hardcopy letter sent on 4 January 2016 by a paralegal at the CPS which stated that the Crown would not be serving telephone evidence in respect of Mr Porch’s case. A copy of that letter was forwarded by email to the solicitors on 7 January. The defence solicitors acknowledged receipt of that letter by email later that day, stating that if they did not hear from the CPS in regard to the bank statements by close of business they would ask the court to list the case for a mention. 41. The case was listed for mention on 12 January 2016. We have seen a transcript of the hearing and the attendance note of the barrister who attended on that occasion. (We should interpolate at this juncture that the preparation of Mr Porch’s case suffered from a lack of continuity in counsel and that even his trial counsel appears to have taken up the brief as a late replacement for the person initially instructed). Counsel told the judge that until the previous week the defence had believed that the Crown were intending to rely on the telephone evidence, but that last week her instructing solicitors received a letter stating that the Crown no longer intended to rely on it. She said “what the defence say is that in the telephone evidence there may well be text messages that support Mr Porch’s defence that there was an agreement between the two men relating to him being reimbursed to the value of his car”. 42. The judge asked why Mr Porch did not have the text messages. Counsel explained that he was in custody. The judge asked whether the defence had looked at his phone. Counsel said that she did not have that information, but that she thought that disclosure was not requested in the defence case statement because it was believed at that stage that it was going to be evidence that the Crown relied on. She said: “we have never seen it, and in any event the Crown should look at it and decide whether or not it meets the test of disclosure.” 43. The judge put the matter back for a short time to enable counsel for the prosecution to have a word with the officer in the case, who happened to be attending a different court in the same building. He said to defence counsel that if the Crown were not going to provide the material, they would have to make a section 8 application. Following that short adjournment, prosecuting counsel (who was not Mr Porter) said that he had had an opportunity to speak to the officer. So far as the telephone evidence was concerned, as counsel had suspected, the reason why the Crown had indicated that they were not relying upon it was that they could not comply with the order to serve the Notice of Additional Evidence by 17 December. 44. He told the judge that the officer had informed him that she was in the process of obtaining phone downloads from two mobile phones, one belonging to Mr Porch and one to Ms Ling, and that she hoped that the material would be available by the end of the following week. He asked for time to serve any phone evidence either as used material, or if it was unused if it assisted the defence in any way. The judge directed that disclosure should be completed by 26 January 2016. 45. Counsel would not have said what he did in open court without having made certain of his instructions. The transcript is the best evidence of what prosecuting counsel was told by the officer in the case at the time and it is also reflected in defence counsel’s note. It seems that the officer was unaware or had forgotten that the defendants had been given back their current mobile phones, and that she thought that they were still available to be interrogated. 46. Defence counsel’s attendance note also records that the Crown had confirmed that the police had seized 21 mobile telephones during the investigation and that they had determined that the majority of the phones were old or unused. That does not appear on the transcript of the hearing and must, therefore, have been what prosecuting counsel told her privately after speaking to the officer. Irrespective of the proposed interrogation of 2 phones, that information should have alerted the defence to the fact that there were a large number of other phones that had been seized that the prosecution did not intend to rely upon and which someone should at least ask to inspect, or do what the judge had suggested, and request their disclosure. 47. The judge’s order that all relevant material including the requested bank statements should be disclosed by 26 January 2016 was not complied with, and on Friday 5 February 2016, effectively the last working day before the trial, the case was listed for mention before HH Judge Del Fabbro. The officer in the case attended that hearing and stated that she had been unable to access the defendants’ mobile telephones because they had been returned to them. She says in her witness statement that she told the CPS this in a form submitted to them on 21 January 2016 – information that the CPS failed to pass on to the defence. That was the first occasion on which the defence became aware, contrary to assurances given in open court, that no mobile phones were going to be interrogated, and in practical terms it was too late to do anything about it, as the trial was starting on the following Monday. 48. When defence counsel who attended on that occasion (not the same barrister who attended the PTPH) explained to the officer in the case that the defence was seeking evidence that there had been regular payments/withdrawals between January and July 2015 from any relevant bank account, she agreed to try and obtain the bank statements and email them to trial counsel or bring them to court on the first day of trial. In the event the bank statements were obtained and disclosed on that date, 8 February 2016. They did give some support for Mr Porch’s account of regular withdrawals by Frederick Rawlinson going back to January 2015 of sums that were consistent with the defence case, but Frederick claimed that these were used for contributions towards his living expenses. 49. Following the trial, on 1 March 2016 the solicitor then representing Mr Porch sent an email to the police specifically referring to a Samsung Galaxy 5 gold phone which belonged to him and which he believed was seized from Ms Ling’s house. Mr Porch has waived privilege, and correspondence was sent to his former legal representatives pursuant to the fact-finding procedure set out in R v McCook [2014] EWCA Crim 734 , [2016] 2 Cr App R 30 . Somewhat unusually, there has been no response, and we have seen no attendance notes of any conferences with Mr Porch before or during the trial. Consequently it is unclear at what point it became apparent to the defence legal team that the phone in which Mr Porch was particularly interested was a gold Samsung Galaxy and that it was among the phones he left at Ms Ling’s address. However, that was the first mention made of these matters in correspondence. 50. The solicitors said they wished to retrieve the phone and send it off for analysis as part of an appeal, and asked if it could be sent to them or an appointment could be made to collect it. The officer in the case’s response was that if the item was seized from Ms Ling’s address the solicitors would need her written permission for the phone to be released, and that she would also need the IMEI of the phone so that she could confirm that it was the correct one. The solicitor asked if she had contact details for Ms Ling and the officer responded that she could not reveal such confidential information and that he should obtain it from Mr Porch. 51. Thereafter Mr Porch decided to try to obtain fresh legal representation with a view to getting hold of the phone. This understandably took a little time to arrange. On 11 October 2016, a paralegal from a new firm of solicitors instructed by Mr Porch, Emilio Pagliocchini, contacted Forest Gate police station seeking to collect mobile telephones from the property office. He has made a witness statement explaining the obstacles that he encountered. It is unnecessary for us to describe the considerable efforts that were taken by Mr Pagliocchini to gain access to the mobile telephones, but we are satisfied that Mr Porch’s new solicitors did everything that they could, and the ensuing delay was not their fault. 52. Regrettably, it took the intervention of Mr Porch’s MP and a senior police officer to achieve the desired result. Mr Pagliocchini was eventually allowed to inspect the mobile telephones. He identified the three that were of particular interest and they were retrieved from Forest Gate police station in May 2017. Thereafter all reasonable steps were taken to procure their expert examination and the disclosure of the results to the CPS. We are satisfied that there is a reasonable explanation for the delay in lodging the appeal, such as to justify granting the requested extension of time. 53. Standing back, and considering whether there is a reasonable explanation for the failure to adduce this evidence at trial, the overall picture is one of confusion and misunderstanding in which we consider that everyone involved must take some share of responsibility for the fact that evidence that was plainly material was not disclosed. 54. The assumption should not have been made that the seized phones contained nothing of relevance. The officer in the case should not have taken that decision without discussing the matter with the CPS, especially after she knew that the CPS had advised that the seized phones should be interrogated. She may have mistakenly thought that the two current phones were still in the possession of the police, but a simple inquiry would have revealed that error. There appears to have been insufficient dialogue between the officer and the CPS, leading to unnecessary misunderstandings. The prosecution was trying to comply with its duty of disclosure, but, as a result of a catalogue of avoidable errors, compounded to some extent by the fact that no specific request was made by the defence for disclosure of mobile phone evidence, it failed to do so. 55. It is unfortunate that Mr Porch did not have a continuity of representation by counsel. Had there been such continuity it is more likely that the material would have been requested, and there is a greater chance that it would have been disclosed. That said, the defence solicitors at trial were also partly responsible for the failure to obtain the evidence. They were entitled to assume from what the prosecution had said that at least some of the phones would be interrogated, until they were told otherwise very late in the day. On the other hand, they could and should have been more proactive, and at the very least asked to inspect the phones that DC Hobbs had seized from Ms Ling’s address, especially after counsel had been told at court on 12 January 2015, and reported to them, that those phones were not going to be interrogated. They should also either have taken more detailed instructions from Mr Porch or, if they had those instructions, made specific inquiries about the gold Samsung phone much earlier than they did. 56. At the end of the day, little is to be achieved by apportioning blame. It is hoped that lessons will be learnt. The catalogue of errors and misunderstandings, whilst deeply regrettable, does afford a sufficient excuse, and it would not be fair to penalise Mr Porch for what happened. It is plainly in the interests of justice to admit this evidence. As we shall explain, it does afford a reasonable basis for undermining the prosecution case and it does give rise to real doubt about the safety of the convictions. The telephone evidence 57. We do not need to describe in detail the results of the forensic examination of the phones. We have been provided with schedules of relevant text messages and What’s App messages extracted from the phones. Suffice it to say that there was a wealth of material that would have been seized on by defence counsel as substantially undermining the credibility of Frederick Rawlinson, the key prosecution witness. The text messages indicated, among other matters, that: i) Frederick Rawlinson had known James Gent for far longer than he had told the police, and there were communications between them that suggested a relationship that was independent of Mr Porch; ii) Frederick Rawlinson was substantially indebted to Mr Porch – one message refers to £3,000 - and had been from as early as December 2014. He was paying Mr Porch back as and when he could. It appears from the messages that the debts were mostly related to the supply of drugs rather than to any damage done to a car, but as Mr Elvidge submitted, defence counsel would have been likely to give appropriate and strongly worded advice to Mr Porch to tell the truth about that; iii) Mr Porch seemed to be willing to lend Frederick Rawlinson more money when asked, if he could afford to do so; requests to borrow money were met with genial, and generally positive responses. iv) Frederick Rawlinson was regularly short of money and was frequently seeking to borrow money not just from Mr Porch but various other sources including his own brother, various girlfriends, and loan companies; he appeared to have drugs, alcohol and gambling issues. He was plainly struggling to make ends meet and to keep down his job. v) He did promise to pay back Mr Porch on Wednesdays; there are several messages referring to giving him “doe” on “wens” and one message refers specifically to £350 being repaid on a Wednesday. vi) Mr Porch did not demonstrate any concern about when he would be repaid, get angry with Mr Rawlinson about his indebtedness, or make any threats towards him in any of their communications (about money or anything else). vii) There were messages that could have been interpreted as suggesting that there were three men of whom Frederick Rawlinson was scared, who were nothing to do with Mr Porch, though Frederick had told Mr Porch something concerning his dealings with them. viii) There were messages sent by Terence Rawlinson to his son on the night that he went round to Mr Porch’s flat, which suggested that Mr Rawlinson senior had a volatile temper, and was disproportionately angry with his son that evening about the fact that he had failed to come home for his dinner. That might afford an alternative explanation for why Frederick decided to leave home; it also corroborated certain evidence given by Ms Ling about something said to her by Mrs Rawlinson. ix) There were also messages to (and about) women that gave support for the contention that Frederick Rawlinson would have sent the type of inappropriate messages to Ms Ling and Stacey that Mr Porch was complaining about, and that he may have thought that it would be funny to wind his friend up by pretending that his sexual advances were welcomed by them. x) There were references to Frederick Rawlinson lending Mr Porch his car (though there were no references to support Mr Porch’s account of Frederick damaging his car). 58. Mr Elvidge realistically accepted that material indicating that the drugs debt was genuine would not be fatal to a case of blackmail. However, he submitted, and we agree, that with the benefit of that material, defence counsel would have had plenty of support for the thesis that Frederick Rawlinson had lied to his parents about being blackmailed to try and cover up the extent to which he had got himself into financial difficulty due to his lifestyle choices, and to persuade them, or at least to persuade his mother, to pay off his debts. 59. Mr Porter contended that the messages would not have taken matters any further. When asked by the court whether the Crown could still have presented Frederick Rawlinson as a truthful witness, Mr Porter said that it was always accepted that he had a chaotic lifestyle and therefore yes, it could. However, we are satisfied that this evidence would have severely undermined the credibility of Frederick Rawlinson. Indeed, faced with those messages it is questionable whether, on reflection, the CPS would have decided to continue with the prosecution. The fact that when the officer in the case sought to speak to Frederick Rawlinson about the messages, he was not prepared to discuss them with her, speaks volumes. Conclusion 60. If this material had been deployed at trial, there is a real possibility that the jury would have reached a different verdict on both the counts faced by Mr Porch. It is plainly in the interests of justice to admit it, and having done so, we are satisfied that there are good reasons to doubt the safety of Mr Porch’s convictions on both counts. We therefore allow the appeal and quash the convictions.

```yaml citation: '[2020] EWCA Crim 1633' date: '2020-12-03' judges: - HIS HONOUR JUDGE HAMMERTON - LADY JUSTICE ANDREWS DBE - MRS JUSTICE CUTTS DBE - HH JUDGE BURBIDGE QC ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200504518/A6 Neutral Citation Number: [2006] EWCA Crim 270 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 19th January 2006 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE CRANE MRS JUSTICE RAFFERTY DBE - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 90 OF 2005 (PAUL DALTON) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS Z JOHNSON appeared on behalf of the ATTORNEY GENERAL MR D FISHER QC appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: The Solicitor-General for the Attorney-General makes an application, under section 36 of Criminal Justice Act 1988 , to refer a sentence said to be unduly lenient. 2. The offender is 35 years of age, having been born in June 1970. On 22nd July 2005 he was acquitted by the jury of the murder of his wife but convicted of her manslaughter. The jury, having been invited to do so, expressly indicated that the basis of their verdict was lack of intent, that is, an absence of an intent to cause death or serious harm. 3. From the outset, the offender indicated his willingness to plead guilty to the second count of preventing lawful burial. He was not arraigned until the morning of the trial and, on that occasion, he pleaded guilty to manslaughter on count 1, which plea the prosecution did not accept, and guilty to count 2. Sentence was adjourned to 21st July in order that the Court could consider the relevant authorities. On that occasion, he was sentenced at the Central Criminal Court by Gross J, who had conducted the trial, to a total sentence of 5 years, consisting of 2 years' imprisonment for manslaughter and 3 years consecutively for preventing lawful burial. 4. In summary, the offender and his wife, Tae Hui, had been married for a number of years and they had a 6 year old daughter to whom, it is common ground, the offender was devoted. On 22nd May 2004 they argued. She taunted him that he was not the natural father of the child. Thereupon the offender punched his wife in the jaw, breaking it in two places. He took his daughter, who had appeared at the doorway, upstairs and he remained with her upstairs for some 5 or 10 minutes. When he returned, his wife was, sadly, dead, having apparently choked on her own blood. 5. The offender failed to call the police. A few days later he bought a deep freezer and a saw and proceeded to cut his wife's body into pieces. He then fled to Japan but returned a fortnight later and was arrested. 6. In a little more detail, the parties had been married for about 7 years. They lived in Kingston, Surrey, and ran a language school for foreign students. They had quarrels from time to time. On 9th June 2004, that is to say after the death had occurred, the offender dropped his daughter off at his mother's house, saying he had a lot to do and that his wife, who was Korean, had gone to Korea. The offender did not come back, as his mother had expected, to collect her grandchild and so, on 11th June, the offender's parents went to the offender's house to check that all was well. There was no reply. They went in. In a deep freeze in the kitchen they found their late daughter-in-law's dismembered body. 7. Postmortem examination revealed that the body had been cut up using a saw. The level of decomposition indicated that the body had been stored at room temperature for a number of days before it had gone in the freezer. There was bruising and a double commutated fracture of the jaw, indicating the blow which had been administered by the offender was a hefty punch. The consequence was that it had compromised the airway and inhalation of blood had caused death. The offender had gone to Japan leaving his daughter with his parents. He sent a number of text messages to his mother admitting that he had punched his wife and that she did not wake up. There were receipts found showing that the deep freezer had been bought on 26th May and the saw on 2nd June. On 21st June the offender returned to the United Kingdom and was arrested at Heathrow. 8. In interview, he explained that his wife had been taunting him that he was not the child's natural father. He accepted that he had lashed out and punched his wife once on the jaw. He then described removing his daughter upstairs and then returning downstairs 5 or 10 minutes later to find his wife dead. He said that he had dismembered his wife's body in order to protect his daughter and to give himself time to think. The offender was a man of previous good character. 9. On behalf of the Solicitor-General, Miss Johnson draws attention to three aggravating features, the first of which she, correctly, categorises as the most serious of the three: they are the failure to call for any medical assistance, the delivery of a blow of significant force and the fact that the violence took place within the matrimonial home. 10. Miss Johnson draws attention to the mitigation to be found in the pleas of guilty to manslaughter and to the prevention of lawful burial at the first available opportunity, the offender's previous good character, the fact that the offence was not premeditated, the fact that there was provocation, as we have described, and, of particular significance in cases where death results from domestic violence, that there had been no previous episodes of violence between the married couple. 11. There are a number of authorities referred to in the written reference. First is R v Coleman 13 Cr App R(S) 508, where an unusually strongly-experienced constitution of this Court presided over by the then Chief Justice, Lord Lane, reduced, from 2 years to 1 year, a sentence for manslaughter imposed for delivering a single blow and following a plea of guilty. Miss Johnson distinguishes Coleman on the basis that, in the present case, there was the delivery of a hefty blow which itself caused death, rather than, as in Coleman , the delivery of a blow which resulted in the banging of the victim's head which caused death. That is a distinction rightly drawn. Miss Johnson particularly relies on R v Tzambazles [1997] 1 Cr App R(S) 87, where, following trial, a sentence of 6 years was upheld, when a man, in the course of a fight with his wife, had struck her with a blunt instrument. In our judgment, the circumstances of that case were, in particular by reference to the use of the weapon, but for other reasons as well, very different from those of the present case. There is also, in the written reference, through Miss Johnson did not refer to it R v Henley [1999] 2 Cr App R(S) 412, where this Court reduced from 4 years to 18 months, the sentence imposed following a plea of guilty, for a single blow which broke the jaw of the victim. 12. Miss Johnson, in the written reference also refers, so far as count 2 is concerned, to R v Swindell (1981) Cr App R(S) 255, where a sentence of 5 years was reduced to 3 following a plea of guilty to preventing burial by dismembering a body, the defendant having been acquitted of manslaughter. 13. There are other authorities to which the sentencing judge was referred in the course of the proceedings before him. In R v Edwards [2001] 2 Cr App R(S) 540, a sentence of 2 years was reduced to 18 months, following a trial which resulted in a conviction of manslaughter resulting from a single punch. In R v Grad [2004] 2 Cr App R(S) 218, a sentence of 18 months was reduced to 9 months, following a trial: the circumstances of the offence there were that there was a single punch of moderate force. 14. The submission which is made by Miss Johnson, as attractively as the submission is capable of being made, is that the sentence passed by the learned judge failed to accord sufficient weight to the aggravating features present and, in consequence, the sentence was unduly lenient. 15. The sentencing judge who, as we have said, had conducted the trial, was referred by counsel on both sides to a number of relevant authorities, which he correctly analysed. He accurately and concisely in his sentencing remarks, rehearsed the circumstances of these offences and set out the aggravating and mitigating features. It may be that some judges would have passed a higher sentence for the manslaughter than for the offence of preventing burial. Whether that is so or not, the crucial question for this Court's determination is whether or not the total sentence of 5 years, was unduly lenient. In our judgment, it was not. On the contrary, it was, in total, an entirely appropriate sentence in its totality and arguably, in its constituent parts. 16. In the judgment of this Court, this is not an application, having regard to the discretion vested in trial judges with regard to sentencing, which should have been brought. This was not capable of being categorised as an unduly lenient sentence. Accordingly, we refuse leave to refer the case for review.

```yaml citation: '[2006] EWCA Crim 270' date: '2006-01-19' judges: - (LORD JUSTICE ROSE) - MR JUSTICE CRANE - MRS JUSTICE RAFFERTY DBE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 2006/1894/C4 Neutral Citation Number: [2007] EWCA Crim 1111 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 24 April 2007 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE BENNETT MR JUSTICE GROSS - - - - - - - R E G I N A -v- PATRICK DENTON - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG (Official Shorthand Writers to the Court) - - - - - - - MR T LONG appeared on behalf of the APPELLANT MR E PHILLIPS (CPS HIGHER COURT ADVOCATE) appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE GROSS: On 15th March 2006 in the Crown Court at Winchester before His Honour Judge Barnett, the appellant, Patrick Franklin Denton, now aged 31, was convicted of three counts of possession with intent to supply class A drugs, count 1 (cocaine), count 2 (heroin) and count 3 (heroin). On 13th April 2006 he was sentenced to five years' imprisonment on each count concurrent and the court made various ancillary orders. He was, for completeness, acquitted of a further count concerning the possession of cannabis. The appellant appeals against conviction by leave of the full court. 2. The facts of the matter so far as relevant for this appeal may be shortly summarised. On 9th November 2005 the appellant purchased a red Fiat Brava motorcar for some £450 in cash. On 11th November 2005, two days later, PS Heath and PC Gardiner saw the appellant driving the car. As his appearance was thought to match police intelligence of a drug dealer in the area, the police officers decided to stop and search the appellant and his car. After a cursory search they found nothing of interest. 3. Two plain clothes police officers, Holiday and Thomas, arrived at the scene while the appellant was still present but they left. At 12.10 hours, a little later, the appellant was handcuffed and taken to the police station for a strip search arriving at 12.20. Later, two other police officers returned to the Fiat Brava where PCs Holiday and Thomas were once again present and the car was searched for a second time from 12.30 onwards in the absence of the appellant. 4. At 12.50 the officers who conducted the second search of the car informed those at the police station that 51 wraps of crack cocaine and heroin had been found inside one of two newspapers located on the driver's seat. Another wrap of heroin had been found behind the driver's seat. The appellant was arrested and strip searched. He was in possession of £280 in cash, keys to a property and to a red Vauxhall Astra and two mobile telephones, but no drugs. A search of a property produced some more mobile telephones and a small amount of cannabis relating to the count on which he was acquitted. 5. At the time of his arrest, when replying to the caution, the appellant said the drugs had been planted. The appellant's fingerprints were only found on the newspaper inside which no wraps had been located. 6. The prosecution case was in a nutshell that the appellant was in possession of the drugs found in his car with intent to supply. The defence case was that PS Heath had retained the car keys and planted the drugs in the car after the appellant had been taken to the police station and before the other officers had arrived to conduct the second search of the vehicle at about 12.30 hours. Various breaches of the Code, Code A of the Police and Criminal Evidence Act, were also relied upon but they do not matter further for the purposes of this appeal. 7. At the end of the cross-examination of PS Heath on the Friday morning, that is Friday 10th March 2006, the judge asked a number of questions relating to the defence case that PS Heath had the opportunity to and did plant the drugs. The issue for the jury of course was whether the prosecution had made them sure that the appellant was in possession of the drugs with intent to supply or whether they had been or might have been planted in the car by PS Heath. In the event the jury accepted the prosecution case and convicted the appellant. 8. Mr Long, counsel for the appellant at trial and today before this court, advanced as a ground of appeal the proposition that the judge had erred in law and undermined his independence by asking the questions to which reference has already been made of PS Heath, including whether the officer would jeopardise his career by planting drugs in the car. Mr Long said the questions and their timing supported the prosecution case and undermined the defence case, coming as they did at the end of Friday morning's cross-examination and prior to the adjournment of two days - the court was not sitting that afternoon. 9. In the event, the matter came before the full court where the appellant's application for leave was renewed and granted on this ground and this ground alone. 10. It is at once appropriate to turn to the transcript of the part of the hearing during which the judge put the questions of which complaint is made. In fairness to all concerned, we must read it in full: "MR LONG: It is Mr Denton's case that he does not know anything about the drugs found in the car or indeed in the house subsequently, and that they may have been there before - although that would seem unlikely - and otherwise, Sergeant, I am suggesting that you placed those drugs in the car and that is why they were found subsequently by Police Constable Holiday. Sergeant, did you place those drugs into the car? A. Never heard anything so ridiculous in my life. JUDGE BARNETT: Yes, well had you done so that certainly would give rise to a disciplinary offence, would it not? A. I think there would be a disciplinary offence there, sir. Q. There is no joking matter about it. A. Well, no, sorry, your Honour. Q. If you had done that you would be putting 17 years of your service on the line, would you not? A. I've had seven commendations for excellent work, sir. Q. Just answer my question if you would? A. No drugs were placed in that vehicle by me, sir, no. Q. And if you had done so you would be exposing yourself to a very serious allegation of---- A. I would be going to prison, your Honour. Q. Yes, quite. Now what I want to get clear from you, if I may, is this. Initially it is you and Police Constable Gardiner who arrive in your vehicle, Police Constable Gardiner getting out first and then matters proceed as you describe? A. That's correct. Q. Next on the scene are Police Constables Thomas and Holiday, who come in a police car or a police van? A. They come in, they're plain clothes officers, I think they probably came in an unmarked vehicle. Q. So a police car? A. Where I was standing I don't know what car they came in. Q. We then heard about a van. A. Yes, a van then turned up. Q. And who was driving that? Somebody else? A. I don't think I actually saw who the driver was, to be honest. Q. But it is in that van that you tell us the defendant and Police Constable Gardiner, in other words, your partner? A. Yes. Q. Go back to the station, correct? A. Yes, and then I take my vehicle... Q. Leaving you with your own vehicle? A. Yes. Q. And you were not left alone with the car? A. No, I would then reverse my vehicle out and my recollection is I drove back to the police station leaving PC Holiday and Thomas stood in the alleyway. Q. With the car? A. With the vehicle. Q. So if anybody was left with the car it was Police Constables Thomas and Holiday, right? A. Yes. I don't have 1,000 in a jug in my pocket. Q. You may not know the answer to this, was there a time when the car was left unattended before it was recovered to the police station? A. Not to my knowledge, no. Q. Would it have been? A. I don't know, your Honour, I hope not. Q. So you do not know whether the car was left unattended? A. When I locked it, I think by habit, just by locking a vehicle, my intention was for them to do the search of the vehicle, so I'm presuming that that was the case, but then of course I've driven back to the police station, which is literally two minutes away, with the car keys in my pocket. Q. Well you do not know what happened obviously after you left? A. No. No. But I certainly wasn't left at the vehicle on my own. Q. Can I just ask you so that the jury have it clear in their mind, it is not a question of you being the last to leave, driving off leaving the car unattended? A. No, not my recollection at all. Q. When you left, on your evidence, at least we have Police Constables Thomas and Holiday, plain clothes men, there? A. That was my recollection, yes, and I certainly didn't put drugs into the car. JUDGE BARNETT: I am sorry, Mr Long, I wanted to make sure that we had that crystal clear. MR LONG: I am very much obliged." 11. It is right, as has been emphasised today, that the judge put in that sequence some 22 questions, but it is also right to observe that those 22 questions included at least one rebuke to the witness to take the matter seriously and a fair number of questions which were on any view innocuous. We underline that the questioning took place on the Friday immediately before the adjournment for the weekend. The trial resumed on the Monday. Mr Long told us that he then continued his cross-examination of the Sergeant on the Monday. The trial continued from the Monday to the Wednesday. In the course of the Wednesday the judge delivered his summing-up and the jury subsequently retired. 12. We turn at once to the summing-up. It was a relatively full summing-up of which no complaint is made. In the course of it the learned judge dealt with Police Sergeant Heath's evidence leaving the central issues of opportunity and planting squarely with the jury - see especially pages 13 to 15. As is plain from the summing-up, there was of course the evidence of a number of witnesses for the jury to consider. Moreover, at pages 20 and following the judge gave a careful summary of the appellant's evidence. Finally, at page 24 he summarised, succinctly, the gist of the dispute in this case. 13. For the appellant, Mr Long, in a careful advice and written skeleton, together with his oral submissions today, put the matter this way. He emphasised that the point about planting was tenable. It was also central to the appellant's defence. He complained in particular of the timing and nature of the judge's intervention. It came at a key moment just before the break for the weekend adjournment. He had carefully constructed his cross-examination to leave it for sound tactical reasons upon, as he put it, a high note. The effect of that cross-examination, he submitted, was undermined by the judge's intervention at that point in time. The intervention served to weaken the defence in the sense that it told against both the opportunity for the officer to plant the drugs and the fact of the planting. In so doing the judge had undermined the fairness of the trial and the safety of the conviction. 14. Mr Long drew our attention to the authority of R v Sharp [1994] QB 261 and in particular to a passage in the judgment delivered by Stuart-Smith LJ at page 273. That passage reads as follows: "When a judge intervenes in the course of examination, or particularly cross-examination, a number of problems can arise depending on the frequency and manner of the interruptions. First the judge may be in danger of seeming to enter the arena in the sense that he may appear partial to one side or the other. This may arise from the hostile tone of questioning or implied criticism of counsel who is conducting the examination or cross-examination, or if the judge is impressed by a witness, perhaps suggesting excuses or explanations for a witness's conduct which is open to attack by counsel for the opposite party. Quite apart from this, frequent interruptions may so disrupt the thread of cross-examination that counsel's task may be seriously hampered. In a case of any complexity cross-examination of the principal witnesses is something that calls for careful preparation and planning. It is the most important part of the advocate's art, because a competent cross-examination is designed to weaken or destroy the opponent's case and to gain support for the client's case. But it is easier said than done. If the judge intervenes at a crucial point where the witness is being constrained to make an important admission, it can have an adverse effect on the trial. In general, when a cross-examination is being conducted by competent counsel a judge should not intervene save to clarify matters he does not understand or thinks the jury may not understand. If he wishes to ask questions about matters that have not been touched upon it is generally better to wait until the end of the examination or cross-examination. This is no doubt a counsel of perfection and a judge should not be criticised for occasional transgressions; still less can it be said in such cases that there is any irregularity in the conduct of the trial or that the verdict is unsafe or unsatisfactory. But there may come a time, depending on the nature and frequency of the interruptions that a reviewing court is of the opinion that defence counsel was so hampered in the way he properly wished to conduct the cross-examination that the judge's conduct amounts to a material irregularity." As already remarked, Mr Long relied on the passage in particular as to the timing of the intervention. It is, however, also fair to underline at once that, so far as can be seen from the report in Sharp , the frequency of interventions by the judge in that case was considerable. 15. Finally, Mr Long drew our attention to the picturesque passage in R v Roncoli [1998] Crim.L.R 584 where in the commentary a reference is made to the analogy drawn by Cumming-Bruce LJ in an earlier unreported case: "The judge is not an advocate. Under the English and Welsh system of criminal trials he is more like the umpire at a cricket match, he is certainly not the bowler, whose business it is to get the batsman out." As the commentary went on to observe in that particular case, the judge appears not only to have "bowled an over of her own, but to have thrown in a couple of bouncers". The analogy may not be entirely exact, but picturesque it certainly is and we are grateful for it. 16. In the event having anxiously considered Mr Long's submissions we did not need to trouble Mr Phillips, the advocate for the Crown. In his skeleton argument, however, Mr Phillips had helpfully drawn our attention to a passage in the current edition of Archbold at paragraph 7-67 at page 1063. The passage refers to comment in a summing-up but it is perhaps worth citing here. The editors, having already observed that the question as to comment is whether it fundamentally unbalances a summing-up, continued by saying this: "In certain restricted areas the Court of Appeal and the Court of Criminal Appeal have developed particular principles as to the extent to which a judge may properly comment. A summing-up should not contain any words indicating that the acquittal of the defendant will or may ruin a police witness who has given evidence against him; nor should any comment be made to place police witnesses in any special category." Pausing there, a number of authorities are cited finishing with the case of Keane [1992] Crim.L.R 306 in which it was "held to be reasonable to point out that anyone, police officer or otherwise, who gives deliberately false evidence runs the risk of severe punishment for perjury and perverting the course of justice, and to tell the jury that they may weigh that against any suggested motive on the part of the witness." The authorities are then considered a little further and the learned editors of Archbold conclude the discussion in this way: "The sort of comment which was actually condemned...was one which suggested that the mere fact of acquittal would bring ruin to a police witness whose veracity had been attacked by the defence. It is obvious that this is not so and it is obviously correct that the courts should not tolerate any such misleading suggestions being made. It is equally obvious, however, that any witness who lies, let alone participates in a conspiracy to pervert the course of justice, runs a risk, and any witness who is found to have lied (an acquittal is not such a finding) will be in serious trouble; so long as any comment recognises this distinction, it is submitted that it is perfectly proper to make it." 17. As it seems to us, viewed narrowly, the questions as to the consequences if PS Heath planted the drugs appear to be on the right side of that line, though we do not rest our conclusions on a literal or narrow approach to the interventions in this case. 18. Instead, in our view the matter is to be considered more broadly. Judges must not be placed in a straightjacket. Judges must be free to establish the true context in which evidence is given and to clarify the true state of the evidence. Judges should not be inhibited from doing so by fear that an observation or question will be taken out of context and may be related to an allegation of unfairness. Moreover, there can be no fixed rules as to when it is appropriate for a judge to intervene. All must depend on the facts of the individual case. So far as concerns Sharp , as Stuart Smith LJ put it, it was no doubt a counsel of perfection to advise judges to wait until the end of the question. Indeed on some occasions there may be advantage in a judicial question or intervention at an earlier stage so that counsel can deal with it without the need for further questions after the conclusion of re-examination. Conversely, as is apparent from the concerns to which this case gave rise before the full court on the application for leave, sustained questioning by the judge should be embarked on only with caution, having regard to the need for judicial restraint and the preservation both of impartiality and the appearance of impartiality. It does not however follow, as underlined by Sharp , that even judicial interventions which of themselves might raise an eyebrow necessarily result in an unfair trial or an unsafe conviction. Such interventions or questions must be considered in the context of the evidence as a whole, of the conduct of the trial as a whole and also with regard to the summing-up. For completeness, so far as concerns Sharp , the frequency of interruption was such that the view of the court in that case can readily be understood. 19. That was not the case here where it is only this series of questions of which complaint is made. Once the judge's questions in the present case are seen in the light of the context as a whole then in our judgment it becomes clear that there was here no unfairness. 20. In summary: 1. The judge's questions need to be considered as a whole. It should not be forgotten that as already remarked they include at least one rebuke of the witness and a variety of only innocuous questions. 2. The questions as to the consequences flowing from planting the drugs serve to put the matter in context. They do not fall on the wrong side of the line as summarised in Archbold. They do not in any way remove the issue from the jury. It remained for the jury to consider both the questions and the answers and the evidence as a whole to which the judge returned entirely fairly in his summing-up. 3. The questions as to the sequence of events and whether PS Heath was left alone with the car were proper; that the answers to those questions did not assist the defendant is of course neither here nor there. It remained, as outlined by counsel for the Crown in his written submissions, for the jury to consider the evidence of this issue as a whole and with the benefit of a fair and full summing-up. 4. Granted that the timing of the intervention was at a sensitive stage in the case, nonetheless this was a four or five day case. Counsel, Mr Long, was not deterred from continuing with his cross-examination on the Monday and the case continued until its conclusion on the Wednesday. The matter must be seen in perspective. 21. We emphasise the need for caution in this area and before judges embark on sustained questioning in the course of counsel's cross-examination. That said, we are satisfied that there was here no unfairness and that the intervention by the judge did not affect the safety of the conviction. In the event, and for the reasons given, this appeal must be dismissed.

```yaml citation: '[2007] EWCA Crim 1111' date: '2007-04-24' judges: - LORD JUSTICE TUCKEY - MR JUSTICE BENNETT - MR JUSTICE GROSS ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Case No: 200905108C5; 201001627C5; 201000924C5; 201003887C5; 201001057C5; 201003885C5; 201103556C5 Neutral Citation Number: [2015] EWCA Crim 71 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LEEDS HHJ HOFFMAN T20087174; T20087588 Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/02/2015 Before : LORD JUSTICE DAVIS MR JUSTICE WILKIE and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - Between : (1) DENNIS PATRICK RICHARD SLADE (2) MICHAEL NICHOLAS BAXTER (3) RICHARD ANDREW PEARMAN (4) JAMES ROBERT HUDSON Appellants - and - CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Tim Owen QC and Mr Stephen Vullo QC (instructed by Stokoe Partnership ) for the First Appellant. Mr Kieran Vaughan QC and Mr Aaron Watkins (instructed by Stokoe Partnership ) for the Second Appellant. Mr Henry Blaxland QC and Mr Derek Duffy (instructed by Stokoe Partnership ) for the Third Appellant. Mr David Emanuel (instructed by Stokoe Partnership ) for the Fourth Appellant. Mr Paul Greaney QC and Mr Nicholas de la Poer (instructed by the Crown Prosecution Service ) for the Respondent. Hearing dates: 26, 27 and 28 November 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Davis: This is the judgment of the Court to which all members have contributed. Introduction 1. As long ago as 20 August 2009, after a lengthy trial at Leeds Crown Court before His Honour Judge Hoffman and a jury, each of the appellants Slade, Pearman and Baxter was convicted of counts of conspiracy to murder, criminal damage, handling and arson. 2. After that trial they faced a further trial (along with the appellant Hudson) on two counts of conspiracy to rob and two counts of robbery. At various stages Baxter changed his plea to one of guilty on three of the counts which he faced and Hudson pleaded guilty to one count of robbery and one count of conspiracy to rob. After that second trial (also before Judge Hoffman and a jury at Leeds Crown Court) Slade and Pearman were on 1 February 2010 convicted of all four counts and Baxter was convicted of the remaining count of robbery which he faced. 3. Each of Slade, Pearman and Baxter was sentenced to imprisonment for life on both indictments. In sentencing, the judge made clear that he had considered both indictments together in making his assessment of dangerousness. He described them as callous, dangerous and ruthless and engaged in “Premier League crime”. Slade was assessed as the leader, with Pearman and Baxter described as “loyal henchmen”. They were sentenced to life terms with consecutive notional determinate terms of 23 years (first indictment) and 20 years (second indictment) in the case of Slade; 21 years (first indictment) and 18 years (second indictment) in the case of Pearman; and 21 years (first indictment) and 18 years (second indictment) in the case of Baxter. The resulting specified minimum terms were 21 ½ years, 19 ½ years and 19 ½ years respectively, with time spent on remand in custody being directed to count towards sentence. A Serious Crime Prevention Order was also made against Slade. 4. Hudson, who had pleaded guilty at a late stage on the two counts which he faced, was described by the judge as not being a core member of the gang. He did not attract a finding of dangerousness. He was sentenced to a term of 9 years imprisonment, with time spent on remand in custody also being directed to count towards sentence. 5. Applications of Pearman and Baxter to appeal against their convictions on the second indictment have previously been rejected by this Court. All appellants, however, appeal with leave against the sentences imposed on the second indictment and Slade, Pearman and Baxter also appeal, with leave, against the sentences imposed on the first indictment. 6. The appeal hearing before us however, was confined to the appeals, with leave of the single judge, of Slade, Pearman and Baxter against their convictions on the first indictment, the arguments focusing on the convictions on the count of conspiracy to murder. It ultimately was common ground before us that the various appeals against sentence would need to be deferred for further consideration depending on the outcome of the appeals against conviction on the first indictment; and the appellant Hudson (who we gather has now been released on licence) made no objection to the hearing of the appeals against sentence being adjourned for this purpose. 7. A great part of the appeals against conviction has concerned the appellants’ applications to this court to adduce fresh evidence. The fresh evidence is of two kinds. i) The first relates to CCTV evidence (taken with mobile phone and cell-site analysis). It is said that the proposed fresh evidence demonstrates that critical timings shown on the CCTV recordings at Slade’s home at 2 Sandmoor Drive was consistently, over the relevant period, some 22 minutes slow as compared with real time. When that factor is then also linked to an analysis of mobile phone usage and cell-site and other evidence, the result is, so it is said, that it is shown that some or all of Slade, Pearman and Baxter could not have been in an Audi RS6 car engaged in conspiring to murder at the times and locations forming a central part of the Crown’s case at the trial. We note at this stage that much of the argument on this point rested not simply on fresh evidence as such but also on a redeployment (albeit with what appear to be a fresh analysis and considerable amplification) of evidence and arguments available to be advanced at trial. ii) The second relates to voice recognition evidence. Such evidence had been given at trial. But it is said that there have subsequently been developments in the relevant science such that new evidence in the form of Automatic Speaker Recognition technology – being evidence of a kind not previously deployed in the courts of England and Wales- should now be admitted. It is said that such evidence demonstrates not only that the assertion of alleged consistency of voices recorded on the relevant occasions in the RS6 car with the voices of Slade, Pearman and Baxter (as advanced by the Crown at trial) was in fact erroneous, but also that the presence of the appellants in the car on such occasions can positively be excluded. 8. That, however, is not the only ground for these appeals. Other grounds are advanced. It is said that the Judge should have acceded to an application to discharge the jury. It is said that the Judge erred in failing to accede to submissions of no case to answer made on behalf of all three appellants at the close of the prosecution case. It is further said that thereafter the summing-up to the jury was unfair, unbalanced and heavily slanted in favour of the prosecution and against the defence. Very late in the day, an argument was also sought to be raised on behalf of Baxter to the effect that there was unfair non-disclosure at trial by the Crown of material said to be highly relevant to the defence case. 9. At trial, all the defendants were represented by experienced leading and junior counsel. Since trial, however, there have, for various reasons, been changes in the legal representation, sometimes more than once. Before us, Slade was represented by Mr Tim Owen QC with Mr Stephen Vullo QC; Pearman was represented by Mr Henry Blaxland QC leading Mr Derek Duffy; and Baxter was represented by Mr Kieran Vaughan QC leading Mr Aaron Watkins. The Crown was represented by Mr Paul Greaney QC leading Mr Nicholas de la Poer. Mr Greaney (then as junior counsel being led by Mr Robert Smith QC) and Mr Duffy had appeared at trial: none of the other counsel appearing before us (or the solicitors instructing them) had been involved in the trial. 10. We would wish to pay tribute to the meticulously thorough preparation by the legal teams, counsel and solicitors, of all parties for the purposes of this appeal and to the skill and care with which the respective arguments, both written and oral, were advanced in a case which has raised some issues of considerable complexity. Moreover, by a sensible division of labour in terms of presentation of the arguments the hearing itself was assisted in being kept within the three day time estimate allotted to it. We also would wish to pay tribute to the most helpful and convenient way in which the various appeal bundles were presented and in which all parties co-operated (although we gather that particular credit is due to Mr de la Poer in this regard). Delay 11. We should say something about the lapse of time which has occurred before these appeals came on for hearing. It is wholly exceptional that an appeal against conviction comes on for hearing before the Court of Appeal (Criminal Division) some five years after the trial where applications for leave to appeal are lodged shortly after conviction. 12. To a very great extent the delays have been occasioned by the various changes in the legal representation for the appellants that have occurred from time to time and the sheer complexity of aspects of the fresh evidence sought to be obtained by the appellants since trial, together with associated funding problems. Further, some of the applications for leave to appeal, whether on the first indictment or second indictment, had in fact been brought out of time (the necessary extensions thereafter being granted). In the event, some grounds were then abandoned at various stages, others added. Directions had previously been given by Hughes LJ (then Vice-President of the Court of Appeal, Criminal Division) during 2011 and 2012 which were not, for various reasons, fully complied with. Even by the beginning of 2014 the cases were still a long way away from being ready: and indeed only then, by direction of the Registrar of Criminal Appeals, was the representation order extended to Slade’s new legal team to enable it to instruct voice recognition experts and to prepare the new schedules comprising the CCTV and mobile phone and cell-site evidence. Final perfected Grounds of Appeal, superseding all previous Grounds, were lodged by the appellants during the course of 2014. Further, directions were given at various stages during the year by this Court designed to ensure that the matter came on for hearing in a properly prepared state by the end of the year. 13. In the result, as we have indicated, the cases as presented were very well prepared and very well focused. The second indictment: robbery and conspiracy to rob 15. We think it important to provide some context for the first indictment by briefly summarising the facts relevant to the second indictment, which relate to a period of time to some extent spanning or preceding the relevant period for the first indictment. To do so will also help explain why the trial judge described Slade, Pearman and Baxter as Premier League criminals. 16. Put shortly, the position was this. 17. Slade, Pearman and Baxter were indisputably close associates. Between January 2007 and March 2008 they conspired to rob drivers and guards of cash in transit vans. A number of premises were targeted. Cars were stolen to assist in their activities and they engaged in frequent surveillances of target sites or deliveries. That constituted the count of conspiracy to rob, which was Count 1. 18. On 8 March 2006 a stolen low loader blocked the path of a securities cash in transit van just before it reached its depot at Woolston, near Warrington. A stolen agricultural tractor then repeatedly smashed its loading arm into the van’s cash storage compartment. Over £1 million was stolen by men wearing masks and equipped with crowbars. The low loader and tractor were then set on fire with petrol and other vehicles were used to effect a get-away with the cash. That was Count 2. 19. On 12 December 2007 a telescopic loader was stolen from a building site. On a later date it was used to smash a hole in the wall of a Post Office (at which staff, mainly female, were present). Two masked men ran through the gap created and terrorised the occupants. Four security boxes were taken, although £50,000 was left in an open safe. A stolen car was used to effect the get-away. Some 45 minutes later, Hudson and Pearman were observed by police to hide the car at a garage in Arncliffe Grange in Leeds. That was Count 3. 20. As for Count 4, that was a count of conspiracy to rob. The conspirators planned between 13 December 2007 and 21 January 2008 to rob a Sainsbury’s store at Colton Retail Park in Leeds, where it was known that some £500,000 was destined for ATM cash machines. They were observed engaging in regular surveillance. By January 2008 they had gained access to the roof and thence to an unused part of the premises and were preparing to smash through it into the ATM room. However, sounds of drilling were heard by staff on 29 January 2008 and the police were summoned. The would-be robbers fled but their activities in the roof area were revealed. 21. Mobile phone and cell-site evidence featured prominently at the second trial, as well as observations by the police of the accused. 22. It appeared that at the first trial Slade was, through his counsel, to advance his alleged involvement in such activities, as charged in the second indictment, as a potential explanation for some of the activities which featured in the first trial and in order to rebut the charge of there being a conspiracy to murder. The first indictment: conspiracy to murder 23. It was common ground that the matters which ultimately gave rise to the indictment for conspiracy to murder (and related charges) first came to the attention of the police as a result of the observations kept by the police of the movements of Slade, Pearman and Baxter and others associated with them in connection with suspected serious crime, which revealed the robbery matters. Such surveillance included the use of covert audio and tracking devices placed in cars connected with the appellants or their associates. 24. The prosecution in fact identified the intended victim of the alleged conspiracy to murder as a man called Ralph Roberts. He resided in the East End Park area of Leeds; he was also closely connected to a local pub called The White Horse. Roberts himself had strong connections with criminal activity and had an extensive criminal record, including for violence. (He subsequently refused to co-operate with the police and did not give evidence at the trial.) Roberts resided at an address in York Road, his home backing on to Dawlish Crescent. He was known frequently to park his car, a silvery green Toyota Avensis, outside. 25. On the evening of 4 March 2008, in the hours of darkness, four men drove up outside Roberts’ home in Dawlish Crescent. They were in a black Audi RS6 car. It had been stolen a considerable time previously. Some of the men got out of the car and smashed the windows of a Vauxhall Vectra car, parked in the street, belonging to a man called Maluch. He was a neighbour of Roberts. Mr Maluch looked out of the window and saw the RS6 being driven off at speed. The police had been waiting nearby. They intervened when the sounds of the breaking glass, which were picked up on a covert audio device placed in the RS6, caused them to think that shots had been fired. In the event, the RS6 car and the men in it were not apprehended. But the police at this time also surrounded a black Audi A4 car, which previously had been parked in Ivy Crescent with its engine running, some 320 metres away from Roberts’ house, at around the time the RS6 car had driven up near to Roberts’ house. Inside the A4 car were Slade, Pearman and Baxter. The evidence was that the A4 car had been driven to the area at the same time as the RS6 car and, even if not taking an identical route, had been in “virtual convoy” with it, as the Crown was to put it. 26. The police were armed. When arrested, none of the three appellants resisted. No weapons of any kind were found on them or in the A4 car itself. However, subsequent examination showed that within the car were, among other things, a black bin liner bag containing clothing and a pair of binoculars; a rucksack of a colour and kind Slade had been observed often to carry, containing dog and cat repellent and a frequency recorder; a Tupperware box containing four car keys and a electronic fob and a yellow card (Slade’s fingerprints were on the box); gloves; a magnet; a plastic bag containing adhesive straps, with two blades; and a tracker (MAC4) with batteries attached and which had Slade’s fingerprints and DNA on it. The tracker was found on the rear nearside floor (where Pearman had been sitting): when arrested, Slade, who had been sitting in the front passenger seat, had been observed turning to place something at the feet of where Pearman had been sitting. The appellants were taken to separate police stations. A mobile phone attributed to Baxter was found in the car and mobile phones were also seized from Slade and Pearman. All had had their batteries removed – as the Crown was to say, with the perceived view of frustrating any subsequent cell-site analysis. In this regard, there was evidence that Pearman, from previous criminal proceedings, had had experience of the use of such cell-site evidence. Further, a mobile phone jammer and other anti-avoidance materials were subsequently found at Slade’s house and there was evidence of accessing by computers belonging to Slade and Baxter of anti-avoidance and jamming techniques. Literature relating to mobile phone jamming was also found in Baxter’s Mercedes ML car. 27. At 19.23, before the windows of Mr Maluch’s car were smashed, the police had alerted Roberts. He had then left the area. 28. At 19.42, after the smashing of the car windows of Mr Maluch’s car, the RS6 had been observed to stop at Rushwood Gardens nearby. A young witness saw four men get out of the car. A man on a motorcycle then drove up. The driver of the RS6 gave him something bulky, which had been hidden under his jacket, got on to the motorcycle and the motorcycle was then driven away. The remaining three men were seen and heard by the witness to be arguing. One was heard to say words to the effect: “My DNA and fingerprints are all over it”. The RS6 was then set alight with petrol before the three ran off. 29. Subsequent examination of the burned out RS6 showed it to be a stolen car. Its number plates had been removed. In their place were double-sided adhesive strips, similar (although not identical) to those found in the bag in the A4. A magnetic disc was found in the debris, of a like kind to that fixed to the tracker MAC4 found in the rear nearside footwell of the A4. 30. The Crown’s case was that the men in the RS6 were operating in conjunction with the appellants in the A4 (which had been borrowed from a car leasing firm that very day). The actual period of the alleged conspiracy to murder was stated to be from 21 January to 4 March 2008. The Crown’s case was that the plan was to lure Roberts into the street when the car windows were smashed, when he would then be killed. An alternative suggestion by the Crown was that, at the least, Roberts was to be lured into the street, or otherwise distracted, with a view to a tracker being affixed to Roberts’ car in order to assist in his subsequent killing. 31. The Crown’s case had a number of strands. 32. Apart from clear evidence of association between the three appellants, a considerable amount of evidence was adduced which was designed to show that they were associated with the RS6. That car had been stolen on 27 September 2005 from an address in Leeds. Its identity thereafter was variously changed by the application of two sets of “cloned” number plates, lawfully registered to other Audi RS6 cars. 33. There was an abundance of evidence to link the appellants to the RS6 in 2007. Police observation also showed that the RS6 had been kept at various locations, including two lock-up garages at Arncliffe Grange and Unit 9, Riffa Business Park; at 6 Primrose Court on Primley Park View; and High Thorn Court on Shadwell Lane. Recording devices had been installed by the police at these locations, for the purposes of the investigations connected with the suspected serious crime, as well as at other locations. Further, tracking and recording devices were covertly affixed by the police to the RS6 and also to a Peugeot and a BMW connected to the appellants. Although there had been observations on a number of occasions of Pearman and Baxter in the RS6 on false plates up to the end of 2007, there were no such observations maintained by the police thereafter. However, Baxter was on an occasion on 26 February 2008 observed in his Mercedes ML car parked a few feet away from the RS6, itself parked at Primrose Court. Further, when the Mercedes ML was subsequently searched following the arrest of the appellants a key to the lock of the lock-up garage in Arncliffe Grange was found in it. 34. All three appellants were linked to the lock-up garage at Riffa Business Park, where the RS6 had from time to time been kept. Pearman’s fingerprints were on the tenancy agreement for the unit. A key to the garage padlock was found in Baxter’s Mercedes ML along with other keys. In the box found in the A4 car (on which were Slade’s fingerprints) was a fob for the roller-door of the garage at Riffa Business Park. 35. Another vehicle connected both to the RS6 and to the appellants was a Toyota Hiace van. That vehicle had been bought for cash on 9 August 2007 by two men who wore motorcycle helmets throughout the acquisition transaction. A false name and address was given for the buyer. Thereafter the vehicle was extensively adapted, in a manner consistent with an intended use for surveillance. The Crown’s case was that this was done at the behest of Slade: that accorded with a manual for such vehicle surveillance adaptation found in Slade’s Lincoln car at his home after his arrest. (The search of Slade’s house as we have said also found other items such as a mobile phone jammer. In addition, it may be added, a bullet-proof vest was found under his bed.) 36. The Toyota Hiace was operated under false plates, cloned to authentic plates of another Toyota Hiace lawfully kept by its owner in Merseyside. A false plate fixed by magnet to the vehicle was in due course found to have Pearman’s prints on it. In addition, a key to the Toyota Hiace was later found in Baxter’s Mercedes ML. Further, there was evidence that the vehicle had been observed on a significant number of occasions to have been used by all three appellants. On occasions in 2007, moreover, the Toyota Hiace was observed in convoy with the RS6, with Pearman and Baxter, if not Slade also, inside. 37. Latterly, on 1 March 2008 the Toyota Hiace, with three men inside it, drove repeatedly and slowly around a number of streets in the East End Park area, including Dawlish Crescent and the area close to the White Horse pub. It was then driven to Swarcliffe (where Pearman lived). On 3 March 2008, in the evening three men (again the appellants, on the Crown’s case) were in the Toyota Hiace, in the Dawlish Crescent area. They were under police observation. Two of the men in the vehicle got out of the Toyota Hiace and walked around, wearing hats and with their faces concealed by scarves. 38. A very considerable amount of time at the trial was devoted to evidence of mobile phone use and cell-site analysis. Detailed and complex schedules were prepared. A number of mobile phones variously attributed to Slade, Pearman and Baxter were the subject of such analysis. It is not necessary for present purposes to go into details: although we will have to come back to the point when considering Mr Vullo’s submissions. Suffice it here to say that the Crown’s case at trial was that such evidence was consistent with the alleged conspiracy and that the cell-site analysis and tracker evidence accorded with the movements of the appellants in furtherance of that alleged conspiracy. It was necessarily accepted that the cell-site evidence could only show the (approximate) location of the phone in question: it could not necessarily identify the individual with such phone. 39. The Crown also adduced evidence of the recordings of the CCTV cameras at Slade’s house (of which there were four, with a centralised control). These showed, among other things, Slade during this period being variously picked up and dropped off at 2 Sandmoor Drive by the Mercedes ML associated with Baxter. In this regard, the evidence gave rise to an important issue. Police evidence was adduced relating to their attendance at 2 Sandmoor Drive later on 4 March 2008 after the appellants had been arrested. That evidence, if not entirely precise, established that on that date the clock on Slade’s CCTV showed a time some 22 minutes slower than real time. That matter played an important part at trial and has in turn played an important part in the arguments before us. The CCTV evidence taken from cameras at Slade’s house in Sandmoor Drive was to the effect that Baxter in the Mercedes ML car would regularly pick Slade up (Slade often taking with him a rucksack and bag) and then would return him in the same car some time later. It was common ground at trial, as we were told, that the Mercedes ML was driven always by Baxter. 40. A very important part of the Crown’s case at trial also related to covert audio recordings (by probe) of conversations between the male occupants of the RS6 car on various occasions in the conspiracy period. The Crown’s case was that such conversations were variously to be attributed to Pearman and Baxter and also (on two occasions) to Slade. 41. In brief summary, during the days of the alleged conspiracy the position was this. i) (a) On Friday 22 February 2008 there was regular phone contact between Pearman and Baxter. The RS6 was observed to leave Primrose Court, where it had been parked, at 19.10. (b) There were, as recorded by the probe, conversations between the men in the car – asserted by the Crown to be Pearman and Baxter but disputed by the defence. There were discussions, as recorded, suggestive of a gun being stored at Fir Tree Woods (an area with which the appellants had links). At 19.50, the car then entered the East End Park area and toured around. At one stage one of the men (said by the Crown to be Pearman) said “Den’s fucking about, all we were supposed to do was grab the fucker”. The Crown’s case was that the reference to “Den” was a reference to (Dennis) Slade. (c) At 19.53 the CCTV cameras at Slade’s house (on the CCTV clock timing) showed Slade being dropped off at his home in Sandmoor Drive by the Mercedes ML. ii) (a) On Saturday 23 February 2008 there were further contacts between the appellants’ phones. The RS6 was driven away from Primrose Court at 18.13. There were then no such calls. After going to Fir Trees, the car started to tour around the East End Park area at 18.50. There were two men in the car. They were said by the Crown to be Pearman and Baxter. (b) The men were recorded as referring to looking for something silvery green: which in fact was the colour of Roberts’ Toyota Avensis. There was also reference to waiting near a house, said by the Crown to be Roberts’ house. (c) There was then recorded a conversation which plainly indicated the presence of a gun in the car. There was reference to cocking the gun, with recorded clicking sounds, and a request from one man to the other not to point it, and to avoid “blowing holes in the backs of the seats”. There was also a reference to a man called Damon seeing a car: the Crown’s case was that he was Damon Tremble (who lived on the Fir Trees Estate) an associate who was either in another car or in the street acting as a lookout or backup. There was effectively unchallenged evidence from an expert called by the prosecution that all this recorded conversation was consistent with the presence in the car of a doublebarrelled sawn off shotgun. (d) There was evidence that the RS6 continued touring the area that evening. At one stage, as the tracker indicated, it stopped in Dawlish Crescent at 19.12 and then did so again later. One of the men was recorded as, among other things, referring to “No one would know the weapon…if they were stood here”. The other said “We’ll just have to keep coming every effing night because clocks are due to go forward aren’t they?” iii) (a) On Sunday 24 February 2008 the RS6 was collected at 17.44. Slade was picked up at his home by Baxter’s Mercedes ML at 18.02, according to the timing on the CCTV. (b) From 18.13 the RS6 toured round the East End Park area. It stopped at Dawlish Crescent for some 12 minutes. There were clicking sounds recorded, and a reference to “hiding it”. The car drove off and then returned to Dawlish Crescent. There was reference to “That’s his house over there”. The car drove off. At one stage, at 20.00, a car door was heard to open and close. (c) According to the Crown, Slade (previously picked up by Baxter at 18.02, on the CCTV time) was then in the car with Pearman and Baxter. A voice, attributed by the Crown to Slade, was heard to say: “Can’t believe we didn’t have thingy, he’s straight out of that house”. A voice, attributed to Pearman, then said “Only time we didn’t have it with us, man”. (d) The RS6 was returned to Primrose Court at 20.56 (having travelled via Fir Trees). Slade, according to the timing on his CCTV, was dropped back at his home at 21.42. iv) (a) On Monday 25 February, the Mercedes ML collected Slade, carrying a blue bag and bin liner, at 16.56 from Sandmoor Drive, according to the CCTV timing. (b) The RS6 was in the Fir Trees area that evening. Recorded conversations, said to be of Pearman and Baxter, were suggestive of an anxious search by someone for something concealed in a wood: as the Crown said, a gun. (c) The RS6, said to be occupied by Pearman and Baxter, then drove to Dawlish Crescent, arriving at 19.21. There were recorded references to cartridges and their colours and weight of shot and so on. Undisputed expert evidence indicated that the remarks could only be suggestive of a conversation about a shotgun and cartridges, with the heaviest weight of shot. (d) The car drove around. There was a reference to associates, including Damon. At a later stage, the car drove outside a pub. One voice said to a man on a phone: “Now when he comes out, see if his bird and that’s with him…” There are then conversations indicative of a gun having jammed. A voice, attributed to Baxter, said “Don’t know how lucky they have been”. Another voice said “Wrap it up, don’t touch it” and “Fucking lethal that, though”. (e) The RS6 was then returned to Primrose Court. Slade was observed to return to his home later, with the bin bag liner. v) (a) On Tuesday 26 February Baxter was seen parked in his Mercedes ML at around 15.30 very close to the RS6 at Primrose Court. The Crown was to say that he was checking on the RS6. The defence suggestion was that he may simply have been taking a short cut on a particular journey. (b) At 18.30, according to Slade’s CCTV, he was collected from Sandmoor Drive by Baxter in the Mercedes ML. At that stage the tracker evidence indicated that in fact the RS6 was, if the CCTV time was right, at East End Park; or if 22 minutes slow it was in the centre of Leeds. (c) The Crown case had been that the RS6 had been tailing Roberts’ Toyota Avensis that evening. At 18.44 the RS6 was in the Eastgate area of Leeds. According to the Crown, Pearman and Baxter were in it. Recorded conversations of the men in the car and Automated Number Plate Recognition camera identifications were suggestive of Roberts’ Toyota Avensis being followed by the RS6. There were then phone calls between the phones of Pearman and Baxter at this stage (which the defence said was entirely inconsistent with them being together in the car – the prosecution was to suggest that their phones were not in the car, even though Pearman and Baxter, on their case, were and that the phones were being used by others). There were also texts that evening from 19.38 from Baxter’s phone to a lady named “Div”, indicative from the evidence of the person with the phone not being in the RS6. (d) It was said by the prosecution that later on Slade got into the RS6, Roberts having been lost. A voice, attributed by the Crown to Slade, is heard to say “Fucking bastard… I wish we’d clipped this one last night, know what I mean”. He went on “I think the best thing to do Rich…”. The Crown say he was talking to (Richard) Pearman. The defence disputed the word “Rich” (as opposed to “mate”) had been used at all. (e) The car was then parked for the night at Primrose Court. Slade himself was returned home at a later stage in Baxter’s Mercedes ML. vi) (a) On Wednesday 27 February 2008, Slade was picked up at Sandmoor Drive, according to the time on the CCTV, by the Mercedes ML at 16.43. (b) At around 18.30 the RS6 entered the East End Park area. According to the Crown, Pearman and Baxter were in it. As it entered Dawlish Crescent, there were sounds and conversations indicating that a gun was in the car and that there were difficulties with it jamming. A voice, attributed by the Crown to Baxter, said “I didn’t know you were going to fucking kill the cunt, you didn’t tell me that did you?” The answer, attributed to Pearman, was: “He wants him, didn’t he?” A little later, the voice attributed to Baxter said “I’m not bothered as long as you didn’t fucking thingy the cunt, I thought we were going to give him one”. The prosecution said that all this plainly showed an intention to kill, and that the actions were on the instructions of another (Slade, as it said). (c) The RS6 was parked in Primrose Court at 19.56. It remained there until 2 March. (d) According to the CCTV timing Slade returned home, with a blue bag, at 23.06. vii) On 28 and 29 February the RS6 was not used. On Saturday 1 March 2008 the RS6 was again not used. However, the Toyota Hiace, with three men in it – the appellants, as the prosecution said – was used as we have mentioned above: as the prosecution said, in place of the RS6. There was also much telephone traffic that day between the appellants’ phones, although not when the Toyota Hiace was in use by the three men. viii) On Saturday 2 March 2008, the RS6 was not used in the day time. However, in the evening the associate of the appellants called Damon Tremble, with another man, drove in Hudson’s silver Audi to Primrose Court where he jump started the RS6 and then drove it to High Thorn Court, off Shadwell Lane, where at 20.03 it was parked. ix) On Monday 3 March there again were many calls between the appellants’ phones. As we have said, the Toyota Hiace was again in use on this day, the phones then not being used. Pearman was identified as front seat passenger in it at 22.06. According to Slade’s CCTV, Slade was driven home to Sandmoor Drive in Baxter’s Mercedes ML at 22.29. x) (a) This leads up to the final day, 4 March 2008, when the appellants were arrested in the circumstances described above. (b) As for the Audi A4, that had not previously featured. It had been collected that day from a company called Yeaden Motors by Pearman and Baxter, who had driven to Yeaden Motors in the Mercedes ML in the afternoon. (c) The three appellants met at Hollywell Lane, Shadwell, where the Mercedes ML was left. At 19.03 there was a call from Baxter’s phone when the RS6 was being removed from High Thorn Court. The A4 was then driven to the East End Park area at around the same time as the RS6 was being driven there: as the Crown was to say, in virtual convoy with the RS6 (and also following a similar route to that taken by the Toyota Hiace on 3 March). 42. When interviewed over a number of occasions, Slade and Baxter made no comment. Pearman gave answers denying any involvement in any conspiracy to murder. In the course of his answers he was to say – what the prosecution stated was a clear lie – that he did not even know any Damon. The trial proceedings 43. As Mr Greaney observed, the appellants conducted a highly tactical defence. 44. Not only did Slade and Baxter make no comment in interview but none of the appellants, as we were told, served any defence statement. After they had failed in their submissions of no case to answer, none of them gave evidence. 45. The position of the appellants at trial was, among other things, that neither Pearman nor Baxter was shown to be in the RS6 at any stage during the indictment period. Slade likewise denied being in the RS6 on the two occasions (24 and 26 February) when he was said to have been in it. The prosecution necessarily had to concede that none of the appellants were in the RS6 on the evening of 4 March 2008 when the windows of Mr Maluch’s car were smashed and the RS6 thereafter burned. 46. It seems not to have been seriously disputed at trial, at all events on behalf of some of the appellants, that there was ample room for drawing an inference that the three appellants were engaged in some kind of criminal joint enterprise. The same approach has been pragmatically taken on behalf of all appellants for the purposes of this appeal. What is stressed by the appellants, however, is that that is not enough. What was alleged by the prosecution was a conspiracy to murder (with related counts) to which the appellants were alleged to be party: and it is that which the prosecution had to prove to the criminal standard. 47. The trial commenced on 19 May 2009. Much of the prosecution evidence was directed at mobile phone and cell-site analysis and the tracker and probe evidence; and much evidence also was directed at proving a connection between the three appellants and the RS6 and the Toyota Hiace and associated premises. 48. The only positive case advanced at trial by any of the three appellants by way of explaining their presence in the East End Park area (in the A4 if not also previously in the Toyota Hiace) was advanced on behalf of Slade. It was said – although not, of course, said by him in interview – that he was there to collect a debt from a man called Forrest. Pearman and Slade were said to be there supporting him (although it seems that they themselves at trial, through counsel, advanced no such positive case). Forrest and his partner were called at trial on behalf of Slade. It would seem that their evidence, for whatever the jury made of it, gave rise to more questions than answers. It was also, for example, left unexplained why, if that were the real explanation, the appellants had the various items in the A4 when arrested. 49. There had been no direct evidence of observation of any of the appellants being in the RS6 at the time the various conversations were recorded making reference to a gun, cartridges and killing. In this regard, however, the Crown adduced the evidence of a voice recognition expert, Mrs Elizabeth McClelland. Slade had obtained the report of a voice recognition expert, Mr Martin Duckworth. Baxter had obtained the report of Dr Frederika Holmes. Pearman had obtained the report of Professor Peter French (assisted by Mr Harrison). 50. In the result, neither Mr Duckworth nor Dr Holmes was called. As the jury were informed, they had reached an agreed position with Mrs McClelland. 51. In the case of Slade, it was stated that with regard to one recording (Holdall 55) no identification was possible. In other respects it was agreed that the reports did not conflict. This agreement was to the effect that sections of the recorded passages for 26 February 2008 were consistent with being spoken by Slade: with, as Mrs McClelland said, moderately distinctive features. “Consistency” was, however, such as potentially to extend to thousands of other men’s voices. It was stressed at all events by the experts that the opinions had to be used in conjunction with all the other evidence. In the case of Baxter, the joint finding, by reference to the selected recordings, was one of consistency. However, Dr Holmes found no levels of distinctiveness whereas Mrs McClelland found that some features might be regarded as moderately distinctive. 52. As to Pearman, by the time of his final report Professor French, in contrast to Mrs McClelland, found no consistency; and he found it very unlikely that the speaker identified by the Crown as Pearman was Pearman: although it was a remote possibility. He gave evidence at trial to that effect. Dr Foulkes, also in Professor French’s consultancy, agreed that it was very unlikely that Pearman was the speaker in the questioned recordings. 53. In the course of cross-examination, Mrs McClelland in fact had seemed to withdraw any attribution of at any rate one of the questioned recordings to Slade. However she then withdrew this apparent concession in re-examination and maintained there was (low-level) consistency. She accepted, however, that consistency could mean consistency with thousands of voices. She also accepted that “moderate distinctiveness” was of limited assistance in voice identification. She further accepted that if independent evidence showed that one of the defendants was not in the car when said to have been speaking on the recording then that would indicate that such defendant was not speaking then or on any other occasion attributed to that same defendant by the voice recognition evidence. 54. Overall, the outcome of her oral evidence was such that Mrs McClelland’s evidence was strongly criticised by the defence. At all events the prosecution were in no position to say, and did not say, that the voice recognition evidence of Mrs McClelland was in itself, if accepted by the jury, capable of proving the presence of the appellants in the RS6. They relied on her evidence, along with all the other evidence, as supporting an inference of such presence on these occasions. We discuss Mrs McClelland’s evidence at trial in more detail later in this judgment. 55. On 22 June 2009 the judge rejected an application to discharge the jury. On 2 August 2009 the judge handed down a written ruling rejecting the appellants’ respective submissions, themselves made primarily in writing, of no case to answer. The judge commenced his detailed summing-up on 12 August 2009. By that time the jury were reduced to 10 in number. As we have said, the jury convicted on 20 August 2009. 56. We turn to the Grounds of Appeal. We will take them not entirely in the order in which they were presented to us. First Ground: application to discharge the jury 57. We are not impressed by this ground. 58. Some six weeks after the trial had started the court was informed, through an usher, that one of the jurors – Mrs Jones – had attended a social function the previous weekend. She there had met Leah Gatt, who she learned was a cousin of Slade. Mrs Gatt, when she was told that Mrs Jones was doing jury service, made reference to the fact that “our Dennis is up”. Mrs Jones then removed herself from the conversation. 59. The judge caused Mrs Jones to be brought into court. She said that she did not know Slade, or the other co-accused, but she knew that Mr Birley (Leah Gatt’s father) had been arrested on a number of occasions by her own father-in-law, a police inspector. She had not previously realised that Slade was part of the Birley family. She also said that she knew that Mr Birley’s son (Leah Gatt’s brother) had been shot dead. She made clear that she was not comfortable with remaining on the jury. She was asked if she had said anything about this to other jury members. She said that three of them had asked why she was subdued and she said she couldn’t really speak about it: although one of them had been pressing and she had answered that somebody she knew was a cousin of one of the defendants. On further questioning she indicated that she had mentioned Mr Birley to three of the jurors and had said how his son had died and that he had been arrested by her father-in-law. 60. The judge then, after discussion with counsel, had all the other jurors brought into court individually (not as a group) and questioned each of them about what they had heard from Mrs Jones. One said that Mrs Jones had just mentioned that her friend was related to a defendant, presumably Slade. Another said Mrs Jones had mentioned a friend whose cousin was on trial. That juror had only overheard part of the conversation and confirmed that he had heard nothing to compromise his position as a juror. Other jurors said that they had heard nothing at all from Mrs Jones. One had heard her say that a friend of hers was related to Slade, but nothing else. Another again had overheard part of a conversation in which Mrs Jones had mentioned “something about a friend and possibly a cousin”. 61. The judge was then invited to discharge the entire jury, he having already agreed to discharge Mrs Jones. He declined to do so. He found that none of the remaining jurors knew anything to the disadvantage of the defendants. The judge said that he was entirely satisfied that the remaining jurors had “in no way been tainted, either directly or indirectly, by anything that they should not know”. 62. Mr Vaughan, who led the appellants’ arguments on this point, said that there was an appearance of bias, given the circumstances and applying the test set out in Khan & Hanif [2008] 2 Cr. App. R 13. He further submitted that the account that Mrs Jones had given to the judge was not reconcilable with the account given by the other jurors and that, on Mrs Jones’ account, at least three other jurors knew what she knew (in particular about the Birley family, its criminal involvement and its connection with Slade). 63. We reject this argument. The judge had questioned all the jurors in the light of what Mrs Jones had said. He was entirely satisfied, having regard to their answers, that they in fact knew nothing potentially adverse to the defendants. In our judgment, he was entitled to draw that conclusion on the evidence which he had heard. In consequence he was entitled in his discretion to decline to discharge the entire jury. This ground accordingly fails. Second ground: non-disclosure 64. In the course of directions given earlier in 2014, this court had, in order to achieve finality and clarity, directed the appellants to lodge final perfected grounds, superseding all previous versions of the grounds. This was done. However shortly before the appeal hearing Mr Vaughan indicated that he wished to raise a further ground on behalf of Baxter. 65. This was to the effect that, shortly before the conclusion of the trial on the first indictment, the prosecution had disclosed material in the second indictment proceedings. This related to mobile phone usage and cell-site analysis on the part of Baxter which the Crown was potentially going to use to demonstrate Baxter’s involvement in the robberies and conspiracies to rob. It was set out in a mobile phone and cell-site report served by the prosecution. It is now said that this might tend to show that Baxter was not the kind of person not to use his telephone at the relevant times if engaged in a conspiracy to murder; and also might tend to show that he was not the kind of man to create false alibis by giving his phone on occasion to others. 66. This is wholly speculative. Baxter had not at that stage even pleaded guilty to any count on the second indictment: his eventual pleas were, in fact, very late in the day. Moreover, as Mr Greaney pointed out, Baxter would have known what use he had made of his mobile phones: he did not need the prosecution to make his case for him. Further, whilst it is asserted that such non-disclosure deprived the defence of an opportunity to decide whether to rely upon the disclosed report at the first trial, it is entirely speculative as to just what reliance could meaningfully have been so placed. Yet further, how such material could meaningfully be deployed at the first trial was problematic on any view. 67. This proposed new ground is perhaps revealing of the acutely tactical and opportunistic way in which these appellants ran their cases. At all events, this proposed further ground is entirely lacking in the substance that would have been needed to justify this court even entertaining it at so late a stage. Since it seems to us to be devoid of merit, and since it is raised so unacceptably late in the day without any proper explanation, we reject it without more ado. We refuse leave to amend the grounds to add it. Third ground: submission of no case to answer 68. As we have said, a submission of no case to answer was made on behalf of all three appellants at the close of the prosecution case. It seems that the respective submissions were made primarily in writing (and this court has seen a number, although not all, of such written submissions as presented to the trial judge). The judge in due course rejected the submissions of no case to answer by full written ruling dated 10 August 2009. 69. We were addressed at some length on the applicable principles: but there was no real dispute before us about them and we thus need not enter into a detailed exegesis here. The bedrock authority remains Galbraith (1981) 73 Cr App R 124 . In the context in particular of a case mainly founded on circumstantial evidence, we were also referred to the decision of a constitution of this court in G & F [2012] EWCA Crim 1756 . In the course of giving the judgment of the court, Aikens LJ reviewed a number of relevant authorities. Having done so, he summarised the position at paragraph 36 of the judgment in this way: “36. We think that the legal position can be summarised as follows: (1) in all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the ‘classic’ or ‘traditional’ test set out by Lord Lane CJ in Galbraith . (2) Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence. (3) However, most importantly the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the jury.” This was accepted before us, for the purposes of this appeal, as a convenient summary of the correct legal approach. 70. That the Crown’s case was essentially a circumstantial one is plain. It had, as we have already said, a number of different, albeit linked, strands. The conversations recorded in the RS6 provided evidence to the jury of a conspiracy to kill. As to the question of whether the appellants were party to such a conspiracy there were, among other points, these factors. First there was the clear evidence of regular association between Slade, Pearman and Baxter. Second, there was the abundant evidence of association between them with both the RS6 (a stolen car frequently used with false number plates) and the Toyota Hiace (a vehicle converted into a surveillance vehicle and frequently used with false number plates); as well as their association with the premises where they were stored (as evidenced by the finding of the fob and keys and so on). Third, there was the evidence of their use of the Toyota Hiace, adapted for surveillance purposes, sometimes in conjunction with the RS6. Fourth, there was the evidence of the RS6 being regularly in the East End Park area during the period of the alleged conspiracy and also, on occasion, being involved in what could be concluded to be the tailing of Roberts’ Toyota Avensis. Fifth, there was the evidence of the Toyota Hiace, with three men in it, being in the East End Park area when the RS6 was not being used on 1 and 3 March 2008. Fifth, there was the evidence of the A4 in effect going to the East End Park area in what could be said to be virtual convoy with the RS6 on 4 March 2008 itself. Sixth, there was the indisputable evidence that the three were arrested in the A4 on that date when parked just 320 metres or so from and at the same time as the incident involving the men in the RS6 car damaging Mr Maluch’s car in the street outside Roberts’ house. Seventh, there was the evidence of the trackers, magnets and other potentially incriminating items found in the A4 car at the time, along with the mobile phones with the batteries removed. Eighth, there was the conduct of the four men in the RS6 burning the car and then departing in the circumstances witnessed by the boy. Ninth, Slade and Baxter gave no comment interviews. There were various other matters as well, which we need not rehearse here. 71. An important feature of the Crown’s case, of course, necessarily was the content of the conversations, recorded by the probe, of the men inside the RS6 on the various occasions in this period, as we have summarised above. This was of particular importance: because the Crown’s primary case was not, of course, simply that the three appellants were engaged in some unspecified form of criminal joint enterprise or conspiracy – the Crown’s case was that the three were engaged in a criminal conspiracy to murder: the postulated victim being Mr Roberts. In this regard, the recorded conversations, with their reference to a gun, to “clipping”, to the gun jamming, and to heavy duty cartridges and so on – all covered by evidence adduced by the prosecution – spoke for itself. It could properly be inferred that those conversations indicated a conspiracy to murder. Further, there was evidence from those conversations, which the jury could accept, that two of the men, as recorded, were acting on the instructions of another. Yet further, there was evidence from those conversations, which the jury could accept, of a reference to “Den” and to “Rich”. 72. The appellants at trial were, it is true, in a position to say that there was no direct observation of the appellants in the RS6 after the end of 2007 (and no doubt also were in a position to mount an argument that the RS6 was to be regarded as, as it were, a “pool car” for general use by the criminal fraternity). But even there the prosecution were able to point to the observation evidence showing Pearman at Primley Park View very close to the RS6 on the evening of 26 February 2008 in circumstances where, it could be inferred, he was checking on it. 73. Given all this, one can certainly see a case for saying that the appellants were parties to a conspiracy to murder whether or not they themselves variously were actually in the RS6 and actually party to the conversations recorded by the probe as summarised above. 74. But that was not the position advanced by the prosecution at trial. Its position throughout was that the two men in the RS6 recorded by the probe in this period were Pearman and Baxter: joined, on the two occasions, by Slade. That was a position founded essentially on inference. It is true that some support for such a case could be found in the evidence of Mrs McClelland, if accepted by the jury. But, as the prosecution throughout fairly and rightly accepted, such expert evidence could not, even taken at its highest, identify the men in the RS6 on those occasions as the appellants. Her evidence was, in effect limited to saying that the voices were (in her opinion) consistent with those of Slade, Pearman and Baxter and with varying degrees of distinctiveness. On her own evidence, the voices could also be consistent with voices of men other than the appellants. 75. The judge recorded in his written ruling that it was a “central plank” of the prosecution case that the recorded voices in the RS6 were those of the appellants and “crucial to proof of their case” against the appellants. He said of the prosecution: “They have nailed their flag to that particular mast. Nor do they seek to retreat from that position…” 76. When this court studied the written submissions of the Crown advanced at trial in response to the written submissions of no case to answer, it was not entirely obvious to us from those written submissions that the Crown indeed were “nailing their flag to that particular mast”: even if it certainly was a part of the case then being presented and had been the basis on which the case was opened. However Mr Greaney told us, with commendable candour and fairness, that that correctly described the position. He confirmed that it was indeed a “central plank” of the case then being advanced at the trial: and no alternative position was being advanced. The judge’s description of the position thus was accurate. 77. Accordingly, as it seems to us, as a matter of fairness the question of whether or not the submission of no case to answer was rightly rejected by the judge has to be assessed by reference to the case then being advanced: which case included the proposition that the three voices in the RS6 were those of the appellants. That it may not, in truth, have been crucial to establish a case against the appellants on that particular basis is thus, for present purposes, neither here nor there. If what was being presented to the jury by the prosecution as “crucial” to the proof of its case did not, on analysis, represent a conclusion properly open to the jury on the evidence, then as we see it the submission of no case to answer had to be decided accordingly. It thus follows that it is not for this court, in the circumstances of these particular appeals and in assessing whether or not these particular convictions were safe, to approach the matter on an alternative basis (viz that actual presence of the appellants in the RS6 on the disputed occasions was not, in truth, necessarily crucial to the prosecution case) which was not advanced to the trial judge by the prosecution and which was not in accordance with the way the case was in fact conducted at trial. Nor did Mr Greaney, for the purposes of the present argument, seek to contend otherwise before us. He maintained that – taking all the evidence as a whole – there was indeed evidence from which a reasonable jury could properly and safely infer that the men recorded on these occasions in the RS6 by the probe were Pearman and Baxter and also (on two of the occasions) Slade. 78. But we also add this. The judge’s task was to assess the submission of no case to answer by reference to the arguments addressed to him and to the evidence thus far deployed at the trial. There was, in our view, no obligation on the judge to review for himself all the evidence in order to see if there were yet other possible arguments or evidential points available to the appellants, even if they were not then actually advancing them in support of the submissions of no case to answer. We say this because, as we will come on to identify further, aspects of the submissions made to us – notably those of Mr Vullo – undoubtedly involved an analysis of the materials and a much wider ranging factual appraisal (and in some respects deployment of factual matters not raised at trial) which went well beyond the analysis and argument undertaken on behalf of the appellants before the trial judge on the submissions of no case to answer. We should, however, make clear that no ground of appeal is advanced before us based on inadequate representation by trial counsel: indeed any such suggestion was in terms disclaimed. 79. That said, therefore, we turn to assess whether the judge could properly conclude that there was a basis whereby a reasonable jury could properly accept what was then being put forward as a central plank of the prosecution case and could properly reject any other contrary conclusion. 80. It is a reasonable starting point to note that the evidence was on any view that others also had been associated with the RS6 at this time – for example, in various of its movements and parking activities. Moreover, self-evidently there were four others in the RS6 engaged in the events outside Roberts’ house on 4 March 2008 itself: because the appellants were themselves at that time parked nearby in the A4. No doubt it was for this reason that the conspiracy particularised on the indictment alleged a conspiracy between the appellants and “persons unknown”. 81. On this “central plank” of the prosecution case, the arguments advanced before the trial judge on behalf of the appellants – as reflected in the written submissions made in particular on behalf of Baxter, which we have seen – came to this. It was said that no jury could properly or safely infer that the two men (or, on two occasions, three men) in the RS6 as recorded variously on the probe were the appellants: on the contrary, the evidence rebutted such an inference or at least was consistent with a contrary inference. Further, it was said that without evidence to show that Baxter (and, by extension, the others) was one of those recorded by the probe, the count of conspiracy to murder, and related counts, must fail: as there was no other evidence, so it was asserted, to show that Baxter and the others had knowledge of the recorded agreement to kill. 82. The essential points open to be made were as follows: i) The analysis of the CCTV footage of 2 Sandmoor Drive and its timings, on the footing that it throughout was 22 minutes slower than real time, was such that on 22, 24 and 26 February 2008 Baxter could not have been in the RS6 at the relevant times. Further, that potentially impacted on the alleged presence of Slade in the RS6 on 24 and 26 February 2008. ii) Linked to this point was an analysis of the mobile phone/cell-site/tracker evidence: which indicated, so it was said, that on certain of the occasions when the appellants were, on the prosecution case, in the RS6 having the conversations they, or at all events Baxter, could not have been there. Thus it was further submitted that whereas in many respects no calls were made (for the most part) between the phones of the three men when the RS6 was being operated in the relevant period or when the Toyota Hiace was being operated on 1 and 3 March 2008 – there were no such calls, the Crown said, just because the appellants were together in the relevant vehicles – that could not be said (for example) for 24 and 26 February 2008: when relevant phones were, it was said, elsewhere from the RS6 at relevant times and calls made which were not consistent with them, or at least Baxter, being in the RS6 at the time. iii) Again linked to this point was the evidence showing text discussions between Baxter and “Div”, a girlfriend; in particular on 26 February and 1 March 2008. These were such that, it was said, he could not have been in the relevant vehicle at the relevant time since the phone was tracked by cell-site evidence to a location miles away. Further, the tone and content of the conversations was such that, it was submitted, it realistically could only be Baxter conversing with Div. It was thus fanciful to suggest, as it was submitted, that the phone had been given to someone else – the more so when there had been similar text conversations with Div on such phone on other occasions when no “alibi” was needed on any view. iv) An analysis of the computer at Baxter’s home showed that on 23 February 2008 the computer was used between 19.12 and 19.35 to access a web page entitled “cute blonde jaw dropper” and also used to watch police chases and car crashes on You Tube. But this was precisely at a time when, according to the prosecution, Baxter was with Pearman in the RS6 in the East End Park area. 83. There was a further point available to the defence on the CCTV timings. Even if the inference was not that the CCTV timings were consistently 22 minutes slow (as they argued), then they could alternatively say that the timings, if reflecting real time, still, on occasion, were inconsistent with Baxter being in the RS6 car as alleged. For example, on 22 February 2008 the CCTV camera records Baxter’s Mercedes ML dropping Slade off at 19.54. If this was the real time then the RS6 was in the East End Park area at that time, on the tracker evidence. Again, on 24 February the CCTV showed Baxter’s Mercedes ML picking up Slade at 2 Sandmoor Drive between 18.02 and 18.05: when the RS6 is shown on the tracker as being on the A64 in Leeds, a considerable distance away. A similar point arises for 26 February 2008. Thus overall an inconsistency with the prosecution case could be said to arise whether the CCTV was (consistently) 22 minutes slow or whether, before 4 March 2008, the CCTV was (consistently) showing real time. 84. Furthermore, if all these points were valid they would operate to show that no further support could be derived from Mrs McClelland’s voice recognition evidence. As we have said, it was accepted that if the voice recognition expert evidence was controverted by other evidence it would yield to that evidence; and further Mrs McClelland had herself stated the view that the voices were, in her view, the same throughout; and if she was wrong in one instance with regard to a particular male then she could not be taken as right in the other instances with regard to that male. 85. The judge rejected the arguments advanced to him, preferring the arguments of the prosecution: i) As to the point that about the CCTV timings in this period, he said: “… that argument rests on the premise that the CCTV time can be relied upon. It cannot. The only fact that is sure is that following seizure the CCTV time was 23 minutes slow. Therefore another triable issue is raised re timing on earlier dates.” ii) As to the point that the mobile phone/cell-site analysis showed, for example, relevant phones to be elsewhere at the time of some of the recorded RS6 conversations, taken with the related point concerning the “Div” texts from the phone attributed to Baxter, he described these points as “superficially attractive”. But he considered that an explanation could be found in the evidence that the cell-site analysis could only show the location of the phone in question: it could not show in whose hands the phone actually was at any given time. He coupled that with reference to the prosecution point that, as evidenced by the appellants’ searches on the computers concerning jamming, the removal of batteries from their phones on 4 March 2008 and so on, the appellants could be taken as cell-site “savvy”; thus consistent with the phones having been placed in other hands at the relevant times. There thus was raised a triable issue as to whether the defendants were in the RS6 at these times. iii) As to the access to Baxter’s computer on 23 February 2008, the judge considered – in the absence of any explanation from Baxter – that could be explicable by reason of “say, a teenager within the house”. He reviewed at length all the other points raised; and concluded that the submissions should be rejected. 86. The appellants submit that the judge was not justified in rejecting the submissions of no case to answer as he did; and submitted that the “central plank” of the prosecution case as showing the appellants being party to a conspiracy to murder was indeed not capable of being sufficiently proved. No inference, to the exclusion of other inferences, could properly be drawn as argued for by the prosecution. In particular, they criticise as wholly inadequate the prosecution statement to the judge that the CCTV times “may or may not” correspond with the time shown on 4 March; and the judge’s approach to the CCTV timing, they submitted, was tantamount to reversing the burden of proof. Overall, the case should have been withdrawn from the jury given the way the prosecution had sought to advance it at trial. 87. We have considered these various points with care. There is no doubt that they are powerful points and they merited close consideration by the judge himself. 88. In this regard, however, it is necessary to bear in mind that the judge was plainly wholly on top of the evidence as it had emerged during the prosecution case (which perhaps in part explains the relatively short-hand way in which the appellants’ written submissions were presented at trial). It is at all events evident from his full ruling, which ran to 34 paragraphs, that he had careful regard to all the submissions made to him. We also bear in mind that Galbraith itself makes clear that matters close to the line on a submission of no case to answer “can safely be left to the discretion of the judge”. 89. We have concluded, assessing matters as best we can on the basis of the arguments and materials we understand to have been put before the judge, that we should not interfere with his ruling. As the judge said, on the evidence adduced at trial the only sure fact with regard to the CCTV timing was that on 4 March 2008 it was some 22 minutes slow compared to real time. It did not follow, as an inference, that it must likewise have been 22 minutes slow on each day in the intervening period from 21 February 2008. Nor did it follow that it showed the real time on those days either. As the jury had heard and could conclude, the appellants were surveillance “savvy”: and one question the jury could properly ask themselves, in the absence of explanation, was as to how and why the CCTV timing at Slade’s house came to be out by 22 minutes on 4 March 2008. Further, there had been evidence at trial from the police (by DC Lyon) that, when examined in May 2008, the date on the CCTV was then weeks out and the time 13 minutes out; and the jury had no expert evidence of the kind sought to be deployed before us on this appeal by the appellants (as we mention below) to provide an explanation for that, with a view to showing consistency of the CCTV timings in the indictment period. 90. Similar considerations – in particular by reference to the appellants’ surveillance and mobile phone “savviness” – could be applied to the apparent “alibis” arising from relevant mobile phones being on occasion elsewhere from the RS6 at the time of some of the critical instances relied on by the prosecution. 91. When these points are set in the context of all the many other factors cumulatively lending powerful support to the Crown’s case that the appellants were party to a conspiracy to murder Roberts as set out by the judge, our view, on balance, is that the judge was entitled to rule as he did. 92. This ground, as formulated in this way, thus fails. 93. But we have also concluded that that cannot, given the circumstances of this particular case, be the end of the matter. What this court ultimately has to consider, after all, is whether these convictions are safe. And we are simply not able to put out of our consideration the impressively powerful presentation by Mr Vullo, based on the meticulously prepared schedules put before us collating the relevant CCTV sightings at 2 Sandmoor Drive with the mobile phone/cell-site evidence and the tracker observation evidence: which we will come on to summarise. 94. We have nevertheless deliberated as to whether it is right for us to entertain these points as advanced by Mr Vullo at all. To a significant extent the points now advanced to us do make, albeit with much more elaboration, points sought to be advanced to the trial judge on the submissions of no case to answer. But they also go very much further. For one thing, they focus on the CCTV timings (both on the basis that they were 22 minutes slow throughout and on the alternative basis that they show the real time throughout) with a view to positively demonstrating that the CCTV clock was indeed consistently 22 minutes out on each day in the alleged conspiracy period. This was done in much more detail than was advanced to the trial judge – where the defence stance had been confined in effect to arguing for an inference as to CCTV timings. Further, this exercise was also conducted before us in relation to days (not simply 22, 24 and 26 February 2008) other than those on which the judge had been addressed. This was with a view to, as Mr Vullo explained, showing a consistent pattern throughout this period as to the CCTV timings: a potentially very important point. A yet further development was deployment by Mr Vullo (and, in one instance, Mr Vaughan) of telling materials which, although based on evidence available at trial, do not appear to have been advanced in evidence or argument before the judge. 95. Does, then, the importance of the one-trial principle – that the defence should present the best case available to it at trial – preclude our having regard to these matters, be they styled fresh arguments or fresh evidence (albeit the evidence on which the arguments to us were based was not “fresh”: in the sense that it was evidence available at trial even if not deployed by the defence for these purposes)? We have come to the conclusion, however, that, as a matter of justice and in the circumstances of this particular case, we should not regard ourselves as so precluded and that we should have regard to these matters as advanced by Mr Vullo. 96. Quite simply, the detailed analysis presented to us, coupled with the deployment of the new evidential points not advanced at trial, has persuaded us that the CCTV timing has positively been demonstrated to be some 22 minutes out on each day in the period. The judge’s “Who knows?” position with regard to the CCTV times – taken at the stage of the submissions of no case to answer and then as put to the jury in the summing-up – has now been shown to have been wrong. When one links that – now demonstrated – fact with the other arguments that were and remain available (the “alibi” evidence of the phones, the “Div” texts, the accessing of the computer at Baxter’s house on 25 February 2008), and as further confirmed by other points advanced to us, in our view it is established that the central plank of the Crown’s case, as advanced at trial, was one that was not available. On all the evidence now before this court it could not and cannot be proved by the prosecution that Baxter, if not also the other, appellants variously were in the RS6 discussing the killing of Roberts as relied on at the trial. In such circumstances we have considered it right, in the interests of justice, to receive these matters as advanced to us. 97. If one then takes into account the fact that in due course the jury were, albeit understandably at the time, directed in the summing-up (consistently with the prosecution case as advanced at trial) that it was open to them to conclude the appellants had been the men recorded on the various occasions in the RS6 and to reject the defence “alibi” arguments, then the conclusion simply has to be that the convictions are not safe: for that central plank, as advanced by the Crown to the jury, has been removed. Indeed, that aspect of the Crown’s case may – adversely to the appellants – have potentially achieved still greater prominence in the minds of the jury by that stage, given the prosecution’s and judge’s understandable repeated emphasis on the fact that none of the appellants had given evidence, or (for the most part) answers in interview, to provide any explanations. 98. We turn to summarise the points advanced before us by Mr Vullo, by reference to his schedules, to explain our conclusion in a little more detail. 99. The main focus of the schedules and arguments before us was directed at the movements of Baxter. But this in turn potentially may impact on the position of Slade, outside whose house Baxter’s Mercedes ML is on occasion recorded as arriving or leaving, as the case may be. The position of Pearman, in turn again, may be rather different. But Mr Greaney pragmatically did not seek to argue before us that there could be one outcome on this appeal for one or more of the appellants but a different outcome for the other appellants. 100. We would pay tribute to the meticulous attention to detail which underpinned Mr Vullo’s compelling analysis (and the schedules prepared to support it) and to the skill and care with which he presented it. 101. The schedules deployed before us are essentially, as we gather, all founded on materials available for use at trial. They relate to each day from 22 February to 4 March 2008. They are compiled in the following way: i) Each schedule sets out, for the day in question, the details and times recorded on the CCTV at 2 Sandmoor Drive. ii) Each schedule by way of table then identifies, from the telephone records in evidence at trial, any calls made by one or other of the two relevant mobile phones attributed to Baxter at the time, as actually shown on the CCTV, of the attendance of Baxter in the Mercedes ML at 2 Sandmoor Drive. Where there is such a call, there is identified the time the call starts, the cell-site(s) used by that mobile phone to access the network, the end of the call and the duration of the call. iii) The cell-sites are plotted on a map, so that one can identify the location of the cell-site(s) being accessed. iv) Where a particular cell-site has been identified as the “best-server” site for 2 Sandmoor Drive that also is identified. v) Each schedule then sets out a second table constructed on the assumption that the CCTV footage timing was running 22 minutes slow on each date. On that assumed basis, times are accordingly attributed to events shown as recorded on the CCTV which are 22 minutes later than those shown on the first table in the schedule. vi) The table then shows, by reference to the cell-site and the mobile phone records, whether the phones attributed to Baxter were sending or receiving (at the time adjusted by 22 minutes) messages of the type contained in the table with the unadjusted times. vii) Further, on each schedule there is a map showing the plotted and timed positions of the RS6 on each such day, identified either by the tracking device or actual police observation. viii) Finally, there is a table showing the times of the conversations within the RS6 as recorded by the probe. 102. By this process, and by cross-referencing events recorded on the CCTV at 2 Sandmoor Drive at the unadjusted times with the cell-site/mobile phone material identifying contact by or to the phones attributed to Baxter, there is scarcely any reconciliation on any of the days between the CCTV images showing Baxter’s Mercedes ML outside (or near to) 2 Sandmoor Drive and the cell-sites accessed by the phones attributable to him. 103. By way of contrast, if one then undertakes the same exercise adjusting the CCTV timings by 22 minutes then the telephone usage relating to Baxter’s phones on each day closely ties in with the events recorded in the CCTV footage. Those phones are, at such adjusted times, then accessing cell-sites which are either best server cell-sites for 2 Sandmoor Drive or very close to it. Further, and importantly, the pattern is repeated on each day throughout the period (including 4 March 2008, when the Crown itself accepted the CCTV clock timings were 22 minutes out). This had particular importance, as Mr Vullo observed, because it went beyond the point relating to the phones allegedly providing an “alibi” on 24 and 26 February 2008. 104. In such circumstances, the appellants contend that there is clear evidence compelling a conclusion that the CCTV timings were indeed 22 minutes out on each day during the entire period of the alleged conspiracy. The CCTV timings therefore were neither operating at the times they showed as real time nor were they operating on a persistently erratic basis. 105. A further schedule provided by Mr Vullo seeks to confirm the point by different means. Two regular events in the daily routine at 2 Sandmoor Drive, as caught on the CCTV, are taken. These are the morning school run and the arrival of the cleaner on weekdays. Throughout, there is broad consistency in these timings: this is accordingly both indicative of there being no deliberate change in the timings of the CCTV recordings and also indicative of the timing mechanism operating consistently in this period. 106. Yet further, a series of stills taken from the CCTV on 22 and 27 February and 1 March 2008 were provided to us. These appear to show Slade (or, once, Baxter) using a mobile phone at or outside 2 Sandmoor Drive. The timings of these events, as shown on the CCTV footage, do not match up with use of any mobile phones attributed to Slade or Baxter. But when adjusted by 22 minutes they do. 107. We thus have concluded that these schedules demonstrated, to our way of thinking, that the internal clock on the CCTV was indeed running consistently some 22 minutes slow on each day throughout the period of the alleged conspiracy. 108. The resulting position can be assessed by taking as examples the days 22, 24 and 26 February, as detailed on the schedules. On the footing that the CCTV clock was indeed 22 minutes slow, then on 22 February 2008 the position becomes as follows: i) At 20.14 the RS6 is tracked at a location near the Redhall Approach, at a time at which the probe is recording a conversation in the RS6 to which, on the prosecution case, Baxter was a party. ii) However, at 20.15.24 (on the adjusted CCTV timing) Baxter’s Mercedes ML is shown on the CCTV arriving outside 2 Sandmoor Drive; and at 20.18.52 a mobile phone attributed to Baxter started a phone call lasting 1 minute 39 seconds, accessing the best serving cell-site for 2 Sandmoor Drive. iii) Redhall Approach, as was agreed, is some 6.8 kms distant from 2 Sandmoor Drive. iv) The Crown’s case, we repeat (and as Mr Greaney confirmed), was that it was Baxter, and no one else, who always drove the Mercedes ML. 109. On 24 February 2008 the position becomes as follows: i) Between 18.25 and 18.33 the RS6 is tracked at or near the A64 (York Road) at a time when Baxter is on the Crown case a participant in a conversation in the car as recorded by the probe. ii) Between 18.24 and 18.29 as shown on the CCTV (with the adjusted time) Baxter’s Mercedes ML arrives at and then leaves 2 Sandmoor Drive. iii) The mobile phone/cell-site records show two phone calls being made from a mobile phone attributed to Baxter at 18.29.59 and 18.30.22 on each occasion accessing the best serving cell-site for 2 Sandmoor Drive. iv) The A64 (York Road) is in the East End Park area on the other side of Leeds from Sandmoor Drive. 110. On 26 February 2008 the position becomes as follows: i) Between 18.45 and 18.56 the RS6 is tracked in the vicinity of the A64 (York Road) at a time when the probe is recording a conversation in the RS6 in which on the Crown case Baxter and Slade are participating. ii) At 18.49, however, as shown on the CCTV (with the adjusted time) Baxter’s Mercedes ML is outside 2 Sandmoor Drive, leaving at 18.52. iii) At 18.49.16 a phone attributed to Baxter (lasting 1 minute 37 seconds) is made, accessing the best serving cell-site for 2 Sandmoor Drive. 111. We repeat that there is no difference in pattern between the various days in the entirety of this period (including 4 March 2008). Yet further, this material was, as Mr Vullo submitted, to be put in the context both of the “alibi” phone occasions and also of the texts from Baxter’s relevant mobile phone to that of Div. On this last point he relied – as had been done on behalf of Baxter at trial – in particular on the entries relating to 26 February 2008, which showed a series of exchanges between 18.04 and 19.38 (when the RS6 was in use, but when the relevant phone was in a location elsewhere than at the location of the RS6, being at or near 2 Sandmoor Drive) as well as such Div texts on other dates. In this regard he was also entitled to re-iterate the point which had been made at trial: that the highly personal nature of such texts is not readily consistent with anyone other than Baxter being the user. 112. Moreover, Mr Vullo’s argument derived support from yet another point. There were available at trial records of Automated Number Plate Recognition sightings. Mr Vaughan, on behalf of Baxter, submitted that, from those, it was demonstrated that on 24 February 2008 at 20.41.30, at a time when the RS6 was tracked to the East End Park area, Baxter’s Mercedes ML was in fact identified at a location in Leeds over five miles away. This too is evidence of a kind which was available at trial but was not used (perhaps because it was overlooked). But it lends further support to Mr Vullo’s points, if further support is needed. 113. Overall, Mr Greaney had the greatest difficulty in formulating submissions to controvert these points made by Mr Vullo and as adopted by all counsel for the appellants. In our view, as will be gathered, they were not controverted. Ground 4: criticism of the judge’s summing-up 114. We think it appropriate to deal, nevertheless, with the other grounds advanced. 115. The summing-up of the judge was lengthy and detailed. It was clearly structured; it dealt fully with the evidence and outlined the issues. It was a very long way indeed from being a summing-up of the kind involving reading out verbatim the notes from the judge’s notebook or anything like that. 116. All trial counsel for the appellants nevertheless made objection on the record, at the conclusion of the summing-up, as to its fairness and balance. That objection is maintained before us. 117. We were taken in considerable detail through a number of the passages in the summing-up. It was complained that in many places it read like a speech for the prosecution. It was said that the judge persistently in the course of the summing-up adopted a technique not only of emphasising and commending prosecution points but also, when dealing with defence points designed to rebut prosecution points, then himself making comments designed to depreciate those defence points; and further did so when summarising the defence case at the end of the summing-up. Moreover he did so, it is said, in trenchant and dismissive terms. It is further complained that the judge dealt with the points strongly relied on by the defence – the CCTV timings, the “alibi” phone calls and so on – in a cursory and dismissive way. 118. It was further observed that, towards the end of the summing-up, the judge twice said that he was not seeking to undermine the defence case: a coded acknowledgement, it was suggested, of an appreciation that that is precisely how it may otherwise have been viewed. 119. A particular illustration, it was said, of the unfair comments made (among others) can be taken from a passage of the summing-up relating to the fact that there had been no actual observations made by the police of any of the three appellants being in the RS6 during the days of the alleged conspiracy between 21 February and 4 March 2008. The judge as to that commented: “Obviously it is an omission in the investigations and observations that the police were doing and no doubt somebody will be wishing that a camera had been set up long before it was to monitor comings and goings…” It is complained that that conveys the inference that, had only such observations been made, further incriminating evidence would have emerged. Numerous other passages were also relied on to similar purport. 120. Given our overall conclusion, we can take these submissions shortly. The judge was here dealing with a highly tactical defence case, where all the indications are that leading counsel for the appellants at trial had perhaps taken to the limit what might properly be advanced in closing speeches in the absence of any answers in interviews, any defence case statements or any evidence at trial from the appellants themselves; and when the prosecution had by then, of course, made its own closing speech and had no further right of response. The judge had to deal with that situation arising. We can accept that some passages of the summing-up might in places have been better framed or balanced or have been put in somewhat different language. But overall we are not persuaded that this summing-up was unfair or unbalanced to such an extent as to render the convictions unsafe. 121. This ground fails accordingly. Grounds 5 and 6: fresh evidence 122. Our ultimate conclusion also means that it is strictly unnecessary to deal with the applications formally to adduce fresh evidence. But we think it appropriate to do so. This is not only out of deference to the detail of the evidence (in the first instance, received by us de bene esse) and to the careful arguments presented to us on it; it is also because our views may perhaps in some respects be of relevance for wider purposes. 123. The proposed fresh evidence was in each instance expert evidence. The evidence was, as we have indicated, directed at two distinct areas: first, relating to the timings of the internal clock relating to the CCTV system at Slade’s residence at 2 Sandmoor Drive; second, relating to voice recognition. 124. The statutory criteria for admitting fresh evidence are, of course, those set out in s.23 of the Criminal Appeal Act 1968 . Ultimately the court has to consider whether or not it is necessary or expedient in the interests of justice for such evidence to be received. The court is required for this purpose to have regard in particular to the matters set out in s.23(2) (a), (b), (c) and (d). 125. For the purpose of exercising its statutory jurisdiction, the court has to balance two competing principles. The first – to which we have previously alluded – is that it is incumbent on a defendant to present his whole case at trial (the one trial principle). It is, in general terms, contrary to the proper administration of justice for a defendant to advance on appeal a case different from or other than the case he is able to present at trial. The second, however, is that it is generally abhorrent to the proper administration of justice that a defendant may have been wrongfully convicted. The court has to weigh these matters and all other relevant matters (including those specified in s.23(2) (a) to (d)) in deciding whether or not to receive the proposed fresh evidence. At all events, the impression sometimes is given by appellants – and, on occasion, perhaps was sometimes given in the arguments advanced before us on behalf of the appellants in this case – that if only the fresh evidence may afford a ground for allowing an appeal then that of itself justifies its reception into evidence. But demonstrably the consideration has to be wider than that: the ultimate question being whether it is necessary or expedient in the interest of justice to receive the evidence. 126. In the context of the proposed reception of fresh expert evidence we were referred to a number of authorities. These included the helpful summary given by Aikens LJ in Chattoo [2012] EWCA Crim 190 at paragraph 70 of the judgment; see also Workman [2014] EWCA Crim 575 at paragraphs 59 to 63 of the judgment. The observations of the court in those cases, as was not disputed before us, provide a convenient summary of the required approach. 127. Mr Owen sought to place particular emphasis on the decision of the Privy Council in the case of Lundy [2013] UKPC 28 . That was a New Zealand case, whereby the underlying principles were broadly comparable to (even if not identical to) those set out in s.23 of the 1968 Act . It was a striking case, in that expert evidence was, in the circumstances of that case, permitted to be received in evidence by the Privy Council even though its availability had for the most part been known to counsel at trial. Mr Owen referred in particular to the observations of Lord Kerr at paragraph 120 of his judgment and to his observation in paragraph 128 that “where the new evidence presents a direct and plausible challenge to one of the central elements of the prosecution case, this factor [the one trial principle] ceases to be of such importance”. Ultimately, however, as we see it, just where the balance lies in assessing what is necessary or expedient in the interests of justice has to be decided by reference to the particular circumstances of each case; and in this regard (as emphasised in Chattoo at paragraph 70), the appellate court must, among other things, be careful not to allow the trial process unjustifiably to be subverted. Ground 5: the application to adduce fresh CCTV evidence 128. The appellants sought to advance as fresh evidence an expert report dated 28 July 2014 from Mr Sudeep Joseph Abraham, a computer crime consultant working with Systems Technology Consultants Ltd (Sytech). Mr Abraham’s expertise was not in dispute. He was demonstrably a credible and reliable witness. 129. Mr Abraham had in 2014 been asked to perform tests on the CCTV system which had been seized from 2 Sandmoor Drive on 4 March 2008. It will be recalled that the evidence given at trial was that, and the entire trial was conducted on the basis that, as at that date (4 March 2008) the CCTV time clock was some 22 minutes slow compared to real time. The tests Mr Abraham was asked to perform were undertaken with a view to showing that the clock had been similarly slow – that is, 22 minutes slow – in the days and weeks before 4 March 2008. If that was so, then that, as will be gathered, undermined the prosecution case of Baxter’s and/or Slade’s presence in the RS6 (as recorded) and corroborated the “alibi” arguments advanced by the defence. Thus this expert evidence was designed in this respect to show what Mr Vullo had set out to show by reference to his schedules. 130. Mr Abraham received the CCTV system from the West Yorkshire Police on 23 June 2014. The system was then checked to see that it was working properly, when powered by mains electricity; and was synchronised. Thereafter it was run for the period between 16 July and 28 July 2014. It was then assessed for time differentiation: and was found to have lost two seconds in that 12 day period. Mr Abraham’s calculation was, on that basis, that it would take about a year for the CCTV clock to lose one minute. 131. He further reported on the pronounced time variations identified when the CCTV system was examined by the police in May 2008 as compared to 4 March 2008 – to the effect that on 28 May 2008 the date on the CCTV system when then examined was some seven weeks out and the time 13 minutes out, as was explained in evidence given at trial by DC Lyon. Mr Abraham said that was to be explained by the CCTV system having been entirely switched off in the interim and the battery’s power in consequence having become degraded. He did, however, agree in cross-examination before us that something must have happened to cause the clock to be 22 minutes late on 4 March 2008 – for example, as one possibility, interference by the user. 132. The appellants therefore say that Mr Abraham’s evidence is very important evidence. If, as was the unchallenged evidence, the CCTV clock was indeed “out” by some 22 minutes on 4 March 2008 then the evidence of Mr Abraham goes positively to confirm the defence case at trial: that it would indeed likewise have been “out” by some 22 minutes in the preceding weeks and days. And, if that were so, then such timings – by reference in particular to the CCTV showing Baxter in his Mercedes ML variously picking up or dropping off Slade at 2 Sandmoor Drive – demonstrated the defence point that Baxter and/or Slade simply could not have been in the RS6 on various of the occasions relied on by the prosecution at trial. That, of course, was precisely the point Mr Vullo was seeking to make. 133. It is, as we have said, the case that at trial the defence had understandably been seeking to make much of the argument that the CCTV time was, as accepted, some 22 minutes out on 4 March 2008 and therefore (so they argued) similarly out, as a matter of inference, in the preceding two weeks. Equally, it is clear that the Crown had not accepted that latter point. It is, however, now known that the trial defence team on behalf of Slade in fact had, at the time of the trial, already commissioned a report from Sytech. That was provided by Mr Darren Greener and was dated 4 June 2009. Mr Greener, who still works for Sytech, also gave evidence before us which there is no reason to doubt. 134. Mr Greener in his trial report had, among other things, considered the date and time accuracy of the CCTV system retrieved from 2 Sandmoor Drive. He said they were only as accurate as the setting applied. He was critical of the police storage and handling of the system after seizure. He also noted that at the time of his initial report the footage from the CCTV system for the relevant period had not been reviewed by Sytech. He suggested further review. This, however, was something he and his team only undertook, as we were told, after trial. The consequence of that subsequent review was that two breaks in continuity were noted for 1 February 2008 – something Mr Greener attributed to the “overwriting” of the footage, since the recording runs continuously and after a period of time new material overwrites and obliterates earlier material on, as it were, a first in, first out basis. No other breaks in continuity, however, were noted by him or his team in the period 1 February 2008 to 4 March 2008. 135. Mr Greener had been asked to attend at trial. He told us that there was a conference at court with the defence legal team (which included discussion of the 22 minute point); and in the event he was not required to give evidence. 136. In such circumstances, we are not prepared formally to admit the evidence of Mr Abraham. The defence were alive at trial to the potential importance of the 22 minute point and the CCTV footage; and Slade had commissioned a report from Mr Greener at the time for that purpose. Mr Greener had not been instructed at the time to make the further investigations to which he had alluded nor had he been asked to give evidence at trial. The evidence thus was, or reasonably could have been, available. It was submitted to us that the defence could properly have taken it – and it was said that Slade’s trial counsel did take it – that the Crown was not disputing that the CCTV time was around 22 minutes out throughout the relevant period. But the Crown clearly had not accepted that as a fact. Further, one can envisage that the defence tactically might prefer to make their points – as they did – by reference to inferences which they asserted might be drawn rather than, for example, exposing Mr Greener to the possibility of cross-examination – for example as to how the CCTV time came to be out by 22 minutes on 4 March 2008, with a potential suggestion that Slade (as enduser), and against the background evidence that the appellants were surveillance “savvy”, could have re-programmed the clock each day accordingly. 137. In our view, therefore, it is not necessary or expedient in the interests of justice that Mr Abraham’s evidence be received. This was evidence of a kind available to the defence at trial which it elected not to explore further or to deploy. In any event, the point sought to be made is now covered by Mr Vullo’s analysis. Indeed Mr Owen himself accepted in his written argument that the new Sytech evidence “merely confirms” the point now being made as to the CCTV timing. 138. We accordingly formally refuse the application to receive this evidence of Mr Abraham. Ground 6: the application to adduce fresh voice recognition evidence 139. This ground raises issues altogether more complex than the application to adduce the Sytech evidence. 140. It was, as will be gathered, the prosecution case that the men recorded speaking in the car on the various occasions were the appellants. In support of that allegation, which was strongly disputed by the appellants, the prosecution, as we have said, adduced expert evidence of Mrs McClelland as to voice identification. 141. Expert evidence of this nature commonly involves a comparison of a questioned sample of recorded speech (the recording of a person alleged to be involved in crime) with a reference sample comprising a recording of what is known to be the voice of the suspect. From that comparison the expert witness forms an opinion as to how far the two recordings are consistent with having originated from the same speaker. The usual methods of comparison are auditory analysis and acoustic analysis. The former usually involves the expert witness repeatedly listening to the recording through highpowered headphones, and making a judgment. The latter involves the application of computer software to make a computerised analysis which may include spectograms of specific sounds and formant measurements (that is, computerised measurements of resonance or areas of high energy in the recorded speech). 142. Mrs McClelland’s methodology used only auditory analysis. She was sceptical about acoustic analysis generally, one of her reasons being that she did not believe there to be a sufficient database to enable the expert to know what could be expected of the population as a whole, and therefore there was nothing with which reliably to compare the findings in a particular case. She also took the view that formant measurements cannot reliably be used, and could be misleading when the recording concerned had not been made in clear conditions free of interference. She acknowledged that in this respect she is in a minority amongst practitioners in the field: the majority use a combination of auditory and acoustic analysis. 143. In Robb (1991) 93 Cr App R 161 this court held that expert evidence of voice identification, based on auditory analysis alone, is admissible. In 2002 the Court of Appeal in Northern Ireland took the view that time had moved on since the decision in Robb , and concluded that in that jurisdiction no prosecution should be brought in which one of the planks was voice identification based on auditory analysis alone: see O’Doherty [2003] 1 Cr App R 5 . In England and Wales, however, there has been no similar development in the law; and in Flynn and St John [2008] 2 Cr App R 20 a constitution of this court declined to follow the decision in O’Doherty : see, in particular, paragraph 62 of the judgment of the court given by Gage LJ. 144. Mrs McClelland had been provided with copies of some of the recordings made in the RS6, in which the male voices were designated M1, M2 etc. These recordings carried engine, traffic and other noises as well as the voices of the speakers. She had also been provided with reference samples of the speech of each of the appellants. Some of these came from police interviews, but reference samples of the voices of Baxter and Slade also included a recording (exhibit “Holdall 12”) which was admitted to be of them speaking in a different vehicle, the Peugeot car. The reference samples of Pearman included a recording (“Holdall 42”) of him speaking in a third vehicle, the BMW car. The recordings in the Peugeot and BMW had been made covertly, and they too carried engine and traffic noise. 145. In relation to the voices of the men speaking in the RS6, Mrs McClelland was asked to consider whether each of the voices designated as M1, M2 and M3 was the same voice in each of the recordings in which it was thought to be heard. She was also asked to consider whether the reference samples of the appellants were phonetically and linguistically consistent with the questioned voices. 146. Mrs McClelland explained to the jury that forensic voice analysis first entailed forming an opinion as to whether the questioned and reference samples were consistent with the speech having originated from the same person. If so, it then entailed going on to express how closely matched the samples were, using a five-point scale of distinctiveness ranging from “not distinctive” to “exceptionally distinctive”. The distinctiveness scale enabled the expert to consider detailed phonetic and acoustic features over and above the broad consistency which had first been noted. This involved considering – by intensive listening over many hours – the fine detail of articulation of vowel and consonant sounds, rhythm, pitch, intonation and voice quality (“timbre”), and marking on the scale how many of those features, and to what extent, were judged to be distinctively similar across the reference and questioned samples. 147. As we have said, it was never the prosecution case that voice identification evidence alone could prove that a particular appellant was a particular speaker in the RS6. The evidence was put forward only as one aspect of the prosecution case. Mrs McClelland also made clear, at an early stage of her evidence-in-chief, that forensic voice analysis could not operate as a freestanding identification of an individual. She said – “It’s important to recognise that forensic voice analysis isn’t equivalent in any sense to identification evidence from, for instance, DNA or fingerprinting. The conclusions we can reach in terms of voice identification should only be used in conjunction with other evidence as part of a picture. You can’t identify an individual solely using an opinion from a forensic voice analyst.” 148. Mrs McClelland’s evidence was that the designation of M1, M2 and M3 was consistent across all the questioned samples recorded in the RS6. In some of the recordings the level of background noise was such that she could not form any view about the degree of distinctiveness. Other sections of the recordings were clearer and enabled her to express an opinion on the distinctiveness scale. Her findings, in summary, were as follows. i) She found the voice of Pearman to be consistent with the voice of M1, and in some passages of recording she assessed it as moderately distinctive or distinctive. She also, it may be observed, identified Pearman’s voice, with low level consistency, from a brief passage recorded in the RS6 on 4 March; but the prosecution accepted that Pearman was not in the car that day. ii) She found the voice of Baxter to be consistent with the voice of M2, and in some passages of recording she assessed it as moderately distinctive. iii) She found the voice of Slade to be consistent with the voice of M3. In relation to one passage she assessed it as moderately distinctive. In relation to another passage she initially said there was a low level of distinctiveness. She then, in cross-examination, withdrew her attribution of that passage, on the basis that the similarities were at such a low level that no identification was possible. However in re-examination she said that when she made that concession she had not been well and was not thinking clearly, and she repeated that there was low level consistency between the known and questioned voice of Slade. 149. On behalf of Pearman, Professor French gave evidence at trial. He has worked in this field for some 25 years and has given expert evidence in many cases. He is an Honorary Professor in the Department of Language and Linguistic Science in the University of York and President of the International Association for Forensic Phonetics and Acoustics. His work in this case had been peer-reviewed by his colleague Dr Foulkes, who also gave evidence at the trial. 150. Professor French had used a combination of auditory and acoustic analysis. He regarded Mrs McClelland’s approach, of using auditory analysis alone, as no longer acceptable practice. He disagreed with Mrs McClelland’s evidence relating to Pearman. When he first prepared a report in this case, he found consistency between Pearman’s voice and the voice of M1. However, he subsequently analysed the Holdall 42 recording from the BMW, and concluded – on the basis of voice quality and phonetic differences, which he explained to the jury - that there was no consistency and that it was very unlikely that Pearman was the speaker in the RS6. He did not feel able to eliminate him completely; he said there was a remote possibility that M1 was Pearman. 151. Neither of the other appellants called any expert evidence on this topic, as we have explained: although the jury were made aware that Mr Duckworth had been instructed on behalf of Slade, and Dr Holmes on behalf of Baxter. The jury were also aware that Mr Duckworth agreed with Mrs McClelland’s attribution of M3 to Mr Slade in a recording on 26 th February as “moderately distinctive”. Dr Holmes accepted that Baxter’s voice was consistent, but no more than consistent, with M2. 152. The judge in his summing-up gave an appropriate direction to the jury about their approach to this evidence, explaining to them that although they had heard the recordings for themselves, the expert witnesses had the advantage, which the jury could not have, of repeated listening to the recordings on specialised audio equipment. 153. After the trial, Professor French, and his colleague Mr Harrison, were instructed to conduct further voice comparisons using Automatic Speaker Recognition (“ASR”) technology in the form of a system known as Batvox. Initially they did their work solely in relation to the appellant Pearman. But they were later instructed also to consider the recorded voices said to be those of the other appellants. In their first report on 1 st June 2012, dealing with Pearman alone, they concluded that the results of the Batvox tests were 37 or 38 times more likely if M1 was not Pearman than if he was. A new version of the Batvox system then became available. This was used in carrying out tests in relation to all three appellants, in the course of which the Holdall 12 recordings from the Peugeot car were used as an additional reference sample. The overall result of their work in relation to Pearman and Slade was summarised as follows in their report of 17 th July 2014: “In our view, the voice evidence in respect of these two appellants provides exceptionally strong support for the defence claim. We consider that Richard Pearman and Dennis Slade can be eliminated with an extremely high degree of confidence. This is effectively a categorical statement of elimination.” 154. As to Baxter, Professor French and Mr Harrison concluded that he could be eliminated with “a fairly high degree of confidence”. 155. All three appellants have sought to adduce this evidence as fresh evidence. This court heard, de bene esse, evidence from Professor French and Mr Harrison, as well as evidence from Mr Allen Hirson who was called by the respondent. In their submissions as to the considerations which are relevant for the purposes of this section 23 application, the parties focused on two issues. Was Professor French able at trial to give evidence based on ASR technology? And was it necessary or expedient for this court to receive the evidence? 156. In their report of 1 st June 2012, Professor French and Mr Harrison explained that ASR systems work on the principle that individual voices may be distinguished from one another by virtue of the vocal tracts from which they emanate having different anatomical dimensions and proportions. These differences give rise to acoustic differences: namely, differences in the structure of the resonance frequencies found across the speech of individuals. ASR systems take the recorded voices of individuals, perform complex mathematical operations on them and reduce them to statistical models. A statistical model is made of the known sample and the questioned sample, and the two are compared to produce a measure of the similarity or difference between them. In order to determine whether the measure is indicative of their having come from the same or different speakers, the extracted features are also compared with a set of statistical models from a reference population of other speakers held within the system. The characteristics of the reference population, including gender, language and recording conditions, should ideally be the same as those of the suspect’s recording. 157. The measure of the difference or similarity between the compared recordings is expressed by the ASR system as a likelihood ratio: that is, an expression of the ratio of how likely it is to have found the voice evidence if the samples were to have come from the same speaker against the likelihood of having found that evidence if they had come from a different person. A likelihood ratio of more than 1 means that the evidence would be more likely to occur if the speaker were the same; a likelihood ratio of less than 1 means that the evidence would be more likely to occur if they had come from different speakers. 158. Professor French said in evidence that he first acquired Batvox in March/April 2009, and trialled it in July/August of that year. He therefore had access to the Batvox system at the time of the trial of these appellants. However, he took the view that at that stage it had not had sufficient testing with samples of English voices for him to use it in his forensic work. He said that his subsequent testing included tests which showed the Batvox system to be sensitive to regional accents, but without large differences, and further testing in circumstances in which the quality of the sample recording was less clear. The results of those tests, and testing of the system by others, led him to regard it as a system which could be used in casework by the end of 2010/start of 2011. He has not, however, used the system in any of his forensic work other than this case. 159. In their evidence to this court, Professor French and Mr Harrison explained that the Batvox software which they had used had a database or reference population of 100 male speakers of standard southern British English, aged 18-25, who had been recorded in the form of simulated police interviews. From that population the software automatically chose a smaller subset on the basis of their statistical models matching most closely that of the suspect. That subset could be as low as 20; but they had set the system so that a subset of 35 was used. It was not altogether clear from their evidence which 35 sample voices the system chose for comparison with each of the appellants nor why a figure of 35 was selected. Insofar as the subsets may have differed from one another, at all events, the court has no information as to what those differences were. 160. At trial, it was common ground between Mrs McClelland and Professor French that voice quality/timbre is an important marker of a voice. Professor French told this court that he and his colleague had initially considered that ideally the reference sample should comprise speakers who came (like the appellants) from West Yorkshire; but ultimately they decided that was not necessary because “the system considered the reference population appropriate for the tasks”. Mr Harrison explained that the software’s reference population of 100 is not to be thought of in the same way as the database used for DNA analysis. He said that the purpose of the reference sample is to assess how usual or unusual a feature of speech is, and so to show whether the score is what one would expect as between the questioned and the reference samples. He said that there is no regional variation in vocal tracts, and therefore it was not particularly important to know where the persons in the reference sample came from. He also said that their work had been peer-reviewed; and there had been no criticism of the size of the reference population. 161. Professor French and his colleague had reported that when 27 different voices were compared with the known voices in the BMW and Peugeot recordings, the system showed a likelihood ratio of less than one in 63% of cases but (incorrectly) identified the speaker with a likelihood ratio of more than one in the other 37%. The report said of this – “In summary, the system obtains the correct result for all same speaker comparisons and for the majority of different speaker comparisons. When it does make an error it is biased towards making false identifications rather than false rejections. In other words the bias would be towards acceptance of the prosecution rather than the defence claims”. 162. In their second report Professor French and Mr Harrison had said that they “agree with the view expressed in a research paper by Becker et al (2012) that owing to the possibility of errors made by ASR systems in specific cases, it is necessary to accompany an ASR analysis with auditory and acoustic-phonetic analysis … We would not use an ASR system as a stand-alone method for comparing speakers in a forensic case. In our view, it should be used in conjunction with a human-based auditory and acousticphonetic analysis, which is what we have done in this case.” 163. In the light of their testing of the system and their use of it in this case, Professor French and Mr Harrison gave evidence supporting the use of Batvox (and by extension, of ASR systems generally), in conjunction with other methods of analysis, as a reliable means of excluding a suspect’s voice from any similarity with a questioned recording. They did not put it forward as capable of making a reliable positive identification of a suspect as the speaker whose voice could be heard in a questioned recording. 164. The suggested advantages of ASR are that it is largely independent of the analyst who operates it, so that two persons processing the same recordings through the system should get the same result; that it produces a numerical estimation of likelihood; and that it compares the voice of the suspect not only with the questioned recording but also with the reference population of the system. Neither Professor French nor Mr Harrison was aware of any research or any academic articles which had concluded that ASR systems were not reliable for court purposes; and it is said that such systems are used in court proceedings in many other countries. 165. Professor French was asked why he would only use the Batvox system in conjunction with other forms of analysis, and not as a freestanding method. He said that Batvox reflects, mathematically, the resonance characteristics of the vocal tracts. That is the only aspect of the voice which is measured. It is possible that two men may have similar vocal tracts, but differ for example in accent or pitch; therefore use of ASR alone “could give a false hit”. He accordingly felt it better to use Batvox in conjunction with testing of other characteristics which Batvox was not designed to test. He accepted in cross-examination that whereas in relation to his conventional testing he could explain to a jury what distinctive features he had found, in relation to Batvox he could only explain that the system identified differences in the geometry of vocal tracts: but he would not be able to say precisely what those differences were. 166. He also said that some of the different ASR systems are “more conservative” than others; but he did not know which nor where Batvox was positioned on that spectrum. It was put to him that this would seem to raise the possibility of different systems producing different results. He accepted that; but he said that he did not expect that one would have one system producing a likelihood ratio below 1 and a different system producing a likelihood ratio above 1 in respect of the same sample. However, he conceded that in one of his tests, which compared the voice of Mr Harrison with the voice of Pearman, the result had been a likelihood ratio of 0.8, and he further conceded that he could not say whether a different system might have given, for example, a likelihood ratio of 1.1. 167. Professor French was asked why, in view of the claimed advantages of ASR, he had not used the system in any of his forensic casework apart from this case. He said that in this case, he had reference recordings of the known voices of the appellants speaking in a car: without those, he would have felt it necessary to do wider testing on generic voices in cars before using ASR as part of his analysis. 168. In his evidence for the respondent, Mr Hirson made clear that although he has many years experience as a senior lecturer in phonetics at the City University, London, he has very little, or no, experience of actually using an ASR system. His objections are based on principle, not (as he openly accepted) on technical knowledge of the machine. His objections therefore relate to all ASR systems. The nub of his objection is that it is asserted that Batvox relates to the geometry of the vocal cord; but he regards that as speculation. If it does so relate, then the properties of the vocal cords do not correspond directly to the sounds of speech. He regards the presentation in mathematical form as spurious science, a misleading portrayal of quantitative data. He was not satisfied there has been a sufficient testing of the Batvox system; because a proper evaluation would in his view require a comparison of hundreds of speech samples under conditions similar to those in this case. Although he was much criticised by the appellants’ counsel on the grounds of lack of objectivity and of lack of expertise in relation to ASR systems, he was, in our view, entitled on the basis of his expertise in the field generally to set out those objections of principle for the court’s consideration. 169. On behalf of the appellants, counsel submitted that the court should receive the evidence of Professor French and Mr Harrison as fresh evidence pursuant to section 23 of the 1968 Act , in accordance with the principles conveniently summarised in Chattoo (cited above). Counsel submitted that the Batvox system should be admissible in evidence as an aid to existing methods of voice identification, even if not as a freestanding diagnostic method. They emphasised that the Crown – though well aware of the issues – had not sought to adduce any evidence to contradict the evidence of Professor French and Mr Harrison as to the reliability of the operation of the system. They submitted that, consistently with Professor French’s evidence, it may be that the system cannot be used as a positive identification of a speaker, because it cannot express probability by reference to a large database; but it is, they submitted, capable of categoric exclusion. They argued that the evidence shows that, for that purpose, the system picks an appropriate sample; and no evidence had been adduced to the contrary. 170. For the Crown, it was submitted by Mr Greaney that the Batvox system was available to Professor French at the time of the trial, that accordingly this is not fresh evidence and that the court should uphold the important one trial principle. Further, it was the appellants who sought to have this evidence admitted and it was therefore for them to establish its admissibility, whether or not specific rival evidence was called. Mr Greaney in addition put forward a number of reasons why the court should not regard the Batvox system as reliable, and should hold the evidence of the results of using that system to be inadmissible. He argued, in particular, that the Batvox results are expressed in the form of likelihood ratios, with no clear basis for asserting that such is appropriate; and he invited the court to conclude there are far too many variables and uncertainties in the data relied on by Professor French and Mr Harrison for them to be permitted to express an opinion based on the use of mathematical formulae. 171. In support of the last point, Mr Greaney also relied on the decision of a constitution of this court in T [2011] 1 Cr App R 9 , in which the issue was raised as to whether it permissible to use mathematical formulae and likelihood ratios based on statistics to arrive at an evaluative opinion in footwear mark cases. 172. The court referred in that case to the permissible use, in DNA cases, of match probabilities “not directed to whether DNA came from the suspect but to the probability of obtaining a match that came from an unknown person who is unrelated to the suspect but has the same profile”. The court continued at paragraph 78: “However, no case was drawn to our attention which suggests that a mathematical formula is appropriate where it has no proper statistical basis. ... If there are reliable statistics and data, it would then be necessary to consider how likelihood ratios should be used and how their use should be explained to a jury.” 173. The court then considered the reliability of the statistics and data in relation to footwear. It concluded that there were far too many uncertainties and variables in the data to enable an expert to express an opinion based on a mathematical formula, saying at paragraph 86: “There are no sufficiently reliable data on which an assessment based on data can properly be made for the reasons we have given. An attempt to assess the degrees of probability where footwear could have made a mark based on figures relating to distribution is inherently unreliable and gives rise to a verisimilitude of mathematical probability based on data where it is not possible to build that data in a way that enables this to be done; none in truth exists for the reasons we have explained. We are satisfied that in the area of footwear evidence, no attempt can realistically be made in the generality of cases to use a formula to calculate the probabilities. The practice has no sound basis . ” 174. That conclusion made it unnecessary for the court to consider, how, in the context of footwear impressions, the use of likelihood ratios should be explained to a jury. The court nonetheless referred briefly to Adams [1996] 2 Cr App R 467 , Doheny [1997] 1 Cr App R 369 and Adams (no 2) [1998] 1 Cr App R 377 . A review of those cases led to the conclusion at paragraph 90 that: “It is quite clear therefore that outside the field of DNA (and possibly other areas where there is a firm statistical base), this court has made it clear that Bayes theorem and likelihood ratios should not be used.” 175. We turn to our conclusions about this aspect of the appeal. 176. We would not think it right to refuse to receive the evidence of Professor French and Mr Harrison solely on the ground that it was available at the time of trial. We accept the submissions of the appellants’ counsel to the effect that it would be unfair to hold it against Professor French that he had taken time to test and research the system before deciding that he could properly use it in his forensic work. 177. For other compelling reasons, however, we do not think it necessary or expedient in the interests of justice to admit the evidence of Professor French and Mr Harrison. Even accepting that their evidence is fresh evidence for the purposes of section 23 of the 1968 Act , we find a number of areas of concern which lead us to conclude that the appellants have failed in this case to justify the use of a likelihood ratio, generated by ASR software, as a means of determining voice identification or exclusion. In view of our overall decision on other grounds of appeal, however, it is neither necessary nor appropriate for us to make any definitive ruling in this case as to whether such evidence can ever be admissible, or as to what the position might be in the future in the light of any further scientific advance. We must however summarise the features of the evidence in this case which have caused us concern. 178. First, we are far from persuaded that the very small reference population selected by the software provides a sufficient basis for a reliable conclusion. T emphasised the importance of a proper statistical basis if the use of a likelihood ratio is to be justified. We accept the submission of the Crown that it has not been sufficiently convincingly demonstrated in this appeal that a group of 20 or 30 speakers adequately covers all the possible features of the geometry of human vocal cords. The outcome of the testing, in which a likelihood ratio of more than 1 was incorrectly found in over a third of the tests, does not inspire confidence. Professor French gave evidence that he was not troubled by those results, because he was focusing on the use of the system to exclude, rather than include, a suspect. We do not share that response. Whichever way the error goes, it is an indication of fallibility which has not been satisfactorily explained. In the context of evidence which is said to enable the categorical exclusion of a suspect, on the basis of a comparison with the voices of 20 or 30 speakers whose ages and accents may differ substantially from those of the suspect, such fallibility is troubling. The fact that ASR systems are, as we were told, used for forensic purposes in other jurisdictions does not resolve those concerns; because we heard no evidence as the purpose for which the technology is used in those jurisdictions, or as to whether its use there is subject to any qualifications or limitations. Further, such jurisdictions might have quite different rules of evidence compared to those pertaining in England and Wales. 179. Secondly, in a number of respects it seems to us that the evidence ultimately amounts to little more than a bare assertion that the software is so designed as to ensure the right results: with no explanation of how the court can be confident that is so. For example, the selection by the software of the subset of voices from the reference population has not been explained; and no clear reason has been shown why the court should simply accept the assertion that the system has made the best choices. It does not seem to us to be a sufficient answer to this concern to say that it is only proposed that ASR should be used in conjunction with other forms of analysis. In this case, indeed, it is apparent that Professor French was caused to adjust his opinion by the results of the Batvox testing, which – in his words – took him beyond his original conclusion that the voice of M1 was very unlikely to be that of Mr Pearman. It is also apparent that the Batvox results, amounting effectively to categorical exclusion or elimination with a fairly high degree of confidence, were inconsistent with the evidence of Mrs McClelland and with the views (so far as made known to this court) of Dr Holmes and Mr Duckworth. The court therefore has to consider that it is being asked to admit what in actuality is advanced as decisive evidence, not simply supportive evidence. 180. Thirdly, we are concerned that counsel for the appellants were unable to give any satisfactory answer to the question of how evidence of this nature should or could appropriately be presented to a jury. It seems that even a witness as distinguished as Professor French would in reality be telling a jury that the system had produced a certain result, with no real explanation of what features had contributed to that result and therefore no real scope for cross-examination. How are the jury to evaluate such evidence? What, for example, are a jury to make of the proposition that the results of the Batvox tests are 38 times more likely if the suspect was not the man whose voice can be heard in the questioned recording than if he was? Are they to regard “38 times more likely” as significantly high or insignificantly low? The absence of any satisfactory answer to such questions reflects the fact that the system simply produces a result, expressed in a mathematical formula (with the attendant danger of a potentially misleading appearance of certainty), but without any explanation of which features of similarity or dissimilarity have contributed to that result. 181. Fourthly, it seems clear from the evidence before this court that different ASR systems may produce different results from testing of the same samples, if only because one system is “more conservative” than another. The submissions on behalf of the appellants were unable to satisfy us as to how a jury should approach such a conflict. 182. Lastly, making every allowance for a proper wish to test the system and for the fact that the outcome of this appeal was awaited, it was not clear why Professor French and Mr Harrison had not thus far used the Batvox system in any other trial or in other casework, if only for their own purposes and by way of a cross-check on their other analyses. Professor French’s answers on this, when raised with him, were, with respect, hesitant. Nor was it clear to us why the fortuitous availability of the recordings in the Peugeot car was regarded as a reason to use the system in this case even though it was not being used in other cases. These troubling features of the evidence suggested a certain lack of confidence in the system, and in particular in the adequacy of the system’s own reference population. This is only reinforced by the insistence that evidence based on such a system should only be used in conjunction with other auditory recognition/acoustic evidence. 183. For those reasons we decline to admit this evidence, which in our view left many important questions unanswered. Conclusion 184. Although we have rejected many of the points advanced by the appellants we have, for the reasons given above, overall come to the conclusion that these convictions are unsafe. They are therefore quashed. 185. We have borne in mind that the jury were given a separate treatment direction at trial: they were not required to give like verdicts on all counts. It might be said that, on one view, the handling count relating to the RS6 at all events potentially stood on a different footing from the other counts (indeed Pearman and Baxter at trial did not make any submission of no case to answer on that count). But we note that the period specified in the indictment for that count was the same period as that specified for the count of conspiracy to murder. Accordingly we do not think it right to reach any different conclusion on that count. Nor did Mr Greaney invite us to. 186. We also have borne in mind that most of the new points and arguments addressed to us by reference to the schedules which we have been prepared to receive and accept related primarily to Baxter (albeit also to some extent, by extension, to Slade). At all events, not all of them, by any means, were directed to Pearman’s position. But understandably in the circumstances, Mr Greaney, as we have already indicated, did not seek to argue for a different outcome on these appeals as between the three appellants. 187. We will receive the submissions of counsel on any consequential applications or other matters arising from this judgment when it has been handed down. Such submissions will need to extend to dealing with the outstanding appeals against sentence (which also include the appeal of Hudson).

```yaml citation: '[2015] EWCA Crim 71' date: '2015-02-10' judges: - HHJ HOFFMAN - LORD JUSTICE DAVIS - MR JUSTICE WILKIE - MR JUSTICE HOLROYDE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2019] EWCA Crim 1283 Case No: 201802833/02834 & 201803076 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT HHJ HILLIARD QC T20177351 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/07/2019 Before : LADY JUSTICE HALLETT DBE MRS JUSTICE MCGOWAN DBE and SIR JOHN ROYCE - - - - - - - - - - - - - - - - - - - - - Between : Ouissem MEDOUNI Nafissa KOUIDER Appellants - and - Regina Respondent (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 Richard Horwell QC (instructed by CPS Appeals ) for the Appellant Mr Orlando Pownall QC (instructed by Vardags) for the Respondent Hearing date : 23/05/2019 Judgment As Approved by the Court Crown copyright © MRS JUSTICE MCGOWAN : The Issue 1. This appeal against conviction concerns the directions given by the trial judge in answer to a question asked by the jury during their deliberations. The Background 2. On 24 th May 2018 at the Central Criminal Court, following a trial before HHJ Hilliard QC, the Recorder of London, and a jury, both appellants were convicted of the murder of Sophie Lionnet. On 26 th June 2018 each was sentenced to life imprisonment and ordered to serve a minimum term of 30 years. Both appellants had earlier pleaded guilty to an offence of doing an act tending or intended to pervert the course of public justice. Each was sentenced to a term of five years and six months on that offence, which was ordered to run concurrently. Ouissem Medouni appeals against his conviction for murder by leave of the single judge. Medouni and Sabrina Kouider both appeal against the minimum term element of the sentence for murder. The Appeal Against Conviction 3. There is no criticism of the directions provided to the jury nor of the summing up. The sole point is whether the answer provided to the jury question was unbalanced and heavily weighted in favour of the prosecution. It is submitted that the judge should also have reminded the jury of the appellant’s evidence. Further it is argued that the judge should have informed the jury that the question was not one of interpretation. The Evidence 4. Ouissem Medouni, (“OM”) , known as Sam, and Sabrina Kouider, (“SK”) , are French nationals. They met in June 2001. They began a relationship, which was often turbulent. They moved to London and lived together, occasionally returning to France. SK had two sons, K and G . The evidence at the trial was that K’s father was a French national called Anthony Francois and that G’s father was believed to be a man called Mark Walton. 5. G was born in 2013 and when he was five months old SK rented a flat in Wimbledon Park Road, London. Both boys attended local schools. OM was living at the address with SK and the children, although he was away for periods of time. SK wanted a nanny to help look after the children and after a trial period of two weeks in April 2015, SK employed Sophie Lionnet as a full-time nanny from January 2016. 6. Sophie Lionnet was a quiet and shy young woman. She had completed a vocational training course in childcare. She had been introduced to SK through a friend of SK’s brother. She left France a few days after her 20 th birthday to take up the employment. The flat was a small two bedroomed garden flat and Sophie Lionnet slept in the same bedroom as the two boys. She appears to have been paid only rarely. She was clearly very badly treated throughout her employment. She was not permitted to eat with the family and by the time of her death she was manifestly emaciated. It was clear that she had suffered significant abuse although the details have never been revealed by either appellant. It seems her passport was held by one or other or both of the appellants. It has never been found. That may, in part, explain why she stayed. 7. During 2017 SK began to make public allegations against Mark Walton which he has always denied. She had previously complained to Social Services that he had sexually abused her sons and behaved violently towards her. She claimed that he was a paedophile and she used a false Facebook account to post defamatory comments to that effect. In due course she was arrested and accepted a caution for an offence of sending malicious communications. That did not stop her campaign. In August 2017 SK contacted the police and made a complaint that Sophie Lionnet had taken G to meet Mark Walton in May 2017. She alleged that Mark Walton had told G that he was his real father and that he would shoot G’s family with a gun. The police did not act upon this complaint; they did not believe that it had any foundation in truth or reality. Mark Walton’s evidence was that he had never met Sophie Lionnet. These untrue allegations against Sophie Lionnet appear to have been used to provide some justification for the way in which she was treated. 8. After Sophie Lionnet’s death police were to discover a number of notes and draft letters which she had written. It was clear from those notes and letters that she wished to leave but was unable to do so. It was further clear that she was desperate and helpless and incapable of seeking help. During her time in Wimbledon, Sophie Lionnet stayed in touch with her parents, and at first, she described herself as happy and well paid. During the last six months of her life however she said she was bored, that the children were difficult to manage and that she wished to return home. She did not or could not tell her parents the truth about the terrible way she was treated. She was completely overborne by the abuse. The prosecution’s case was that Sophie Lionnet was effectively imprisoned in the flat by August 2017. Finally, Sophie Lionnet contacted her mother and asked for money to enable her to return home to France. She never made that journey. 9. It was around this time that “interrogations” of Sophie Lionnet were commenced by the appellants. In the six weeks from August 8 th 2017 until her death 18 audio files or recordings were made on a mobile telephone belonging to the appellants of these “interrogations”. They were designed to record Sophie Lionnet making a confession. It seems clear that their aim was to create evidence to implicate Mark Walton. The purported confessions were extracted from Sophie Lionnet by violent assaults and by the threat of imprisonment, rape and further violence. The Crown’s case at trial was that these interviews were an exercise in control and fear. The recordings of the “interrogations” were played to the jury. It was the prosecution’s case that whilst SK was the driving force behind this abuse OM played a significant and contributory role. 10. The last evidence of Sophie Lionnet being seen alive was an audio recording completed shortly before midnight on Monday 18 th September 2017. K was told the next day that Sophie had left the flat but in fact she had been murdered. Her body had been concealed, probably in a suitcase and kept somewhere in the flat. The appellants planned to tell anyone who asked that Sophie had left and had returned to France. They decided that they would burn the body. 11. Her body was burned in the back garden on Wednesday the 20 th September 2017. The fire was set near to the French doors at the rear of the property because that was out of sight of the neighbours. However, the smoke was apparent and in due course a neighbour made enquiries at the property. She received no reply and telephoned 999 to report the fact that a fire been burning in the garden for about 3 ½ hours over the course of the afternoon. The fire brigade arrived at the property at about 6:20 PM. The fire was extinguished and as the firefighters examined the fire to ensure that it was out the remains of Sophie Lionnet began to appear. 12. 0M returned to the flat and was asked what had been burned and he replied, “it is a sheep”. The police were called, OM was arrested and taken to Wandsworth Police Station. At first the police thought the body which had been burned was that of a child, it was so small. When that was put to OM by the custody sergeant he replied simply, “it’s not a child”. OM was interviewed and said nothing to all questions put to him. 13. A post-mortem forensic examination of the remains was carried out. The precise cause of death has never been determined. Evidence of violent assaults was found on examination. Professor Mangham was able to distinguish between those fractures caused by the heat of the fire after death and those fractures caused in life. He identified that Sophie Lionnet had sustained two different sets of fractures while still alive. He found that her sternum and five left ribs had been fractured between 36 hours and three days prior to her death. He found a fracture to the right mandible which had been caused within hours prior to death, possibly immediately before death but certainly while she was still alive. He was also able to find evidence of bruising to the left arm back and chest, also caused in life. 14. On January 5 th 2018 OM provided his first defence statement. He said that Sophie had died accidentally whilst he was trying to extract information from her about Mark Walton. He said Sophie was made to sit in a bath full of water as part of an interrogation. Her head was forced under the water and held there while she was questioned. He said that was repeated on a number of occasions as he continued to press for information using the same methods. He lost his temper and punched her to the face. As a result of this punch her head struck the tiles and she slipped under the water and lost consciousness. He said he then tried to revive her. He said he had not intended to kill her or cause her serious injury. In the alternative he claimed he had lost control. 15. On 12 th March 2018 OM contacted the prosecution through his solicitors offering a plea of guilty to manslaughter. That plea was not accepted. On 15 th March 2018 he signed a second defence statement. In that he said the first statement was not true, that he had accepted blame only to protect SK. He said that he had gone to bed on the evening of 18 th September and was awoken by SK. Sophie was lying in the bath but not breathing, he tried to revive her without success. 16. Both appellants pleaded guilty to the offence of perverting the course of justice by virtue of the roles they played in the attempt to dispose of the body by fire. 17. In evidence each accused blamed the other. OM acknowledged that he was present during the “interrogations”. He accepted playing a role in the “interrogations” with SK but denied using violence himself. He accepted that he had been present when SK assaulted Sophie Lionnet. He accepted that in the days before her death, probably around September 13 th , Sophie Lionnet had suffered injuries to her legs and that SK had assaulted her with a cable or flex. He accepted he knew she was so badly injured that she could not stand or walk properly. He accepted that he knew she needed medical assistance but had not called a doctor or taken her for medical treatment. He also accepted having been present when Sophie Lionnet was in the bath, having her head held under the water in an effort to extract a confession. He agreed he had not sought medical assistance on that occasion either. He said he knew SK had been violent to Sophie Lionnet and might be violent again. He accepted that he could and should have bought Sophie Lionnet a ticket to return to France. 18. OM denied being involved in any of the assaults or the acts of torture leading up to the death. He said he was a “moderating influence” in the interrogations, as could be seen and heard on the recordings. He denied any ill-treatment of Sophie Lionnet, “apart from the interrogations”. He said he had not known what had happened during the night until SK had woken him the next day repeatedly saying, “what have I done?” He then saw Sophie’s body lifeless in the bath. He said he had not been aware of any assaults carried out by SK on Sophie Lionnet that night. When he saw her apparent lifeless body in the bath, he commenced CPR and said he had not called 999 because he didn’t want to stop doing CPR. He said that his actions after the death: being involved in the burning of the body and lying to the police were designed to protect SK in an effort to keep the family together. 19. In simple terms the issue for the jury in his case was to determine the extent of his participation in the events leading up to the death, whether by direct involvement or acting in support of SK. 20. In retirement the jury asked to be reminded of a number of pieces of evidence. On the 23 rd May 2018 the jury sent the note which is the subject matter of this appeal. The learned judge observed at page 192E of the transcript of the summing up that the question would require thought and a carefully drafted answer. The Recorder read his proposed direction to the jury to counsel, page 194 of the transcript. It is accepted that counsel had an opportunity to consider the note and to make representations on the answer. The Jury Question and Directions Given 21. During their deliberations the jury sent this note containing the following question, “Re Sam (Medouni) and intent, does Sam’s lack of intervention (calling doctors, sending back to France, seeing that Sophie’s physical state had deteriorated) and knowing that Sabrina could cause serious bodily harm be interpreted as intent?”. 22. The note was discussed with counsel and the judge answered the question in the following terms, “The first thing to say is that you are concerned with what a defendant’s intention was at the time when a fatal act or acts of violence were done to Sophie (Lionnet) which caused or contributed significantly to her death, if you are sure that that is proved to have happened, so defendant’s intention at the time when a fatal act of that kind was done. That is the critical moment. That is the first thing to say. The next thing to say is if you go to paragraph 6 of the typed directions that I gave you, just the first bit there, how do you decide what someone’s intention was? The answer is by considering all the circumstances surrounding the deliberate act before, during and after and then drawing such conclusions or inferences as you think proper. So, you would consider any thing Mr Medouni did himself at the time of a fatal act or anything that was done by Sabrina (Kouider) that he was party to as part of a common criminal purpose as I have defined that to you. You would be entitled to look at the history, both what was going on immediately before and further back, of how Sophie had been treated previously and anything that Mr Medouni did or did not do in response and you would be entitled to look at how Mr Medouni behaved after any fatal act of violence, so that is what is meant by before, during and after in paragraph six of the written directions. You take account of all that material and also what Mr Medouni has said about all the events at different times and then, having considered all that material, you draw such inferences or conclusions about his intention as you think right, so what happened in the past is not itself an intention at the critical time, but it is one part of the evidence that you were entitled to look at, along with all the rest of the evidence in order to decide whether the prosecution have proved the necessary intention at the critical time, okay?” 23. Paragraph six of the directions is as follows, “How do you decide what someone’s intention was? The answer is by considering all the circumstances surrounding the deliberate act, before, during and after, and then drawing such conclusions or inferences as you think proper. An intention does not have to be formed long in advance. It can be formed at very short notice or on the spur of the moment. Sometimes an intention can be regretted very soon afterwards.” The Appellant’s Submissions 24. Mr Pownall QC submits that that the direction given was not adequate. It was unfairly weighted in favour of the prosecution; it did not provide a necessary reminder of the appellant’s evidence and that the jury should not have been left believing that it was a matter of interpretation. 25. He accepts that the submissions made by counsel at the time of the note suggests approval of the proposed direction, or at least, acquiescence. He was not present in court but was consulted by telephone. He did not agree the proposed response but did not pursue the matter. He submits that the real question for this court should be not the attitude of trial counsel but the adequacy of the direction irrespective of agreement or acquiescence at the time. 26. The primary criticism of the direction is that the judge failed to tell the jury that the question was not one of interpretation. They were being asked to determine if the appellant was present at the time of the fatal act, did he encourage the act and what was his intention. 27. Further that he did not remind the jury of the appellant’s explanation for his failure to seek medical assistance or send Sophie Lionnet home. 28. Further that although the evidence showed that the appellant was aware that SK had assaulted Sophie Lionnet before he was not aware that she was capable of inflicting really serious injury Discussion 29. In this case it is accepted that the judge had provided the jury with clear written directions and a route to verdicts. He had summed the evidence up over considerable time with care and in detail. The note asks whether the appellant’s failure to intervene in combination with his knowledge of the co-accused’s ability to cause serious harm could be “interpreted” as amounting to intention. 30. The judge quite properly told the jury to go back to look at paragraph six of his written directions of law, about which no complaint has or could be made. He directed them that they should look at the appellant’s intention at the time the fatal act was done. He directed them that in order to decide what someone’s intention was, they should look at all the surrounding circumstances and then reach conclusions or draw inferences. He reminded them to look at the history of how Sophie Lionnet had been treated and what OM had done or not done in response. He reminded them to take account of all the material and in particular, what OM has said about all the events at different times. 31. The judge did not remind the jury of all the relevant evidence on this point. The jury did not ask for such a reminder, they had heard all the evidence summed up to them in some detail. If, nonetheless, they had been reminded of the appellant’s explanations for his failure to call for assistance or send Sophie Lionnet home, namely that he did not believe her injuries were so serious as to require medical treatment and that he did not send her home because he wanted to continue the interrogations until she told them everything that had happened, he would have had to remind them of the countervailing arguments. We do not see that such a reminder would have operated to the appellant’s advantage. 32. We are totally unpersuaded that the way in which the jury note was answered was in anyway inadequate. It received a careful and thoughtful answer, properly and adequately reminding the jury of the test they should apply. 33. It is not for this court to go behind the words of such a jury question. All a note can establish is, that at the time they ask the question the jury, or some of them, do not know the answer. Nor, is it for this court to conclude that a majority verdict of guilty means that a prosecution case was not “over-whelming”. 34. The deceased spent many very unhappy months in the appellants’ flat, until she died a violent death, probably, over the night of September 18 th . The appellant admitted participating in the “interrogations” carried out on many occasions before her death. He admitted being aware that SK had assaulted the deceased with a flex to the extent that she had difficulty in standing or walking. He was present in a small flat with a young woman who sustained a number of fractures in the days before her death and who was noticeably emaciated at the time of her death. He participated in an attempt to dispose of her body by concealing it in a suitcase and then setting fire to it in the back garden of the family home. This was a strong and compelling case. There is no basis upon which the conviction in this case could be said to be unsafe. The Appeals Against Sentence 35. Both appellants argue that the learned judge was wrong to take a starting point of 30 years in setting the minimum term for the offence of murder. They do not argue that the term of 5 ½ years to be served concurrently on count 2 was excessive or wrong in principle. 36. Paragraphs 5(1) and 5(2) of Schedule 21 of the Criminal Justice Act 2003 provide as follows, “5(1) If – (a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and … the appropriate starting point, in determining the minimum term, is 30 years. … (e) a murder involving sexual or sadistic conduct…” 37. Paragraph 10 provides a non-exhaustive list of potentially aggravating features which includes, mental or physical suffering inflicted on the victim before death and the destruction of the body. 38. On behalf of SK Mr Peart QC submitted that Paragraph 5 of Schedule 21 is aimed to reflect the increased culpability of an accused and should not therefore apply in the case of an accused such as SK who was suffering from a “major mental illness… most likely one of delusional disorder”. He submitted that her irrational but genuine belief that her children were being targeted as potential victims of sexual abuse should reduce the assessment of her culpability. He argues that whilst all the aggravating features identified by the judge might well be present, to some extent, all must be viewed through the lens of her mental illness. Further he submits that there was no, or only scant, evidence of an intention to kill. 39. On behalf of OM Mr Pownall QC submits that the judge selected the wrong starting point, the appropriate point was 15 years from which he accepts there would be an uplift to reflect the aggravating features of the case. He argues that greater account should have been taken of the absence of clear evidence of an intention to kill, that there was no premeditation, that OM had been beguiled by SK, that OM believed SK’s account of the sexual abuse of her children and he was acting in their interests, that there was no evidence of any financial motive behind the extortion of the confessions, that this was not a case involving sadism as there was no evidence of OM gaining pleasure from the torture, that he would serve his sentence in the UK and that if the roles had been reversed a distinction based on gender would have resulted in a female defendant receiving a different minimum term from the male protagonist. 40. The judge identified a number of features of the killing which in his view aggravated the sentence, i) The victim was confined for about 10 days before her death. Her passport and her telephone had been taken from her ii) Cruel and relentless interrogations were conducted over that period with the added degradation of their being filmed and recorded iii) About a week before her death there was a serious assault using a flex by one appellant with the knowledge of the other who did nothing to protect her or seek medical assistance iv) In the few days before her death she suffered five broken ribs and a fractured sternum, the consequences would have been obvious v) By the time of her death she was in a dreadful physical and mental state. As a result, she was vulnerable vi) She was tortured on the night before her death by a form of waterboarding. This was carried out in a small flat in which two children were sleeping. 41. In addition, her body was concealed in a suitcase before being set alight in the back garden. In the view of the judge, Count 2, the attempt to dispose of the body was a dreadful desecration and might well have justified an increase above the 30-year starting point. Medouni’s Sentence 42. The judge found that whatever the extent of the influence SK exerted over OM he was an intelligent and well-educated man, who knew that Sophie Lionnet was being assaulted, knew that she needed medical attention and did nothing. He was aware of the bizarre conduct exhibited by SK and not only did nothing to stop it but lied to the authorities to disguise her behaviour. Further, and of vital importance, he played an active role in the interrogation sessions. He could not be said to be under compulsion or coercion, even if he was not the main protagonist. 43. In mitigation the judge considered the absence of previous convictions but reflected that that was not a factor of any great weight in the circumstances of this case. He recognised that SK had started the course of conduct but notwithstanding OM’s lack of mental health problems he had gone along with her and eventually was equally involved. 44. The dreadful circumstances of the death were such that whether it had occurred out of an act of frustration as a culmination of the continuing violence or a decision to kill could make little or no difference on the facts of this case. Koudier’s sentence 45. In SK’s case, he found that there was no reliable evidence of any sexual abuse of her children. Whilst her mental illness was genuine, he found that she was driven by a desire to exact revenge upon the father of her younger child. She had been described as intelligent, calculating and manipulative and in the judge’s view capable of deliberate dishonesty. He found that the intentional and sustained violence and cruelty was based on a desire for revenge which means that the delusions have much less significance than might otherwise be the case in determining culpability. There was psychiatric evidence that the mental disorder from which she suffered did not explain violence or cruelty as a response to those delusional beliefs. 46. The judge treated her as having no previous convictions. As in the case of OM, the absence of premeditation or an established intention to kill could provide little reduction in sentence given the history of violent assaults and the nature of the acts of continuing torture by waterboarding. Discussion 47. The judge heard all the evidence in the case, he saw the appellants give evidence and, in particular, he heard the recordings of the interrogation sessions. The judge was assisted by reports on both appellants. He was entitled, if not driven to the conclusion that this case involved features which placed it in the category of offence attracting a 30-year starting point. This was the systematic ill-treatment of a young woman leading to her death in appalling circumstances. 48. He gave a thoughtful and careful analysis of all the relevant factors in the case. We are not persuaded that the sentences imposed were either wrong in principle or manifestly excessive 49. For the reasons given the appeals are dismissed.

```yaml citation: '[2019] EWCA Crim 1283' date: '2019-07-25' judges: - LADY JUSTICE HALLETT DBE - MRS JUSTICE MCGOWAN DBE - SIR JOHN ROYCE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2016] EWCA Crim 604 Case No: 201502194/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 15th March 2016 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE SPENCER MRS JUSTICE ELISABETH LAING DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v SC - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr R Ward appeared on behalf of the Appellant Miss C Farrelly appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (As Approved by the Court) 1. LORD JUSTICE DAVIS : The appellant is now aged 18. 2. In this appeal, brought by leave of the single judge, the appellant seeks to challenge the rejection by the trial judge of a submission of no case to answer made at the close of the prosecution case. The appellant also seeks to challenge the judge's decision to permit the prosecution to adduce certain bad character evidence. It is said that on either or both of these grounds the conviction is rendered unsafe. 3. The background is founded on gang violence. At the relevant times the appellant was aged 15. There was an amount of evidence to show that he, at those times, was a member of a gang based in Finchley and calling itself "Finchley 197". That gang was rival in particular to another gang called the Deansbrook gang. It was the robbery and stabbing of a member of the Deansbrook gang which gave rise to the indictment in this case. 4. That indictment contained a number of counts relating to a number of co-accused, all said to be part of the Finchley 197 gang. In particular, so far as this particular appellant was concerned he, with others of the co-accused, was facing a count, which was count 1 on the indictment, of conspiracy to cause grievous bodily harm. In addition, he was facing a second count, count 2 on the indictment, of a count of conspiracy to rob. A further count on the indictment, count 8, related to him alone. That was a count of handling stolen goods and in respect of which he had changed his plea to guilty at an earlier stage in the proceedings. 5. In the result, at the end of a first trial in the Crown at Wood Green, the appellant was unanimously convicted by the jury of conspiracy to rob: that is to say, count 2. The jury were unable to agree with regard to count 1. He was retried on that matter. At the second trial he was acquitted at the judge's direction, following a successful submission of no case to answer. In due course he was sentenced on counts 2 and 3 to a term of 4 years' detention in a young offender institution; and although that sentence was originally challenged there is no renewed application in that regard and indeed the appellant has now been released from that sentence and has been present in court today. 6. There were, as we have said, various co-accused. One, a man called C, changed his plea to guilty in respect of both count 1 and of count 2; and in due course he was sentenced to a substantial term of detention in a young offender institution. Another, a man called I, was convicted of conspiracy to rob, that is to say count 2, as well as doing an act tending or intended to pervert the course of justice. Following a retrial the jury apparently were unable to agree in his case, as had been the case at the first trial and he was acquitted on the judge's direction. Various other co-accused named on the indictment were acquitted. 7. Another co-accused, a young man called R, was convicted at the end of the first trial on count 2, that is to say the count of conspiracy to rob. He along with I had been acquitted of other counts including counts of attempted murder. A further co-accused, N, pleaded guilty to count 2, that is to say the count of conspiracy to rob and received a substantial custodial sentence. 8. There was another named accomplice on the indictment, a young man called L, but he had died before trial as a result of an entirely separate stabbing incident. 9. Put very shortly for present purposes the facts are these. There was an undoubted history of rivalry and violence between the two gangs, that is to say Finchley 197, said to be appellant's gang, and the Deansbrook gang. The Deansbrook is a gang with which the various complainants were associated. 10. That history finds its reflection in the very carefully prepared time line which was produced and used at trial. That shows that N had in the early part of 2012 been stabbed by a group of youths who had attacked him. It seems also items were stolen from him. At all events in due course there was recovered from N's phone an entry dated 13th September 2012, which records a message received from a person to N saying, amongst other things, that Shiva was the one who had stabbed N and "S stole off you man". "S" in the event was to feature very much in the course of this particular incident and trial. That is because the indictment related to events, particularly which occurred on 15th January 2013 at about 7.00 pm. 11. The complainant's group that evening comprised a man called S (otherwise having the street name of "S"), F and W. The Crown's case was they had been lured to Watling Park in London primarily at the behest of as they thought, C: possibly on the pretence of a drug deal. There, on the Crown case, the group of three was subjected to a preplanned and violent attack by not less than five youths. During this particular incident S was robbed of his mobile phone and virtually all of his clothing. Further, he suffered a life threatening stab wound to his chest and indeed was in hospital for a very significant time after this incident before he could be released. Another of the group (F) was also slashed on the back with a knife as he ran away. It was the case of the Crown that the men with the knife or knives who had done the stabbing were I and R but they had acted pursuant to a concerted plan, formed before this for this purpose. The prosecution case was that there was an agreement between the six co-accused charged on the indictment by reference to counts 1 and 2, along with others, that is to say, C and L, to rob and to seriously injure the complainant S (or S). 12. Whilst probably only six of them, having first met at a McDonalds restaurant, had travelled to the park, the prosecution was that others not present, including C and this appellant, were nevertheless party to the planning and were part of a joint enterprise to rob and to inflict grievous bodily harm. It was further the Crown case at trial that shortly before or even during the incident the co-accused, R and I, had formed an additional intent to kill S. In respect of the count of attempted murder they were in the event acquitted. 13. The charge of handling stolen goods, which was count 8 on the indictment, related to the appellant's receipt and disposal of S's Blackberry phone very shortly after the incident. 14. The case against the appellant rested almost entirely upon evidence of BBM messaging between him and various of the other accused. In addition the Crown also placed reliance on aspects of his bad character. It was said that although he had not travelled to Watling Park with the others he had been keen to be involved; and that the BBM messages made clear that he wanted to assist by arranging transport for the others and by helping to recruit I and that overall he was very interested in the events and furthermore, on more than one occasion, expressed hostility towards S. 15. In the event there was also evidence that under his profile titled "Ace 197" he had stated after the event "Another man down. Who's next. We will see whose on the list" and later "Better stay indoors". He had also posted images of himself posing as a gangster. 16. The defence case overall at trial was that whilst the appellant had engaged in messaging or telephoning various of his co-accused about the complainant S, and knew that there was a meeting arranged, he was not party to any conspiracy and had no knowledge that the others intended to rob or seriously injure anyone. His offer to provide them or some of them with a car, as evidenced in the messaging, was purely so that he could feel included but he had no means of actually providing transport to them nor did he do so. In any event putting it shortly, the defence case was in effect was that the appellant (15 years old as he was at the time) was in effect "bigging himself up" without being party to or intending to be a party to any agreement either to rob or to cause really serious injury. 17. At the trial, members of the complainant's group gave evidence. S himself was to say that he had been in a coma for some time after the incident, that it had taken him 6 months to recover and he had no real recollection of events. Others who gave evidence described the group of men approaching and looking for things to rob before the attack occurred. There was unchallenged forensic evidence which related to blood on the trainers ofI and R which matched DNA from the complainant, S. 18. The time line of the various messages was the crucial part of the Crown case. It is not necessary or us to go through the detail of all the entries which were most impressively prepared in the document produced at trial. Suffice it to say that on 14th January 2013 R had posed on BBM as C and had asked S to meet him the following day. Later R was to send a message to L telling him about the planned attack on S and asking that another of the gang should be informed. At around 4.30 pm on that day R, posing as C, sent a message to S asking to buy an ounce of cannabis from him, to which S agreed. At 4.49 there was a message from the appellant to the co-accused I stating: "S tomorrow ... are you rolling?" which the prosecution say it was an indication that S was, as the appellant knew and intended, to be the subject of an attack. 19. On 15th January 2013 itself, the actual day of the attack, there were various messages exchanged between various of the co-accused and also between S and R, still posing as C, regarding a meeting place. At 11.10 am the appellant sent a message to R asking: "Is it S's time?" to which R indicated this would be later in the day. The appellant then messaged: "How we going?" A few minutes later the appellant sent a message to R inquiring about a car and indicating that he would try to assist by getting one and asking where the meeting was. 20. At 11.32 there were messages between R and L about the planned attack in which R mentioned the appellant was supposed to be sorting out the obtaining of a car. At 11.35, during the message conversation with R, the appellant had asked: "So he [that is C] is basically setting up S?" to which R replied that C hated S. At around 12.00 pm I asked the appellant to call him and there was evidence of a phone call from the appellant to I at 12.15 pm. At around 2.00 pm C sent a message to R to the effect: "So you are finally getting your revenge. I was the only one who could set him up." There is an answer which possibly indicates R indicating that he will cut C in on a share of the drug proceeds if successful: at least that is the way the Crown interpreted the messaging. During the afternoon messages continued to be exchanged between various of the co-accused about what was being planned. At 4.10 pm I asked the appellant what was happening and whether a car had been organised. At 4.17 the appellant told I that he did not think a car had been organised, and I then told him to forget about the plan. At that stage the appellant sent a message: "I don't like S". 21. At 5.20 R and I sent messages discussing who was to be involved. I preferred to keep the number to four, including the appellant amongst those. R said that he wanted the appellant to be left out and I said that the appellant would be angry about that because he had a point to prove. 22. There was evidence from CCTV footage of R subsequently exiting a McDonalds take-away with a group of between four and six men and getting into one of the co-accused's cars. At around 5 o'clock that car arrived at the park entrance. It was common ground that the appellant had not been one of those at the McDonalds restaurant and he was not one of those who went to the park. 23. At 7.15 pm there was a message from R to S informing him that he was near to the playground where they were due to meet. The attack and robbery then occurred. 24. Very shortly after the attack there were various messages between various of the co-accused and the appellant. In particular the appellant had phoned L at 7.43 pm and 8.08 pm and also phoned I at 7.53 and 8.20 pm. At about 8.19 pm I had sent a message to the appellant stating: "Lol the ting", to which the appellant had replied: "Lol, you're mad". Later that evening the appellant sent a general message to R instructing anyone he had told about what had happened to delete him from their contacts list. The same message was sent to I. 25. Appellant was also in phone contact with L later on, relating to the perceived activities of the Deansbrook gang. There were also further calls between the appellant and another of the co-accused. Furthermore at around 11.30I arranged to meet the appellant outside a supermarket. The appellant requested that he be added to the contacts list on S's stolen phone so that he could read the updates: although I refused that. 26. There was cell site evidence that on 16th January S's mobile phone handset was with the appellant. He was later to send a message that he had sold it for £30. 27. The appellant was arrested on 22nd January 2013. In interview he gave a prepared statement denying any involvement in the alleged offences but stating that he had been sold the phone by a black man on his way to school which he had subsequently sold on for a small profit. That, by reference to what he had subsequently had accepted and to his case at trial, was a lie. 28. The appellant gave detailed evidence in accordance with the case as outlined by him in interview: namely, that he had no involvement in any conspiracy. His overall approach was that he "talked the talk" but never did anything. He did not know any details of the meeting because he had not been told. He denied that he had recruited I to any conspiracy and he denied that it had any means of getting a car for the others. He said that his offer was not serious and he was really just trying to impress the others. 29. At the close of the prosecution case during the first trial Mr Ward, appearing then as he does now on behalf of the appellant, submitted to the trial judge that there was no sufficient evidence on which a reasonably jury, properly directed, could properly convict the appellant either on count 1 or on count 2. His position was that even if there was evidence that the appellant was party to agreeing to something untoward towards S there was no sufficient evidence that the appellant was party to agreeing either to commit grievous bodily harm or to commit robbery. 30. The judge rejected that submission. He accepted that there was no evidence to show that the appellant had gone to Watling Park that evening, nor had he been at the McDonalds restaurant beforehand. The judge reviewed the history of the gang provided, including the previous attack and robbery of N. The judge reviewed very fully the time line including the messages and including the point that S was going to be lured to the area ostensibly to do a drugs deal. Having fully reviewed the evidence the judge concluded that there was a case to answer on both counts fit to be left to a jury. 31. Before us today Mr Ward now accepts that there was sufficient evidence capable of showing that the talk was more than being of the nature of the mere discussion of mere possibility of committing serious crime and was capable of evidencing an agreement. That is something which had previously been challenged. But it was rejected by the single judge and Mr Ward realistically does not seek further to challenge that point. But what Mr Ward does still continue to maintain was that the judge was wrong to reject the submissions of no case to answer; indeed he maintains his objection both with regard to count 1 and as well as to count 2 because although ultimately the appellant was at the second trial acquitted, on the judge's direction, on count 1, it is suggested by Mr Ward that the failure of the judge to accede to the submission on count 1 at the first trial unfairly tainted what happened thereafter, not least with regard to count 2. 32. Mr Ward submitted that there was insufficient evidence of any agreement to which the appellant himself was party to cause really serious injury, even if no doubt he had been discussing and involving himself in some proposal that something unpleasant be prepared for S. He emphasised, as he had in the court below, that the appellant had not himself been at the park nor had he been at the McDonalds restaurant. He sought to argue, on behalf of the appellant, that the various relevant communications, as shown in the time line, were, he suggested, at a relatively early stage of the goings on. There was nothing, Mr Ward submitted, to show the nature of any plan to which this appellant was party. 33. In our view, so far as the submission with regard to count 1 is concerned, the judge was fully entitled to reject the submission as he did. The whole background here was one of gang feuding and gang violence, with a clear motive for potential revenge for a prior serious attack on N, one of the Finchley 197 gang, at the hands of the Deansbrook gang. Furthermore, the entire context and content of the various BBM messages between various members of the Finchley 197 gang both before and after the incident, and in which the appellant himself had been closely involved both before and after the incident, made the judge's rejection of a submission on count 1 a proper one, in our judgment. 34. Mr Ward nevertheless submits that at all events there was no sufficient evidence of conspiracy to rob S to which the appellant was party. We disagree on that point too. That there was in fact such a conspiracy is evidenced by the pleas of guilt of the co-accused, C and N; indeed it is to be borne in mind that C, who had pleaded guilty, was himself neither present at McDonalds nor present in the park which renders very difficult Mr Ward's submission that such conspiracy as there was was only formed at a very late stage indeed. There was a significant amount of evidence that the appellant was party to the relevant conspiracy, borne out not only by the entire background and the proposed revenge on the Deansbrook gang but also by the content of the various BBM messages to which he had been party with various of the other accused. Moreover, it is striking that this messaging continued and involved this appellant very shortly after the robbery and stabbing in Watling Park. There was nothing whatsoever to indicate that the appellant was surprised or astonished as to what happened. There was nothing to indicate that he dissociated himself with what happened. There was nothing to indicate that he was shocked at what had happened; to the contrary; he plainly was gloating over what had happened and gave every impression that what had happened was precisely as had been planned and intended. Furthermore, over and above the various messages which he had sent shortly after the robbery and stabbing there is is the fact that he was entrusted with the mobile phone of which S had been robbed and thereafter he sought to dispose of it. 35. Mr Ward was in a position to make a number of points with regard to each individual strand of the Crown's case and he did so very skilfully before us, as no doubt he did in the court below. But it is of course essential that the Crown's case be looked at as a whole. Taking all the matters cumulatively we are in no doubt that the judge was entitled to conclude as he did and to reject the submission of no case to answer on count 2. 36. The final ground of appeal relates to admission of bad character evidence relating to this appellant. The prosecution had sought to put in a great deal of proposed bad character evidence. In the result the judge greatly circumscribed that which the prosecution was allowed to adduce. In particular, the judge had allowed to be adduced evidence of the appellant's possession of a knife some 3 weeks after this particular incident and in respect of which in due course he pleaded guilty to possession of a bladed article. Furthermore, the judge permitted to be adduced evidence of two photographs, one of the appellant wearing a bandanna, in perhaps purported gangster style and another of the appellant holding a weapon, seemingly a ceremonial sword of some kind. 37. Mr Ward objects that such evidence as the judge allowed to be adduced in this regard was of peripheral relevance to the prosecution case at best, but would have had unduly prejudicial impact upon the defence case. He asserted indeed that the prosecution had sought thereby to get in this evidence in order to strengthen an otherwise weak case. 38. Although the judge's reasoning as expressed on this point was perhaps not wholly clear, we think that he was entitled to reach the conclusion that he did. That this appellant, in a gang context, was prepared to go around with a knife, even if as he was to say for "protection", in the aftermath of the Watling Park incident, is revealing of his mindset and as showing that he was at least aware of potential violence and perhaps expected violence in this particular gang context. It was a jury point for Mr Ward to make to stress that he only started, according to Mr Ward, to equip himself with a knife after the incident in Watling Park. 39. The judge was perfectly entitled to take the view that even though he was in possession of the knife after the Watling Park incident, that was capable of casting light on the appellant's intention at the time of the actual stabbing and the robbery of S and that this was a relevant and important matter in issue. So also, in our view, with regard to the photographs which also went to show that the appellant was involved not just with a group of young associates but with a gang. 40. Overall such evidence, as the single judge pointed out, added to the evidence showing what the appellant could have inferred to have agreed would happen at the relevant time. This evidence thus was properly admissible: and it was a matter for the judge's evaluation as to whether to exclude it as being unduly prejudicial to the defence. In our view, he was entitled to decline to exclude it; and indeed it may be noted that it cannot have been unduly prejudicial because the jury did not convict on count 1 to which this particular evidence would most materially have related. 41. In the result, we reject these grounds of appeal. We are satisfied that this conviction was safe. The appeal is dismissed. 42. We would like to add this. These matters occurred some time ago now when the appellant was, as we have said, only 15. He has now been released from custody. We were glad to hear from Mr Ward today that he has moved to a different part of North London and that apparently his mother is very pleased with his progress. He seems to have severed his connection with members of the Finchley 197 gang and indeed is said to be in employment. This appellant is amply young enough to put these matters behind him and to get on with leading a decent and worthwhile life. We hope that he will. It is up to him.

```yaml citation: '[2016] EWCA Crim 604' date: '2016-03-15' judges: - LORD JUSTICE DAVIS - MR JUSTICE SPENCER - MRS JUSTICE ELISABETH LAING DBE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Case No: 2007/1448/C4 Neutral Citation Number: [2007] EWCA Crim 2604 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9 October 2007 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE GIBBS HIS HONOUR JUDGE WIDE QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v JOHN PURCELL - - - - - - - - - - - - - - - - - - - - - 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 Payne appeared on behalf of the Appellant Miss J Matthews-Stroud appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE GIBBS: On 26th February 2007 in the Crown Court at St. Albans, the appellant was convicted of theft of a car. The appellant John James Purcell is 19 years old. The trial was conducted by His Honour Judge Plumstead. The appellant brings this appeal with the leave of the single judge and the basis of the appeal is that the trial judge erred in admitting on the application of the prosecution evidence the appellant's bad character. 2. The facts from which the prosecution arise are these. At about 5 o'clock in the evening on Thursday 22nd December 2005, a black Honda Civic car was stolen from Johnsons Honda Motor Dealers in Dunstable, Bedfordshire. On the following day, 23rd December, a black Honda bearing a similar index number was used to steal a second motorcar, also a black Honda in Kings Langley, Hertfordshire, which belonged to the complainant, Mrs Ann Hutchence. Two days later at about 10.15 in the evening, Mrs Hutchence's car, bearing stolen numberplates, was involved in a crash in Chester, approximately 170 miles from Kings Langley. One of the two occupants of the vehicle who were detained at the scene was the appellant. 3. The prosecution's case was that the appellant was one of those involved in the theft of the complainant's Honda on 23rd December. The defence was one of alibi. The issue for the jury therefore was quite simply whether the prosecution had proved that the defendant had taken part in the theft. 4. In somewhat more detail, the events of 23rd December were that Mrs Hutchence left home at about 8 o'clock in the morning to go to work. As she drove towards a roundabout she saw a car which was identical to hers, but in fact had a more powerful engine. She overtook the car but it followed closely behind her and eventually deliberately bumped into the back of her car. The cars pulled level with each other at the approach to the roundabout and she looked into the passenger side of the other car. The passenger had wound down the window and asked her to stop and exchange insurance details. She pulled over to the left hand side of the road and the other car parked up behind her. 5. She got out to see what damage had been caused to the back of her car and saw none immediately obvious. However, her suspicions were aroused and she attempted to make a mental note of the registered number of the other car. She was however distracted by the passenger of that other car and found that her own car was being driven off. It was driven off in a dangerous manner so as to cause her to fall over. Another motorist came to her help by taking down the index number of the other car for her. The index number thus recorded was, save for one digit, the same as that which had been stolen from the garage the day before. She later told the police that she thought that the passenger in the other car had been short, perhaps five foot four or five foot five inches in height. She gave a description of his appearance and his accent. At a video identification procedure she identified the appellant as being that person. She viewed the images twice at the identification procedure, at first saying that two of those on the parade were similar to the passenger, but she soon afterwards said that the appellant was closest to her recollection of the appearance and in evidence she said that she was sure she had made the correct identification. 6. A witness to the theft had seen the events which we have described but was unable to pick out the appellant at an identification procedure and indeed picked out an innocent volunteer. 7. The appellant made no comments in response to questions put to him in interview by the police. The prosecution successfully applied for some of the appellant's previous convictions to be admitted in evidence. The judge's decision to admit those convictions forms the basis of this appeal and to that we shall return. 8. In his defence the appellant said that he had not been present at Kings Langley on 23rd December 2005. At the time of the theft he had been in bed at home in Wrexham suffering from mumps. He had been due to attend a probation appointment but had failed to do so through illness and therefore went to obtain a medical certificate from his general practitioner. That he had done on 22nd December 2005 where he had been seen and diagnosed with mumps. He was given a certificate and directed to attend hospital the following day. On 23rd December he said he had got up late and signed in at the probation office in Wrexham at 12.10. He handed in his medical certificate and then went to hospital where tests confirmed that he was suffering from mumps. He had not been anywhere near Kings Langley. 9. On 25th December 2005 he said that he went out with his friends and drank heavily. He accepted a lift home in a black Honda Civic from somebody he did not know very well. He was asleep in the vehicle when it crashed. He passed out on his arrest. In other words, his case was that he was in the vehicle which turned out to have been stolen entirely innocently. He explained his decision not to answer police questions by saying that he had been so unwell as to be unfit and incapable of answering for himself. 10. Evidence was read in support of the defence and undisputed by the prosecution. The doctor to whom he had been on 22nd December 2005 in Wrexham confirmed that he had attended and that mumps had been diagnosed. The evidence of a receptionist at the probation office in Wrexham confirmed that he had attended the office and signed in at 12.10 on 23rd December - in other words approximately four hours after the theft. The undisputed evidence referred to thus supported aspects of the appellant's defence but did not directly go to disprove his participation in the offence. 11. We now come to the substance of the appeal, namely the judge's decision to admit evidence of the appellant's previous convictions. The previous convictions which he admitted were as follows. First, on 7th August 2001, convictions for taking a vehicle without consent, using it without insurance and driving otherwise than in accordance with a licence on 5th July 2001. Second, on 18th November 2003, convictions for driving otherwise than in accordance with a licence and using a vehicle without insurance on 17th November 2003. Third, on 25th May 2004, convictions for dangerous driving, driving whilst disqualified and driving without insurance on 15th March 2004. Fourth, on 2nd November 2004, convictions for driving without insurance and driving whilst disqualified on 5th October 2004. Fifth, on 24th January 2005, convictions for driving without insurance and driving whilst disqualified on 28th September 2004. Sixth, on 27th October 2005, convictions for driving without insurance and driving whilst disqualified on 30th August 2005. Seventh, and finally, on 3rd February 2006, convictions for driving without insurance and driving whilst disqualified on 7th November 2005. 12. In response to the prosecution's application to admit these convictions, the defence submitted that to accede to the prosecution's application would have a prejudicial and disproportionate effect on the trial given that the real issue was one of identification. The circumstances of the instant offence, it was argued, showed that there had been a sophisticated and well thought out plan to steal a car. This, it was submitted, although the offence of taking a motor vehicle without consent was in the same category, was so wholly different as to render the connection between the two meaningless. So far as the other convictions were concerned, it was pointed out to the judge that these were not offences in the same category as the instant matter and it was submitted that they did not demonstrate a propensity to commit the type of offence with which the appellant was now charged. It was submitted that reliance was being sought on the bad character evidence in order to shore up weaknesses in identification evidence which was not a proper way of relying upon that bad character evidence. 13. The judge ruled that the convictions would be admitted in evidence as they indicated that the appellant was more likely to have taken the motorcar in all the circumstances of the case. Those circumstances included dangerous driving prior to the offence of theft by tailgating and bumping into the complainant's vehicle and thereafter driving with such ferocity as to knock the complainant over. Thus there was similarities between the instant offence and the dangerous driving to which the appellant had previously been convicted. The judge also expressed a view that convictions for driving without a licence, no insurance and whilst disqualified made the appellant someone who was more likely to commit an offence such as the instant one. Accordingly the judge admitted the evidence of the previous convictions. 14. It should be noted that in addition to the previous convictions which were admitted, the appellant had previous convictions for robbery, rape and criminal damage which were not sought to be adduced. With the exception of the conviction for robbery they were rightly not sought to be adduced. So far as the robbery was concerned, we need make no further comment, since the prosecution apparently did not apply for that offence to be introduced into evidence, notwithstanding what we regard as an arguable similarity between the offence of 23rd December and the offence of robbery. 15. The convictions having been admitted in evidence and the trial having proceeded, the judge directed the jury as follows in regard to the bad character evidence: "Members of the jury I am now going to deal with some specific directions, the first of which, and I deal with it in no particular order, is the question of the defendant's bad character." The judge then summarises the list of previous convictions to be admitted. He continues: "How do you deal with that members of the jury? Well may I first tell you why you heard about it? You heard about it because the prosecution are entitled to say that his history of offending is such that it is more likely that he committed an offence of the type he is now charged with than otherwise. That is for you to judge. The Crown are entitled to put it before you and it is for you to judge whether or not it has that effect. Members of the jury, having heard the evidence for that purpose, you are entitled to take it into account. You are entitled to take it into account but you must decide to what extent, if at all, his character, his previous convictions, help you when you are considering whether or not he is guilty, but bear this in mind, and I stress this: his bad character can't in itself prove his guilt I hope that is obvious. The fact that somebody has been in trouble for taking another person's car and for driving badly or in contravention of the laws on insurance and driving licenses and disqualification on even a number of occasions can't logically prove his guilt and you must not over weigh that element. You are entitled to know about it, you are entitled to take it into account, but as a matter of common sense and fairness may I stress to you it alone could not prove his guilty and you may think, although it is entirely a matter for you, that it is a marginal matter. It is significant but it is not central to your considerations. Please do not over stress it. It would be completely wrong to jump to the conclusion he is guilty just because of his bad character." 16. The judge then went on to remind the jury of a point in the appellant's favour, namely that he had pleaded guilty on his previous appearances before the court. The judge then concluded as follows: "So members of the jury, that is a direction on how to deal with evidence of bad character. I hope it wasn't necessary. I rather hope that you as ordinary normal citizens of this country would be instinctively inclined to the view that to give a dog a bad name is an unfair approach to the attribution of guilt in a criminal case but it is a factor you are entitled to consider." 17. The question of whether or not bad character evidence falls to be admitted depends on the proper application of the relevant provisions of section 101 and section 103 of the Criminal Justice Act 2003 . So far as relevant they are as follows. Section 101 : "(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if— ... (d) it is relevant to an important matter in issue between the defendant and the prosecution..." Section 103 : "(1) 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 ... (2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of— (a) an offence of the same description as the one with which he is charged, or. (b) an offence of the same category as the one with which he is charged." 18. Here it is common ground that the offence of taking a vehicle without the owner's consent of which he was convicted on 7th August 2001 fell in the same category as the offence of theft in the instant case, but that none of the other offences were either of the same description or of the same category within the meaning of section 103(2) (a) and (b). Section 101(3) : "(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. (4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged." The respondent submitted that the evidence should be admitted because it related to an important matter in issue between the prosecution and the defence. The respondent submitted that such a matter went to the appellant's propensity to commit offences of the kind with which he was charged and that this was not a case in which it could be said that propensity was irrelevant. In other words, it was not a situation in which having such a propensity made it no more likely that the appellant was guilty of the offence. 19. The appellant's submissions were made in writing by Mr Payne and attractively elaborated in oral argument by him before us. In essence they were as follows. First, the offence of taking a vehicle without consent whilst in the same category as and bearing some similarity to the present matter could not be described as strikingly similar, or as sufficiently similar to have any notable probative value. Second, that the other offences, despite being concerned with vehicles, bore no resemblance to the instant offence in that they did not involve the taking, let alone the theft, of the vehicle. Thus they should not have been admitted. Thirdly, that the judge can have paid no or no sufficient regard to the length of time between the previous convictions, especially the 2001 conviction for taking a vehicle without consent. Had he done so, argued Mr Payne, he would not have admitted them under the test set out in section 101(4) . Fourthly, that in so far as any of the previous offences may have had some minor probative value, the admission of the evidence had such an adverse effect on the fairness of the proceedings that they should have been excluded. In particular the evidence was used to bolster an unsatisfactory identification in relation to which there were a number of discrepancies and weaknesses. He submits that under all those circumstances not only was the judge's decision to admit the convictions wrong, but the effect was to render the conviction unsafe. 20. In reply, in written argument, the respondent submits that the period of four years elapsing between the 2001 conviction and the instant offence is not excessive especially when one takes into consideration that the appellant continued to commit vehicle-related crime thereafter. It is submitted that the offence of dangerous driving in 2004 was directly relevant since the thieves in the present case drove dangerously immediately before and after the offence. Third, the other vehicle-related convictions were by no means irrelevant as they showed that the appellant was prepared, where it affected motor vehicles, to commit habitual breaches of criminal law. 21. We have considered all these submissions with care. We bear in mind the words of the relevant sections of the 2003 Act . We also bear in mind the helpful remarks of Rose LJ, then Vice President of the Court, in Hanson and others [2005] 2 Cr.App.R 21. His remarks included the following: "Old convictions, with no special feature shared with the offence charged, are likely seriously to affect the fairness of proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity. There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity." Finally, we have considered a citation from paragraph 4 of Harrison relating to the importance of considering the question of admissibility on the basis of the actual issues in the case. The Vice President said that bad character legislation is designed: "... to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice. It is accordingly to be hoped that prosecution applications to adduce such evidence will not be made routinely, simply because a defendant has previous convictions, but will be based on the particular circumstances of each case." 22. As it seems to us, the last passage is particularly germaine to the present appeal. In our judgment the application of section 101 should be carefully considered with the facts of the individual case in mind. An assessment can then be made of the extent, if at all, to which the previous offences could be regarded by the jury as relevant to the particular issues which they have to determine. Here there was the incident at about 8.00 in the morning of 23rd December 2005, the theft itself. The complainant identified the appellant as one of thieves. That identification was plainly important to the case but it did not stand alone. Two days later the appellant was found to be in the stolen car bearing false plates when it was involved in a crash. This further evidence in itself may be said to fund a prima facie case against the appellant based on recent possession, but it also provided support for Mrs Hutchence's identification evidence and vice versa. 23. What then of the relationship, if any, of the appellant's previous offending to the evidence relating to either or both of those incidents? As to the first incident, it is in our judgment significant that the individual identified by the complainant turned out to be a person who had habitually been involved in vehicle crime. Had the prosecution relied solely on a conviction or convictions for, by way of example, driving without insurance, it could be said that the connection between such an offence and the instant offence would have been tenuous. But it was not simply a matter of relying on previous convictions of that sort. Just over two years before he had driven dangerously and without insurance just as those who stole Mrs Hutchence's vehicle did. In our judgment it did not matter whether the appellant was the driver or the passenger of the stolen vehicle and of Mrs Hutchence's vehicle. The need to drive dangerously was inherent in the scheme to take her car. It should not be overlooked either that those who steal cars and drive them dangerously are by definition uninsured, thus doubly dangerous to the public. This appellant had no fewer than seven previous convictions for driving without insurance and if guilty was also party to such an offence in the instant case. 24. It seems to us therefore that the appellant's proven propensity to commit vehicle crime was plainly material as support for the complainant's identification in that it placed the appellant in a limited category of offenders who were substantially more likely to be engaged in stealing cars than would have been other members of the public at large. Consideration of the relevance of the evidence of previous offending does not in our judgment end there. It relates also to the incident on 25th December. Here the appellant's defence was that notwithstanding that the car had been stolen as recently as two days previously and had already been provided with false numberplates, he was an innocent passenger in the car, simply having been offered a lift by somebody he hardly knew. The jury assessing the merits of the appellant's case that he is an innocent accidentally caught up in a criminal venture would, in our judgment, be fully entitled to weigh in the balance previous offending of the kind admitted by the judge. Thus, as it seems to us, these offences were relevant to rebut the defendant's defence by similar process of reasoning to that which we have set out in relation to the identification issue. A person with relevant previous convictions found in a recently stolen car with false numberplates is someone who, as the jury were entitled to find, was substantially less likely to have been the subject of innocent misfortune than a random member of the public at large. 25. For those reasons we are satisfied that the previous convictions were relevant to the issues in the case. The judge may have been over generous to the appellant in commenting that the evidence was a marginal matter. Some of his remarks in directing the jury were arguably on the face of them contradictory. Overall, however, we have no doubt that the effect of his directions was by no means unfair to the appellant. Thus we are satisfied that the relevance of the bad character evidence was such that there was no adverse effect on the fairness of the proceedings. There is, in our judgment, no arguable criticism of the way in which the judge left the issue to the jury and no basis for saying that the conviction was unsafe. Accordingly, the appeal is dismissed.

```yaml citation: '[2007] EWCA Crim 2604' date: '2007-10-09' judges: - LORD JUSTICE TOULSON - MR JUSTICE GIBBS - HIS HONOUR JUDGE WIDE QC ```

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NCN: [2019] EWCA (Crim) 1135 No: 201901596 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 7 June2019 B e f o r e : LORD JUSTICE SIMON MR JUSTICE LAVENDER HIS HONOUR JUDGE EDMUNDS QC REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v STEPHEN MICHAEL UNSWORTH Ms S Przybylska appeared on behalf of the Attorney General Mr P Treble appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. J U D G M E N T LORD JUSTICE SIMON: 1. The Solicitor General seeks leave to refer sentences passed on 1 April 2019 at the Crown Court at Bolton under section 36 of the Criminal Justice Act 1998, as being unduly lenient. We grant leave. 2. The offender is now aged 36. He was charged and sentenced for five offences. For the robbery of a purse belonging to Sharon Ashcroft, count 1, 4 years and 6 months' imprisonment. For the robbery of cash from Alexandra Leyland, count 2, 4 years and 6 months concurrent. For the robbery of alcohol, cigarettes, tobacco and cash, count 3, 4 years and 6 months concurrent. For an offence of wounding with intent to resist arrest, contrary to section 18 of the Offences Against the Person Act 1861 , count 4, 4 years' imprisonment consecutive to the sentences on counts 1 and 3. For an offence of having a bladed article, count 5, 12 months' imprisonment, concurrent to the sentences passed in respect of counts 1 to 4. The total sentence was therefore a term of eight and a half years. Forfeiture of the knife was also ordered. The sentencing judge was the Recorder of the Bolton, His Honour Judge Walsh. 3. In summary, shortly before 10.00 pm on 7 October 2018, the offender took a knife with a 6-inch blade to a convenience store. He threatened the two female shop assistants with the knife and robbed them of personal possessions. He then robbed the store of cash, alcohol and tobacco. When he left the shop he was pursued by police offices. One officer grabbed hold of him and the offender resisted him by stabbing him repeatedly with a knife. The officer's body armour was punctured and he suffered superficial puncture wounds to the elbow, stomach and under his arm. 4. It is unnecessary to set out the details of the robberies more fully, other than to note six points. First, the offender said to one of the victims, Ms Ashcroft, "I don't want to hurt you. I've seen the cash, I want the cash". Second, he held the knife to the back of the other victim, Ms Leyland, and said, "I don't want to stab you but I will if I have to". Third, when Ms Ashcroft said she would switch the alarm off, the offender screamed at her not to press anything and that he wanted the cash. The two women then opened the tills and gave the offender the cash that had been left in each till overnight. The total taken was approximately £150. 5. Fourth, while still holding the knife to Ms Leyland's back, he asked for her purse and took the small change from it. Fifth, in desperation, Ms Leyland told him to take the cigarettes and alcohol. Ms Ashcroft opened the cigarette kiosk at his request and he filled a crate with cigarettes and bottles of alcohol. The value of the stock taken was of the order of £650. 6. Sixth, having seen Ms Ashcroft's handbag, he took her purse. She told him that there was no cash inside. He opened the purse and gave her back her bank cards, then put the purse in his pocket. He then walked quickly out of the shop. 7. The robbery was captured on the shop's CCTV and was reported to the police by a neighbour. 8. Police Constable Lamb and Police Constable McCoombes received a call to go to the stop, and as they drove up the offender was seen coming out of the shop heavily laden. The two female shop assistants were pointing and saying, "It's him!" Police Constable Lamb got out of the car and ran after the offender, while Police Constable McCoombes followed in the car. Police Constable Lamb, who was in full uniform, shouted "Police!" in order to identify himself. He grabbed the offender from behind and as he did so he saw a silver flash. The offender swung his arm and began to strike Police Constable Lamb to the right side of his body with the knife he had produced at the store six or seven times. 9. The officer felt his body armour moving with the force of the blows. He realised that the offender was stabbing him and shouted for help. He pulled the offender to the ground, where he continued to struggle violently. Police Constable McCoombes dived on the offender's back. He realised that Police Constable Lamb had been attacked but was reluctant to use his taser as he would have to release the offender to do so. He made attempts to subdue him with blows to the back of his head, and activated the emergency button on his radio to summon help. The offender continued to struggle and Police Constable McCoombes, fearing for his and Police Constable Lamb's safety, drew his taser. He was too close to discharge the cartridges, so he activated the "arc" mode, sending an electric charge across the front of the taser, which made a loud crackling noise. He shouted, "Taser", at which the offender stopped struggling and the officers were able to handcuff him. 10. Police Constable Lamb immediately recognised the offender, having dealt with him on several previous occasions. He arrested him on suspicion of robbery and cautioned him. The kitchen knife with the 6-inch blade lay on the ground where they had detained the offender. The blade was broken in two. He was further arrested on suspicion on wounding with intent to resist arrest and cautioned. He was searched and found to have approximately £150 of cash on him. 11. Police Constable Lamb suffered three small puncture wounds to his elbow, stomach and under his arm. There were also perforations to his body armour and clothing. 12. While awaiting interview the offender asked how the officer was and said, "Tell him I'm sorry. I didn't know he was the police". He was interviewed under caution. When asked for his address he said that he was living on the streets but otherwise gave no comment answers to all questions asked. At the end of the interview he was asked about his record for violence, including resisting arrest, and said, "What and your police don't assault me ... your police fucking assault me all the fucking time". He was asked when he had been assaulted and said: Fucking loads of times, I got beat up last night off them, so I'm going to protect meself ... I was punched repeatedly at the back of the fucking head ... I was stamped on, on my back ... I was stamped on me fucking head, so you can go on all about that, your cops are fucking corrupt as fuck ... 13. When the accounts of Police Constable Lamb and Police Constable McCoombes were put to him, he said, "Yeah well I want assault on them as well". He was asked about resisting arrest and said: I didn't know he was a policeman and he's fucking punched me in the fucking eye ... I'm not trying to fucking deny the job, I'm banged to rights on it. Someone has attacked me, I didn't know who it was, so I protected myself. 14. He denied that the officer had identified himself. He said he was punched repeatedly and grabbed from behind. He had not realised the man was a police officer. He said he had only produced a knife after he was punched and stamped on. 15. The offender was aged 36 and had 40 previous convictions for 77 offences. He began to commit non-dwelling burglaries in 1995 at the age of 12, progressing to dwelling burglary in 2000 at the age of 17. He received a conditional discharge for resisting or obstructing a police officer in 2000. He was convicted of robbery in 2001 at the age of 17 and was sentenced to 30 months' imprisonment consecutive to a sentence imposed earlier the same year on other offences. He was convicted of escaping from custody in 2004 at the age of 21 and was sentenced to 6 months' imprisonment consecutive to a sentence previously imposed for other offences. He was convicted of burglary and common assault in 2008 at the age of 25 and was sentenced to a total of 35 months' imprisonment. In 2015, he was convicted of having a bladed article in a public place and sentenced to 4 weeks' imprisonment consecutive to a sentence previously imposed for other offences. On 6 March 2018, he was convicted of having a bladed article in a public place and sentenced to 6 months' imprisonment. He was on licence for this matter at the time of these offences. 16. There was a report from the probation service dealing with the offender's sentence imposed in March 2018 for having a bladed article. The writer reported that the offender's compliance had been poor. He has been recalled five times for non-engagement and was at the point of being before the court for breaches. He had shown no inclination to comply with the requirements of his licence and did not avail himself of the help offered. He had asked to be referred to mental health services but failed to attend the appointments offered. He was prescribed treatment for substance misuse and failed to attend his medical appointments. 17. The court also received a report from a consultant psychiatrist instructed by the defence. He referred to the offender's long history of substance misuse, most recently heroin and crack cocaine, and to the offender's account that he was feeling "paranoid" at the time of the offence and had used heroin, crack cocaine and pregabalin, (a prescription medication used in the treatment of epilepsy and anxiety, sometimes taken by drug users in combination with opiate drugs). The prosecution evidence indicated that the offender had exhibited aggressive and violent behaviour. However, there was otherwise no evidence of disturbed or abnormal behaviour, speech or thoughts that would suggest a mental disorder. 18. The psychiatrist commented that it was likely that the offender's illicit drug use had resulted in his ‘having a degree of suspiciousness and what he described as paranoia’, and that these symptoms become more severe when the offender was under the influence of drugs, particularly cocaine. Based on the offender's description of his drug use at the time of the offences he considered that it was more likely that the offender was experiencing the transient mental effect of intoxication rather than suffering a psychotic episode. 19. There was further evidence of the impact on the victims of the offence. Ms Leyland still worked at the shop but now had to be helped to lock up at night because she was so nervous. She was frightened to be in her house alone and would stay at her mother's if her partner was away. She had been prescribed antidepressant medication to help with her anxiety and had problems sleeping. Ms Ashcroft said that since the offences she had taken to wearing a panic alarm around her neck at all times. She still worked at the shop but was unable to stop watching the door. She was concerned for Ms Leyland and would visit the shop to reassure her when they were working different shifts. 20. Police Constable Lamb's statement described how he was now wary of being injured at work and was hesitant when dealing with conflict. He and his partner were both worried that he could have been seriously injured or killed. Police Constable McCoombes' statement was in the following terms: When you go to a robbery you expect weapons, but you don't expect to be attacked in that way. There was the realisation that not only had a colleague - a friend, someone I have worked with for years, socialised with, laughed and joked with - been injured, not only that I could have been stabbed, but that either of us could have been seriously injured or worse ... 21. On 5 November 2018, the offender pleaded guilty to counts 1 to 3, robbery and count 5, bladed article. He pleaded not guilty to count 4, wounding with intent, and the case was adjourned to 25 March 2019 for trial. On 12 March, a plea to an offence contrary to section 20 of the Offences Against the Person Act 1861 was offered on behalf of the offender. This was considered by the prosecution and rejected. On 19 March, the offender was re-arraigned on count 4, wounding with intent, and changed his plea to guilty. 22. The sentencing hearing was first listed on 29 March when submissions were made as to the applicability of the section 18 Sentencing Council Guidelines; and the matter was adjourned to 1 April for the Judge to reflect on the appropriate sentence. It is clear that he did so. 23. Prior to 1 April, the prosecution provided a sentencing note and two authorities: Smith (Craig William) and Cheetham , to which we will refer later, which indicated that the definitive Guideline on section 18 wounding was relevant to the court's consideration of count 4. 24. In passing sentence, the Judge gave credit of 25 per cent for the guilty pleas to counts 1 to 3, robbery and count 5, bladed article entered at the PTPH, and 20 per cent credit for the guilty plea to count 4, entered 6 days before trial. He referred in general terms to the offender's previous convictions, including the two convictions for possession of weapons and the fact that he was on licence following release from a custodial sentence for the more recent of those convictions. He commented that the previous convictions were largely the result of his drug addiction. 25. He considered the imposition of an extended sentence but was satisfied that the gravity of the offending could be dealt with by a significant determinate sentence. In relation to the robbery offence, some physical violence was used and the knife had been produced, placing the offence in category A for culpability, and the victims were traumatised, although they suffered no serious enduring physical or psychological harm, placing the offence in category 2 for harm, it was therefore a category 2A offence under the Guidelines. The vulnerability of the victims was an additional aggravating factor. He concluded that the appropriate sentence after trial would have been a term of 6 years' imprisonment concurrent on each count of robbery and, applying a reduction of 25 per cent, reduced the sentence to four and a half years' imprisonment concurrent on each count. 26. He did not refer to any mitigating factors. In particular, he made no finding that the offender had shown remorse. He observed that the section 18 offence did not fit easily into the guidelines as the intent was not to cause grievous bodily harm, but the offender had nevertheless used a knife repeatedly in an attempt to stab a police officer. He added this: Although only minor injury was actually inflicted you attempted to stab a police officer with a knife in order to resist arrest. ... the fact that serious injury or worse was avoided was because the officer was wearing body armour at the time. 27. Having regard to totality and applying a reduction of 20 per cent for the later guilty plea to this charge, he imposed a sentence of 4 years' imprisonment on count 4. The notional sentence before the reduction for guilty plea was therefore 5 years. He ordered forfeiture and destruction of the knife. 28. The total sentence was, as we have noted, a term of eight and a half years' imprisonment. 29. The Solicitor General submits that this sentence was unduly lenient. She accepts that the sentences for the robbery and the bladed articles cannot be said to be unduly lenient; but she argues, by Ms Przybylska, that the aggregate sentence failed adequately to reflect the seriousness of the offending. More particularly, in relation to the section 18 offence, the starting point of 5 years was too low and the credit of 20 per cent was too high. 30. We will refer to the count 4 offence as the "arrest offence". It is common ground that the arrest offence is not covered by the Sentencing Council definitive guidelines on section 18 assault. However, it is clear from a number of cases that a sentencing court may have regard to these Guidelines, although it is not bound to apply them. 31. Ms Przybylska submits that there were a number of relevant aggravating factors: the offender's previous convictions; the fact that the offences were committed while on licence; the vulnerability of the victims (the victims of the robbery were two women alone in a shop at night, the victim of the arrest offence was an unarmed officer) and the ongoing effect on the victims. She submits that there were no mitigating factors, in particular the Solicitor General did not accept that the offender’s statement that he did not realise that Police Constable Lamb was a police officer and thought that someone was attacking him was either genuine or reasonable, nor that it afforded any mitigation. 32. Mr Treble makes a number of points on the offender's behalf. First, the judge was entitled to have regard to the section 18 guidelines and did so. However, second, the material distinction between the arrest offence and other section 18 offences is that the intent is to resist arrest and not to cause really serious harm. Third, he accepts that the use of a knife is a factor indicating higher culpability under the guideline; however, he submits that the offender lashed out in panic, his intention was not to cause serious injury but to escape. Fourth, the victim was a police officer acting in the course of his duty, but he argued that this is mitigated by the offender not knowing that he was police officer. This and the expressions of remorse amounted to substantial mitigation. Fifth, Mr Treble points out that the injuries were "mercifully" minor and most of the cases on the arrest offence involved significantly more serious injury. Sixth, in the case of Smith (Craig William) , the injuries were comparable but the court regarded the starting point of 6 years and a sentence of four and a half years as severe - see [12]. Finally, the 20 per cent reduction was justified by delays caused by negotiations taking place between the parties. 33. We have considered these submissions. 34. So far as material, section 18 of the Offences Against the Persons Act 1861 reads as follows: Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person ... with intent to resist or prevent the lawful apprehension ... of any person, shall be guilty of an offence, and being convicted thereof shall be liable ... to imprisonment for life. 35. As was pointed out in R v Haywood [2014] EWCA Crim 2006 at [20] - [21], although the Sentencing Council Guidelines for causing grievous bodily harm with intent and wounding with intent to cause grievous bodily harm - page 3 - do not specifically cover the arrest offence, those offences carry the same maximum penalty - life imprisonment; and it was for this reason that the court indicated that a sentencing judge is entitled to have regard to the guidelines, although he or she is not bound to apply them. 36. Doubtless one of the reasons why the court in Haywood adopted this approach is that what is identified as a specific aggravating factor in the section 18 guidelines - the offences being committed against those working in the public section - is likely to be a usual, if not invariable, feature of the arrest offence. 37. The utility of the guidelines is that they identify culpability and harm factors that may be present in the arrest offence, although the nature of the arrest offence is that the violence is usually inflicted against those charged with enforcing the law by making an arrest, which is treated as simply an aggravating factor under the section 18 Guidelines. 38. The cases to which we refer indicate a number of range of sentences depending on the seriousness of the offence. 39. In the earlier case of R v Talbot [2012] EWCA Crim 2322 , a car was driven deliberately at an off-duty police officer, who was thrown onto the bonnet of the car and then onto the ground, hitting his head. The defendant then drove over the officer's legs. The victim suffered a laceration to the head and a broken leg. In that case a starting point of 10 years and a sentence of 8 years was not regard as manifestly excessive. 40. Haywood was a renewed application for permission to appeal a sentence that was refused. The facts were similar to those in Talbot : deliberate driving at a police officer in a getaway car causing serious injury. A sentence of 8 years and 9 months after a late plea was held not to give rise to arguable grounds of complaint. 41. In R v Smith (Craig William) [2019] 1 Cr App R (S) 30 , the appellant charged at a police officer with a serrated knife and struck his hand near the base of the thumb, which needed to be stitched at an A&E department of the local hospital. Smith had a poor record for offences involving the police. In that case, the sentencing judge had taken a starting point of 6 years and reduced that by 25 per cent for the plea of guilty. The court considered that a sentence of four and a half years was severe but not manifestly excessive. 42. In the case of R v Cheetham [2019] EWCA Crim 288 , the appellant was charged with a section 18 assault on a police officer while being pursued after a knifepoint robbery. The defendant punched the officer to the ground and used the officer's own handcuffs as a knuckleduster to hit him repeatedly. The officer was badly injured and was off work for 4 months and thereafter confined to restricted duties. The crime was charged as wounding with intent to cause grievous bodily harm and the court considered that it was a category 1 offence within the guidelines, for which the starting point is 12 years. The court considered that the offence by itself would have justified a starting point of 14 years. 43. These cases show the differing circumstances in which the arrest offence can be committed and therefore the range of sentences that may be appropriate depending on the seriousness of the offence. 44. The present case is marked by a number of aggravating features. The offender was fleeing from the scene of a serious offence carrying a knife. Criminals do not carry weapons as ornaments. He had already told Ms Leyland that he would stab her if he had to. He attacked a police officer with a knife in order to resist arrest. We do not accept that the offender was entirely unaware that Police Constable Lamb was a police officer as he stabbed him six or seven times, not least because he was in full uniform. He struck the officer repeatedly and forcefully with the knife and the only reason that more serious injury was not caused was that the officer was wearing body armour; it was not due to any lack of effort or intent by the offender. The intention was plain: to commit more serious harm than was in fact inflicted. This is identified as a specific aggravating factor in the section 18 Guidelines. The offender had a poor record, which included two recent convictions for carrying a knife, and he was on licence for the most recent offence. 45. If reference were to be made to the Guidelines for section 18 offences, the offence charged as count 4 fell at the top end of the range for category 2 offences, lesser harm and higher culpability, 5 to 9 years. 46. In these circumstances, a starting point of 5 years and a sentence of 4 years was, in our view, unduly lenient, even allowing for the proper application of the principle of totality. The offence called for a starting point of not less than 8 years' imprisonment. We are not persuaded that the judge erred in giving credit for the plea of 20 per cent, issues of credit for plea are very much for the sentencing judge; and after making allowance for the principle of totally, in our view the sentence on count 4 should have been a term of 6 years. 47. Accordingly, we substitute a sentence of 6 years on count 4. 48. No issues arise on any of the other sentences and therefore the total sentence will be one of 10 years and 6 months.

```yaml citation: '[2019] EWCA Crim 1135' date: '2019-06-07' judges: - LORD JUSTICE SIMON - MR JUSTICE LAVENDER - HIS HONOUR JUDGE EDMUNDS QC ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200505422/C3 Neutral Citation Number: [2006] EWCA Crim 694 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 14th March 2006 B E F O R E: LORD JUSTICE MAURICE KAY MR JUSTICE MCKINNON MR JUSTICE LANGSTAFF - - - - - - - R E G I N A -v- ZANE ROY AINSCOUGH - - - - - - - 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 G WHELAN appeared on behalf of the APPELLANT MR N WALKER appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE MAURICE KAY: On 9th September 2005, in the Crown Court at Liverpool, this appellant was convicted of an offence of inflicting grievous bodily harm pursuant to section 20 of the Offences Against the Person Act 1861 . On 4th October 2005 he was sentenced to 15 months' imprisonment. 2. He now appeals against conviction by leave of the single judge. 3. The incident which gave rise to the prosecution occurred in the early evening of Friday 23rd April 2004. Briefly, at about 6.30 p.m. both the appellant and Peter Wheatcroft, the complainant, were in the bar of the Dog and Partridge public house in Hindley, Wigan. It is common ground that, whatever gave rise to the incident, the appellant struck the complainant in the face on one or two occasions. The complainant fell to the ground and at some stage the complainant sustained a double fracture to his lower jaw. 4. The prosecution contended that whilst the complainant had been on the ground the appellant had kicked him in the head. The prosecution case was of a wholly unprovoked attack. 5. The defence case was that there was a background to the case which had resulted in the complainant harbouring ill-will towards the appellant and that in the bar the complainant had acted in such a way as to cause the appellant to believe that he was about to be attacked and that he, accordingly, had acted in self-defence. Moreover, it was the defence case that there had been no kick to the head of the complainant whilst he was lying on the ground. 6. It is necessary to summarise some of the evidence which gives a slightly greater understanding of the rival contentions. 7. The evidence of Mr Wheatcroft was that he had gone to the Dog and Partridge, having had a pint of lager in another public house. The Dog and Partridge was quiet at that time of the evening. There were only ten or a dozen people in the bar. He bought a pint of lager. He saw the appellant there. Mr Wheatcroft stated that he spoke to a woman with whom he was acquainted about some roofing felt that he had supplied. He then said to the appellant, "Are you all right?" which produced the response, "Get out of my fucking face". He said that the appellant was very aggressive, that he, the complainant, then went towards the bar and as he turned round the appellant was just behind him. The appellant punched him in the face. That was all that he, the complainant, could remember. He said he must have passed out. An ambulance came and he was taken to hospital. 8. The licensee of the Dog and Partridge was Mr Hanson. He was described by the prosecution as a sober and independent witness, a view with which it is difficult to disagree. He said that a point had come when he had heard a glass break. He added: "I came round the bar to see what was going on. I saw Wheatcroft. I saw the defendant aim a kick at his head and that kick connected. The defendant's face, I saw it, was pure anger. It was vicious. It was meant to hurt. I said 'Pack it in'. He turned and left the pub." 9. The appellant's account was that he had had one pint of lager when the complainant came in and sat by him. The appellant's evidence was summed up by the judge as having taken this form: "'I don't want any trouble, I would rather you didn't sit with me' and Wheatcroft said ... 'Come outside'. I said again: 'I want no trouble' but I walked to the bar. I couldn't see any reason for him to attack me. I punched him twice, a left hook and a right hook. I used minimal force. I have been told that he has a fractured jaw, I can't say how that happened, although he did fall against the bar." A little later he said: "'I did not kick Peter Wheatcroft in the face or kick him at all. I hit him twice but that was just a reflex, I'm an ex-boxer. I know how to defend myself, with the minimum of force'." 10. Another witness, Ryan McCarron, was called on behalf of the defence. He gave an account broadly consistent with that of the appellant, but was cross-examined to some effect about the fact that he had not made a statement until the morning of the trial. He gave evidence about the incident on the basis that it occurred on a different date and a different day of the week. It seems that there were some shortcomings in that evidence. 11. Finally, Karen Egglestone gave evidence. She it was who testified as to an alleged history of ill-will between the complainant and the appellant. She gave evidence which really amounted to a sustained attack on the character of the complainant, describing him as volatile, abusive and violent in his relationship with her, which, we infer, was in a difficult phase at the time. 12. Those then were the eye witnesses to what occurred. In addition to that, there was a small amount of medical evidence resulting from the complainant's hospitalisation. It took the form of a diagnosis of more than one fracture to both sides of the jaw, but it did not proffer a view as to causation. 13. As originally formulated the centrepiece of this appeal was to be in the form of a complaint that the judge was wrong to allow the prosecution to adduce evidence of the appellant's previous convictions as evidence of bad character and propensity under the Criminal Justice Act 2003 . That complaint has now been wisely abandoned. Quite simply the points which counsel was hoping to make are not open to him, as he acknowledges, in the light of the decisions of this court in Hanson and others [2005] EWCA Crim 824 and Weir and others [2005] EWCA Crim 2866 . However, concern about the way in which the evidence of the previous convictions was adduced remains as a ground of appeal. 14. The previous convictions were adduced before the jury by a police officer, Detective Sergeant Dale. He had no personal knowledge of any of the previous offences and what he was able to impart to the court came entirely from the Police National Computer. He referred to a conviction before the Wigan Magistrates in 1992 for common assault. He said that the print-out from the computer stated that the appellant had been asked to leave a shop and had punched a 22 year old to the face resulting in cuts and bruising. The second conviction was in 1995 at Abergavenny Magistrates' Court and according to Sergeant Dale concerned the use of a pool cue to hit the complainant. He then referred to a conviction in 1997 in the Wigan Magistrates' Court for threatening behaviour, adding that the facts were reported as being a punch by the defendant to an unknown male and abuse to police officers. The most recent conviction was in 2004, again in the Wigan Magistrates' Court, for common assault, the allegation being that the appellant had struck a 14 year old male in a shop. 15. It is apparent that, whilst the appellant did not dispute the fact that he had been convicted on the dates and in the places mentioned for the offences set out, albeit with one pedantic reservation which we ignore, he did not accept that what the Police National Computer disgorged by way of description was at all accurate. As we have said, it is common ground that Detective Sergeant Dale had no personal knowledge and was simply passing on what the computer provided. 16. We see from the summing-up that when the appellant gave evidence he did not accept that there was actual violence in 1992. He said that the 1995 conviction was in relation to a drug dealer who had been selling drugs and he disputed the pool cue. He said of the 2004 conviction, that there had been a gang of youths outside a shop throwing things at an elderly Asian shopkeeper and he had "pushed one of them out of the door". 17. It is apparent that the judge did not think much of the appellant's explanations of his previous convictions. As to his disputing that there had been physical violence in 1992, the judge said: "That cannot be right, we know that is not right because he was convicted on his own plea apparently of common assault, which is the unlawful application of force, so there clearly was an assault." He then made a similar point in criticism of the appellant's account in relation to the 2004 conviction. 18. Two points arise from this aspect of the case. The first is that where there is a dispute between the prosecution and the defence about the facts which supported previous convictions it is not enough for the prosecution simply to rely on the Police National Computer. This is apparent from the decision of this court in Humphries [2005] EWCA Crim 2030 , in which the Lord Chief Justice said at paragraph 21: "Before we leave this case we point out that it has a moral for other cases of this sort. First, it emphasises the importance of the Crown determining whether they need any more evidence than the actual previous conviction to achieve the purpose for which they want the evidence to be admitted. Second, it emphasises the importance of the Crown deciding that if they want more than the evidence of the conviction and the matters that can be formally established ... they must ensure that they have available the necessary evidence to support what they require. That will normally require the availability of either a statement by the complainant relating to the previous convictions in a sexual case or the complainant to be available to give first-hand evidence of what happened." 19. It is clear from that passage in Humphries that the way in which the alleged facts supporting the previous convictions were laid before the jury in the present case was inappropriate. It is to be hoped that, when there is a dispute about the facts supporting previous convictions, in almost all cases it should be possible for the matter to be dealt with in accordance with Humphries . However, one appreciates that there may be cases where the position is simply too complicated. Whatever the complainant may have said in a statement at the time of the earlier conviction, or may say now in evidence to the court, it may be that a current defendant was sentenced on a different basis as a result of a basis of plea proffered and accepted by the prosecution and by the judge. In other words, where these matters are in dispute there is a need for caution, there is a need to have regard to what was said in Humphries and there is a need to ensure that a current trial does not give rise to numerous satellite issues about what did or did not happen in some cases many years ago. It goes without saying that that is particularly to be avoided where what is taking place now is a relatively short trial on a simple issue. 20. The second point that arises is that, in our judgment, in the present case the judge went too far in promoting the versions contended for by the prosecution. We refer to the passages in which he was dismissing the accounts of the appellant on the basis that they could not be right having regard to his understanding of the meaning of common assault. As common assault can indeed be committed without the application of physical force, it can be seen that there was, to an extent, legal error in what he said. More significantly, the effect of what the judge said can only have been to promote disbelief of the account given by the appellant of his previous convictions and thus to undermine his credibility as a witness. 21. In our view, the two points which we have considered in relation to the evidence of the appellant's previous convictions are properly advanced as grounds of appeal. 22. There is another point related to the same issue. It is established by the recent authorities, see, for example, the words of the Vice President in Hanson paragraph 18, that: "... the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions." It is questionable whether the summing-up in the present case complied with that statement. 23. We now turn to a different aspect of the case and it centres upon the issue of self-defence which was the primary issue in the case. It is plain to us that even before the case was opened the judge had formed a particular view. It was that the appellant should be convicted if he had kicked the complainant in the face whilst the complainant was lying on the ground, but he should be acquitted if all that was proved was "a couple of punches". This is apparent from the transcript of the submissions and ruling concerning the adducing of the previous convictions of the appellant. 24. This is how the judge eventually left the issue to the jury. He said this: "What is suggested here is that anticipating an attack Mr Ainscough, as he would be entitled to do, punched Mr Wheatcroft twice. If that is all he did then let us not worry about whether that is self-defence, of course he would not be guilty of the offence with which he is charged. What is truly alleged in this case is having knocked him to the ground, whether legitimately or not does not really matter because you may think that is not how he came by his injury, although it is entirely a matter for you, but if we are on the ground he quite deliberately kicked him in the face and that that kick in the face resulted in the serious bodily injury, that kick would be the offence with which the defendant is charged ..." 25. He added: "... we will look at that in a little more detail tomorrow morning." However, he did not revisit it in quite the way he had indicated that he intended. 26. We have no doubt that the judge was trying to simplify matters for the jury. We should be slow to criticise a trial judge for making such an attempt. It is, after all, one of his primary functions. However, simplification can sometimes become oversimplification. On behalf of the appellant it is submitted that that is what happened here. 27. Several criticisms are advanced of the summing-up in relation to self-defence, but, in our judgment, two of them are of particular relevance. The first is the complete absence from the summing-up of a direction that it is for the prosecution to disprove self-defence and not for the defendant to establish it. The judge did, of course, give a general direction on the burden and standard of proof at a different point in the summing-up, but he did not consider it specifically in the context of self-defence. 28. We think we understand how this came about. The judge had, as we have said, taken the view that if the kick was proved, the appellant was guilty. However, not least because of the next point we shall address, he ought not to have omitted the important specific and conventional direction as to the burden of proof in the context of self-defence. 29. The second point is really one of causation. We cannot interpret the summing-up other than as encouragement to conclude that, if the jury accepted Mr Hanson's evidence about the kick, the appellant was guilty. This is how we interpret what he said, even when every allowance is made for his reference to matters being "entirely for you". Again, we are sure that the judge was expressing himself quite deliberately, in good faith, and in an attempt to provide helpful simplification. 30. What the approach overlooked was whether the evidence did in fact establish that it was the kick that caused the jaw fractures. The medical evidence did not begin to establish that. It did not address the mechanism of the injury at all. Moreover, the appellant's evidence was that he, an ex-boxer, had punched the complainant to the face twice, with a right hook and a left hook. In addition, the complainant had impacted on the bar as he fell. We take the view that the jury might have been led to believe that the possibility that, even if they were satisfied about the kick, there was still a live issue as to causation as to the grievous bodily harm was being removed from them. It is significant to observe that the prosecution had not limited its case in opening, or at any stage, to causation being necessarily related to the kick as opposed to the attack as a whole. 31. It seems to us that on the evidence as disclosed by the summing-up the possibility of the jaw fractures having occurred from the punches, or an impact with the bar, is not simply a fanciful one. The judge encouraged the view that the kick suggested an absence of self-defence and the kick caused the injuries. In our judgment, whilst this was a well intentioned simplification, it did cross the boundary into oversimplification. 32. There is a third attack on the summing-up to the effect that, read as a whole, it fell short of the requirements of fairness and even-handedness which bind a trial judge. Reference is made to the case of Bryant [2005] EWCA Crim 2079 and the passage at paragraph 29 where Judge LJ said: "What the judge's conduct of the case cannot do, and is wholly impermissible, is to allow the jury, who are the fact finders with the ultimate responsibility for returning the verdict in the individual case, to be left with the impression that he favours one side rather than another, and in particular the prosecution rather than defence, by conduct of the kind described in this case, and by the contrasting way in which he behaved in relation to the witnesses for the prosecution as opposed to the witnesses for the defence." 33. We say at once that we do not find in the present case anything comparable with the behaviour of the trial judge in Bryant . Moreover, it seems to us that whilst it may well be that the judge was suggesting a critical view of one or two of the defence witnesses, he was not adopting a position which favoured one side rather than the other. In particular, by the attempt at simplification he was seeking to provide an approach to the case which might have benefited either side. In one sense, it was a generous approach that the appellant should be found not guilty if all that he had done was to punch the complainant in the face twice. As we have said repeatedly, that approach was well intentioned, if, in the event, unfortunate on the facts of the case. It was not motivated by a lack of even-handedness, quite the contrary. Accordingly, we find nothing in that ground of appeal. 34. However, we do find the earlier grounds of appeal in relation to the way in which the previous convictions were treated and the approach of the judge to self-defence to be made out. In those circumstances, it is submitted on behalf of the prosecution that this was a short case, it was a straightforward case and a strong case and, in all the circumstances, we should not view the conviction as unsafe. We regret to say that we cannot accede to that submission. It seems to us that the matters that have been identified as sustained grounds of appeal related to important aspects of the case. We take the view that the case for the appellant was damaged by the errors to which we have referred and we do not feel able to say that the conviction is nevertheless, in all the circumstances, safe. Accordingly, we shall allow the appeal and quash the conviction. 35. We note that the appellant received a sentence of 15 months' imprisonment. We are told that he is presently on home detention curfew and has been for some weeks. In those circumstances, whilst no one at this stage has even suggested that there should be a retrial, we take the view that such a retrial would not be in the public interest.

```yaml citation: '[2006] EWCA Crim 694' date: '2006-03-14' judges: - LORD JUSTICE MAURICE KAY - MR JUSTICE MCKINNON - MR JUSTICE LANGSTAFF ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

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 202002182 A4 [2020] EWCA Crim 1895 Royal Courts of Justice Strand London WC2A 2LL Wednesday 2 December 2020 LORD JUSTICE HOLROYDE MR JUSTICE PICKEN MR JUSTICE HENSHAW REGINA v BRADLEY FINN __________ 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 JASON SMITH appeared on behalf of the Appellant _________ J U D G M E N T MR JUSTICE HENSHAW: 1. The appellant was on 3 July 2020 committed for sentence, having pleaded guilty before the magistrates to five offences committed on 30 June and 1 July 2020. These offences were: (1) receiving stolen goods, (2) dangerous driving, (3) driving without insurance, (4) going equipped and (5) driving while disqualified. The appellant was sentenced on 31 July 2020 in Newcastle-upon-Tyne Crown Court by Mr Recorder Sandiford QC. 2. After giving full credit for the appellant's guilty pleas, the Recorder imposed a sentence of 16 months' imprisonment for receiving stolen goods, a consecutive sentence of 14 months' imprisonment for dangerous driving, concurrent sentences of 2 months and 4 months respectively for going equipped and driving while disqualified, and no separate penalty for driving without insurance. The total custodial term was therefore 30 months. 3. The appellant appeals against sentence by leave of the single judge. 4. The main facts were as follows. Between 00.45 am and 10 am on 30 June 2020 there was a house burglary in which a jacket containing the keys to a Volkswagen Polo car was stolen from its owner's house while she was asleep. The car itself (valued at £1,000) was then stolen from outside her house. At just after 11 pm that night, staff at a restaurant in Pennywell, Sunderland contacted police because they were concerned as to the conduct of individuals inside that Volkswagen car and suspected that they may be drunk. Police officers attended the area. A police officer spotted the car and turned round to follow it. The appellant, who was driving the vehicle, saw this and made off at high speed. The officer activated his lights and sirens and followed the Volkswagen for about 10 minutes. He described it as reaching speeds of between 50 and 80 mph in roads with a 20 to 30 mph limit in densely populated areas. It went through red lights. For the majority of the pursuit the Volkswagen's lights were turned off. The officer was joined in the pursuit by a second officer. The Volkswagen went off the road onto a public footpath, and then a grassed area, and lost control. It came to rest against a garden fence. The appellant and two passengers made off, but the appellant gave himself up on a nearby road. 5. The vehicle was searched, and a number of empty plastic petrol drums were found in the boot. It was the prosecution case that these were to be used for stealing petrol. That was the basis of the going equipped charge. At the time the appellant was disqualified from driving and therefore had no insurance. In interview the appellant said that he had purchased the vehicle for £50. 6. The appellant was aged 21 when he committed the offences and 22 by the date of sentence. He had ten previous convictions relating to 36 offences. These included a robbery and numerous driving offences. In October 2015 he pleaded guilty to dangerous driving, failure to stop after an accident, failure to stop when required, driving while uninsured (twice) and driving without a licence (twice). In August 2016 he pleaded guilty to driving while disqualified and without insurance. In November 2016 he pleaded guilty to having committed each of those two offences on three further occasions; at that stage he was imprisoned for 6 weeks and disqualified from driving for 39 months. 7. On 13 April 2017 the appellant pleaded guilty to robbery, dangerous driving and driving while disqualified and without insurance. He was sentenced to 40 months' detention in a young offender institution for the robbery, with a consecutive sentence of 6 months for the dangerous driving. He was disqualified from driving for 41 months and disqualified from driving until he passed an extended test. 8. The appellant had been released on licence pursuant to the 2017 custodial sentence when he committed the present offences. 9. More recently, in September 2019 the appellant pleaded guilty to driving while disqualified, uninsured and without due care and attention. He was imprisoned for 12 weeks and disqualified from driving for 24 months. 10. The appellant thus had a previous conviction for robbery and he also had a very bad record for driving offences, including two previous convictions for dangerous driving, one of careless driving, six of driving while disqualified and eight of driving without insurance. 11. In sentencing the appellant for the present offences, the Recorder first considered the sentencing guideline for handling stolen goods. He took the view that the appellant's offence fell in the high culpability (culpability A) bracket because it involved possession of very recently stolen goods from a domestic burglary. As to harm, the Recorder felt it inevitable that the car would have been of substantial value to the victim. He found that the offence fell on the cusp between categories 2A and 3A and would justify, after trial, an adjusted starting point of 18 months. The aggravating features were the appellant's previous conviction for robbery and the fact that he had committed the offence while still on licence following the earlier conviction. Overall, the Recorder concluded that the appropriate sentence for the handling offence, before credit for plea, would be 2 years' imprisonment. 12. In respect of the going equipped offence, the Recorder noted that there was a degree of planning -- the use of the vehicle and the drums -- but the offence fell into the medium culpability band B. The Recorder assumed that the petrol drums were to be used to try to steal from a petrol station and that the lesser harm band applied. The starting point would therefore have been a high level community order, but the appellant's previous convictions and his licence breach were aggravating factors, so the sentence after a trial would have been at the top of the category, namely 12 weeks. 13. As to the driving offences, the Recorder noted, first, that the appellant had already been disqualified from driving; secondly, this was a serious case of dangerous driving, aggravated by the appellant's bad driving record. The appellant had been trying to evade police arrest for two offences that he had been committing; he ignored the police lights and sirens; he drove at grossly excessive speeds in pedestrian areas and places where people were living; he ran red lights; and he drove the vehicle onto a footpath used by pedestrians and then onto a grassed area. Notwithstanding the fact that nobody was injured, the offence fell towards the top end of the scale when the appellant's numerous previous driving convictions were taken into account. The maximum sentence was 2 years, and after a trial a sentence of 21 months' imprisonment would be justified. In reaching that figure the Recorder also took into account the separate offence of driving without insurance. 14. The Recorder considered that the further offence of driving while disqualified (which was the appellant's seventh such offence) would justify a consecutive sentence of 4 months -- the maximum after giving credit for the prompt guilty plea. 15. The Recorder took the view that, although consecutive sentences were justified for the handling, going equipped, dangerous driving and driving while disqualified, there must be some adjustment for totality. The present situation caused by the Covid pandemic in the prison system should also be taken into account, but to a large measure that was outweighed by the Recorder's duty to protect the public from further offences by the appellant. Looking at the case in the round, the appropriate sentence after credit for plea was 30 months' imprisonment, made up of 16 months for handling and 14 months for dangerous driving, with concurrent sentences for going equipped and driving while disqualified, and no separate penalty for driving without insurance. 16. In addition, bearing in mind the appellant's previous record, he would be disqualified from driving for 3 years, with an extension period of 15 months, and required to take an extended retest. 17. In his grounds of appeal the appellant makes no challenge to the total sentence imposed of 14 months' imprisonment for dangerous driving and driving while disqualified -- in our view, rightly so. The appellant was guilty of an appallingly dangerous piece of driving that might easily have resulted in death or serious injury to a member of the public or a passenger; moreover, it occurred while seeking to escape from the police and at a time when the appellant was disqualified from driving and uninsured. The sentence was amply justified. 18. The appellant, represented today by Mr Jason Smith, who also appeared at the time of sentencing, does take issue with the sentence for handling stolen goods, as well as questioning how the Recorder took account of totality. 19. The appellant contends that the handling offence fell at the very bottom of harm category 3 -- which in high (A) culpability cases has a category range from 26 weeks to 2 years' custody -- because the value of the stolen vehicle (£1,000) fell at the very bottom of the range for medium value goods which runs from £1,000 to £10,000. However, that contention overlooks the Recorder's conclusion that, as he put it, "somebody's motorcar, normally their second most valuable possession after their house”, would have been of substantial value to the user regardless of monetary worth. Mr Smith suggests in submissions today that the likelihood is that the car would have been returned to the victim very shortly after the incident, and he points out that there was no victim personal statement setting out details of any additional harm suffered. However, it seems to us that there is no basis on which it can or should be assumed that the vehicle would have been so promptly returned to the victim, and we consider that the Recorder cannot be said to have fallen into error by taking the approach he did and regarding this as a case of additional harm. 20. The definition of “low value” goods in harm category 4 is up to £1,000, and so goods worth £1,000 fall at the dividing line with medium value goods. Category 3 includes cases of “low value significant with additional harm to the victim or others”, whereas category 2 includes cases of medium value goods with significant additional harm. We therefore consider that the Recorder was right to take the view that this case fell on the cusp of harm categories 2 and 3, and so to use 18 months as the adjusted starting point, increased to 2 years in the light of the aggravating factors we have already mentioned. Even if the Recorder were wrong as to significant additional harm, we note that the starting point for category 2A is 3 years' custody whereas that for category 3A is 1 year's custody, and that the category ranges considerably overlap. It appears to us, viewing the matter in the round, that the adjusted starting point of 18 months, increased to 2 years as a result of the aggravating factors (which were significant), was justifiable and certainly not manifestly excessive nor involving any error of principle. It seems to us unrealistic in this case to suggest, as has been submitted this morning, that the starting point should have been towards the bottom end of category 3A. 21. As to totality, the Recorder did take account of totality when imposing concurrent sentences for going equipped and for driving while disqualified, and when imposing no separate penalty for driving without insurance. We consider that the sentence arrived at took full account of totality. 22. Overall, therefore, it seems to us that there was no error of principle and nor was the sentence manifestly excessive. We accordingly dismiss the appeal. 23. Two final matters arise in relation to the driving disqualification imposed on the applicant. 24. First, in accordance with the guidance of this court in R v Needham [2016] EWCA Crim 455 , the court is required to identify separately the appropriate discretionary period of disqualification, the extension period pursuant to section 35A of the Road Traffic Offenders Act 1988 , and any other discretionary period pursuant to section 35B. 25. The Recorder was obliged to disqualify the appellant for at least 2 years, by reason of sections 34(4) and (4B) of the Act, the appellant having within the preceding 3 years already been disqualified at least twice for 56 days or more. The Recorder considered that the appellant should in fact be disqualified from driving for 3 years, plus an extension period of 15 months as he would be in custody for at least the next 15 months. 26. As to the period of disqualification, we agree. In terms of the expression of the period in accordance with Needham , the relevant periods are as follows: (1) The appropriate discretionary period (so called) of disqualification is 3 years; (2) the extension period under section 35A (relating to the custodial term for dangerous driving) is 7 months; (3) the appropriate uplift under section 35B (relating to the custodial term for other offences) is 8 months; and (4) the total period of disqualification is therefore 51 months. 27. The second matter is that section 36(7) of the Act provides that the court shall not make a further order for an extended driving test where the person disqualified is already subject to such an order. The record indicates that the appellant is already subject to an extended driving test requirement following his previous conviction and disqualification in 2017. The extended driving test imposed for the current offence of dangerous driving is therefore incorrect and must be quashed, if and to the extent that it has not already been rectified under the slip rule pursuant to a letter which we were told this morning was sent to the Crown Court in August. In any event, however, the appellant does of course remain subject to the extended driving test requirement imposed in 2017. 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]

```yaml citation: '[2020] EWCA Crim 1895' date: '2020-12-02' judges: - LORD JUSTICE HOLROYDE - MR JUSTICE PICKEN - MR JUSTICE HENSHAW ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200504623 A7 Neutral Citation Number: [2006] EWCA Crim 105 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 19th January 2006 B E F O R E: LORD JUSTICE MOSES MRS JUSTICE DOBBS SIR MICHAEL WRIGHT - - - - - - - R E G I N A -v- GAVIN ALAN FLETCHER - - - - - - - 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 EVANS QC appeared on behalf of the APPELLANT MR M MEEKE QC appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE MOSES: This is an appeal against sentence of seven years' imprisonment in respect of what are notoriously difficult and distressing cases. Nothing the sentencing judge, nor this court on appeal, can say will ever measure the impact of the death of a young child on family relations and friends. We have read the statement from the mother of young Michaela who died and, whilst we can never feel the same tragic emotion that she must feel, we can readily appreciate it. But the death of this young child was caused in a remarkably short period by this appellant, whose behaviour prior to the incident in May 2004 could never have been expected. 2. The appellant had started to live with Michaela's mother, Amanda Richards, in Plymouth in February. Although there had been thought to be some dispute about this, by the time the judge came to sentence it was plain that this appellant had exhibited no feelings or animosity or violence towards the young child he killed. Michaela was one of four young children. The appellant was apparently good towards them and had devoted all of his limited resources towards their upkeep - this was not something Michaela's mother had experienced before. 3. The occasion of Michaela's death was her birthday. She was only two. The appellant had bought her presents and had taken her on 12th May to Plymouth town centre whilst the rest of the children were at school. He returned at a time that, whilst there was some dispute about it at trial, appears to have been 2.49 in the afternoon. It would take about two to three minutes for him, with Michaela, to walk from the bus stop to home, possibly slightly more. It is clear from computer records that an ambulance was called at 2.52. Thus, the occasion of the killing of Michaela took place in a very short period indeed, probably about two minutes. It appears that this appellant lost his temper and shook her in a way that caused her immediate death. Just after that the appellant came out of the house carrying Michaela in his arms. She was limp, unconscious and having difficulty breathing. When the local residents came to help the ambulance was called at the time we have identified. 4. Unfortunately, but not unusually in cases of this kind, the appellant was unable to face what he had in fact done and both before and during the trial denied that he was responsible for the injuries which, as the doctor said, must have been the result of shaking with considerable force and were inconsistent with any fall from the bed as had been suggested. 5. As we have said, the appellant denied that he was responsible and he was charged with murder. At the close of the prosecution case the judge, Owen J, ruled that there was insufficient evidence of a murderous intention. Manslaughter was left to the jury. 6. We can well understand that, having faced a charge of murder and having had that dismissed only immediately before he was due to give evidence, the appellant felt unable to accept his responsibility at that stage. Thus the issue of manslaughter went before the jury and he was convicted of that offence. 7. The judge, in his sentencing remarks, accepted that the appellant was very good with the children and their siblings. He pointed out that there was no suggestion of any violence towards the children in the past, nor of animosity. 8. The judge was faced with a young man of 23, and, as we have said, sentenced him in July 2005 to seven years' imprisonment. The issue is whether that sentence was manifestly excessive. 9. There were important mitigating features in relation to this case. We have already identified the absence of any animosity or history of previous cruelty, let alone injury, towards the children. There was positive evidence of the appellant's good behaviour in supporting Michaela and the other children. The offence was not premeditated and took place, as we have said, in a very short space of time. This appellant had not been in trouble for offences such as this before. Not only was he only 23 at the time of his trial, he unfortunately suffered from limited intelligence amounting to a borderline learning disability. He had sought immediate help for the child as soon as he had shaken her in a way to cause her death. Against that, it has to be said that this was a very young girl of two who required the protection of the courts. The impact on the family, as we have said, was devastating and will continue to be. 10. In those circumstances, we have had to consider whether the sentence of seven years was manifestly excessive. 11. Our attention was drawn to a number of authorities. The authority of greatest assistance is the case of Yates [2001] Cr App R (S) 428. In that case this court identified the range of sentences on a plea of guilty as between two and five years and reduced a sentence of seven years in that case to one of five years. As Mr Evans QC, on behalf of this appellant, has pointed out, that case appears to be slightly worse in some respects since there was no evidence of any remorse, in contrast to this case, and there was evidence of previous incidents of violence towards the victim, but the appellant pleaded guilty. The fact that this appellant did not plead guilty, particularly in the face of a charge of murder, does not indicate that he did not suffer remorse. Moreover, we fully understand how it was difficult for him at so very late a stage once the murder charge had been dismissed, to change the unfortunate approach that he had adopted of denying his responsibility. 12. We take the view that having regard to the mitigating factors which we have identified, notwithstanding the gravity of this offence, a sentence of seven years was manifestly excessive. Our view is that a sentence of five years' imprisonment would have been appropriate, reducing that sentence therefore by two years. In those circumstances we shall allow the appeal and substitute the sentence of seven years for one of five years' imprisonment.

```yaml citation: '[2006] EWCA Crim 105' date: '2006-01-19' judges: - LORD JUSTICE MOSES - MRS JUSTICE DOBBS - SIR MICHAEL WRIGHT ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2013] EWCA Crim 1744 Case No: 2013/2123/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 20 September 2013 B e f o r e : LORD JUSTICE FULFORD MRS JUSTICE COX DBE MRS JUSTICE SLADE DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v JUNIOR CLARKE LOPEZ - - - - - - - - - - - - - - - - - - - - - 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 N Beechey appeared on behalf of the Appellant Mr D Stevenson appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE FULFORD: On 27th March 2013 in the Crown Court at Kingston upon Thames before Mr Recorder McCooey, the applicant was convicted in his absence of two counts of possessing a controlled drug of class A with intent to supply, namely cocaine (count 1) and diamorphine (count 2). On 7th May 2013 before the same judge he was sentenced to 42 months' detention in a young offender institution on each count concurrent. Before this court he applies for leave to appeal against conviction and sentence, the case having been referred by the Registrar. 2. We should say at the outset that the Crown does not oppose the application for leave to appeal the applicant’s conviction, although it is suggested that some of the applicant's various grounds of appeal are not sustainable. 3. On 7th September 2012 at about 3.55 pm, police officers executed a search warrant at 70 Newton Avenue, Acton. The only person in the premises was the applicant, then aged 17, who was in one of the bedrooms. On the bed was a drawer with a large amount of cash (somewhere between £1,500 and £2,000). The bank notes were split into bundles, each wrapped with a single note, and there was a large quantity of coins in a carrier bag. The applicant gave his name, address (25 Chester Road, Slough) and date of birth. He was handcuffed and taken into the living room. On the sofa in the living room police found a ball of Clingfilm which was later found to contain 13 wraps of cocaine (count 1) and 17 grams of diamorphine (count 2). Elsewhere in the same room they also found a knife with white substance on the blade, some large pieces of Clingfilm covered in brown or white powder which were in the bin, a set of scales, Clingfilm and a large quantity of correspondence in the name of somebody called Chanice Rainford-Clark, the apparent occupant of the flat. On the bathroom windowsill the police found a spectacle case containing a second ball of Clingfilm which contained another 20 wraps of diamorphine, also part of count 2. The total street value of the 13 wraps of cocaine was £100 and the 37 wraps of diamorphine was £473. Tests were later carried out on the respective wrappings and the applicant's fingerprints or DNA were not found on any of them. 4. At about 4.30 pm Chanice Rainford-Clark, aged 19, was spotted near the address paying close attention to what was going on and was arrested on suspicion of possession with intent to supply class A drugs, although she was not charged with any offence. The applicant was arrested for those same offences. The police went to 25 Chester Road in Slough and were told by the applicant's brother that his parents had "kicked him out" a year before and that he thought he was living in a hostel in Slough. 5. The following morning the applicant was interviewed under caution without a solicitor and he was charged. He had admitted in interview that he had been selling drugs in £10 deals for about three months and that the money was his. He said Miss Rainsford-Clark was his friend and that he had been staying with her for about two weeks. She knew about the drugs but was not involved at all. 6. In due course, on 20th December 2012 at the plea and case management hearing ("PCMH"), the applicant was arraigned in the Crown Court and he entered a not guilty plea. He submitted a defence statement in which he retracted the admissions we have just set out. He denied knowing about the drugs in the house or that he had been in possession of them and he indicated that he had never touched them or any of the paraphernalia. He said that he had slept in the lounge and he had only been in the bedroom to use a PlayStation. He said that he had lied in interview to protect the true owner of the drugs, which he regretted, and he made various requests for disclosure. 7. During the PCMH the defence requested that PC Sturridge, the officer in the case, attend to give evidence at the trial. Although the history is sketchy, it appears that the applicant had had some medical problems in the past because there was reference during the PCMH for the need for a letter from a medical practitioner if there was to be an adjournment of the case for medical reasons. 8. The case was transferred from Isleworth Crown Court to Kingston Crown Court. It was placed in a warned list at Kingston for a two week period that had been identified, as we understand the position, at the PCMH and at 10.00 or 10.30 on 26th March 2013, the day when the case was put in the list for trial (we assume this latter step was taken on the previous afternoon), prosecuting counsel and the officer in the case failed to attend. The reason for counsel's absence was that the clerk in the set of chambers that had been sent the brief had not been notified by the Crown Prosecution Service of the new trial venue and therefore he missed the listing because the court number allocated to the case changed when the case was transferred. Later in the morning, Mr Stevenson, who appears before us today, attended on behalf of the prosecution. He had been briefed at the last moment. PC Sturridge, the officer in the case, did not attend court, notwithstanding the defence indication at the PCMH that he was to be called to give evidence. He had not been warned to attend, but he was contacted and fortunately was able to give evidence on 27th March. Finally on the subject of non-appearance, the appellant also did not attend court. When questioned about his absence, counsel then instructed ("trial counsel") told the court that his instructing solicitors had been contacting the appellant via his girlfriend's mobile telephone, because the applicant's own mobile had been seized when he was arrested. Contact with the girlfriend had ceased about a week before the hearing, in that the telephone was no longer answered, although messages could still be left on the answering service. Trial counsel told the court that a message had been left to the effect that the case had been transferred to Isleworth and the applicant was reminded that it was in the current warned list but no acknowledgement of that message had been received. Attempts to contact the girlfriend on this telephone number on 25th and 26th March 2013 had been unsuccessful. As the Recorder stated during exchanges with counsel, this was an inefficient and precarious method of keeping in contact with a defendant awaiting trial. 9. We are told by counsel now representing the applicant, Mr Beechey, that he had split up from his girlfriend a week before the trial and hence the breakdown in this method of communication. The Recorder simply observed that it was the applicant's obligation to contact his solicitors to find out whether the case was in the list. 10. Trial counsel was asked by the judge as to his views as to what should happen. The response was simply: "It is very much a matter for the court and the Crown as to whether the case goes ahead" and "I have instructions, so I am in a position to represent Mr Lopez in the event the trial goes ahead today." 11. Neither prosecution counsel nor the applicant's trial counsel made further submissions to the judge on the issue. Once it was clear the officer in the case was able to give evidence, the Recorder failed to give any ruling on whether he should try the accused in his absence. Apart from discussing timetabling, the court simply proceeded on the basis that the defendant would not be present for his trial. Trial counsel took no steps to avoid that result. 12. The prosecution case, as presented during the trial, was that the applicant's admissions in interview were true and that he was in possession of all the drugs in order to supply them as he had indicated. It was suggested his admissions were consistent with what was found in the flat. The defence case was put in accordance with the defence statement and trial counsel relied on certain misunderstandings or mistakes on the applicant's part about the drugs as identified in the interview and the prosecution was criticised for failing to pursue some of the forensic tests that had been requested. Counsel suggested that the result of those tests might have put the matter beyond doubt in favour of the applicant. There was evidence before the jury, although it was not referred to in the summing-up, that fingerprints on a ball of wrapping in the flat matched a man by the name of Dwayne Stephens. Discussion 13. The approach that should be taken to trying defendants in their absence is abundantly clear and has been for a considerable period of time. A decision "to commence a trial in the absence of a defendant should be exercised with the utmost care and caution" (see Lord Bingham, R v Jones [2003] 1 AC 1 , paragraph 13). One of the most important factors that the court must resolve is whether the defendant deliberately and consciously chose to absent himself from the court ( ibid Lord Nolan, paragraph 18). Even if the court resolves that question against the defendant, the court must go on to consider all of the relevant circumstances which include as set out by the Court of Appeal in Jones [2001] QB 862 , paragraph 22 and expressly approved by the House of Lords: "22 ... (ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings; (iii) the likely length of such an adjournment; (iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation; (v) whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence; (vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him; (vii) the risk of the jury reaching an improper conclusion about the absence of the defendant; (viii) the seriousness of the offence, which affects defendant, victim and public; (ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates; (x) the effect of delay on the memories of witnesses; (xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present. 14. The judge failed to consider any of these issues and we fear he was not assisted by counsel who did not alert him to the steps that needed to be followed, notwithstanding the full analysis provided in this regard in the two leading practitioner guides, Archbold and Blackstone. The judge had no material before him on which to base a decision of "the utmost care and caution" that the applicant had "deliberately and consciously" chosen to absent himself from the proceedings. The system established by his solicitors for keeping in touch with him was, as the Recorder observed, precarious. Nonetheless, he had seemingly been in contact with his lawyers during the period leading up to trial and it was simply unexplained as to why during the week before the 26th March the telephone of his girlfriend ceased to be answered. Without further investigation, the possible explanations for this state of affairs were, in reality, limitless and his absence may not have involved a deliberate and conscious decision to abscond. The judge and trial counsel had no means of knowing the reason for his absence. 15. We note additionally that given the applicant's account was that his confession in interview was not genuine, his defence to a very great extent depended on his own evidence as to why he had, as he suggested in his defence statement, falsely implicated himself in order to protect a friend of his. That factor standing alone should have given the judge reason to pause before moving immediately on the scant information before the court into a trial in-absentia. Accordingly, there was no proper justification for proceeding with the trial at that stage without the defendant. 16. We emphasise this conclusion is not meant to deter judges from making decisions of this kind when there is a proper foundation, based on direct evidence or sustainable inferences that the accused has waived his entitlement to attend his trial. Furthermore, an undoubtedly relevant factor is that defendants have a responsibility to maintain contact with their lawyers by means that enable communication at short notice and they must ensure that they are aware of the date of their trial or the period of any relevant warned list. In the latter situation, they will need to contact their solicitors or the court on a daily basis to find out whether the case has been listed the following day. It may be thought to be a matter of good practice for defendants to be reminded in terms of these obligations by the judge at the PCMH. 17. In Jones , the House of Lords emphasised the importance of bespoke directions to the jury on the issue of the accused's absence and particularly the instruction that they should try the case solely on the evidence. They should not speculate as to why the defendant was absent and they should not assume that the defendant's failure to attend court in any way established guilt ( ibid paragraph 66, per Lord Rodger of Earlsferry). As was observed, these directions are "no mere formality" (paragraph 67) and this requirement for careful directions is set out comprehensively for the convenience of judges in the Crown Court Bench Book (Directing The Jury) between pages 23 and 26. It is emphasised that an explanation should be given to the jury at the first opportunity during the trial and repeated in the summing-up. The judge failed to direct the jury on this issue during the summing-up and it would appear he did not give a suitable direction at any other stage of the trial. 18. In the circumstances of this case, the decision to proceed in the absence of the applicant without further investigation or proper consideration of the issue and the failure to give a direction to the jury about his absence in the summing-up, were material irregularities in the trial that render the jury's verdict unsafe and the convictions must in the result be quashed. 19. It follows that it is unnecessary for the court to go on to consider the other grounds of appeal that have been helpfully advanced in written submissions by Mr Beechey. 20. However, before we part from this case, we regret the need to observe that the summing-up more generally gives this court cause for grave concern. Putting to one side the wholesale lack of structure in the judge's remarks and the appearance that the summing-up was delivered without any real preparation, it is defective in a marked number of respects. We take three conspicuous examples. 21. First, although the Recorder informed the jury that the prosecution had brought the case, he never explained that the burden of proof rested on the Crown and that in consequence the defendant did not have to prove his innocence. It is arguable that in a case in which the defendant was not present, even greater importance attached to that direction than in other trials. 22. Second, although on more than one occasion the judge told the jury they should only convict the defendant if they were sure of guilt, this was fatally confused at the end of the summing-up when the judge directed the jury: "... and the verdict which I require of you, or the verdicts, are ones where you are all unanimously satisfied that you are sure either the defendant is guilty or not guilty as charged." This clearly left the choices as twofold. The jury had to decide whether they were sure of his guilt or sure of his innocence. This direction undermined one of the central tenets of our system of criminal justice, namely that the accused is entitled to the benefit of a reasonable doubt. In order to be acquitted, he does not have to establish – to make the jury sure of – his innocence. 23. Third, the judge gave the jury little, if any, meaningful direction as to the ingredients of the two offences of possessing a controlled drug with intent to supply and the elements that needed to be proved. The directions to the jury on the charges were as follows: "The case is one which is very familiar in this country. We all know -- indeed around the world -- that drugs are everywhere, and certain drugs (most drugs) we can take from the prescriptions and we can use them for our health and there is no problem. But there are others that these drugs have been determined to be dangerous to health and should not be taken and, in particular, should not be dealt with, or sold, or handed to other people. And, therefore, the courts do try these cases. This is not a case of a slap on the wrist. This is a serious case, because we are dealing with class A drugs. We are not dealing with class C drugs or class B. We are dealing with the most serious drugs (class A): Cocaine and heroin. And the allegation is not just that the defendant was in possession (in his pocket) of some drugs. But, here the case for the Crown is that he was not only in possession, but he had possession with intending to supply those drugs to third parties for cash. And we have seen, what [the] Crown would say, here all the accoutrements of a drug dealer (which is the things that go with the trade of dealing in drugs). The Crown would say, 'Look at the environment. The Environment is one which is a two-bedroomed flat and it has drugs in the bedroom -- cash in the bedroom, drugs in the lounge, scales, wraps, all the things that are needed to deal in drugs rather than just being simple possession.' So the charge against the defendant is a serious one." That was the full extent of the judge's directions on the charges. 24. In this case, the applicant was found in someone else's property and at the very least the judge should have directed the jury that in order to convict him they would need to be sure that the drugs were in his custody and under his control. In other words, the jury would need to have been sure that he was not simply a visitor to a flat in which there happened to be drugs belonging to someone else. It is instructive that after the jury had been in retirement for over an hour they sent a note to the judge asking for assistance on the meaning of the word "possession". 25. There were many other faults with this summing-up but those three examples will suffice for these purposes. 26. In the result, for multiple reasons, we have no hesitation in granting leave to appeal. The appeal against conviction is allowed and we quash both verdicts. The Crown does not seek a retrial and in the result the appellant is to be released.

```yaml citation: '[2013] EWCA Crim 1744' date: '2013-09-20' judges: - LORD JUSTICE FULFORD - MRS JUSTICE COX DBE - MRS JUSTICE SLADE DBE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2017] EWCA Crim 2604 Case No: 201704641/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 20 December 2017 B e f o r e : LORD JUSTICE IRWIN MR JUSTICE PICKEN HIS HONOUR JUDGE LUCRAFT QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - R E G I N A v DIAGO ANDERSON - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr R Jones appeared on behalf of the Appellant Mr G Bermingham appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE PICKEN: The offender seeks leave to appeal against a total sentence of three years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for an offence of conspiracy to rob, his application for leave to appeal against sentence having been referred to the full court by the Registrar. 2. On 6th January 2017 at Birmingham Crown Court, the offender changed his plea to guilty for the robbery offence and was subsequently, on 5th May 2017, sentenced as we have described by His Honour Judge Thomas QC. The offender's co-accused Deraj Meade, who like the offender was 15 at the time of sentence, also pleaded guilty to the conspiracy to rob offence, along with offences of possession of an imitation firearm with intent to commit robbery and dangerous driving. He was sentenced to a total of five years' detention under section 91 . Christopher Clarke, who was 16 at the time of sentence, Josiah Frederick, 17 when sentenced, and Shaheim Walker, another who was 15 when sentenced, changed their pleas for the conspiracy to rob offence and were sentenced to a two year detention and training order, an eight month detention and training order and a six month detention and training order respectively. Another co-accused Orion Daley, 16 when sentenced, also pleaded guilty to the conspiracy to rob offence and was sentenced to an eight month detention and training order. 3. The conspiracy involved a series of 13 linked offences of robbery committed between 6th September 2016 and 5th October 2016. These were all wrapped up in the single count of conspiracy to rob. The conspiracy came to an end after a number of arrests were made by the police. 4. The six defendants sentenced were involved in various of the 13 offences, although Meade was involved in all 13 and the offender in seven. There were others involved as well. 5. The offender committed offences 2, 3 and 5 with Meade, and having been arrested he went on to commit offences 9, 10, 11 and 12 whilst on bail, committing those offences with Meade and Daley. Meade committed offence 1 with Clarke, offence 4 with Clarke and Frederick and offences 6 and 7 with Walker, although Frederick accepted using stolen cards and Clarke accepted being in the stolen car. Offence 8 was committed by Meade with Frederick. During the thirteenth and most serious robbery committed by Meade alone, a firearm was produced and used. 6. The offender and his co-accused were linked in a number of ways to the conspiracy. CCTV footage put them at the scene of some of the offences. Stolen bank cards were used. Arrests in or on vehicles stolen from the offences were made. The phones seized allowed the police to identify a WhatsApp group in which members of the gang talked in considerable detail in gang vernacular about the robberies which they had committed and were planning to commit. 7. Turning to the offences committed by the offender specifically and starting with offence 2, at about 10 pm, and so 3 hours or so after offence 1 had been committed on 7th September 2016, the complainant Jack Menear was on his silver Piaggio moped with his friend Josh Birchall. They both pulled up outside a Co-op supermarket and a dark-coloured Volkswagen Polo, stolen in offence 1, pulled up beside them. The back seat passenger was about 15 or 16 years old and was wearing a black face mask. He got out of the car and shouted "Oi". Jack Menear and Josh Birchall realised that something was wrong and, whilst Josh Birchall was able to get away, Jack Menear was about to ride off when his bike was grabbed from behind and he was hit hard on his right shoulder. The person who was pulling his bike managed to pull him into a tree causing the bike to go up in the air and Jack Menear to fall off into the tree. The bike landed on the ground. The male with the mask tried to pick the bike up but it was too heavy. Jack Menear got up and one of the males threatened him with a hammer, possibly also stolen during the course of offence 1. Another male got out of the stolen Polo and tried to pick up the bike. Jack Menear ran off and hid behind a wall in somebody's garden. The car pursued him at speed and pulled up the driveway. The front passenger shouted at him "What end are you from? Jump in blood?" Jack Menear ran back towards the Co-op and two masked males got out of the car and began chasing him. They were gaining on him. He stopped and turned around. One was holding a claw hammer. The other was holding a knife with about a six inch blade. The one with the hammer said: "Give me your helmet" and then hit Mr Menear on the left elbow with the head of the hammer. Mr Menear took off his helmet and handed it to him. The male told him to jump into the car but Mr Menear was able to run off. 8. He returned to find his bike valued at £1,200 had been stolen. He had three stitches to his left elbow, a possible fracture and bruising and swelling to his right shoulder and cuts to his right hand. His bike was used by two of the defendants, not the offender, in offence 4 and it was left at the scene. One of them was wearing a stolen helmet in offence 4. The helmet was recovered from the offender when he was arrested on 11th September 2016. Scratched onto the inside of it were the words "D Man 18" which was Meade's nickname. 9. As for offence 3, 15 minutes later, Masood Hussain was riding his moped which he had bought some three weeks previously for £450. It was his first day as a delivery boy for a Chinese take-away and his last delivery that night. When he returned to his moped he noticed a black Volkswagen Polo parked in the middle of the road. He put his helmet back on and went to ride off. As he did so the Polo reversed quickly towards him, missing him by about eight inches. The driver bumped into a parked car. Mr Hussain tried to get away but the driver pulled forward blocking his path. 10. There were five males in the car and they all had hoods pulled over their faces. The front passenger jumped out holding on to his coat with his left hand, whilst holding a knife in his right hand. The male holding the knife told Mr Hussain to "jump off before I stab you" and put his hand on his arm to get him off his bike. Mr Hussain got off the moped leaving his keys in the ignition. The male jumped on the bike. 11. The Polo drew up by Mr Hussain who ran off and one of the back seat passengers got out to catch him. The male on the bike told him to "hurry up, drive, drive, drive". The Polo accelerated away, followed by the stolen moped. 12. The moped was found by the police the next night and the offender was seen nearby with a group of males the police officers did not recognise. 13. Lastly, as to offence 5, on 10th September 2016 at about 7.40 pm the victim Nadir Attallah was at home. His friend's silver Vauxhall Astra was parked outside and his mobile phone was inside it. There was a knock on the front door and Mr Attallah answered it. There were about 15 males outside, some were wearing masks and gloves, four of them carried knives. They demanded that he hand over his car keys. One appeared to be the ringleader and he spoke to another gang member who spoke in Arabic to Mr Attallah to give him the keys. He refused. One of the males took the key which was on a table and went outside. Mr Attallah followed him and took the key off him and went back inside and ushered the gang out. He was then attacked. One of them took him to the floor, he was beaten to the head and body and was kicked and punched. The group left him on the floor and took the key and stole his car. Mr Attallah had an injury to his face, swelling of the neck with severe pain, an injury to his stomach and bruising to his right leg. 14. The Vauxhall Astra had false number plates fitted and was used in offences 6 and 7. It was recovered on 29th September 2016. Mr Attallah's mobile phone was recovered from the offender when he was arrested on 11th September 2016. After being arrested, the offender was released on police bail. 15. Turning to offences 9 to 12, on 24th September 2016, at 7.30 pm, a group of schoolboys noticed two males looking at them. They went into McDonald's followed by four males, some of them trying to hide from the camera, but the offender, Meade and Daley were identified on the CCTV. They followed the schoolboys out and tried to engage them in conversation. One of the offenders asked Chad Bridges (one of the schoolboys) if he had anything for him. When he said "no", the male replied "Don't lie to me". One of them stood with his hand in his waistband giving the impression that he was holding something and Chad Bridges handed over some coins. The male said "Do you want me to search you?" and patted him down. He asked him the time. Chad Bridges told him and the male said "How do you know? Are you being cheeky? Prove it and get the phone out." Chad Bridges handed his phone over, an iPhone 6. The male told him to give him his password. Chad Bridges gave it to him. 16. His friends were also searched and one of them tried to run off but was brought back. They all handed their phones over and their PIN codes and they were told that if they, as they put it, "snitched" on them they would be stabbed. 17. Chad Bridges' uncle traced his iPhone to the home address of Meade. He was arrested on 24th September 2016 and released on police bail and went on then to commit offence number 13 on 4th October 2016. 18. In his basis of plea in its amended form which was before the judge at the time of sentence, the offender accepted that he was part of a group that committed offences 2 and 3 and was involved in offences 5, 9, 10, 11 and 12. He stated that he did not take part in offence 8, but accepted that when several hours later he took possession of the moped taken in that robbery he knew it had been stolen. 19. In his sentencing remarks, the judge described a very serious spate of offending with the individual offences wrapped up in the single conspiracy charge. Offence 1 had been committed by Meade and Clarke at knife point, the judge pointed out. Offence 2 involved Meade and the offender, and involved the use of weapons on a young man in order to steal his moped causing him injuries from which he was still suffering. Offence 4 was a group attack and two men with the imitation firearm were involved. Offence 5, the judge explained, involving Meade and the offender was an attack on a man in his own home where having had his car key taken off him under acute threat, he was then gratuitously attacked, beaten to the floor, kicked and punched. Offence 6 involved a group attack and one victim had a knife held to his neck whilst the other was dragged from the car and punched and kicked. Offence 8 was committed on a woman when she was pushed off her moped. Offences 9, 10, 11 and 12 committed by Meade and the offender were offences committed whilst on bail involving four young men, one of them being 12 years old, being robbed in the street and the immense distress of one of them. Having made these observations, the judge went on to observe that the offender and Meade had a previous conviction for possession of a knife and had been made the subject of a referral order. 20. The judge continued by saying that he was acutely aware of the offender’s and his co-accused's ages and the consequences of custodial sentences being imposed, but he was also acutely aware that the primary function of sentences in cases involving young people was the prevention of offending wherever possible. Should the court follow counsel's request for leniency, the judge explained, it would not be performing its primary function and would give the impression that such conduct would be overlooked out of sympathy for their position. The consequences, the judge observed, needed to be made clear to avoid such events happening again. 21. It was accepted that there were others involved and that they had all thought the esteem they held in the group was more important than anything else in the world, including basic responsibility and morality, the judge went on to observe. He added, however, that the defendants including the offender were not children but young adults. The offending was too serious to be met in any other way than by an immediate custodial sentence. There had, the judge explained, been discussions amongst counsel and with the judge as to alternatives, specifically where they were not to impose sentences of detention under section 91 or to find a way in which the lesser sentence of a detention and training order could be made. 22. As for the pre-sentence report concerning this offender, this referred to the offender's association with peers known to the criminal justice system and the acquisition of offensive weapons by persons, so placing this offender at high risk of committing serious harm. The fact that he was 14 at the time of the relevant offending would have been further easily influenced by his peers, the report's author commented. To manage those risks, the report went on, the offender would need to the continue the progress that he had shown during his time awaiting sentence. He presented as polite and appeared to have managed to settle in to a new school. That had apparently helped him to grow in self confidence. He had ongoing health and emotional issues that could further be impacted on were a custodial term to be imposed and were he to be exposed to more criminally sophisticated individuals. In such circumstances, the report's author proposed the making of a youth rehabilitation order with certain requirements. 23. The judge in his sentencing remarks approached the matter on the basis that the offender had pleaded guilty close to the earliest possible opportunity and accordingly was due full credit. The starting point for the offender, the judge explained, was five years' custody. That was reduced to three years bearing in mind, it seems, that although the judge was not entirely clear on the point the offender's guilty plea as well as certain problems that the judge noted the offender had, which were not in the judge's assessment his fault. 24. In support of the application for leave to appeal, no objection is taken to the three-year sentence as such, as indeed was confirmed during the course of Mr Jones' oral submissions to us today. We consider indeed that a sentence of such a length is not in the category of excessive, still less manifestly so. Indeed, in his advice on appeal the offender's trial counsel, Mr Garcha who does not appear before us today, expressly accepted that a three-year custodial term could not be criticised as manifestly excessive, something with which, as we have just observed, Mr Jones concurs. 25. In his advice on appeal, Mr Garcha nonetheless sought to qualify that acceptance by referring to the objection which was taken in that advice and in the grounds which are before the court. That objection is that, despite it being so Mr Garcha suggested, the judge's clear intention that bail having been sought and refused on 21st October 2016, the time that the offender had spent remanded to the care of the local authority before sentence should count towards sentence, the court was allowed to fall into error in understanding that such a period would count towards sentence. Essentially, Mr Garcha suggested, the judge indicated that he expected that the effect of the sentence which he was imposing would be that the offender would spend about 12 months in custody on top of the period of time (some six months or perhaps longer) which the offender had already spent in local authority care. 26. Pausing there, it emerged during the course of Mr Jones' submissions to us today that the position is slightly more nuanced in terms of the offender's accommodation in the lead-up to the sentencing hearing. Specifically, although the impression which has hitherto been given is that the offender spent the entirety of his time in local authority accommodation, in fact it emerges that the offender spent 14 days in youth detention accommodation between 7th and 21st October 2016 and thereafter some 28 weeks in local authority accommodation, leading up to the sentencing hearing. 27. We return to this matter in our concluding remarks. For the present our focus is on the time spent by the offender not in youth detention accommodation but in local authority accommodation, namely the 28 weeks which Mr Jones has described as having been spent in that accommodation. 28. It was only much later, too late to allow the judge to make any correction to the sentence, that it came to be appreciated that the time spent by the offender in local authority care in the lead-up to the sentencing hearing does not count towards the sentence which the offender received at that hearing. Again, pausing there, we were shown for the first time today an order apparently made by the Crown Court in Birmingham, although somewhat oddly dated 5th May 2017 (in other words, the day that sentence was passed by the judge on the offender), which describes under the heading "Additional notes" the following: "On 30th May 2017, His Honour Judge P Thomas QC ordered that any time spent on remand in respect of this matter is to count towards the final sentence." This Order is signed by an officer of the Court, although it has a number of oddities. First of all, the date which pre-dates the reference to 30th May 2017 to which we have just referred. The other oddity is that the matter was subsequently brought back before the judge in September 2017 apparently seeking a revision or correction to the sentence which was made. The judge on that occasion declined to amend the order and sentence on the basis that the application was necessarily being made too late, but the curiosity is why such an application would have been made at all if, in fact, the order which we have been shown for the first time today was an effective order. 29. In the circumstances, we are inclined to consider that we should take no account of the order which Mr Jones has shown us. In any event, we are somewhat doubtful as to not just the provenance but the jurisdiction which would have laid behind the making of such an order. 30. Returning to the statutory position, time spent in local authority care does not equate to being remanded in custody as defined in section 242(2) (b) of the Criminal Justice Act 2003 , which refers, albeit not in its original form but after subsequent amendments, to being "remanded to youth detention accommodation under section 91(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ". 31. Section 91(4) of the 2012 Act , provides (where relevant) as follows: "(4) The court may instead remand the child to youth detention accommodation in accordance with section 102 where— (a) in the case of a child remanded under subsection (1), the first or second set of conditions for such a remand (see sections 98 and 99) is met in relation to the child, or (b) in the case of a child remanded under subsection (2), the first or second set of conditions for such a remand in an extradition case (see sections 100 and 101) is met in relation to the child." Section 91(4) is an alternative to sub section 91(3) which states: "(3) Subject to subsection (4), the court must remand the child to local authority accommodation in accordance with section 92." Importantly, a remand under section 91(3) does not come within the definition contained in section 242(2) (b) of the 2003 Act which very specifically refers to section 91(4) and makes no mention of section 91(3) . The distinction between the two types of remand is, therefore, clear and it is an important distinction because of the fact that section 240 ZA(1) of the 2003 Act provides as follows: "(1) This section applies where— (a) an offender is serving a term of imprisonment in respect of an offence, and (b) the offender has been remanded in custody (within the meaning given by section 242 ) in connection with the offence or a related offence." In other words, for present purposes, only if section 242 applies does section 240 ZA apply and specifically subsection (3) which states: "The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence." Accordingly, time spent on remand is automatically deducted if detention is imposed pursuant to section 91(4) , i.e. remand into youth detention accommodation, but not otherwise and so not where the remand is into local authority care. 32. It follows that in the present case, since the offender was remanded not under section 91(4) but under section 91(3) of the 2012 Act and in accordance with section 92 , the time which he spent in the care of the local authority (the 28 weeks to which we have referred) does not count and does not fall to be deducted from his sentence. 33. Although not strictly relevant, since all that matters is what the relevant statutory provisions actually state, it seems that the likely rationale for the different approach is that youth detention accommodation (as defined) entails an offender being kept in a secure environment akin to a remand in custody whereas local authority accommodation is not necessarily secure. 34. We should mention, really only out of completeness, that, although the grounds of appeal prepared by Mr Garcha in the present case appear to suggest that prior to the amendments of section 242 of the 2003 Act brought about by the 2012 Act , a period of remand to local authority accommodation would have counted towards sentence, we are doubtful that this is right since section 242(2) (b) in its previous guise referred to an offender being "remanded or committed to local authority accommodation under section 23 of the Children and Young Persons Act 1969 ... and kept in secure accommodation or detained in a secure training centre, pursuant to arrangements under subsection (7)(a) of that section..." There was, in other words, under that previous statutory framework an added requirement that the offender should be not only kept in local authority accommodation, but additionally "kept in secure accommodation", not therefore meaning that he or she should be in local authority accommodation. 35. Be that as it may, in addressing the current statutory position, it is clear that the time which the offender spent in local authority accommodation (the 28 weeks which Mr Jones has described) does not count towards sentence. It follows that, if the judge intended that time should count, then he was mistaken to consider that it did. It is for this reason that leave to appeal is sought, along with an application for a time extension amounting to some 136 days. It is pointed out in the case of the latter that the misunderstanding which has arisen is no fault of the offender's. In the circumstances, we are clear that it is appropriate that the time extension sought should be granted. We are clear also that leave should, in the circumstances, be granted. 36. It does not necessarily follow, however, that the appeal should be allowed. We say this for two reasons. First, although we do not mean to doubt what Mr Garcha has to say about his wrongly telling the judge at the time of sentence that time would count as a matter of the applicable statutory provisions, nonetheless we have not seen any indication in the judge's sentencing remarks that this is either what the judge was told by Mr Garcha or that this is what the judge himself had in mind should be the position. Not only do we have no transcript showing any exchange of the sort described by Mr Garcha, but the transcript which we do have, namely the sentencing remarks of the judge, says nothing to indicate that the judge considered that time should count. On the contrary, whereas in the case of Meade the judge referred in terms to time spent in custody counting towards sentence (see page 4H of the transcript) in the case of the offender, namely Anderson, the judge stated that he should "serve, I expect, one-half" (see page 5B) and so rather suggesting the opposite. Indeed, we note also that the judge went on, after dealing with the offender, to refer when sentencing Clarke to time served by him as not counting towards his sentence. Clearly, the judge therefore had in mind such matters. The fact that he made no mention of time served in the offender's case rather, therefore, points in the opposite direction to that suggested by Mr Garcha in his advice on appeal and by Mr Jones before us today. 37. Furthermore, although Mr Garcha in his advice on appeal described the judge as having expressed sympathy when the matter came back before him in September 2017 when, as we have mentioned, he was asked to revise his sentence, but declined owing to the lateness of the application, we have seen nothing which shows that this was the case and so that the judge did indeed intend at the outset that the time spent in local authority care should count. We have already dealt with the order somewhat curiously dated 5th May 2017 which Mr Jones handed up during the course of the hearing. We need say no more about that. Even if it were to be assumed, however, that this was the judge's intention, as Mr Garcha and Mr Jones would have it, it does not seem to us to follow that the appeal should be allowed. If time spent in local authority care does not count under the applicable statutory provisions, then it does not count regardless of what the judge and Mr Garcha might wrongly have thought was the position. This, then, is our second reason for saying that it does not necessarily follow that the offender's appeal should be allowed. It is a freestanding reason which does not depend on the first reason. Put differently, even if the judge's intention was that time should count, that is not a reason why the appeal should be allowed. 38. We acknowledge that if in his sentencing remarks the judge had expressly led the offender to believe that time would count the position might (and we stress might) be different. That is not however the position in the present case since, as we have explained, the judge said no such thing and if, anything, appears to have said the opposite. Even then we are bound to observe that the authorities would not really have assisted the offender. This is demonstrated by the cases which have dealt with the analogous position where there have been incorrect pronouncements of release provisions. Thus in R v Giga [2008] EWCA Crim. 703, [2008] 2 Cr.App.R (S) 112, a case in which the judge sentenced the defendant to six years' custody and explained that the defendant would serve half of his sentence when actually he would serve two-thirds, it was decided by the Court of Appeal that there was nothing in the judge's remarks to suggest that he was determining the correct sentence with his mind primarily directed to the question of release. Accordingly, no change was made to the sentence on appeal. Specifically Moore-Bick LJ had this to say at paragraphs 15 to 19: "15. In Bright [2008] EWCA Crim 462 , however, another constitution of this court, presided over by Sir Igor Judge, President of the Queen's Bench Division, took a rather different view of a similar submission. The appellant had been the managing director and chief executive officer of the Independent Insurance Group, which had collapsed in 2001 and gone into liquidation with an enormous deficiency of assets to liabilities. The appellant was convicted on two counts of conspiracy to defraud and sentenced to seven years' imprisonment. He appealed against sentence. It is unnecessary for the purposes of the present appeal to summarise most of the issues which arose in that case or the court's decision on them. However, one ground of appeal in that case, as in the present, was that, having told the appellant that he would be released after serving three and a half years' imprisonment, the judge had failed to give effect to his intention because he had overlooked the fact that the relevant sentencing regime was that applicable under the Criminal Justice Act 1991 , rather than that established by the Criminal Justice Act 2003 . 16. The President, giving the judgment of the court, said this in paragraph 41: '... Mr Winter sought to argue that as the judge intended a 3½ year sentence actually to be served, the sentence should in any event be reduced to 5¼ years. The submission is based on a fallacy. The actual sentence was 7 years imprisonment. The release provisions did not and should not have affected the judge's sentencing decision. What he was required to do was to explain the effect of the sentence in the context of the applicable statutory provisions relating to release. He did not 'intend' that the appellant should be released after 3½ years: that would simply have been the consequence if the 2003 Act had applied to the sentence, and he was required to state that consequence in open court.' 17. In our view, the present case falls squarely within these principles, and if we have to chose between the earlier decisions of this court we unhesitatingly prefer the decision in Bright which deals with the matter as one of principle. It is true that in the present case the Recorder did not clarify his intentions in the way that the judge did in Bright on the very day of sentence and so make it clear what his actual intention was, but that does not, in our view, affect the fundamental principle that the judge's task is to determine the overall length of sentence, not how long the defendant will actually spend in custody. 18. Mr Middleton submitted that the essential ground of appeal in this case, as in all such cases, is that it would be unfair to the appellant to require him to serve a period in custody longer than the judge had told him he would have to serve. In our view, however, the judge is simply required to explain the effect of his sentence and it does not make the sentence unfair in any sense which gives rise to a ground of appeal if he simply makes an error in carrying out that function. 19. In the present case we are unable to accept that the Recorder did 'intend' in any conscious sense that the appellant should be released after three years or any other particular period; he simply passed what he considered to be the sentence appropriate to the offences of which the appellant had been convicted, namely, one of six years' imprisonment. He was required to explain the effect of his decision, but the fact that his explanation was inaccurate because he had the wrong statutory provisions in mind does not undermine his decision or provide grounds for saying that the sentence was wrong in principle or manifestly excessive; indeed this court has already held that it was not. In these circumstances, the appeal constituted by the reference is dismissed." 39. We are unable to detect from the material which we have seen anything which would justify a different conclusion to that reached by the Court of Appeal in the Giga case. We therefore decline to accede to Mr Garcha's submission, echoed today by Mr Jones, based on the suggested change brought about by the 2012 Act , a change which, in any event, for the reasons we have given, we do not consider is as marked as has been suggested. 40. The single point raised on this appeal accordingly does not meet with general success, by which we mean success in relation to the 28 weeks which was spent by the offender in local authority accommodation in the lead up to his sentencing hearing. It does meet with success, albeit this is not how the point has until today been put, in relation to the 14 days which the offender initially spent not in local authority accommodation but in youth detention accommodation. In relation to those 14 days, for the reasons which we have explained, the statutory provisions currently applicable are indeed engaged. Credit therefore should, indeed, be given in respect of that 14 day period but not otherwise. 41. There is nonetheless another point which, although not raised by Mr Garcha in support of the appeal, was raised by Mr Jones today, the point having originated from the Registrar. This point does seem to us to have merit and indeed Mr Bermingham on behalf of the prosecution does not seek to suggest otherwise. This is that, during the offender's time in local authority care awaiting sentence (and we make it clear that we refer here to the 28 weeks spent in local authority care, rather than the 14 days spent in youth detention accommodation which preceded his time in local authority care), the offender was apparently subject to an electronically monitored curfew between 8.00 pm and 6.00 am each day. In such circumstances since, had he been subject to bail (which the offender was not because bail was refused and he was instead remanded into local authority care), the offender would have been entitled to a direction pursuant to section 240 A of the 2003 Act that half of the time spent subject to a qualifying curfew be credited against his sentence. It follows that this should be the position in this case also. This is what was decided in R v D and H [2016] EWCA Crim. 1807 in which Dingemans J stated as follows at paragraph 10: "If a young offender is remanded to detention pursuant to LASPO, time spent in custody or on electronic curfew will count. That is because it is a remand in custody for the purposes of the Criminal Justice Act. However, there is an anomaly in the statutory provisions, because if a young person is remanded into local authority accommodation with an electronic curfew provision, that does not amount to a remand in custody for the purposes of the 2003 Act . In those circumstances, counsel appearing for young persons remanded into local authority accommodation and subjected as a condition of bail to curfew should raise the issue with the sentencing judge, as indeed should those who have been the subject of an electronic curfew when remanded into what is equivalent to custody." In terms of the credit which falls to be given in accordance with the mechanism set out in section 240 A, the parties have been able to agree that the relevant credit amounts to 98 days. Accordingly, we allow the appeal. The sentence of three years' detention will stand, but we direct and make it clear to the relevant authorities that credit should be given in respect of a total of 112 days, made up as follows, namely 14 days for the time when the offender was remanded into youth detention accommodation and 98 days in respect of the period when he was subject to curfew requirements. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

```yaml citation: '[2017] EWCA Crim 2604' date: '2017-12-20' judges: - LORD JUSTICE IRWIN - MR JUSTICE PICKEN - HIS HONOUR JUDGE LUCRAFT QC ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

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 202201952/B5 Neutral Citation Number: [2023] EWCA Crim 1650 Royal Courts of Justice Strand London WC2A 2LL Wednesday, 20 December 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE HILLIARD HIS HONOUR JUDGE DREW KC (Sitting as a Judge of the CACD) REX V MICHAEL MCCAFFERTY __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MISS L WIBBERLEY appeared on behalf of the Applicant _________ J U D G M E N T 1. MR JUSTICE HILLIARD: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. On 30 May 2022, in the Crown Court at Derby, the applicant, then aged 74, was convicted of six sexual offences. On 28 June 2022, he was sentenced but the sentence was varied on 11 August 2022 when sentence was pronounced as follows. Count 1, indecent assault upon C1, contrary to section 14(1) of the Sexual Offences Act 1956 , three years' imprisonment; count 3, indecent assault upon C1, contrary to section 14(1) , a special custodial sentence of five years' imprisonment, consisting of a custodial term of four years and a further licence period of one year; count 8, indecent assault upon C2, contrary to section 14(1) , six months' imprisonment; count 10, indecent assault upon C3, contrary to section 14(1) , three months' imprisonment; counts 12, 13 and 14, making indecent photographs of a child (C1), contrary to section 1(1) (a) of the Protection of Children Act 1978 , nine months' imprisonment on each count. All the sentences were ordered to run concurrently. 3. The appellant was acquitted on the following counts: count 2, indecent assault upon C1; count 4, indecent assault upon C1; count 5, indecency with a child (C1); counts 6 and seven, rape of C1; count 9, indecent assault upon C3. Count 11 was not left to the jury for a reason we do not know and that count was ordered to lie on the file. 4. The applicant now renews an application for leave to appeal against conviction after refusal by the single judge. 5. The case concerned allegations that the applicant committed sexual offences between 1992 and 2005 when the three complainants were children. C1 and C2 were sisters. Count 1 (convicted) alleged that he touched C1's vagina under her clothing on at least ten occasions when she was aged four to 12. Count 2 (acquitted) alleged that he had touched her vagina on at least five occasions when C1 was 13. Count 3 (convicted) alleged that on one occasion he penetrated C1's vagina with his finger when she was aged four to 12. Count 4 (acquitted) alleged that he had put C1's hand on his erect penis when she was aged four to 12. Count 5 (acquitted) alleged that when C1 was seven or eight, the applicant got C1 to put her vagina over bubbles in a jacuzzi. Count 6 (acquitted) alleged that he raped C1 when she was 12 or 13, having rendered her unconscious with some kind of stupefying drug. Count 7 (acquitted) alleged that he had raped C1 when she was 15, having forced her to drink alcohol. Count 8 (convicted) alleged that he had indecently assaulted C2 when she was aged about 12 by touching her near to her vagina in the jacuzzi. Count 9 (acquitted) alleged that he had touched C3 on her inner thigh when she was aged about 13. Count 10 (convicted) alleged that he put his tongue in C3's mouth when kissing her goodbye. Counts 12, 13 and 14 alleged that he took indecent photographs of C1 when she was aged 17 and a half. The applicant accepted taking the photographs but denied that they were indecent. 6. The issues in the case were whether the applicant assaulted the complainants as alleged and whether the photographs were indecent. The applicant gave evidence that he knew the complainants but denied any indecency had taken place. 7. Four grounds of appeal are now advanced by Miss Wibberley in her very helpful and extremely well-structured submissions on the applicant's behalf. 8. First, it is argued that the applicant's trial was unfair because inadmissible hearsay bad character evidence which should have been removed from C3's ABE interview was accidentally left in when the recording was played to the jury. In that interview, C3 said that various people at a sports club, including her father, would pass comment on the applicant, saying that now she was 16, he would not be interested. Later, she repeated the same comment and also said that everyone used to joke about how the applicant used to go after younger girls at the club. 9. It is now argued that this was extremely prejudicial for the applicant and detracted from the fact of his previous good character. Counsel who was then representing the applicant says that on reflection, with the benefit of hindsight, he should have applied for the jury to be discharged. In the event no such application was made. 10. At the time neither side suggested that the jury should be discharged and both sides were content with the directions which the judge gave to the jury. He said this: "... unfortunately something was in the interview that should not have been in ... I am going to tell you you must, capital MUST, underlined, in bold whatever you want to say, you must ignore the following things that were said, because what other people think and say about anybody in the case, particularly a defendant, is not evidence against him. All right. People's opinions they do not matter. What you are trying the case on is the evidence in this case. Now, in this interview that you have just heard, you may have made a note of it, you may not have, but there were three times when people sort of cast aspersions against Mr McAfferty; you must ignore them ... It has absolutely nothing to do with this case what other people's views are about Mr McAfferty ... Ignore it, you have not heard evidence from these people. It has absolutely nothing to do with the case. It should not have been in there; unfortunately it was ... This is not evidence against Mr McAfferty. It is unfortunate, but I am telling you under no circumstances must you take that into account. Try the case and the witnesses that you see in the court. That is what I told you at the beginning and that is what I will be telling you at the end." 11. In the course of these directions the judge summarised the offending passages in a very few words as he was obliged to do to put matters right. The judge asked counsel if they wanted him to say anything else and neither side did. 12. It is not of course unknown for inadmissible material to come in by accident in a criminal trial. Sometimes the immediate reaction of the participants as to the appropriate remedial course of action is a good indication of what is best to be done. They may have a feel for the potential impact in the circumstances which exist at the time. All concerned thought that the action taken by the judge was sufficient. He made it plain that there was no evidence from anyone making any of the statements, that the jury should try the case on witnesses who they saw in court and that they must under no circumstances take this material into account. They should ignore it. In due course, the judge gave the jury a conventional good character direction in respect of the applicant. In our judgment, there is nothing in this point which renders the convictions unsafe. 13. Next, it is argued that the verdicts returned by the jury are logically inconsistent and therefore unsafe. Miss Wibberley says that this is not her strongest ground but still maintains that the verdicts are indicative of unsatisfactory compromise rather than any careful analysis of the evidence. However, as the single judge put it: "An alternative explanation for these verdicts is that the jury were giving full effect to the directions of the learned judge in two respects: first that they could not convict on any count unless they were sure of the Applicant's guilt and secondly that they should consider each count separately. The jury were not directed that they had to believe [C1] on everything or nothing, and it would have been a serious misdirection if they had been. For example, as the Crown submits, there is nothing illogical in the jury considering that they could not be sure that the type of behaviour reflected in counts 1 and 2 did persist after [C1] turned 13 but had occurred when she was aged 4-12, hence the conviction on count 1 and the acquittal on count 2. The allegation reflected in count 3 equally related to when [C1] was aged 4-12 and the conviction is consistent with the conviction for count 1. The remaining counts involving [C1] were of a different nature and it was perfectly logical for the jury to have been sure of counts 1 and 3, but not those other counts. I agree with the Crown's submission that 'There are sources of identifiable evidence which may reflect the jury's assiduous application of the standard of proof that they required before convicting the Applicant.' The jury returned their final verdict 8 hours and 35 minutes after first retiring: this is not consistent with the sort of slapdash approach involving a 'complete guess as to which of the complaints was genuine' suggested." 14. We note, as examples only, that C1 made an application to the Criminal Injuries Compensation Authority in which she said that the touching of her genitals by the applicant continued until she was approximately 12. She mentioned one offence of rape, not two. A defence witness said that C1 told her that the applicant had "messed about with us as kids". Question: was his penis erect? C1 was alleged to have said: "No, nothing like that". There was other contradictory evidence about whether and in what circumstances the applicant's penis might ever have been visible, capable of affecting consideration of count 4. There was evidence that the hot tub purchase had not taken place until well after C1 was seven or eight (count 5). There was evidence that C3 had made an initial complaint about the applicant putting his tongue in her mouth but not about him touching her leg. 15. Having given this aspect careful consideration, like the single judge we are not persuaded that the different verdicts demonstrate logical inconsistency as opposed to a careful examination of all of the evidence and strict adherence to the burden and standard of proof. 16. It is also argued that the judge erred in the directions he gave to the jury about cross-admissibility. The judge directed the jury without objection that the evidence upon one count was capable of supporting the prosecution case on another count. The prosecution suggested, he said, that the fact that each complainant had made similar but otherwise unconnected complaints about the applicant's behaviour made it more likely that each of the complaints was true. The judge said that this aspect did not bear on the allegations of rape, which were of a wholly different nature. 17. Miss Wibberley argues that whether this may have been appropriate as between C1 and C2 on the one hand, and C3 on the other, it was not appropriate as between C1 and C2 who were sisters and who were aware of each other's allegations before they made reports to the authorities. However, the judge explicitly told the jury that the point only had force if the complaints made were truly independent of each other. If one witness had influenced another, either deliberately or unconsciously to make a complaint, then it would not be surprising if each went on to make those complaints. He said that the point only had potential force if the jury were sure that the realistic possibility of influence, conscious or subconscious, by each complainant on the other had been excluded and counsel had obviously been able to make submissions about this aspect of the case to the jury. 18. In these circumstances, we are satisfied that it is not arguable that anything about this direction renders any of the convictions unsafe. As we have already observed, the jury's verdicts viewed as a whole point decisively away from any suggestion that they took an overall or broad brush view of the case. 19. Finally, we are invited to consider whether, even if no individual ground of appeal can arguably be said to render the convictions unsafe, nonetheless their cumulative impact has that effect. We have given this submission the equally careful consideration that it deserves. There was undoubtedly sufficient evidence for the jury to reach guilty verdicts on the counts where they convicted if they were sure of that evidence. Whether or not they were sure of guilt was a matter for them and not for us. They saw and heard all of the various witnesses in the case. There was sufficient evidence, subject to the jury's assessment of it, and in our judgment it is not arguable that there was any legal or procedural error which would render any of the convictions unsafe, either individually or cumulatively. 20. We are also satisfied that the applicant was properly represented at his trial. The evidence against him was effectively tested and the applicant's own case was properly advanced. 21. In these circumstances, this renewed application for leave to appeal against conviction must be refused. 22. 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]

```yaml citation: '[2023] EWCA Crim 1650' date: '2023-12-20' judges: - LORD JUSTICE DINGEMANS - MR JUSTICE HILLIARD - HIS HONOUR JUDGE DREW KC ```

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Neutral Citation Number: [2014] EWCA Crim 2652 Case Nos: 201303903/B1-201304535/B1-201304171/B1-201303905/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 19th November 2014 B e f o r e : LORD JUSTICE JACKSON MRS JUSTICE NICOLA DAVIES DBE RECORDER OF STAFFORD (HIS HONOUR JUDGE TONKING) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - R E G I N A v ANTHONY BENNETT MARCUS SIMPSON MARCUS DANIEL PAUL DYLAN ADDO - - - - - - - - - - - - - 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) - - - - - - - - - - - - - Miss E Goodall appeared on behalf of the Appellant Bennett Miss E Cook appeared on behalf of the Appellant Simpson Mr N Baki appeared on behalf of the Appellant Paul Miss T Panagiotopoulou appeared on behalf of the Appellant Addo Mr Hawkins appeared on behalf of the Crown - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE JACKSON: This judgment is in four parts, namely: Part 1. Introduction; Part 2. The facts; Part 3. The criminal proceedings; Part 4. The appeal to Court of Appeal. Part 1. Introduction 2. This is a group of appeals against conviction and sentence arising out of firearms offences committed in Chingford, East London, during 2012. The principal issue in these appeals is whether the judge erred in preparing and distributing to the jury a written chronology as a hand out to accompany his summing-up. There are also issues concerning length of sentence and whether the judge should have imposed extended sentences on certain defendants. 3. This appeal has been argued today with great skill by counsel for the four appellants and for the prosecution. Where issues overlapped counsel avoided repetition. That was commendable and it assists the court as well as the defence. There is no benefit in repetition of the same point in different words. 4. In the course of this judgment we may from time to time use the abbreviation "GSR" for gunshot residue, that being an abbreviation which was used in the trial and appears in some of the documents. 5. After these introductory remarks we must now turn to the facts. Part 2. The facts 6. Between 23rd April and 1st May 2012 there was a series of incidents involving shootings and criminal damage in Chingford, East London. Luckily no one was injured but it might have been otherwise. These incidents began with a burglary at 159 Blue House Road. A young man called Kori Bennett was in residence, but the house belonged to his aunt who was away for a few days. Kori Bennett is the younger brother of Anthony Bennett, who is one of the appellants before this court. 7. On the night of 24th to 25th April there was a fierce conflict between what appeared to be two rival groups. Just after midnight bricks were thrown through the ground floor windows of 41 Nelson Road. This was the home of Mr Malcolm Paul and his wife, Ramona Paul. They are the parents of Marcus Paul who is another appellant before this court. 8. The people who threw the bricks through the windows of the house did not stop there. They also smashed the windscreen and front passenger window of a Ford Focus car parked outside. That belonged to Mr Malcolm Paul. 9. About an hour and half later, at 1.45 am, several shots were fired into the house at 55 Hazel Way, Chingford. This was the home of Mr and Mrs Ibeawuchi. They had a son called Ritchie Ibeawuchi, who will feature later in the narrative. That attack at 55 Hazel Way appears to have been a reprisal for the earlier attack at 41 Nelson Road. 10. Two and a half hours later, at 4.18 am, shots were fired into the house at 23 Russell Road, Chingford. This was the home of Mr and Mrs Enwerobi. They had a son called Issac Enwerobi. There was much ill feeling between Ritchie Ibeawuchi and Issac Enwerobi. It is now clear that Ritchie Ibeawuchi was responsible for this attack. 11. Unsurprisingly the householders affected by those various incidents called the police to investigate each of the matters. The police were called during the night of 24th to 25th April and they examined each of the crime scenes. At 55 Hazel Way the police recovered six cartridge cases with type 3 gunshot residue on them. 12. The police were concerned that the various incidents of violence in Chingford were connected. They therefore progressed their investigations rapidly. On the afternoon of 25th April the police arrested two suspects, namely Marcus Paul and Kori Bennett. 13. GSR swabs were taken from Marcus Paul's face, hands and hair. Particles of gunshot residue were recovered. Expert analysis indicated that these particles matched the type 3 GSR found at 55 Hazel Way. 14. The police interviewed Marcus Paul and Kori Bennett. They then released both men on bail. 15. On 27th April 2012, at 1.15 am, someone fired a shotgun into the front door and front window of 25 Keatley Green, Chingford. This was the home of Mr and Mrs Bennett, the parents of Kori and Anthony Bennett. Fortunately Mr and Mrs Bennett were away at the time. A member of the public alerted the police who duly investigated. 16. On 30th April a member of the public contacted the police and said that a black male armed with a hammer was smashing up a car parked in Connaught Avenue. Officers hastened to the scene. There they found an Alpha Romeo car with its windows smashed. This car belonged to Ritchie Ibeawuchi. 17. On 1st May the house at 41 Nelson Way sustained yet more damage. Someone threw a brick through the front window. The assailant then turned his attention to the Ford Focus car parked on the drive. He struck it twice, causing two dents to the body work. The police attended. Unsurprisingly they found that Mr Malcolm Paul was distressed. This was the second time within a week that someone had attacked his house and his car. 18. The police pursued their investigations with some urgency. Clearly there were armed men within the community, who were intent upon causing serious damage and possibly personal injury. 19. On 4th May the police were executing a search warrant at a house in Scholars Road, Chingford. There they found Ritchie Ibeawuchi in possession of a loaded gun. They arrested him and seized the gun. Scientific analysis revealed that his gun had been used in the shooting at 23 Russell Road on 25th April. Ibeawuchi was convicted of this shooting in March 2013. 20. On 7th May the police executed a search warrant at Flat 7, 271 Hall Lane, Chingford. This time they struck lucky. Inside the flat they found a large quantity of guns and ammunition. The guns were first, an Underwood M1 self-loading carbine assault rifle in .30 carbine calibre, with a telescopic optical site attached to the carbine. Secondly, they found one Sig Sauer P226 self-loading pistol in 9 mm Parabellum calibre. Thirdly, they found 1 Browning high power self-loading pistol in 9 mm Parabellum calibre. They found a large number of different forms of ammunition, cartridges bullets and so forth. 21. The occupier of the flat returned during the police search. She was Miss Jadine Mills, a young woman aged 21. It was fairly clear that she was looking after the armoury on behalf of others who had been involved in the recent shootings. 22. The police charged Miss Mills with possession of firearms and ammunition. She had no defence to that charge. She pleaded guilty on 1st October 2012. 23. Meanwhile the hunt for the principal villains continued. The police examined Miss Mills' mobile phones. One of her contacts was Marcus Paul. Marcus Paul had as friends Anthony Bennett, Dylan Addo and Jeffrey Larbi. The items seized from Miss Mills' flat underwent forensic examination. The DNA of Marcus Simpson was found on a rucksack which had contained some of the weapons at the flat. Also Simpson's fingerprints were found on an instruction leaflet for one of the rifles. 24. On 29th May the police made another breakthrough. They were keeping watch on Jah Mek Ya restaurant in Seven Sisters Road. That was a restaurant belonging to Ryan Groves. They saw two men arrive. One was Ryan Groves, the restaurant owner, the other was Marcus Simpson, to whom we have referred just now. Marcus Simpson was carrying a holdall. Mr Simpson is now an appellant before this court, but only in relation to sentence. 25. The police saw two men arrive, believed to be Jerome Minott and Ayman Ferag. Those two men in due course departed. The police then moved in to arrest Simpson and Groves. 26. Simpson was found to be in possession of £10,560 in cash, 25 rounds of .32 ammunition, two oil stained cloths and a pair of latex gloves. 27. On 30th May the police searched Simpson's home at Corby in Northamptonshire. They discovered that his garage had been converted into an armoury. There they found a large quantity of guns and ammunition. Also in the garage were various tools which would be used for manufacturing guns and ammunition. 28. As the police arrested suspects they examined all mobile phones which they seized. From this they could see who the suspects had been communicating with. This investigation alerted the police to the wider network of individuals who had been (a) selling firearms and ammunition or (b) purchasing such items and using them in the recent shooting incidents. 29. One witness of particular importance whom the police traced was Miss Chelsea Deloughery, to whom we shall refer as "Chelsea". Chelsea is the younger sister of Jadine Mills. Chelsea recalled seeing someone bring a bag into Jadine's flat on 4th May. She maintained that that person was Dylan Addo, whom she had known at school. Mr Addo is now one of the appellants before this court. 30. As the police pursued their investigations, they came to the conclusion that Marcus Simpson was the supplier of all the weapons and ammunition involved in the recent offences. Mr Simpson had purchased many of the items on trips to Serbia. The police found records of those trips. They concluded that Mr Simpson had manufactured some of the items himself and purchased the rest principally in Serbia. The police concluded that Groves and Minott had been acting as Simpson's salesmen. They drew this inference from, amongst other things, messages and texts and so forth recorded on mobile phones. 31. The police identified a number of individuals as purchasers and users of Simpson's weapons. These included Ritchie Ibeawuchi (who was dealt with separately), Anthony Bennett, Marcus Paul, Dylan Addo and Jeffrey Larbi. They arrested and charged all those individuals with firearms offences. Criminal proceedings followed. Part 3. The criminal proceedings 32. Simpson, Minott, Groves, Ferag, Bennett, Paul, Addo and Larbi were charged with a number of offences on indictment. Count 1 of the indictment charged Minott, Simpson, Groves and Ferag with conspiracy to possess firearms with intent to enable another to endanger life. Count 2 of the indictment charged Minott, Simpson, Groves and Ferag with conspiracy to possess ammunition with intent to enable another to endanger life. Count 3 of the indictment charged Bennett, Paul, Addo and Larbi with conspiracy to possess firearms with intent to endanger life. Count 4, charged Bennett, Paul Addo and Larbi with conspiracy to possess ammunition with intent to endanger life. 33. It is not necessary for present purposes to refer to other counts in the indictment. It can be seen that counts 1 and 2 were directed towards the individuals who it is alleged were obtaining, manufacturing or supplying the various firearms and ammunition. Counts 3 and 4 were directed to the individuals who it is said had acquired those items with the intention of using them to endanger life. 34. The defendant Ferag vanished, so his trial never proceeded. Simpson and Groves pleaded guilty to count 1 and count 2. All other defendants pleaded not guilty to the various counts on which they were charged. 35. Minott, Bennett, Paul, Addo and Larbi all stood trial at Wood Green Crown count before His Honour Judge Pawlak and a jury in May and June 2013. In relation to counts 1 and 2, the only defendant contesting his guilt was Minott. Minott was convicted on those two counts and is not appealing against conviction. Accordingly, we need not linger on the evidence relating to counts 1 and 2. 36. Instead, we shall turn to the evidence against Bennett, Addo and Paul on counts 3 and 4. They are the only defendants who are challenging their convictions. 37. In relation to case against Addo the prosecution relied heavily on the identification evidence given by Chelsea. The prosecution case was that as the police investigation escalated, those who had been using weapons needed to move them to a safe house. Jadine Mills' flat was selected as that safe house. Addo took a collection of guns and ammunition to that address on 4th May. 38. In relation to Marcus Paul, an important part of the prosecution evidence was the gunshot residue found on him on 25th April. According to the prosecution expert, Miss Chana, this matched GSR found at 55 Hazel Way, after the shooting at that address. The gun used at that shooting was a Sig Sauer self-loading pistol such as that recovered from Miss Mills' flat during the police search on 7th May. 39. In relation to all defendants on all counts cell site analysis and examination of the text messages formed an important part of the prosecution case. In general terms this analysis showed direct or indirect contact between all defendants named in the indictment. It is also showed that that they or at least their mobile phones came into the same cell site areas at a number of important points in the story. 40. The expert witness who gave evidence concerning cell site analysis was Mr David Sexton. 41. Examination of the mobile phones of Groves and Minott revealed that they were acting as salesmen for Simpson. It also became clear that Anthony Bennett was in contact with both Minott and Groves on a number of dates between November 2011 and May 2012. 42. On 3rd January 2012 Simpson travelled down from Corby (where his home was) to London. There were phone conversations between Simpson and Groves and between Groves and Bennett. That afternoon all three phones were using cell sites in the Chingford area. Thereafter, Simpson returned to Northampton. Groves and Bennett's phones remained in contact. They were in the area of Seven Sisters Road where Groves owned a restaurant. The prosecution contended that this cell site evidence supported the proposition that there was a meeting between Simpson, Groves and Bennett on 3rd January, no doubt related to the acquisition of firearms which originated with Simpson and which were ultimately being used by Bennett and his confederates. 43. On the evening of 3rd January Bennett's and Paul's phones remained in contact with each other. 44. On 17th April Simpson attempted to send a text to Groves with information concerning a gun called an “Iver Johnson Enforcer”. On the next day there was telephone contact between Simpson and Groves, then between Groves and Bennett, then between Bennett and Paul. One of the guns recovered from Jadine Mills' flat was of a kind which is sometimes described as an Iver Johnson Enforcer. 45. The prosecution relied on this cell site evidence and much similar evidence in order to show links between Bennett, Addo, Paul and Larbi and the suppliers of the weapons. 46. The defendants Minott, Paul and Addo all elected to give evidence. They denied any involvements with guns and ammunition. Minott said that his various phone calls related to the purchase of cannabis. Paul said that he knew about animosity between Enwerobi and Ibeawuchi but he was not involved in that matter. He did not take part in any of the tit for tat attacks between 23rd April and 1st May. Addo denied that he was the person who brought a bag to Miss Mills' flat on 4th May 2012. He denied having any involvement with any of the firearms. 47. The defendant, Bennett, did not give evidence. He had also given "no comment" answers in interview. Therefore, unlike his co-defendants, Bennett never put forward any positive case for the jury to consider. 48. The judge took the view that, having regard to the complexity of the evidence and the facts of this case, it would assist the jury if he prepared and distributed a chronology listing significant events and giving cross references to page numbers in the various bundles and schedules. The judge produced a first draft and circulated this to counsel at a late stage during closing speeches. The prosecution said it would be an unusual course for the judge to take and not one which they would invite him to follow. Defence counsel strongly opposed the judge's proposal to put such a document before the jury. 49. The judge decided that he would nevertheless provide his chronology document to the jury. He heard submissions from all counsel as to content. The judge amended his chronology in the light of those submissions, by and large (as we understand it) but not entirely accepting the proposed amendments put to him by counsel. The judge distributed his chronology to the jury at an early stage of the summing-up. 50. When handing the document out the judge said this to the jury: "So I have prepared a list of references to accompany my review of the evidence and there is one for each of you. If you sigh and say to yourselves well here is another document... one each. It is 19 pages in the bottom left-hand corner, you can see (inaudible), probably do not need it but it is there in case. You can see more or less the way it is looking. There are the dates, there are references. Now what is my plan of action in trying to deal with my view of the evidence? I am going to go through chronologically various events, various bits of evidence. Every now and then I am going to stop and remind you of the actual evidence of the witness, for example the evidence of Chelsea [Deloughery] when we get to it. When I get to the end of that I will suggest to you what the issues might be in the case of each defendant and also remind you of the evidence again, I am afraid inevitably, of each of the three defendants who gave evidence again from the witness box. As I go through the bits of evidence in this chronology I will read out the same references that you have on the page in front you and you can either note whatever you want against a reference or against a date or underline a reference that you might want to revisit when you retire, or you can just ignore it. I am afraid this is not a complete and could not be a complete list of references to absolutely everything that is referred to by all counsel in this case, it is just my attempt to try to help you, try to provide some sort of reference list (several inaudible words) so that even if you are looking for something to which I have not included a reference, you can at least find the target area by reference (several inaudible words). So, I could invite you as I go through my summing-up to check each and every reference against the exhibits that you have, a tedious and lengthy job (inaudible) that would be and it would take hours and hours if not days. I am not going to do that. You may not need to check something because you already know where it is. Some things in this document may not be (inaudible) and, as I said to you yesterday if you do not think that something is relevant, you ignore it. If you think something is - is relevant which I have not referred to, then you take into account, give it whatever weight you think appropriate. So, as I say, importantly there may be other references which I have not included. I cannot cover the entire ground. I have been selective (inaudible). But, as I say, if you think there is something important that has been left out you should have regard to it nevertheless, because you are the only judges of fact, the 12 of you, and no one else. I am not expressing any opinions or trying to send any message at all to you. I have no intention of doing so. As I said, my objective is to try to be of some help from what I hope an entirely neutral stand point in marshalling the evidence, knowing where to find some things. I do not want your deliberations to be spent debating where some entry can be found rather than concentrating on the evidence itself. So, turning to the document (inaudible) chronology references. These are not admissions, they are not -- this does not have the status of the admissions which you will have seen from counsel. As I say, it is simply my attempt to help you locate some references in some sort of chronological order." 51. The judge then proceeded to sum up the narrative of events with frequent reference to the chronology. He also, of course, directed the jury as to the law and summarised the defence evidence. In due course the jury returned verdicts of guilty. They convicted Minott on counts 1 and 2. They convicted Bennett, Paul, Addo and Larbi on counts 3 and 4. 52. The judge imposed the following sentences. In relation to counts 1 and 2 he imposed on Simpson an extended sentence of 16 years with a 4 year extended licence period, making a total extended sentence of 20 years. In the case of Minott he imposed a determinate sentence of 12 years imprisonment. In the case of Groves he imposed an extended sentence of 16 years, comprising a custodial term of 12 years and an extension term of 4 years. 53. Turning to counts 3 and 4, he imposed on Paul an extended sentence of 16 years, comprising a custodial term of 12 years and an extension period of 4 years. In the case of Bennett he imposed an extended sentence of 18 years imprisonment, comprising a custodial term of 14 years and an extension period of 4 years. In the case of Addo, he imposed a sentence of 12 years detention in a young offender institution. In the case off Larbi he imposed a sentence of 10 years detention in a young offender institution. 54. Simpson is dismayed by the severity of his sentence. He appeals against sentence. Bennett, Paul and Addo are aggrieved by their convictions. They appeal to this court against conviction. Bennett and Paul also renew their applications for leave to appeal against sentence. We must now turn to those appeals. Part 4. The appeal to the Court of Appeal 55. Bennett, Paul and Addo appeal against conviction with the leave of the single judge on one ground only. This is that the judge erred in placing his own chronology before the jury. Miss Goodall for Bennett, Mr Baki, for Paul, and Miss Panagiotopoulou for Addo all submit that it is wrong in principle for a judge to put this sort of document before the jury. It is selective in the facts which are included. It thereby encourages the jury to give particular weight to facts or events which are included. It downplays matters which are left out. This chronology includes both uncontroversial dates and also summaries of some of the oral evidence given. 56. Miss Goodall, who spoke first and to some extent for all the appellants, cited the decision of this court in R v McCredie [2000] BCC 617 . In that case two company directors were on trial for a number of offences under the Insolvency Act 1986 following the liquidation of their company. The assistant recorder provided an 11 page chronology to the jury. The Court of Appeal expressed some disapproval. Henry LJ said this at page 4 of the transcript: "The assistant recorder rightly recognised the need to get the law on paper. This he did, with commendable diligence, in a nine page document headed 'The Counts on the Indictment'. He also gave the jury a detailed (11 page) chronology, prefaced with a warning reminder that they were the judges of fact. The final form of the documents was not agreed with counsel before they were distributed by the assistant recorder. Though it matters not here, as no complaint is made of those documents, such an omission might court disaster in another case." 57. We are bound to say that we see force in the general points made by counsel. A judge should not normally put such a document of his own creation before the jury. Obviously, it is normal and good practice for the judge to provide written directions of law and also written routes to verdict. But if the judge feels the need to place any written exposition of the facts before the jury, he should agree that document with counsel and let counsel see it before closing speeches. In this case, the judge produced his first draft chronology after most of the closing speeches had been made. 58. All defence counsel opposed the judge's proposed course of action and the prosecution discouraged it. The judge decided nevertheless to adhere to that course, although he made a number of amendments to his draft in the light of submissions made as to the contents. 59. The judge was obviously conscientiously doing his best to assist the jury in what he regarded as a complex case. We cannot, however, commend the course which he took. 60. The question which we must consider is whether the judge's deployment of this chronology renders the jury's verdict unsafe. We began the hearing today by examining with counsel whether the chronology contained any errors. Our conclusion is that it did not contain any significant errors or misstatement. 61. Miss Goodall submits that the chronology does not identify the shortcomings and limitations of the cell site evidence, which were elicited in cross-examination. We disagree. The judge's chronology was very much an abbreviated summary, but he dealt with the concessions, which counsel elicited from Mr Sexton in cross-examination, in the following passage on page 2 of the chronology: "The two phones could have been at opposite ends of the coverage of the cells. Generally the fact that two or three phones are in the same locality does not necessarily demonstrate they are about to or have just met - it could be a coincidence - cells can have a footprint as wide as 2km and phones can be 2km apart." 62. The judge in his summing-up dealt with this matter more fully in passages on pages 50, 51 and page 59 of the summing-up which in the interests of brevity we will not read out. The judge did justice to those matters which defence counsel had elicited in cross-examination. 63. Miss Goodall also criticises the summary of Mr Sexton's evidence at page 12 of the chronology. That passage includes a reference to telephones being in the same vicinity and a little later on to telephones co-locating in Lawrence Road Works, being a cell site in Tottenham. 64. It seems to us that there is nothing wrong with that passage. The jury fully understood the extent of cell sites and the possibility that phones in the same cell site area might nevertheless be some considerable distance away from each other. We think that, with the greatest respect to counsel, the points which she makes about the wording in that paragraph are of a pedantic nature. We think the gist of the evidence that the judge was summarising was clear. 65. Mr Baki, for Paul, criticises page 8 of the chronology. On that page there is a brief summary of the documents relating to the shooting at 55 Hazel Way Chingford, the home of Ibeawuchi's parents; there is a reference to the Sig Sauer pistol found later at Hall Lane having been used for the shooting at 55 Hazel Way according to the ballistic evidence. 66. Mr Baki submits that this passage does not point out that there is no forensic evidence to link the Sig Sauer pistol with Paul. That observation is true. The chronology does not contain such a statement. On the other hand, that statement is in paragraphs 118 and 119 of the written admissions before the jury. We do not think that the chronology is at fault for failing to duplicate that which is in the written submissions. 67. Mr Baki also complains that in the list of relevant phone calls there is no reference to the phone call which is No 1132 in the schedule of telephone calls. It appears that no one at the time asked the judge to add that particular reference to page 8 of his chronology. We imagine that if asked to do so the judge would have willingly included that particular reference. We can see that that was a relevant phone call, but we do not think that the jury would have disregarded it merely because it was not included in this list of references. This is a point to which we shall return. 68. Mr Baki next refers to page 10 of the chronology. That contains reference to the GSR swabs taken from Paul but it does not refer to the GSR recovered from Ibeawuchi. Prosecution counsel make the point that swabs were taken from Paul a matter of hours after the shooting incident, whereas Ibeawuchi's arrest came several days after the relevant shooting incident. Prosecution counsel also observes that this a point which cuts both ways because if Ibeawuchi had been shooting at Paul, as Mr Paul asserts, that might have provided a motive for the shooting by Paul at the home of Ibeawuchi's parents. 69. Having said all that, we do agree with Mr Baki that it would have been better, if the judge had included the reference to GSR on Ibeawuchi, if that is what the defence wished to have included. We do not, however, regard this omission as being unduly serious. 70. Miss Panagiotopoulou for Addo draws attention to page 14 of the chronology. That contains a reference to Mr Addo's phone being within the vicinity of 271 Hall Lane or 23 Russell Road between 19.26 and 19.32 on 4th May. That, says Miss Panagiotopoulou, is the time when Addo is said to have visited Jadine Mills' flat and the cell site evidence is perfectly consistent with Addo being some way away. 71. The chronology does actually do justice to that point. It does not just say that Addo's phone was in the vicinity of 271 Hall Lane, it also adds "or 23 Russell Road." It seems to us that this passage in the chronology, as the Recorder of Stafford pointed out in argument, is rather more helpful to the defence than the corresponding passage in the summing-up. We are not persuaded by this particular point. 72. Mr Hawkins, for the prosecution, accepts that he counselled the judge against putting such a chronology before the jury. He says that he did so partly with an eye to the Court of Appeal, mindful that this is the kind of point which might generate an appeal. How right he was. Nevertheless, Mr Hawkins submits that the chronology was a useful tool, or at least it did no harm. 73. We do not accept that the chronology was a useful tool. In our view the judge would have done better to sum up by reference to the various schedules and other documents which were already before the jury and with which they had become familiar during a six week trial. These documents included the telephone schedule, the cell site maps, chronological list of the seven incidents of violence, the written admissions and so forth. 74. Nevertheless we have come to the conclusion that the use of this chronology does not render the conviction unsafe. As Mr Hawkins rightly says, there was very little challenge to the accuracy of the contents of the telephone schedule. The jury were very familiar with all of the underlying documents. The telephone schedule had quite a spacious column on the right-hand side for the jury to make their own notes on during the trial and the jury were using that column and making notes on it. The jury knew their way around the bundles, as was inevitable after living with them and hearing cross-examination about them over a 6 week period. 75. The truth is that when we examine the individual criticisms of the chronology, there is very little force in the specific points which are put. The general criticism that such a document ought not to be used is a fair one, but we do not consider that, in the circumstances of this case and having regard to the particular contents of the chronology, it affected the safety of the conviction. 76. As Mr Hawkins rightly said, the chronology did not shut out any material from the jury’s consideration. It is fanciful to imagine that if phone call 1132 became relevant to the jury's deliberations anyone would have said: “we must not look at that, that is not on the judge's chronology.” The judge gave a very clear and firm health warning about the limited utility of this chronology in the passage of his summing-up which we have read out in Part 3 of this judgment. The judge gave a clear direction that all questions of fact were for the jury. He warned the jury that they should disregard anything in the chronology which they did not regard as helpful. They should take into account anything which was relevant but not in the chronology and we consider that those directions substantially cured any problems which might otherwise have arisen. In the result therefore, although we see some force in the criticisms made of the judge's approach on this issue, we do not regard the verdict as unsafe and we dismiss the appeal against conviction. 77. We turn now to the appeals against sentence. The first appellant is Marcus Simpson. He received an extended sentence of 20 years' imprisonment comprising a custodial term of 16 years and an extension period of 4 years. That was after giving credit of one-third for the plea of guilty. Simpson was a 33 year old man at trial, with no previous convictions. Miss Cook submits on his behalf that an extended sentence was unnecessary. Dangerousness is not established simply by the facts of this offence, grave though the appellant's conduct and offending was. We have carefully deliberated about this issue and we have come to the conclusion that Miss Cook is correct. Dangerousness has not been established in the case of Simpson. 78. Turning to length, Miss Cook submits that a starting point of 24 years before giving credit for the plea is simply too long. She refers us to the case of R Wilkinson [2010] 1 Cr App R(S) 628. We have taken that authority into account. However, we shall not extend this already lengthy judgment by a recitation of the facts of Wilkinson. We accept that the appellant Simpson's conduct although serious is not as grave as the conduct in Wilkinson. 79. In our view, the judge did take too high a starting point. The proper starting point was about 20 years. After giving credit for the plea of guilty, the sentence should be reduced to 13 years and 6 months. In the result therefore, we allow Simpson's appeal against sentence. We quash the extended sentence totalling 20 years and we substitute a determinate sentence of 13 years and 6 months. 80. We turn now to the case of Bennett. Bennett makes a renewed application for leave to appeal against sentence. Miss Goodall challenges the finding of dangerousness in respect of Bennett. We reject that submission. Bennett has a previous conviction for a firearms offence in 2005, for which he was sentenced to 5 years' imprisonment. In our view, against that background, the judge's finding of dangerousness was entirely correct. Therefore, we agree with the judge that this merited an extended sentence. The judge imposed a custodial term of 14 years and an extension period of 4 years. The 14 year custodial term imposed on Bennett is 6 years less than the starting point for Simpson if he had been convicted after a trial. In our view, that is a proper differentiation between Bennett and Simpson. In our view, the custodial term imposed on Bennett of 14 years was correct. Miss Goodall argues that there is an element of double counting and that the affect of Bennett's previous offending has been taken into account twice. 81. We do not agree. First of all, the previous firearm offence is highly relevant to the question of dangerousness and it justifies the judge's decision to impose an extended sentence. Secondly, the earlier conviction for firearms offences carrying a substantial prison sentence is an aggravating feature of the present offences. Here Bennett is once more becoming involved in firearm offences and acting as an important link between the suppliers, on the one hand, and his co-defendants on the other hand. We therefore dismiss Bennett's appeal against sentence. 82. We turn now to Paul. Mr Baki realistically does not criticise the length of sentence imposed on Paul. Nevertheless, he submits that that sentence should not be an extended sentence. We see force in that. Paul was aged 19 on the date of the offence. He was a young man with no previous convictions. We have come to the conclusion that he ought to have been treated in the same way as Addo. In the result, therefore, we quash the extended sentence and we substitute in the case of Paul a determinate sentence of 12 years. 83. Finally, Addo very wisely does not appeal against sentence. 84. In the result, therefore, the appeals by all appellants against conviction are dismissed. The appeals against sentence are allowed by Simpson and Paul to the extent that we have earlier indicated. (The Bench Conferred with the Registrar). 85. LORD JUSTICE JACKSON: After we had delivered that judgment it was pointed out by the court and by counsel that there are two other matters to which Mr Simpson had pleaded guilty which were nevertheless simply ordered to lie on the file. Both prosecution and defence counsel submit that we need say nothing about those matters. We agree. We say nothing about them.

```yaml citation: '[2014] EWCA Crim 2652' date: '2014-11-19' judges: - LORD JUSTICE JACKSON - MRS JUSTICE NICOLA DAVIES DBE ```

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2019/02796/B2, 2019/03631/B2, 2019/02824/B2, 2019/03655/B2 & 2019/02820/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION NCN: [2020] EWCA Crim 998 Royal Courts of Justice The Strand London WC2A 2LL B e f o r e: LORD JUSTICE DAVIS Thursday 23 rd July 2020 MRS JUSTICE ANDREWS DBE and THE RECORDER OF NOTTINGHAM ( His Honour Judge Dickinson QC ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) ___________________ R E G I N A - v - RALSTON TERRANCE GABRIEL RICKY CLINT GABRIEL REISS LIAM GABRIEL ___________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. __________________________ Mr P Lazarus appeared on behalf of the Appellant Ralston Gabriel Miss E Goodall appeared on behalf of the Appellant Ricky Gabriel Mr C Meredith appeared on behalf of the Appellant Reiss Liam Gabriel Miss K Broome appeared on behalf of the Crown ______________________ J U D G M E N T _____________________ Thursday 23 rd July 2020 LORD JUSTICE DAVIS: Introduction 1. On 2 nd July 2019, following a trial in the Crown Court at Blackfriars before His Honour Judge Hillen and a jury, the three appellants were convicted of conspiracy to possess a firearm with intent to endanger life (count 1) and conspiracy to possess ammunition with intent to endanger life (count 2). 2. They now appeal against their convictions on three grounds for which the single judge has granted leave. The first relates to the judge's ruling during the course of the trial that the prosecution should be permitted to adduce evidence as to the presence of DNA found on the muzzle of one of the guns in question, which was attributable to at least one of the appellants. This was in circumstances whereby, quite remarkably, the appellants are monozygotic triplets whose DNA is indistinguishable as between each other. The second, linked, ground relates to the instruction which the judge gave to the jury in the course of his summing-up as to what use they might make of the DNA for the purposes of their deliberation of the case. The third ground for which leave to appeal was granted by the single judge is entirely discrete. It is said that the judge should have discharged the entire jury once it was ascertained that one of their number had made internet searches against the names of two of the counsel involved in the trial, and in particular counsel for the prosecution, Miss Broome, and had then told a number of his fellow jurors what he had gleaned from his searches with regard to Miss Broome. 3. In addition, however, the appellants variously seek to renew their applications for leave to appeal against conviction on grounds for which the single judge refused leave. Ralston and Ricky Gabriel also renew their applications for leave to appeal against sentence following refusal by the single judge. 4. The trial involved an amount of complex evidence relating to the use of mobile phones, cellsite analysis and so on. For present purposes, we make clear that we set out only a broad outline of that evidence, without going into great detail. Background Facts 5. By way of overview, the appellants (identical triplets, as we have said) were alleged by the prosecution to be in effect on the selling side in conspiring together with Aaron Thomas, Elyace Hamchaoui and Hamza Ahmed on the buying side, as well as others unknown, to enable two firearms and ammunition to be possessed with intent to endanger life. 5. In the early hours of 10 th April 2017, Hamza Ahmed, under a false name, had booked a taxi to travel to an address in Durban Road, London N17. Shortly after 12.30am he was picked up by a taxi driver. During the journey he was talking to someone on his phone. When they arrived at the address in London N17, he asked the driver to put his hazard light on so that the person he was meeting could find them. Ahmed then got out of the taxi. He was observed at 12.50am to meet an unknown black male from whom he took possession of a large, heavy holdall. He placed that on the back seat of the taxi and then walked a short distance with the unknown man. Both of them looked into a rucksack. Ahmed took the rucksack, got back into the taxi and asked to be taken to an address in London N19. The taxi set off, but was stopped by armed police a few minutes later. The holdall was seized. Inside the holdall was a rucksack. It contained an Uzi submachine gun with a sound moderator, ammunition for that submachine gun and a loaded 9mm automatic self-loading pistol. 6. Thomas, Hamchaoui and Ahmed were convicted following trial on the like conspiracy counts on 3 rd July 2018. There was a great deal of telephonic evidence to show that they had been in 2 regular contact with each other on the night in question. 7. The prosecution case was that on the evening of 9 th April 2017 and on into the early hours of 10 th April 2017, Thomas (who had three phones, one of which was an unregistered "dirty" phone) was in contact with a network of telephone numbers in order to orchestrate the transfer of the guns and ammunition. It was said that he was the broker for the intended recipient of the weapons. Hamchaoui was described as the "middle man" on the buying side; he acted on behalf of Thomas and directed Ahmed, who was the courier, to collect the guns. Hamchaoui would relay information back to Thomas. At the same time, on the prosecution case, the appellants, on the selling side, arranged the delivery of the firearms for collection. 8. In a nutshell, the prosecution case against the appellant Ralston Gabriel was based on the attribution to him of the telephone number ending 0574. Attribution was strongly disputed at trial. The user of this number was said by the prosecution to be party to the arrangements to deliver the firearms and ammunition to the area where they were passed to Ahmed by the unidentified man. On cell-site evidence, the user of this number had entered the vicinity where the transfer took place a few minutes before the transfer occurred and then left again. There was evidence of contact between the 0574 number and Thomas' phones, both before and after the interception. It was also said that Ralston was in contact with his brother Reiss's phone that night. 9. The prosecution case against Ricky Gabriel was based on the, again contested, attribution to him of the number ending 3039. Ricky Gabriel was stopped by police subsequently on 13 th May 2017. He was in possession of an iPhone containing the 3039 SIM. He confirmed that it was his phone, and he provided his PIN to enable it to be interrogated. One of the contacts in his phone was one of Thomas' numbers – a "clean" number. The phone 3039 was also found to have as a contact under the name "R1" the phone of his brother Reiss. The prosecution relied on the fact, as they said, that there had been contact between this number and Thomas prior to the transaction, and there had been further contact on two separate occasions following the interception by the police with Thomas' phone. 10. The prosecution case against Reiss Gabriel, again in a nutshell, was based on the fact that in April 2017 he had been in a relationship with Sasha Robinson-King. It was said that in April 2017 she had a phone ending 6503, and that he had a phone ending 4233. Both phones were cell-sited in the same general area of East London on 9 th and 10 th April. In the early hours of 10 th April, Robinson-King's 6503 phone called Thomas on three occasions before Ahmed arrived at the location of the handover. Prior to 12.09am on 10 th April, there had been no contact between 6503 and Thomas' phone. It was the prosecution case that it was Reiss who was making the phone calls, using his girlfriend's phone. In addition, there had been contact between this phone and the phone ending 0574. 11. Further, detailed evidence was given as to the various entries of names and numbers found as contacts in the various phones that were taken. It appears that on Ricky's phone there was found a photograph of Thomas with two of the triplets. There was also an amount of cell-site evidence adduced before the jury. 12. Robinson-King was arrested on 11 th May 2018 (almost a year later) on suspicion of involvement in the conspiracy. When interviewed, for the most part she answered "No comment" to all questions asked. However, reliance is now placed on what is said to have been an answer by her at one stage of that interview. 13. In addition, however, the prosecution sought to adduce DNA evidence. There was expert evidence that found on the muzzle of the pistol which had been intercepted was DNA evidence which was, to the probability of one billion to one, attributable to at least one of the three appellants. However, just because they were monozygotic identical triplets, it could not be said which one (or more) that would be. It is also the case that other profiles relating to other people were found on that gun and, indeed, on the submachine gun. One of the main issues in this appeal is whether that DNA evidence, which was the subject of expert evidence, was properly placed before the jury. 14. Overall, it can be seen that the Crown's case was essentially circumstantial. Critical to it was the attribution and use of the identified mobile phones to and by each of the various appellants, coupled with the cell-site evidence as to the location of those phones at various times, not least on the night of 9 th /10 th April. Renewed Grounds 15. None of the appellants gave any comment when they were interviewed by the police and none gave evidence at trial. 16. It is convenient to deal first with the renewed grounds of appeal against conviction in respect of which the single judge refused leave. We will do so shortly, as we are entirely satisfied that there is no substance in any of them. 17. The first point raised is that all three appellants say that the trial judge erred in rejecting a submission of no case to answer at the conclusion of the prosecution case. Each said at the time, and says now, that there was insufficient evidence to enable a jury safely to infer that each had knowingly participated in the alleged conspiracies. It is stressed that the Crown's case was, essentially, entirely circumstantial. 18. A number of individual points were made in support of those submissions: for example – and it is only by way of example – the use of 0574 (said to be Ralston's phone) had on other occasions taken place when Ralston himself could not have been using it as he was on the football pitch. Other such points were also made. 19. The judge gave a full and detailed ruling on the matter. He directed himself in accordance with the well-known Galbraith principles, and also directed himself by reference to relevant authorities relating to the drawing of inferences. He approached the matter on the footing that the prosecution case fundamentally depended on the attribution of the phones in question to each of the appellants respectively. He thoroughly and separately analysed that evidence in the case of each appellant. He noted in particular the relatively limited phone material relating to the appellant Ricky Gabriel. In each case, however, he concluded, and gave full reasons, that there was a case to answer. Part of his reasoning included reference to the DNA point, to which we will come later. Subject to that point, it is sufficient for us, for present purposes, to say that, in entire agreement with the single judge on this issue, we see no arguable basis for interfering with the reasoning of the judge or with his conclusion on the evidence then adduced that there was a case properly to be left to the jury. That renewed ground, therefore, fails. 20. Then it is said by each appellant that in his summing-up the judge gave insufficient directions to the jury as to the necessary ingredients of conspiracy and participation in the conspiracy as alleged. It is said that this was particularly so after the jury had sent a note on 1 st July 2019 and after they had been in retirement for some time. In the relevant respects, the jury note, as recounted by the judge, said this: "'We have a question in law regarding conspiracy'. So, I will read the whole of this out and then we will go back to the two bullet points. 'We have a question in law regarding conspiracy' … – the first bullet point is: 'Does knowing of a conspiracy and helping a conspirator imply being part of that conspiracy?' Bullet point 2 is: 'A counsel indicated that participation had to be active in the conspiracy, but does passive participation with partial knowledge of the said conspiracy signify taking part in the latter?'" It is submitted that the very fact that this question was asked illustrated that the judge's prior directions on conspiracy in his summing-up had been inadequate. Complaint is further made that the judge's answer to that question, which is set out at page 124 of the transcript, was insufficient. 21. We have carefully considered the directions that the judge gave as to the elements of conspiracy. We are entirely satisfied that those directions were adequate for this case. Furthermore, his answer to the jury note was again sufficient. Indeed, he was positively correct not to over-elaborate his answer, which answer was legally correct. We consider, overall, that there is no substance in this complaint concerning the directions given to the jury on conspiracy. 22. It is also said that the judge's summary of the evidence with regard to this was unbalanced. But again, having reviewed the summing-up, we are entirely satisfied that that is not a sustainable criticism. 23. Next, a ground is pursued that the judge's direction as to circumstantial evidence was insufficient and did not give the necessary guidance to the jury as to their correct approach to a case which essentially was founded on a circumstantial basis. In particular, it is said that the judge failed properly to point to factors which would lead away from attribution of the phones in question to the individual appellants. 24. Here, too, we think that there is no basis for this criticism. The judge gave a split summingup. When he gave his initial directions concerning circumstantial evidence, he did not know just how counsel would put their arguments in closing speeches in circumstances where the appellants had all elected not to give evidence. The judge had given an entirely sufficient outline of the law on circumstantial evidence, abridged from the Crown Court Compendium, which he had also reduced to writing. Following counsel's speeches, when he summed up the evidence, he again reverted to the necessary points. Amongst other things, he reiterated that speculation had no part to play in the jury's considerations. He also made it absolutely clear that the burden of proof rested throughout on the Crown. He sufficiently reviewed, in our judgment, the respective defence cases. The various criticisms made of him in this respect are, in our view, of no real substance. 25. Finally as to the renewed grounds, a point is pursued on behalf of Reiss Gabriel alone. The point is as hard to fathom now as it must have been in the court below. The Crown had adduced evidence to show that the phone ending 6053 was indeed linked to Sasha Robinson-King (Reiss' then girlfriend). Contrary to a suggestion that had been made at least below, that attribution in no way depended upon hearsay evidence. 26. As we have said, Sasha Robinson-King had been arrested and interviewed a year subsequent to these events. For the most part, she had answered "No comment" to all questions asked. But one possible answer, according to the transcript of her interview, indicates that she said "No" to the question (if it was a question) of a police officer who said: "If that person wasn't, you then was, unless you tell me somebody else was". It is completely unclear what question, if any, was being put by the police officer. Moreover, the statement "No" is totally ambiguous as to what it actually meant. Indeed, further to complicate matters, Miss Broome has suggested that as Sasha Robinson-King was saying "No", the police officer spoke over her; and that she may well have intended to say "No comment", as she had done for the most part of the interview. Nevertheless, Mr Meredith sought to say that somehow this answer "No" should be put in as hearsay evidence. When asked "Hearsay evidence of what?", he rather struggled to say. Certainly, one cannot spell out any clear question or any clear answer from the transcript of interview. That of itself is fatal to the point made. But it is further completely demolished, both by the context of the general "no comment" answers in which this statement "No" was made, and furthermore in the context of the fact that Mr Meredith could point to no proper basis for such evidence being put in as hearsay under section 114(1) (d) of the Criminal Justice Act 2003 , in any event. If the defence wanted to adduce evidence from Robinson-King to rebut the suggestion that she had let her phone be used by her then boyfriend, then it was open to them to seek to call her: although perhaps it is easy to understand why they did not. At all events, this ground was entirely misconceived. Grounds of Appeal 27. We turn to the grounds of appeal in respect of which the single judge granted leave. 28. It is convenient to take the jury point first. What happened – and again we put it shortly – was this. On the second day of their deliberations, 26 th June 2019, the jury were released during the morning as one of their number was unwell. Later that day, the judge was informed by a court usher that the usher had overheard one of the jurors, in the presence of around six other jurors, mention that morning that he had looked up the name of Miss Broome (counsel for the prosecution) on the internet and found that she had been involved as counsel in a high profile case relating to the Shoreham Air Show plane crash. Perhaps needless to say, the jury had been told at the outset of the trial, and on subsequent occasions, not to engage in any internet or other research on their own account. It had been made clear to them that this also extended to research relating to judge and counsel. They also had been told, as is conventional, that they should report anything untoward to the judge. At all events, having been so informed by the court usher, the judge notified counsel by email at 4.27pm that afternoon. 29. When the jury reassembled on the morning of the following day, 27 th June 2019, the juror in question was not initially separated from the others. Having had some discussion with counsel, the judge had that juror called into court. When questioned, that juror readily accepted that he had indeed Googled Miss Broome's name. He also volunteered that he had researched the name of Mr Lazarus (counsel then, as now, appearing for Ralston Gabriel). He said that he had done so out of curiosity. He said that he had told other jurors that it seemed that Miss Broome was a "high flyer" and had been involved in the Shoreham air crash case. The judge discussed matters with counsel, following which the juror in question was discharged. The remaining 11 jurors were then brought together into court. The judge told them that the other juror had been discharged and told them the reason why he had been discharged, including the fact that that juror had described to other jurors that Miss Broome was a "high flyer". The judge expressly reminded the remaining jurors of his direction that they should not conduct their own researches and should report anything untoward to him. He also made it absolutely clear in his instructions to them at the time that the case was to be decided on the evidence, not on counsel's performance. He asked them to consider if any of them had conducted their own researches with regard to Miss Broome or otherwise, or if they felt that they had been influenced in such a way that they could no longer try the case fairly. The jury retired for a few minutes and then returned together. One of their number, as spokesperson, said that they had not conducted any internet enquiries themselves and that they considered that they could continue to try the case fairly. The judge then permitted the remaining 11 jurors to continue their deliberations with regard to each of the appellants. 30. After the jury had withdrawn, Mr Meredith (counsel for Reiss Gabriel) again raised concerns that the six other jurors had not reported the internet research of a fellow juror to the judge. The judge shortly indicated that in circumstances where the research had not been as to the facts, and given the timing of all that had happened, this was not a case for the discharge of the entire jury. It may be noted that counsel for the other two appellants did not seek the discharge of the entire jury; they were content simply with the discharge of the individual juror in question. 31. What Mr Meredith says – and his arguments are adopted by Mr Lazarus and Miss Goodall, to the extent that it is now open to them to do so – is that the jury had been contaminated, and irredeemably so. He says that the only proper course was to discharge all of them: the jury, objectively, could not be trusted. He further pointed out that there had been no explanation to the judge by any of the six or so jurors of what the twelfth juror had said to them. Indeed, the transcript might indicate that they had briefly asked that juror to elaborate on what he was saying. 32. The judge was, of course, required to take account of Criminal Practice Direction Part 6 26M. But as the Practice Direction itself makes clear, a judge has to decide what best to do where a jury irregularity occurs, and has to do so by reference to the context and to circumstances which arise in the particular case. That is a point stressed in, for example, R v KK and Others [2020] 1 Cr App R 29 at [80] to [81]. 33. Here, given that the jury had separated the previous day, there was no obvious reason for separating the individual juror when he arrived at court the following morning: especially when he had already told six (or thereabouts) of the other jurors of what he had done. Further, given the circumstances, it was well within the range of a reasonable exercise of discretion for the judge then to question the remaining jurors collectively, rather than individually. In addition, it was understandable, notwithstanding Mr Meredith's complaints, that the judge explained to the remaining jurors why the other juror had been discharged, including reference to the fact that he had discovered that Miss Broome was considered to be a "high flyer". It was legitimate for the judge to put the remaining jurors on the same equivalence of knowledge as the six jurors who had already been told that by the errant juror. Indeed, the judge's questioning of the remaining jurors was geared to that. That, again, in our judgment, was an entirely reasonable exercise of his discretion on the part of the judge. Furthermore, he proceeded on the footing of making it clear to the jury that it was not the background or the performance of counsel which counted, it was the jury’s assessment of the evidence in the case. He directed them in appropriate and forthright terms. 34. Mr Meredith, nevertheless, maintained that the jury as a whole could not, viewing matters objectively, be trusted, just because not one of the six or so jurors had reported this breach to the judge. But such a failure to report an irregularity by a jury does not of itself necessarily require the discharge of the whole jury: see the discussion in KK . The reality here was that the information imparted by the errant juror was anodyne. Besides, given the course of events, the judge had indicated – and he, as the trial judge, was well-placed to assess this – that the way things had proceeded had meant that there had been no real opportunity for the other six or so jurors to tell the judge of what had happened if they had concerns. Overall, therefore, we are entirely satisfied that the steps which the judge took were proper ones. No unfairness arose by reason of his refusal to discharge the entire jury. In our judgment, this ground of appeal is not made out. The judge acted entirely properly and he gave appropriate directions to the jury at the time with regard to what had happened. 35. We turn finally to what perhaps is the main point raised on this appeal concerning the admission and treatment of the DNA evidence. The Crown throughout had conceded that the DNA found on the muzzle of the loaded gun, which had a match probability of one billion to one to the appellants, could not, just because they were monozygotic triplets, be attributed to any particular one of them. The Crown had made it clear that their case rested in its fundamentals on the telephone evidence. 36. In such circumstances, the appellants at trial had invited the judge to exclude such evidence under section 78 of the Police and Criminal Evidence Act 1984 . It was (and we put it shortly) said that because the DNA could not be linked to any one of the appellants individually, it was of minimal probative value as against each of them individually. But on the other hand, it was said, to admit such evidence might well be highly prejudicial to the appellants collectively and might well, in effect, encourage the jury to think in terms of guilt by association. 37. In a detailed ruling, the judge rejected the arguments advanced to him. He agreed that the jury could not place any reliance on the DNA evidence unless they were first sure that the DNA had not got on to the muzzle by, for example, innocent secondary transfer. The essence of the judge's ruling can be found at paragraph 15, where he said: "In this conspiracy, if the DNA evidence is accepted by the jury, and if other 'innocent' methods of secondary transfer are excluded by the jury, then one of the three [appellants] came into contact with the firearm. Each of the three is linked by close relationship. Each of the three has made telephone contact, if that evidence is accepted, from which an agreement can be inferred. Knowledge that that agreement was a criminal agreement and that it was an agreement that a firearm or firearms be in the possession of a coconspirator, can be inferred from the calls, the relationship and the contact one of the three had with the firearm. It is suggested that this is guilt by association. Association is more often than not an essential element in the circumstantial evidence proving conspiracy." A little later he said: "The link of one of them with one of the firearms could lead the jury to be satisfied that as against the [appellant] whose case they were considering, that [appellant] knew it was in connection with at last one of the weapons mentioned in count 1, and so a criminal agreement as alleged." The judge went on to say this at paragraph 17 of his ruling: "This is characterised by Miss Goodall as a circular argument. It is not. It is, as I hope I have demonstrated, a linear argument, which operates in an upward and [downward] chain of reasoning. It is, as with all circumstantial evidence, a strand, the strength or weakness of which depends upon other evidence. As it is summarised in Archbold ' the evidential significance of DNA evidence depends to a large extent upon the other evidence in the case; by itself, it may not take the mater far, but, in conjunction with other evidence, it may be of considerable significance'. Whether it is of significance is a matter for the jury. As probative but circumstantial evidence it will always require a careful evaluation by the jury, but I cannot accept that any potential prejudice cannot be dealt with by a direction." 38. In our judgment, that was a ruling properly open to the judge. The Crown's case was not and could not be founded solely on the DNA evidence. As we have said, it was in its fundamentals founded on the mobile phone and cell-site evidence, with the DNA evidence being advanced as capable of supporting the case based on that. But in circumstances where that telephone evidence, if the jury accepted it, showed varying degrees of contact with Thomas and Thomas' associates on the part of the appellants, and with each other, on the night in question, the fact that the DNA evidence attributable to at least one of them was found on the pistol, which pistol was part of the conspiracy, was plainly relevant. It bore on the very issues in the case. Indeed, it would operate to rebut any suggestion that what had happened was all by way of coincidence. We thus think this evidence was clearly admissible. We reject Miss Goodall's arguments to the contrary. The only question then is whether, nevertheless, it should as a matter of discretion be excluded as being unfairly prejudicial. The evidence might, in a sense, be said to be prejudicial: but that is only because it was potentially relevant. There was no unfairness in allowing it to be put before the jury. Indeed, it might have been a very surprising outcome if the jury were deprived of all knowledge of the fact that the DNA of at least one of the appellants, as alleged conspirators, had been found on one of the firearms which were the subject of the conspiracy. Accordingly, we think that the judge's ruling was justified and his reasoning was sound. 39. That leads to the final point with regard to the safety of the conviction. The judge had made clear in his ruling that he contemplated that the entire matter could appropriately be dealt with by directions from him. But the complaint is that when he came to deal with the matter in his summing-up, his directions were inadequate, confused and circular; rather than making things clearer for the jury, they may only have served to encourage them to speculate or to give greater weight to the DNA evidence than it in truth deserved. 40. Throughout his summing-up the judge made it clear that the prosecution case depended on the mobile phone and cell-site analysis and on the correct attribution of the respective phones to each of the appellants. He further made clear that the case of each appellant had to be considered separately. He made it clear that the jury must consider the totality of the evidence, and he made it clear that the burden of proof was on the prosecution to the criminal standard. He made it clear throughout that the DNA evidence, if accepted by the jury, was, at best, only some evidence in support of the prosecution case. In giving his directions as to how the DNA evidence might be used by the jury, the judge said this: "Once again, it is important not to speculate or make up theories. But you are entitled to draw common sense conclusions from the evidence. If you are satisfied that the DNA of one or more of the [appellants] was transferred onto the pistol in circumstances where the [appellant] – that [appellant] whose case you are considering – or [appellants] were aware of the pistol, then what use can be made and what use cannot be made of this evidence? Firstly and most importantly, the DNA evidence cannot prove as against any one or more of these three [appellants] that they came into contact with the pistol. If that were the only evidence, all three [appellants] would have to be acquitted. If you are sure of the reliability of the DNA evidence and if other innocent methods of secondary transfer are being excluded, then from the individual whose DNA was found on the pistol, that delimits are particular class of people, these [appellants], these triplets, one or more who came into contact with the pistol. Each of the three [appellants] is linked by close relationship. That again of itself – that association – their close relationship – is not evidence that any one or more of these three [appellants] have come into contact with the pistol or knew that their brother or brothers had done so. The prosecution case rests upon the interpretation of the telephone contacts between the [appellants] themselves and the named co-conspirator and others unknown, such as Number B. Consider the case against and for each [appellant]. And if you conclude from the telephone and cell site evidence, the [appellant] whose case you are considering had entered into an agreement with others named and unnamed, then the DNA evidence is capable of being some evidence which, taken with all the circumstances in the case, can lead you to conclude that [appellant] had either himself come into contact directly or knowingly but indirectly with the firearm or knew that one or more of his brothers had done so. It is important always to remember always that this – that is the DNA evidence – is only one part of the evidence. And important also when considering this evidence, you look again at the direction on your handouts about circumstantial evidence." 41. Miss Goodall objects that the judge's approach was circular and, in effect, double counts the value of the evidence. She maintains that where the evidence could not be attributed to any one of the appellants, the matter was left, in effect, up in the air. She says that there was a lack of specificity in the evidence, in that no individual one of the three appellants could be identified by reference to the DNA evidence. She also objects that the DNA evidence had weaknesses in terms that it could not necessarily explain whether there was direct transfer or indirect transfer, what the timing was and so on; although, as Miss Broome pointed out, that is almost always so in the case of DNA evidence. In many ways, indeed, Miss Goodall's arguments reflected her prior argument that the evidence should not have been allowed to be adduced at all. 42. We have to say, with respect, that at stages Miss Goodall's arguments reached the highest level of technicality. We consider, with all respect to Miss Goodall, that Miss Broome was justified in saying that Miss Goodall's arguments sought to find difficulty and complexity where, in truth, there was none. We consider, as we have said, that the judge had given amply sufficient reasons for allowing this evidence as to DNA to be adduced at the trial. We accept that his directions to the jury were perhaps not as clear or as focused as his reasoning was in his prior ruling. Nevertheless, he did sufficiently direct them, in our judgment; and in particular he made clear to them the limitations as to the use to which they could put such evidence. The point of relevance remains obvious, and that, at least, was the subject of the judge's ruling. In our view, his directions to the jury adequately set out the position. Consequently, we do not think that there was any error or any material inadequacy in the summing-up. This ground of appeal therefore fails. Indeed, it might be said that when he came to deal with the DNA evidence in his summing-up, the judge had dealt with it in a very low-key way and in a way which could be said to have been favourable to the defence. 43. Reviewing all the grounds of appeal advanced with regard to the safety of these convictions, we are satisfied that there is no basis in them, whether taken individually or collectively. We are satisfied that these convictions are safe. The jury were properly directed and instructed. The judge's rulings were appropriate. There is no proper basis for this court to interfere. These appeals against conviction are dismissed. Application Concerning Sentence 44. We now turn to the renewed applications of the applicants Ralston and Ricky Gabriel (both now aged 28) for leave to appeal against sentence following refusal by the single judge. Each had been sentenced by the judge to a determinate term of 14 years' imprisonment. 45. In the course of his sentencing remarks, the judge found that there must have been access to organised crime groups. He found Reiss to be the co-ordinator of the whole operation on the sell side. Ralston, he found, had the responsibility for arranging delivery to Thomas' agent at the location in question. Ricky was also described by the judge as central. The judge noted that, after the guns had been intercepted, Ricky had been the last point of contact with Thomas, to whom he had spoken for nearly ten minutes on the phone. The judge found that the roles of Ralston and Ricky were not subordinate, but nor were they leading. Although criticism is made of that assessment, we can see no reason for interfering with it, especially given the advantage to the judge in conducting the trial. 46. Although the applicants had some previous convictions, the judge did not regard them to be of such a character as to amount to an aggravating factor. But, as the judge noted, the firearms here were genuine, the pistol was loaded, and the submachine gun had ammunition accompanying it. It is suggested that the judge should have sentenced solely by reference to the pistol. But, in our view, that would be unreal. The judge was clearly justified in proceeding on the footing that what had been involved here was both a submachine gun with ammunition and the loaded pistol. Moreover, it was an aggravating factor that this was a conspiracy in which a considerable number of people had been involved; and, as the judge inevitably held, these guns were intended for ultimate use by violent criminals. 47. It is well-known that the courts are required to adopt a severe approach in such a fire-arms context. Applying the criteria laid down in Avis and other relevant authorities, we can see no arguable error in a sentence of 14 years' imprisonment following a trial in each case. It may be that such a sentence can be described as severe; but it is by no means excessive or out of line with sentencing in broadly comparable cases. It is said that the judge failed to have regard to the mitigation available. It is true that there was some limited mitigation in the form of positive character references and the like, and it is also encouraging that there seem to be some signs of progress in the custodial environment during the current difficult circumstances. But those matters do not detract from the sentence imposed by the judge. 47. It is further said that there is an element of disparity with the sentence imposed on Reiss, who received a total of 18 years' imprisonment in circumstances where he had been the coordinator and, moreover, fell to be sentenced for certain other serious matters involving a firearm and drugs offences. It may be, as we see it, that Reiss perhaps was fortunate to receive a sentence limited to 18 years' imprisonment. At all events, the argument as to disparity does not in any way lead us to conclude that, even arguably, sentences of 14 years' imprisonment imposed on these two applicants, given the gravity of their offending, was excessive. 48. Accordingly, we agree with the single judge that these applications should be refused. We endorse her reasoning and conclusion. We refuse these renewed applications. 49. MR MEREDITH: One final matter, if I may – and I note the time, as I am sure my Lord does as well. My Lord, given the unusual background to these three cases and the importance of scientific evidence in modern day trials, might I apply, on behalf of all counsel, for a short period of time in which to consider whether or not we will invite the court to certify a point of general public importance? 50. LORD JUSTICE DAVIS: Do the other two counsel associate themselves with this application? 51. MISS GOODALL: My Lord, no. In fact, I had indicated that it was not an application I would be pursuing. 52. LORD JUSTICE DAVIS: Mr Lazarus? 53. MR LAZARUS: My Lord, only to the extent that I would like to discuss it – so I would like some time to think. 54. LORD JUSTICE DAVIS: Well, given the time – we do not want to shut you out from the point, but you will need to consider very hard indeed what point of law of general public importance can possibly arise in the circumstances of this case. 55. MR MEREDITH: My Lord, I appreciate that. 56. LORD JUSTICE DAVIS: 24 hours. 57. MR MEREDITH: Thank you. 58. LORD JUSTICE DAVIS: And if you decide not to pursue the point, could you send a nil return to my clerk? 59. MR MEREDITH: Certainly, my Lord. Yes. 60. LORD JUSTICE DAVIS: Any other matters? 61. MR MEREDITH: No, thank you. 62. LORD JUSTICE DAVIS: Could we say to all counsel – and we include Miss Broome in this – clearly all of you have worked very hard indeed in preparing this case. So far as the three of you are concerned, each of your clients has failed, but it is through no want of effort on your part. So, thank you very much indeed. ___________________________________ 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] ________________________________

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Case No: 200106214B2 Neutral Citation No: [2003] EWCA Crim 3555 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT SOUTHAMPTON MR RECORDER HUGHES QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 11 th DECEMBER 2003 Before: LORD JUSTICE MANTELL MR JUSTICE JACKSON and THE RECORDER OF MANCHESTER - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - MARK JOHN KEMPSTER - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr P O’Connor QC (instructed by the Registrar ) for the Appellant Mr G Bebb QC (instructed by the CPS ) for the Crown Hearing dates: 12 th November 2003 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Lord Justice Mantell: 1. In March, 2001 Mark John Kempster stood trial at Southampton Crown Court on an indictment containing five counts. During the trial he was acquitted of Count 3 on the direction of the learned Recorder. Then for convenience Counts 4 and 5 were re-numbered 3 and 4. 2. Count 1 alleged a burglary at 119, Satchell Lane, Netley, Hampshire during the night of 3 rd to 4th June, 2000. Counts 2 to 4 alleged an attempted burglary and two burglaries in Bursledon, Hampshire respectively at 5, Beverley Gardens, "Landfall" in Portsmouth Road and 69, Pound Road, all during the night of 16 th to 17 th June, 2000. On 30 th March, 2001 the appellant was convicted unanimously of Count 1, and by a majority of ten to two on Counts 2 to 4. He was subsequently sentenced to ten years imprisonment on Counts 1, 3 and 4 and to five years on Count 2. The sentences were ordered to run concurrently. 3. He applied for leave to appeal against his convictions and sentences. The single judge refused him leave to appeal against the convictions, but granted leave to appeal against the sentences. He renewed his application for leave to appeal against conviction to the full court which, on 21 st July, 2003 was granted but confined to specific grounds. The first ground relates only to Count 1. The second applies equally to all four counts. It involves two related submissions. We will refer to these as grounds 2A and 2B. We will return to all of the grounds in due course. 4. The offences can be described very shortly. The burglary charged in Count 1 was committed close to midnight on 3 rd to 4 th June, 2000. A man broke into 119, Satchell Lane, the home of Mrs. Ivy Hooker, aged 89. She was deaf and had poor eyesight. The burglar gained access by forcing a rear kitchen window. Having made an untidy search of the premises, he went into Mrs. Hooker’s bedroom and woke her up in doing so. The man’s head was hooded. Mrs Hooker pressed her lifeline alarm, but the man snatched it from her. He said that he would not hurt her if she told him where the money was. He took £45 from her handbag. It was the Crown’s case that the burglar was the appellant, and that he left an identifiable ear-print at the scene. 5. The other three offences were committed within about four hours of each other in the early hours of 17 th June, 2000. Three bungalows, all occupied by elderly people, and all in the same area of Bursledon, were burgled. The first, charged in Count 2, was at the house of a Mr. and Mrs. Haywood. Mr. Haywood disturbed the burglar as he was climbing through the rear kitchen window which he had forced. The second, charged in Count 3, was at the house of Mrs. Stella Douglas, an 89-year-old widow with failing faculties who awoke to find the burglar in her room. By the time he left the premises the burglar had carried out a search and stolen jewellery to the value of £850. The third, charged in Count 4, was at the house of a Mr. and Mrs. Martin. The burglar did not wake them from their sleep. Bankcards and cash were stolen. At 4 a.m. a person pretending to be a police officer telephoned Mr. and Mrs. Martin and sought, unsuccessfully, to persuade them to give him their PIN numbers. The Crown adduced evidence to prove that that person was the appellant, and contended that the proximity of the three burglaries in time and place and similarities in the way they were committed pointed to the conclusion that the same person had committed all of them. 6. Before considering the first ground of appeal it is necessary to look in some detail the evidence connecting the appellant with the burglary charged in Count 1. The police were alerted at 00.16 on 4 th June. They attended 119 Satchell Lane and found an ear-print on a fixed windowpane to the side of the one that had been forced. A professed expert witness, Miss Cheryl McGowan, whose evidence we will consider in due course, later compared that ear-print with an ear impression provided by the appellant, and concluded that both had come from the same person. 7. It was not disputed that earlier in 2000, the appellant had been at 119, Satchell Lane carrying out building work. At the trial the Prosecution exhibited a receipt signed by the appellant and given to Mrs. Hooker. It was dated 12 th February, 2000 and referred to "filling, tiling, new fascia board". There was also evidence from a neighbour, Mr. Brown, who had witnessed a disagreement between the appellant and Mrs. Hooker over the work done and the money to be paid, which culminated in Mrs. Hooker’s asking the appellant to leave. 8. Miss McGowan gave evidence that although an ear-print could remain on a window for many months in the absence of rain or cleaning, it was highly unlikely that such a print would remain on a window that had been cleaned properly. Accordingly, evidence was called from a window-cleaner, Mr. Crouch, who said that his team would clean the windows at 119, Satchell Lane on a monthly basis, on or about the 21 st of each month. He could not say for certain that the window on which the ear-print was found had been cleaned in the period between 12 th February and the discovery of the ear-print, but to the best of his knowledge he had not missed a month at the property. He certainly could not have missed two or three months. He hoped that the window concerned would have been cleaned during the relevant period, and he had received no complaints in relation to the property. 9. The appellant was interviewed on 19 th June, 2000. He denied that he had committed the offence. Indeed, he denied that he had ever been to the back of 119, Satchell Lane. He said that he could not remember where he had been on the evening of 3 rd June, but would probably have been at home. He provided an impression of his ears. 10. He was interviewed again on 5 th July, 2000. By now, the police had a report in witness statement form dated 26 th June, 2000 from Cheryl McGowan, to whom we have already referred. She was later to give evidence at the appellant’s trial. The effect of her report and her evidence can conveniently be dealt with together. She had been a specialist fingerprint officer for some 15 years, and had been involved in examining ear impressions since January, 1996, having thereafter handled about 25 such cases a year. In 1999, she had been on a two-week course in Holland run by the European Association of Police Colleges. The course had been directed by Mr. C. Van Der Lugt. In her report and her evidence she expressed the opinion that no two ears are the same. She had compared various features of the ear-print left at the scene and the impression taken from the appellant’s right ear, and had found similarities leading her to the conclusion that the print at the scene had been made by the same person who had provided the impression (that is, the appellant). When she gave evidence, counsel then acting for the appellant concluded his cross-examination of her by saying: "I am not suggesting to you that this is not the defendant’s ear. All I am suggesting to you is the possibility that it is someone else’s; someone close to him such as a cousin’s." Miss McGowan replied: "No, in my opinion, I don’t believe it could have been made by anybody else." 11. Miss McGowan’s was the only expert evidence which the jury heard. We have been informed that the appellant’s solicitors had instructed Mr. Michael Armer, to prepare a report relating to the ear-print. Mr. Armer, like Miss McGowan, was a fingerprint expert who also had experience in relation to ear-prints. We have seen his report dated 9 th March, 2001. He agreed with the conclusions of Miss McGowan. He said that "… the combination of exact size and shape of the ear-print and … four distinctive features present, all of which are replicated in one or more of the control samples of Mr. Kempster’s ear-print, lead me to the conclusion that they offer extremely strong support for the view that Mark John Kempster was responsible for the ear-print found on the kitchen window at 119, Satchell Lane, Hamble." Not surprisingly, Mr. Armer was not called as a defence witness at the trial. 12. To return to the chronology, Miss McGowan’s report was disclosed to the appellant’s solicitor before the interview of 5 th July, 2000 took place. During that interview, the appellant maintained his denial of the offence. He added: "I’m not saying that it is my ear-print 100 per cent." However, he went on to claim that if it was his ear-print, there was a legitimate reason for its presence, because he had done some pointing, tiling and fascia boarding at the property some four of five weeks previously (which would have been in or about early June). He said that he had given "her" (a reference to Mrs. Hooker) a receipt. The work which the appellant mentioned closely corresponded with that recorded in the receipt dated 12 th February, 2000 to which we have referred. A little later in the interview he said that although he was not saying that it was his ear-print it, "could quite easily be my ear-print," and that it could have been left when he was holding the bottom of a ladder. 13. In giving evidence, the appellant repeated his denial that he had committed the offence. He said that he had, in fact, been to the premises twice before the date of the offence, the first time on 12 th February, when he had given Mrs. Hooker the receipt, and again to do some more work in or about early June. He claimed to have made this clear to the police when interviewed on 5 th July, 2000 but, as we have already observed, he did not in fact do so. He accepted that he had denied ever going to 119, Satchell Lane when interviewed on 19 th June, 2000 and said that at the time he had forgotten having done so. He maintained the stance he had adopted during his interviews, namely that if it was his ear-print on the window, it was there for a legitimate reason. In cross-examination, he accepted that it was his ear-print. He said that it could have got there when he was leaning on the window while holding a ladder, or filling a tap. It could also have got there from listening to see if Mrs. Hooker was in the property. He accepted that he had not previously advanced this last explanation. 14. In evidence, the appellant also gave a detailed account of his whereabouts from about 7 p.m. on the evening of 3 rd June, 2000 until about midnight. Briefly, he said that he and his wife Debbie went out drinking with his sister Sarah and brother-in-law Kevin while his mother baby-sat for his daughter. At about 11.30 p.m., the company returned to his house, to discover that his sister, Kelly was now there, and that his mare had given birth to a foal. Having checked that all was well with the mare and the foal his mother, sister and brother-in-law left at about midnight, and he and his wife remained at home for the rest of the night. He called his wife, mother and brother-in-law as witnesses, and the statement of his sister Kelly was read to the jury. They all gave evidence to the same effect as the appellant himself. 15. We now turn to the first ground of appeal. This relates to the ear-print evidence, and relies on the decision of this Court on 25 th July, 2002 (sometime after the convictions in the present case) to allow the appeal against conviction of Mark Anthony Dallagher . R v. Dallagher [2003] 1 Crim.App.R 195 does have some features similar to those in the present case. 16. In Dallagher , the allegation was that the appellant had forced open a transom window in the home of an old woman, climbed in and murdered her. Ear-prints had been found on a window immediately below that which had been forced. Two experts, Mr. Van Der Lugt, to whom we have already referred, and Professor Vanezis gave evidence that the prints matched control impressions provided by the appellant. Mr. Van Der Lugt said that he was, "sure these ear-prints were made by this defendant." Professor Vanezis considered that conclusion to be "highly likely." The jury in Dallagher also heard evidence that the defendant lived near to the premises at which the murder was committed, that he had committed other burglaries where he had entered by a transom window, and that he had subsequently disclosed to a police informant information about the killing which was not in the public domain. He was convicted. 17. It then emerged that some scientists doubted the extent in the current state of knowledge, to which ear-print evidence alone could, safely be used to identify a suspect. The Defence obtained reports from three experts, Professor Moenssens, Dr. Christophe Champod, and Professor Van Koppen who shared that view. Having considered the provisions of section 23 of the Criminal Appeal Act 1968 the Court received fresh evidence from all three, though the Defence placed the most reliance on the evidence of Dr. Champod. 18. In giving the judgment of the Court Kennedy LJ. summarised Dr. Champod’s conclusions as being that "… at the present time ear-print comparison can help to narrow the field, and may eliminate, but cannot alone be regarded as a safe basis on which to identify a particular individual as being the person who left one or more prints at the scene of a crime." The evidence of Professors Van Koppen and Moenssens was to similar effect, save that the former was critical of the assumption that, in relation to ears, nature does not repeat itself. The Crown then called the two witnesses on whom they had relied at the trial. Though accepting many of the points made by the witnesses called on behalf of the appellant, and accepting that more research work was desirable in this field, Mr. Van Der Lugt and Professor Vanezis maintained the conclusions they had expressed at the trial. 19. The Court of Appeal concluded that the expert evidence of Mr. Van Der Lugt and Professor Vanezis had properly been admitted at the trial, and that those witnesses had been entitled to express their opinions in the way that they did; but, "even so it seems to us that the fresh evidence, if given at the trial, might reasonably have affected the approach of the trial jury to the crucial identification evidence of the experts and thus have affected the decision of the jury to convict … It follows that the fresh evidence does afford a ground for allowing the appeal … and having received it we must find the conviction to be unsafe." 20. Before us, it was submitted that the evidence of Miss McGowan compared unfavourably in a number of respects with the evidence of ear-print comparison adduced in the case of Dallagher . We do not consider that this is an arguable ground of appeal. We have to consider whether the conviction of the appellant whose case we are considering is safe, having regard to the evidence that was given and to certain procedural decisions made in his trial. In any event, for reasons which we will explain later, we consider that there are a number of features which distinguish the appellant’s case from that of Dallagher . 21. Next, in reliance on Dallagher , the appellant sought to adduce fresh evidence from Dr. Champod (now Professor Champod) with a view to submitting either that Miss McGowan’s evidence was inadmissible in principle because the scientific basis for her opinions did not exist; or that had Professor Champod’s evidence been adduced at the appellant’s trial, it might reasonably have undermined Miss McGowan’s evidence to such an extent that the jury may have acquitted the appellant. 22. In relation to Professor Champod the proceedings before us took a course similar in some respects to those before the Court in Dallagher . We, too, considered the provisions of section 23 of the Criminal Appeal Act 1968 . We, too, decided to receive Professor Champod’s evidence. We, too, allowed the Crown to call further evidence in reply, in the present case from Miss McGowan. 23. Professor Champod provided us with a curriculum vitae which showed impressive qualifications and experience in forensic science, particularly in relation to identification methods. It is not necessary to cite them all, but it is right to record that since June, 2003 he has been a full Professor of Forensic Science at the University of Lausanne, having previously been employed as a senior forensic scientist by the Forensic Science Service, and has from time to time lectured for the Judicial Studies Board. He has edited and contributed towards many learned publications. One of them, "Ear marks as Evidence: A Critical Review," published in the Journal of Forensic Sciences in 2001, was placed before us. We also had the benefit of a report which he had written on 4 th April, 2003 relating to the appellant’s case, and of his oral evidence. We were impressed by the helpful and moderate way in which he gave that evidence. 24. It emerged that Professor Champod had not himself compared the original ear-print found at the scene with the ear impression provided by the appellant. He had worked on the basis that certain features of the print and the impression did indeed correspond; and he accepted in cross-examination that there existed sufficient expertise to enable a witness properly to say that a print and an impression matched. His evidence, as in the case of Dallagher , was directed towards the value and evidential status of the comparative exercise. Indeed, his evidence overall was very similar to that which he gave in the case of Dallagher . He accepted that every ear has a unique shape, and that it was possible to discern differences between ears. However, he observed that ears could be subject to pressure and distortion when applied to a surface such as a window. Moreover, ear-prints, though providing an impression of external anatomical features, and possibly of such features as a scar or an earring mark, did not provide such detailed impressions as the skin ridges of a fingerprint. 25. He also referred to and relied upon the narrow database and paucity of research currently available to those engaging in a comparative exercise, in this infant and developing area of science. Further research, he said, was being undertaken to improve this situation, such as the "FEARID" project, the aims of which were explained in detail in a document which he also provided. He considered that ear-print comparison was a valuable investigative tool in the hands of the police, and could properly be used to exclude a person as a suspect. However, his view was that, in the current state of knowledge, expert evidence of positive comparison should not be given at all. He had, of course, expressed the same opinion in Dallagher . This Court rejected that opinion in Dallagher as do we, for the reasons explained in that case. Dr. Champod advanced the alternative proposition that if evidence of a positive comparison were to be adduced, it should be confined to an expression of opinion that a questioned ear-print was consistent with a known impression. Thus Miss McGowan should not have expressed herself in the manner to which we have referred. Again, this Court rejected that proposition in Dallagher , as do we for the same reasons. 26. When Miss McGowan gave evidence to us she accepted that the only test that she had ever taken in relation to ear-print comparison was at the end of the course in 1999 to which we have also referred and that she had not had any material published. She also accepted that ear-print comparison was still in its infancy compared with other areas of science. However, she stood by the conclusions she had expressed in her written report and in her evidence at the trial. She added that, after writing her report, she had checked her findings against a national database of ear-prints held in Durham. 27. Having received the fresh evidence, we must apply the familiar test established by the House of Lords in Pendleton [2002] 1 W.L.R. 72 and consider whether, if Professor Champod’s evidence had been given at the appellant’s trial, it might reasonably have affected the decision of the jury to convict. We have come to the conclusion that there are significant differences between the appellant’s case and the case of Dallagher , and that in the instant case Professor Champod’s evidence would not have affected the outcome of the trial. We reach that conclusion for the following reasons. 28. (1) Had Professor Champod given evidence at the appellant’s trial, Miss McGowan would still have given her evidence and expressed her opinions in exactly the same robust terms as she in fact did. Nothing in the decision of this Court in Dallagher would have prevented her from doing so. (2) Dr. Champod would not have been able to tell the jury of the results of any comparison that he had made. He would have had to accept that there were corresponding features between the ear-print found on the window and the ear impression provided by the appellant. He would not have been able to point to any differences. He would have accepted that Miss McGowan was entitled to say at least that there was a match. There would still have been no direct challenge to the findings of Miss McGowan, though we accept that Dr. Champod would have been able to give evidence in general terms about the significance of such findings. (3) In Dallagher , the defendant denied that the ear-print on the window was his, and, as we understand the report of the judgment of the Court, denied that he had ever previously been to the premises concerned. In the instant case, the appellant accepted that he had previously been to the relevant premises, and never denied that the ear-print was his. That much is clear from the cross-examination of Miss McGowan on his behalf, his interviews with the police and his evidence at the trial to which we have referred. Indeed, at one point of his evidence he positively accepted that the ear-print was his. In any event, the thrust of his case was that if his ear-print had been found on the window, there were innocent explanations for its presence. (4) Whereas we accept that both in Dallagher and in the appellant’s case the jury could not have convicted unless they were sure that the ear-print on the window was that of the defendant concerned, in our judgment there was significantly more supporting evidence against the appellant than against Dallagher . To begin with, the appellant knew the premises concerned and of the age and infirmity of the occupier. There was evidence from which the jury could conclude that the windows of 119, Satchell Lane had been cleaned only some two weeks or so before the burglary; and that, given the argument the appellant had had with Mrs. Hooker over money matters in February, 2000 he would not have returned to the premises to do more work at a later stage. There was also evidence from which the jury were entitled to conclude that the appellant had lied when interviewed on 19 th June, 2000 in saying that he had never been to the premises; had lied again, to provide an explanation for the ear-print of which he was then aware, when saying in his interview of 5 th July, 2000 that he had been to the premises, but at or about the beginning of June, 2000; had lied yet again in evidence when being aware that the police had the receipt of 12 th February, 2000 to which we have referred, by saying that he had been to the premises both in February and in June, 2000; and had lied once more when presenting in evidence a detailed alibi, having said when interviewed on 19 th June, 2000, some two weeks after the offence, that he did not know where he had been at the relevant time, though he had probably been at home. 29. We therefore reject the first ground of appeal. On behalf of the appellant, Mr. O’Connor Q.C. submitted that should the conviction on Count 1 be quashed on the ground which we have considered there would be a "knock-on" effect on the other convictions. This would be for two reasons. The first would result from directions given by the learned Recorder to the jury which, it was submitted, may have given the jury the incorrect impression that the evidence on Count 1 could be taken into account when considering Counts 2, 3 and 4. The second would arise because, having accepted Miss McGowan’s evidence on Count 1, the jury must have rejected that of the appellant and his alibi witnesses, with damaging consequences in relation to Counts 2, 3 and 4. In the light of our rejection of the first ground of appeal, it is unnecessary for us to consider these supplementary submissions. 30. We therefore turn to the second ground of appeal, which applies to all four counts. We have already set out in some detail the evidence against the appellant on Count 1. In relation to Counts 2 to 4, it is not necessary to add to the brief summary given in paragraph 5 above, since the second ground of appeal relates not to the evidence but to events that occurred during the trial. For reasons that will become apparent, however, we do refer briefly to a witness called by the Prosecution, one Robert Smith. This witness unexpectedly, dramatically and unconvincingly gave evidence that it was he who had committed all of the offences with which the appellant was charged. The jury clearly did not believe him. 31. During the morning of 28 th March, 2001 – the sixth day of the trial – the learned Recorder heard and rejected a submission made at the end of the Prosecution’s case that there was insufficient evidence against the appellant to go to the jury. The Recorder then heard and rejected an application made on the appellant’s behalf that the jury be discharged because of what was said to be the prejudicial effect of the evidence of Robert Smith. The Court adjourned for lunch. When the Court re-convened, Mr. Jenkins, counsel for the appellant, announced that the appellant had dispensed with his services and those of his instructing solicitors. Mr. Jenkins added that he was not professionally embarrassed, that the appellant had not criticised him in any way and that there had been no acrimony. The appellant had simply decided that he needed fresh counsel and solicitors to consider "certain factors." When the learned Recorder expressed the view that, "the inevitable consequence of asking for fresh counsel and solicitors would be to abort this trial and order a new one," Mr. Jenkins agreed, "unless it were to be adjourned for a period of time for that counsel to have a transcript or to look at our notes and then to request whether any evidence is re-called for further cross-examination." Mr. Jenkins later asked the Recorder to consider the possibility of allowing the appellant new solicitors and counsel, and to give them a day to settle into the case. The Recorder asked the appellant if he was prepared to say why he had dispensed with his lawyers’ services. The appellant said that it was because of a "conflict of interests." Asked if he was prepared to elaborate, the appellant declined to do so. 32. The Recorder expressed the view that this was a device on the appellant’s part to secure a re-trial. He told the appellant that he would have to re-instate Mr. Jenkins and his instructing solicitors or represent himself. The Recorder commented that this was different from a situation in which counsel sought to withdraw because of professional embarrassment arising out of a change of instructions. He adjourned to allow the appellant time to consider his position. When the Court re-convened, Mr. Jenkins said that the appellant "has asked me whether I would represent him and I have told him that I will, but he is also considering other options as well." The Recorder then adjourned until the next morning, to allow the appellant more time. 33. The next morning Mr. Jenkins announced that he and his solicitors were now professionally embarrassed, and withdrew. The Recorder asked the appellant whether he was making another request for the trial to be abandoned and to have new solicitors and counsel. The appellant said that he was, because he could not read or write and did not know the law. The Recorder then said: "I am quite satisfied that this is an attempt by you to put off the evil day and I am not prepared to accede to it. I will give you what proper assistance I can but the trial will continue." The appellant replied: "Fair enough." When the jury returned to court the Recorder simply said: "Members of the jury, you will notice that Mr. Jenkins and his instructing solicitors are no longer present in court. Mr. Kempster is representing himself." For the sake of completeness, we add that similar applications for fresh representation were made by the appellant at later stages of the proceedings and were dealt with by the Recorder in a similar way. 34. Ground of appeal 2A is, in effect, that what happened was not ‘fair enough’ at all. The appellant should have been allowed fresh counsel and solicitors. The course followed by the Recorder contravened the provisions of Article 6 of the European Convention on Human Rights. 35. The law governing such a situation is helpfully summarised at paragraph 4-41 of the 2003 Edition of Archbold. The judge has a discretion whether or not to grant an adjournment so as to permit fresh counsel to be instructed. The discretion has to be exercised with regard to the interests of justice in the particular case. The interests of the defendant, but also those of the prosecution, the witnesses and the public have to be taken into account. We have had regard to these principles, and to the provisions of Article 6. 36. In our judgment, the approach of the learned Recorder cannot be faulted. He was perfectly entitled to conclude that the appellant, thinking that the trial was not going well for him, was seeking to obtain a re-trial on a pre-text. In coming to that conclusion the Recorder was justified in taking into account that counsel and solicitors were dismissed immediately after a submission of "no case" and then an application to discharge the jury had been refused; that at first counsel and solicitors were not professionally embarrassed; and that it was after the Recorder himself drew attention to that fact that counsel and solicitors then had to announce that they had become professionally embarrassed. Moreover, whilst fully recognising the principles of legal professional privilege we note that the only explanations offered to the Recorder for what had happened was the need for fresh counsel and solicitors to consider "certain factors" and the appellant’s reference to a "conflict of interest" which he declined to explain further. 37. Having concluded that the appellant was trying to manipulate the proceedings, the Recorder was also right in our judgment not to accede to the application for fresh solicitors and counsel. He bore in mind, as he was entitled to do, that the appellant was not lacking in experience of the criminal courts, and had shown an impressive grasp of the evidence during the trial. He formed the view that the introduction of fresh counsel and solicitors would inevitably lead to the discharge of the jury and a re-trial. In our judgment this too was a proper conclusion. We are aware that fresh counsel and solicitors have occasionally been brought into part-heard trials, but this is rarely a satisfactory procedure. Moreover, the Recorder was dealing with applications made on the sixth day of a trial, after all the prosecution evidence had been heard and tested, and in a case of some gravity and complexity. 38. Finally, we consider that the Recorder, having decided not to allow fresh legal representation, dealt fairly and properly with the difficult situation that faced him. He gave the appellant an opportunity to consider his position and re-instate Mr. Jenkins and his instructing solicitors if the appellant wished to do so. He informed the jury of the departure of Mr. Jenkins and his instructing solicitors in succinct and neutral terms. He then helped the appellant with his evidence in chief. He went so far as to supply the appellant with a copy of his notes of evidence to assist the appellant in his closing speech. We reject ground of appeal 2A. 39. The Recorder faced another difficult situation towards the end of the trial. This gives rise to ground of appeal 2B. Before all the defence evidence had been called, the appellant asked if his wife could help him with the preparation of his closing speech. The Recorder agreed that she could do so, after she had given her evidence. After the evidence was completed, the appellant went a stage further. He asked if his wife could read out parts of the evidence during his closing speech, in light of his difficulty in reading and writing. Again, the Recorder agreed. The Recorder then acceded to repeated requests from the appellant for further time to prepare his speech, and said that he would allow Mrs. Kempster to sit with the appellant in the dock. Then, the appellant went yet a stage further. In the presence of the jury, he asked whether his wife could read out the entire speech, subject to his adding a couple of further points after she had done so. He said: "It’s coming from me. I’ve told her what to write." Again, the Recorder agreed and that is what happened. 40. Mr. O’Connor now submits that the course adopted was unusual, unsatisfactory and unfair. Much of the closing speech was delivered by an alibi witness, Mrs. Kempster, whose evidence the jury ultimately rejected. This all stemmed from the original decision of the Recorder not to allow the appellant fresh counsel and solicitors. 41. We agree that the course followed was highly unusual, but in our judgment it had no bearing on the fairness of the trial or the safety of any of the convictions. It was done specifically at the request of the appellant. The final request, that Mrs. Kempster be allowed to read most of the closing speech, was made without warning in the presence of the jury. The Recorder could hardly then have refused it, even if he would otherwise have been inclined to do so. Before Mrs. Kempster began, it was made clear to the jury that she was merely reading the appellant’s words. Thus Mrs. Kempster’s credibility or otherwise as a witness was not in issue at this stage of the trial. Having studied the relevant transcripts of the proceedings, we have formed the impression that the learned Recorder was doing his utmost to be fair to the appellant in these unusual, unexpected and difficult circumstances. We therefore reject ground of appeal 2B. 42. We turn finally to the appeal against sentence. The appellant is now 38 years of age. He is married with two children. He had made seven previous court appearances, principally for offences of dishonesty, though he had not previously been convicted of an offence of burglary. In 1984, for eleven offences of tendering counterfeit currency, obtaining property by deception and attempting to obtain property by deception, with 37 offences taken into consideration, concurrent community service orders of 100 hours were made. The offences of deception involved obtaining money from elderly people for unnecessary building work. On 14 th April, 1994 he received concurrent sentences of seven years’ imprisonment for 22 offences of theft, obtaining property by deception and attempting to obtain property by deception. These arose from his targeting elderly and vulnerable victims, and demanding exorbitant sums of money for building and tarmacking work that was grossly sub-standard or, in some cases, had not been done at all. In addition, he stole property from some of the homes of his victims. The learned Recorder had a pre-sentence report which referred to the appellant’s addiction to heroin and crack-cocaine, and assessed him as presenting a high risk of further offending. 43. In our judgment, the offences for which the appellant was to be sentenced were particularly serious examples of burglary. Once again the appellant was targeting elderly and vulnerable victims. All of the offences were committed at night. In each case the householders were at home. In three cases he disturbed them by what he was doing. Two 89-year-old women awoke to find him in their bedrooms. 44. As might be expected, the victims were gravely affected by these offences. Mrs. Hooker was really shaken by her experience and became more nervous about being on her own, and fearful if she heard any noise during the night. Mr. Haywood had been recovering from a major heart operation when the appellant attempted to burgle his home. He too suffered stress and anxiety, fearing a further similar offence. Mrs. Douglas was also left in a state of shock and fear. Amongst the jewellery the appellant stole from her was her engagement ring which she had had since the early 1930s, and a pearl necklace which was a gift from her late husband on their 50 th wedding anniversary. She was so affected by the burglary that she had to leave her home and go and live with her daughter. Mrs. Martin was suffering from terminal cancer when the appellant burgled her home. She and her husband also became anxious that the same thing might happen again. Amongst the items the appellant stole was a diary in which Mrs. Martin had kept details of all her personal and social functions and arrangements. She was a meticulous woman, but had problems with her memory, and relied heavily on the diary, which was a source of comfort to her. She never got over its loss up to the time of her death. 45. We have had regard to the case of McInerny and Keating [2003] 1 Crim.App.R 36 to which we have been referred, but in our judgment that authority is not principally directed to offences of this number and nature, committed by a man with a criminal record such as the appellant’s. We agree with the Recorder’s description of the appellant as "a menace to elderly people in their own homes." We also agree that the sentences in this case had not only to reflect the gravity of the offending, but also to deter others inclined to commit similar offences. The appellant had shown no remorse. In our judgment, the sentences passed were towards the top of but within the bracket appropriate to such a case. The appeal against sentence is therefore dismissed.

```yaml citation: '[2003] EWCA Crim 3555' date: '2003-11-12' judges: - LORD JUSTICE MANTELL - MR JUSTICE JACKSON ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

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 201902936/B1 [2020] EWCA Crim 1611 Royal Courts of Justice Strand London WC2A 2LL Wednesday 18 November 2020 Before: LORD JUSTICE FLAUX MR JUSTICE GARNHAM MR JUSTICE FOXON REGINA V “A” __________ 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 R ROSSER appeared on behalf of the Applicant. MR C MAY appeared on behalf of the Crown. _________ J U D G M E N T (Approved) LORD JUSTICE FLAUX: 1. On 18 December 2017, in the Crown Court at Bournemouth, following a Goodyear indication, this applicant (then aged 17) changed his plea to one of guilty to two counts of possession of Class A drugs with intent to supply. An additional count of money laundering was ordered to lie on the file in the usual way. On 26 January 2018, at the same Crown Court, he was sentenced by HHJ Crabtree to a 12-month youth rehabilitation order. 2. His application for permission to appeal against conviction, together with an application for an extension of time of 568 days, has been referred to the Full Court by the single judge. 3. The facts of these offences can be summarised as follows. On 30 July 2017 police officers attended at an address in Canterbury Close, Weymouth, to check on the welfare of a vulnerable male named Mark Henderson. The officers noted that he was acting in an unusual manner and were concerned that there were individuals inside the address that presented a risk to Mr Henderson. When they entered the address the officers found the applicant and two other men inside. The applicant was sitting on a sofa and packaging what appeared to be drugs. He was arrested and searched. Police officers found a wrap inside his pocket and seized £800 in cash which was in his possession. They also seized seven mobile phones from the address (two phones were in the applicant's possession) and the wraps that were on the table which were found, on forensic examination, to consist of 42 wraps of cocaine and 22 wraps of heroin. 4. In interview the applicant denied any involvement in the possession of or supply of the drugs. He stated that he had only been in the address for about 10 minutes prior to the arrival of the police. He had met Mr Henderson the day before when he went swimming. He had been planning to camp and was intending to buy a tent which explained the cash in his possession. He had seen the wraps on the table and he thought that they were weed. He picked one up and unwrapped it but panicked when the police arrived and put it into his pocket. 5. The applicant pleaded guilty on what would have been the first day of the trial, on a written basis of plea, in which he claimed that he had been asked to deal drugs. He had been attacked by a group of five men who followed him out of a party in Plumstead on 1 April 2017 and stabbed him eight times. He spent three days in hospital. He had been asked to identify them in an identity procedure but had been too scared to identify them. His family were moved for their own safety to Gravesend but he was attacked again. One of the men ("Dan"), whom he thought was the man who had stabbed him, approached him in the McDonalds in Gravesend on 5 July 2017,. He was scared that the man would stab him again. The man gave him a "burner" phone which rang the following night. He went outside and Dan was in his car. Dan drove him to Weymouth. Some time later, on 30 July, Dan picked him up with two other men he did not know. He was dropped off and told to meet at the crematorium. He was given a pack of drugs which they said was worth £700. Mark collected them from the crematorium and took them back to his flat where they were arrested. The £800 found on him was not money from dealing drugs but from playing the drums. He had gone with Dan because he was scared and he had lied to the police in interview because he was scared. 6. On 21 July 2018 the applicant was arrested and charged with further offences of being concerned in the supply of Class A drugs and modern slavery offences. That case was fixed for trial at Woolwich Crown Court. The applicant served a defence case statement on 10 January 2019, raising a defence under section 45 of the Modern Slavery Act 2015 that he had been forced to deal drugs and felt that he had no choice. This asked for a referral under the National Referral Mechanism, which was made later in January 2019. 7. On 9 May 2019 the single Competent Authority made a positive Conclusive Grounds decision on that referral. The information on which that decision was based included a witness statement from the applicant and Local Authority records. It referred to the fact that in January 2019 the applicant claimed to have been recently taken to woods and tortured for 2 hours by someone he identified to the police as "Big Reeks". 8. The decision concluded as follows: "After having read all the information in the file, it is clear that you are involved in criminality. You had the ability to withhold the wages of someone underneath you, demonstrating that you are a significant part of the drug dealing enterprise. Enquiries made during the NRM process have raised questions over the true identity of 'Big Reeks', someone you have blamed for your participation in criminality. It is yourself and Bhandal that make reference to 'Big Reeks' whereas another potential victim has identified the subject by another name. Police research into 'Big Reeks' has not been able to identify anyone of that name linked to this case. There have been no phone logs recorded between you and 'Big Reeks'. In addition, witness statements have contradicted the account that 'Big Reeks' put female victims of criminal exploitation in a taxi, CCTV also contradicts this. The reason you have received a positive conclusive grounds decision refers back to you being forced to run a drug line in Bournemouth. You have also been subject to a large amount of violence since 2017 - although it is unclear whether this has been part of a gang culture or it was in order to force you to deal drugs - either way, it shows that there must be gang affiliation or it is reasonable to expect that you would seek safety within a gang as a result of these attacks. Although, on the balance of probabilities, it is acknowledged that you were recruited for the purposes of forced labour - criminality in 2017, it is down to the courts to determine at what point you went from a victim of exploitation to a key member of the gang." 9. The decision summary stated: "Applying the standard of proof 'on the balance of probabilities', it is accepted [that] PV was a victim of modern slavery in the UK for the specific purposes of Forced Labour - Criminality." 10. The applicant gave evidence at his trial at Woolwich Crown Court in August 2019 and was cross-examined extensively by Mr May on behalf of the Crown. His evidence was that the person who had stabbed him when he left the party on 1 April 2017 was Big Reeks and it was Big Reeks and another man, nicknamed "Ruthless", who drove him to Weymouth and dropped him off at a train station. He said that he was set up dealing drugs there by Big Reeks and he did it to pay off debts. He had been beaten up by people who took the drugs from him and later he was made to go back to Weymouth by Big Reeks. He said that when he was arrested he was not cutting up drugs but counting how much money he had left. He also admitted carrying on dealing drugs after the Referral Order was made. 11. The full detail of the evidence he gave need not be set out in this judgment but what is clear is that, as Mr May said in opposing this application, the evidence which the applicant gave in the witness box at the trial was a significantly different version of events at the time he was stabbed in April 2017 and of events in Weymouth which led to his drug dealing from the version set out in his basis of plea before the Crown Court at Bournemouth, and the version he gave to the single Competent Authority as set out in the Conclusive Grounds decision. On any view, that cast doubt over the credibility of the applicant. 12. Furthermore, although in the written basis of plea the applicant said that he had been too scared to identify the person who stabbed him in the identification procedure, this was not true. It was an agreed fact at the trial in Woolwich Crown Court that: "Police records state that following [A] being the victim of a stabbing on the night of 1/2 April 2017 [A] made a positive identification during an identification procedure which was carried out on 6 April 2017". 13. We have reached that conclusion about the differing accounts that the applicant has given and their effect on his credibility on the written material before the Court without the need to consider whether or not to admit in evidence the statements from the police officers involved in investigating the stabbing incident which the prosecution sought permission to adduce as fresh evidence. 14. Both the applicant and his co-defendant were convicted by the jury of some of the drug offences. The applicant was acquitted on counts 1 and 2 (being concerned in the supply of cocaine and diamorphine) between the 24 June 2018 and 10 July 2018 but was convicted by the jury on counts 5 and 6 (being concerned in the supply of cocaine and diamorphine) between 11 July 2018 and 20 July 2018. The modern slavery offences were the subject of a successful application of 'no case to answer'. 15. On behalf of the applicant, Mr Rosser seeks permission to advance the single ground of appeal that the conviction in the Crown Court at Bournemouth was unsafe due to the fresh evidence which has emerged in the Conclusive Grounds decision not available at the time of that conviction. He contends that the evidence demonstrates that the applicant had a defence available to him at law under section 45 of the Modern Slavery Act of which he was unaware at that time. He also contends that, if the decision had been available at the time, it would have impacted upon the decision of the Crown Prosecution Service whether to prosecute. He referred in detail to the four-stage approach set out in the CPS Guidance on Human Trafficking, Smuggling and Slavery: (a) Is there reason to believe that the person is a victim of trafficking or slavery? (b) Is there clear evidence of duress? (c) Is there clear evidence of a section 45 defence? (d) Is it in the public interest to prosecute? 16. He submitted that the NRM decision clearly satisfied (a) and (c) and he relied upon the material in the Youth Offending and Social Services records as demonstrating clear evidence of duress. He submitted that if the decision had been available at the time it would not have been in the public interest to prosecute the applicant. He relied upon the fact that the applicant was acquitted of two of the drug offences in relation to the earlier period of time as demonstrating that the jury must have accepted, at least in part, the applicant's explanation for what had occurred. 17. Attractively though these submissions were presented we cannot accept them. The critical starting point, which the applicant's case essentially overlooks, is that this is a case in which the applicant pleaded guilty. This Court has emphasised many times that where a plea of guilty, as it is as in the present case, is unambiguous and intentional, it is only in exceptional circumstances that this Court will permit an applicant to go behind a plea of guilty. 18. Most recently in R v S [2020] EWCA Crim 765 , Singh LJ, giving the judgment of the Court, said at paragraph 23: "23. In R v Asiedu [2015] EWCA Crim 714 ; [2015] 2 Cr App R 8 , at paras. 19-25 (Lord Hughes), this Court re-affirmed the principles on which a defendant may be permitted to go behind a plea of guilty. At para. 32, this Court emphasised that the trial process is not a 'tactical game'. A defendant who has admitted facts which constitute an offence by an unambiguous and deliberately intended plea of guilty cannot ordinarily appeal against conviction, since there is nothing unsafe about a conviction based on his own voluntary confession in open court. The Court said that, leaving aside pleas which are equivocal or unintended, there are two principal exceptions to this. The first is where the plea was compelled as a matter of law by an adverse ruling by the trial judge which left no arguable defence to be put before the jury. The second is where, even if on the admitted or assumed facts the defendant was guilty, there was a legal obstacle to his being tried for the offence. This would apply where his prosecution would be stayed on the ground that it was offensive to justice to bring him to trial." 19. We note that neither of those principled exceptions would apply here. Singh LJ went on to indicate that whilst the circumstances where this Court would allow someone to go behind the plea of guilty were not limited to those exceptions, it is only in the most exceptional circumstances that the Court would allow that where a defence had been overlooked, although it had power to do so where satisfied that a conviction was unsafe, referring to what the Court said in R v Boal [1992] QB 591 . He also referred to the words of warning given in Boal : "This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen often." 20. The prosecution accepts that in an appropriate case, where there is a subsequent positive NRM decision, this Court may grant leave to appeal against conviction if it considers that the conviction is arguably unsafe, even if the applicant has pleaded guilty - see R v C [2014] EWCA Crim 1483 , although, as this Court recently confirmed in R v DS [2020] EWCA Crim 2845, a positive NRM decision is not conclusive of an issue in criminal proceedings. 21. However, in our judgment, the present case is not a case in which the conviction arising out of the applicant's plea of guilty was arguably unsafe. The decision is based upon a version of events advanced by the applicant to the Authority, to Social Services and to Youth Offending which was not given on oath or tested by cross-examination and which differs significantly from the version of events which he did advance when subsequently cross-examined at the Woolwich trial. Furthermore, that evidence at the trial also differs significantly from the basis of plea upon the basis of which he pleaded guilty in 2017, all of which casts doubt upon his credibility. 22. His then counsel has produced a note in answer to the waiver of privilege which addresses events before the judge in Bournemouth but is completely silent as to whether he was aware of the availability of a defence under section 45 of the Modern Slavery Act or whether he gave any advice to the applicant in relation to the availability of such a defence. However, whether that defence was raised with the applicant or not, one thing is clear on the material before the Court, that it cannot be said that if such a defence had been raised it would quite probably have succeeded to use the words of the Court in Boal . 23 The elaborate defence argument that if the decision had been made earlier it would have led the Crown Prosecution Service to conclude that it was not in the public interest to prosecute, seems to us conveniently to ignore the fact that the version of events which was presented by the applicant to the Authority differs significantly from the version upon which he relied in evidence at the Woolwich trial. We consider that if that evidence, and the further evidence of its inconsistency with his basis of plea at Bournemouth had been available to the Authority, there must be considerable doubt that it would have reached a positive decision. It certainly could not have concluded, as it did, that there were "no significant credibility issues". In any event, given the differing accounts and the subsequent conviction at Woolwich, we consider there is no basis for concluding that the CPS should have determined that it was not in the public interest to prosecute. 24. In all the circumstances, we do not consider that this is one of those exceptional cases where this Court should permit the applicant to go behind his plea of guilty. This application for leave to appeal and for an extension of time is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2020] EWCA Crim 1611' date: '2020-11-18' judges: - LORD JUSTICE FLAUX - MR JUSTICE GARNHAM - MR JUSTICE FOXON ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

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 202301853/A4 [2024] EWCA Crim 328 Royal Courts of Justice Strand London WC2A 2LL Wednesday, 13 March 2024 Before: LORD JUSTICE EDIS MRS JUSTICE FARBEY DBE THE RECORDER OF SHEFFIELD HIS HONOUR JUDGE JEREMY RICHARDSON KC REX V CORNELIUS CORRIGAN __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR C JEYES appeared on behalf of the Applicant _________ J U D G M E N T MRS JUSTICE FARBEY: 1. On 25 July 2022 in the Crown Court at Lincoln before His Honour Judge Hirst, the applicant (then aged 53) pleaded guilty to one offence of conspiracy to fraudulently evade a prohibition on the importation of goods, namely class A drugs, contrary to section 1(1) of the Criminal Law Act 1977. 2. On 12 May 2023 before the same judge the applicant (then aged 54) was sentenced to 12 years' imprisonment. Other counts on the indictment were ordered to remain on the file in the usual terms. The applicant renews his application for leave to appeal against sentence after refusal by the single judge. Facts 3. Operation Farrier was a police investigation into the supply and distribution of class A drugs - cocaine and methamphetamine - in Lincoln. The head of the conspiracy was Patrick Lawless. In 2020, using an EncroChat device, Lawless began communicating with an individual in the Netherlands. He arranged for the purchase of drugs from the Netherlands in kilogram quantities which were dispatched to the United Kingdom using the postal system. The drugs were secreted within games, books, musical instruments and sound equipment. They were delivered to the homes of some of the conspirators or family and friends of the conspirators using maiden names or the names of previous occupants of the properties. The network of conspirators set up by Lawless would accept delivery of the packages and pass them to individuals who would re-package the items in order to send them to addresses in Australia and New Zealand. Lawless received payment in Crypto-currency. He was expected to make a profit of £2,500 per kilogram of cocaine and £1,750 per kilogram of methamphetamine. The amount of drugs involved over the indictment period, which was 1 January 2019 to 12 May 2021, was around 40 kilograms. 4. The applicant was linked to three of the import delivery addresses and was involved in collecting 14 deliveries between 6 January 2021 and 11 March 2021. He and a co-conspirator Arthur Dunn were observed under surveillance on 13 March 2021 when the applicant was the passenger of a vehicle driven by Dunn. They were arrested separately, albeit on the same day. Two packages collected from the applicant's children's addresses were seized from Dunn's vehicle and were found to contain two kilograms of class A drugs. 5. Following his arrest the applicant's home address was searched. The police seized £6,200, approximately five grams of cocaine, packaging and digital scales. 6. The applicant had four previous convictions accrued from 1991 to 2019 which included two old convictions for possession of cocaine. Sentence 7. The applicant was sentenced at the same time as nine other conspirators. Owing to a failure of the court recording equipment there is no transcript of the judge's sentencing remarks. The judge made a full written note of his remarks. Mr Jeyes, who appears on the applicant's behalf and who appeared below, does not take any issue with the note's accuracy. We shall therefore treat the note as an accurate record of the remarks delivered by the judge before pronouncing his sentence in court. 8. The judge described the broad hierarchy of the conspiracy in the following way: “Patrick Lawless – head of this organised crime group Arthur Dunn – the right hand man for Patrick Lawless [the Applicant] & Thomas Warman – trusted lieutenants Luke Robinson & Andrew Tant – in charge of repackaging and posting to Australia and New Zealand Joanne Collins – allowed her property to be used for parcels to be delivered and recruited Roxanne Frankman Patrick Taylor – allowed his premises to be used for parcels to be delivered to Michelle Thornhill & Chantelle Goddard – allowed their premises to be used for the storing of drugs." 9. The judge's approach was to consider the overall conspiracy and then to adjust the sentence of each conspirator to reflect the individual roles. He applied the relevant sentencing guidelines. 10. As regards culpability, the judge concluded that the applicant had a significant role. In reaching that conclusion the judge relied on a number of the factors that indicate a significant role in the guideline. The applicant had played an operational role within the conspiracy because he had persuaded his children to allow their addresses to be used for the delivery and collection of parcels. He was expected to gain a significant financial advantage. He had a very clear awareness and understanding of the scale of the operation. Given these different factors, the judge concluded that the applicant's offending fell at the top end of significant role. As regards harm the offence fell within Category 1 which has an indicative quantity of five kilograms. 11. The starting point for a Category 1 significant role offence is 10 years' custody with a category range of nine to 12 years' custody. The judge made an upward adjustment to 12 years to reflect the top end of the range for significant role and then made a further adjustment to 15 years to reflect the quantity of drugs involved in the conspiracy which was around eight times the indicative quantity for Category 1. 12. The judge considered aggravating and mitigating factors. It was an aggravating factor that the applicant had used his adult children to receive packages when they were otherwise innocent. He had used a number of sophisticated measures to avoid detection. By way of mitigation the judge confirmed that he had read the sentencing note prepared by counsel, the letter to the judge from the applicant, the various certificates which the applicant had obtained while in prison and the letters from prisoners who had been assisted by the applicant. The judge also kept in mind the length of time that the applicant had been in custody during the difficult conditions of the Covid-19 pandemic and waiting for sentence. 13. Taking into account the aggravating and mitigating factors, the judge reduced the sentence from 15 years to 14 years' imprisonment. He applied a 14 per cent discount for the applicant's belated guilty plea. In this way he reached the sentence of 12 years. 14. In light of the nature of the grounds of appeal it is necessary to deal with the sentences that the judge imposed on the applicant's co-conspirators. For ease of comparison we shall set out each of their sentences before the individualised discounts applied by the judge for their guilty pleas. Some of the co-conspirators pleaded guilty to more than one count on the indictment. We shall focus on their overall sentences as the judge treated the various counts on the indictment as relating to one operation. 15. On this approach, Patrick Lawless was sentenced to 22 years' imprisonment. Arthur Dunn was sentenced to 16 years. Thomas Warman was sentenced to 11 years three months. Luke Robinson was sentenced to 11 years. Andrew Tant was sentenced to 10 years. Joanne Collins was sentenced to 10 years. Patrick Taylor was sentenced to eight years. Chantelle Goddard and Michelle Thornhill were sentenced respectively to a suspended sentence order and a community order, the details of which are irrelevant to our decision. 16. The judge imposed these sentences on the basis that Lawless and Dunn had leading roles in the conspiracy. Thomas Warman, Luke Robinson, Andrew Tant and Joanne Collins were each found to have had a significant role. Patrick Taylor, Michelle Thornhill and Chantelle Goddard were found to have had lesser roles. Grounds of appeal 17. Mr Jeyes submits that the sentence imposed on the applicant was manifestly excessive and disproportionate when compared to the other conspirators. Firstly, the judge incorrectly increased the applicant's sentence to 15 years before considering aggravating and mitigating factors. It was unclear why the judge took that approach and there is no justification on the face of the sentencing remarks. He did not take this approach to any of the other conspirators with significant roles. Secondly, the sentence is disproportionate relative to the sentence imposed, particularly, on Warman. 18. Thirdly, the judge made factual errors in determining that the applicant had hired cars for the conspiracy and was involved in many meetings between the co-conspirators. The applicant did not drive and had no vehicle. He had had less contact with other parties than other more senior conspirators. 19. Fourthly, the judge wrongly concluded that the applicant was involved in a greater quantity of deliveries than others. The applicant was involved in 14 deliveries. It is submitted that the others were involved with similar or greater numbers of deliveries or that their roles made them responsible for the conspiracy as a whole. Discussion 20. As we have mentioned, the applicant's offending involved a number of the culpability factors that are listed in the sentencing guideline as demonstrating a significant role. The judge was therefore entitled to make an upward adjustment from the 10-year starting point in order to reflect the level of the applicant's culpability. He was entitled to make a further significant upward adjustment, outside the category range, to reflect the quantity of drugs involved in the conspiracy. We see no error in his approach to the seriousness of the offence or to the aggravating and mitigating factors. In particular, it was open to the judge to conclude that the applicant's exploitation of his own children, who were otherwise innocent and not part of the conspiracy, was a serious aggravating factor. 21. We note that Warman's sentence before discount for plea was lower than the applicant's. Warman had made nine trips with Lawless to the Netherlands when the route for the imports was being set up. The applicant had no involvement in this travel. Warman recruited Thornhill and Goddard, paying Thornhill £50 per week to store drugs. However, as regards disparity the question is whether right-thinking members of the public, with knowledge of the relevant facts and circumstances, would consider that something had gone wrong with the administration of justice: R v Balfour Beatty [2007] 1 Cr.App.R (S) 65. That is a high test. 22. The judge carried out a thorough sentencing process for all 10 defendants. He had all of the facts of the conspiracy before him. He carefully considered the overall conspiracy, the individual roles of each conspirator, the aggravating factors relevant to each of them and the mitigating factors relevant to each of them, including their individual circumstances. Even assuming that Warman by his travels abroad and by his other conduct breathed greater oxygen into the conspiracy than the applicant, it is not arguable that something has gone wrong with the administration of justice. 23. In relation to the conspirators other than Warman, there is no realistic challenge to the hierarchy that we have set out and we see no merit in any argument on disparity. The applicant could expect the judge to take a different approach to their cases. There are no arguable grounds to interfere with his conclusions. 24. Nor do we regard any of the alleged factual errors as having any material bearing on whether the sentence was manifestly excessive. There is no proper challenge to the judge's view that the applicant had a significant role in what was beyond doubt a sophisticated, well-organised conspiracy. Given the seriousness of the applicant's offending it is not arguable that his sentence was manifestly excessive or wrong in principle. 25. For these reasons, while we are grateful for Mr Jeyes' skilful submissions, this application is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2024] EWCA Crim 328' date: '2024-03-13' judges: - LORD JUSTICE EDIS - MRS JUSTICE FARBEY DBE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Case No: 201305437 C4 Neutral Citation Number: [2014] EWCA Crim 2648 IN THE COURT OF APPEAL CRIMINAL DIVISION T2007/7856 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/01/2015 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE OPENSHAW and MR JUSTICE DOVE - - - - - - - - - - - - - - - - - - - - - S Applicant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S appeared in person Mr. W. Mousley QC (who did not appear below) appeared on behalf of the Crown Hearing date : 10 th December 2014 - - - - - - - - - - - - - - - - - - - - - Judgment The Honourable Mr. Justice OPENSHAW : 1. This case has a long and tangled procedural history. As long ago as 12 August 2005, after a trial at the Crown Court at Blackfriars, the applicant S was convicted of rape and indecent assault upon his wife. 2. On 23 January 2008, the full Court allowed an appeal against conviction, having admitted fresh evidence to the effect that at the time of the original trial the applicant was suffering from previously undiagnosed autism; this condition, and its symptoms, the court considered may have explained his strange behaviour at the trial, such as casually reading a book whilst the complainant was giving her evidence, which might otherwise have given the jury the impression that his attitude was one of callous indifference, from which they might understandably have drawn an adverse inference against him. 3. However, when the matter returned for trial before the Crown Court at Blackfriars on 9 June, 2008, His Hon Judge Marron QC, having heard medical evidence, found pursuant to section 4(5) of the Criminal Procedure (Insanity) Act 1964 (as substituted and amended) that the applicant was under a disability and was unfit to plead. 4. Consequently a jury was empanelled to try the issue of whether the applicant had committed the act of rape and indecent assault upon his wife. On 12 June the jury found that he had committed both acts; he was thereafter made subject, on each count concurrently, to a Hospital Order under section 5 of the Act . He was also made subject of an indefinite Sexual Offences Prevention Order, to which we must return later. 5. In the circumstances, it is not necessary to detail the facts; it suffices to say that his wife alleged that in breach of an injunction of the Family Court, the applicant attended at her house, entered her bedroom, digitally penetrated her and then raped her. 6. The applicant now applies for an extension of time of more than 5 years to appeal against a finding of disability and/or that he committed the acts. However, in the written application lodged at this court, he does not make any complaints that the finding of disability was wrong either on the evidence or in law, or indeed that the finding of fact was wrong, either on the evidence or in law. 7. The applicant has now dispensed with the services of his lawyers and pursues the appeal in person. Although he has no right to be heard upon a renewed application for leave to appeal, we did allow him to address the court. He sought to persuade us that we should indeed quash the decision of the jury that he did the acts because he says a vital piece of evidence was not put before them. The evidence to which he refers is a letter, apparently written – or at least signed - by his wife on 5 December 2005, in which she purports to retract her evidence that he raped and indecently assaulted her. But he is entirely mistaken: this letter was indeed in evidence at the trial and the judge referred to it in his summing up (see the transcript at page 12G). There is therefore nothing in this point at all. 8. He also relies on the fresh evidence from a psychiatrist to the effect that he is now fit to plead; he now seeks an order of this Court to send the case back to the Crown Court for a retrial on the merits. This application however is misconceived. The fresh evidence does not suggest that he was fit to be tried back in June 2008; so the correctness of the decision that he was unfit to be tried at that time is not impugned. We can only set aside the decision of the Crown Court, if it was wrong at the time, and the applicant does not so allege. 9. Pursuant to section 5 A(4) of the Act , where a Hospital Order is made with a restriction upon a person found to be under a disability, and that person later recovers, the Secretary of State can be remit the case to the Crown Court for trail but that does not apply where a Hospital Order is made without a restriction. Since in this case, the Hospital Order made did not have such a restriction, this court simply has no power to make the order remitting the case back to the Crown Court for trial; we therefore refuse his application to extend the time of the leave to appeal. 10. The applicant did however make one further point; this was not included in his original application either, but we heard him de bene esse. By virtue of his conviction, the applicant was subject to the obligations of notification as a sex offender; since he was made subject to a Hospital Order, that notification period expires 7 years after the sentence, namely, 12 June 2015. However, as we have already said an indefinite Sexual Offences Prevention Order was made at the original sentence and anyone subject to a SOPO is also subject to the obligations of notification; since the SOPO is an indefinite order, he remains subject to the notification provisions indefinitely. He complains that this is unjust and unnecessary now that he has overcome his mental illness. Since he does not suggest that an indefinite SOPO was wrong at the time that it was made, and since it is plainly inappropriate for us to review the matter now 5 years on in the light of his change of circumstances, we declined to do so. However, if so advised, in the light of the changed circumstances - if such they be - pursuant to section 108 of the Sexual Offences Act 2003 , the applicant may make an application to Blackfriars Crown Court to discharge or vary the terms of the SOPO. We express no views as to whether the Crown Court should discharge or vary the terms or length of the SOPO, which is entirely for a judge of that court to decide; we merely alert the applicant to possibility that he might make such an application. 11. For these reasons, the application for leave to appeal against the decision of the judge that he was unfit and against the decision of the jury that he did the acts is refused.

```yaml citation: '[2014] EWCA Crim 2648' date: '2015-01-20' judges: - MR JUSTICE OPENSHAW - MR JUSTICE DOVE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2014] EWCA Crim 2344 Case No: 201303560B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HARROW CROWN COURT HHJ Mole Q.C. S20110408 Royal Courts of Justice Strand, London, WC2A 2LL Date: Tuesday 18 th November 2014 Before: SIR BRIAN LEVESON: PRESIDENT OF THE QUEENS BENCH DIVISION MR JUSTICE GREEN and SIR COLIN MACKAY - - - - - - - - - - - - - - - - - - - - - Between: Hussan Hussain Appellant - and - The Crown (London Borough of Brent) Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - K. Khalil QC and Q. Newcomb (instructed by Hodders Law ) for the A ppellant E. Robb (instructed by London Borough of Brent ) for the Respondent Hearing dates : 4 November 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Sir Colin Mackay: Introduction 1. On 16 December 2011 after a two day trial before Magistrates, the appellant was convicted of, and committed to the Crown Court for sentence and confiscation proceedings in respect of, the offence set out below. 2. On 10 June 2013, at the Crown Court sitting at Harrow before HHJ Mole Q.C. he was sentenced for breach of an enforcement notice contrary to Section 179 (2) and (9) of the Town and Country Planning Act 1990 to a fine of £20,000, with 12 months’ imprisonment in default of payment, and ordered to pay £38,422 towards the costs of the prosecution. 3. On the same date he was made subject to a confiscation order under the Proceeds of Crime Act 2002 (“POCA”) in the sum of £494,314.30, with three years’ imprisonment in default. 4. He appeals against sentence and the confiscation order by leave of the single judge. The Facts 5. On the 9 July 2003 the respondent London Borough of Brent issued a Planning Enforcement Notice in respect of a property at 219 Church Road London NW10. The existing planning use of that property was stated as being “for retail and one flat”. The notice required the following action to be taken within six months: “Cease the use of the premises as two or more flats and its occupation by more than one household and remove all fixtures and fittings associated with that use” 6. That notice was served on, among others, the then owner and occupier of the property, a limited company Tusculum Investments NV (“Tusculum”) which was the registered proprietor of the land and of which the appellant was a director and part owner. Its registered office was in the Bahamas. He held three of the issued shares and his wife one. However on 11 October 2007 the appellant and his wife and co-accused, Maha Ali, purchased the property in their capacity as individuals, and were registered as proprietors. Mrs Ali was convicted with her husband, but received a modest fine to reflect her relative lack of involvement and no confiscation proceedings were launched against her. The reality was that from October 2007 the appellant was and acted as the owner of the house. 7. Notwithstanding that it had sold its legal interest in the property Tusculum continued after the sale to the appellant to receive rents as they came in, either from the tenants or from the respondent in the form of housing benefits. It instructed and paid sub-agents to carry out the collections, rewarding them with a percentage commission. Tusculum was a separate legal entity. In due course the appellant’s two sons were appointed directors and the shareholdings changed so that all four family members held three of the issued shares in the company. There was no formal contract between the appellant as owner of the house and Tusculum as to the terms on which it received the rents. Mr Khalil QC accepted that the relationship was contractual and that it was open to the appellant at any time had he so wished to take the collection and receipt of rents into his own hands and dispense with the services of Tusculum and its various sub-agents. We will have to return to consider the import of this relationship. 8. Between September 2009 and the issue of the summons in this case on 24 August 2011 there were a number of visits by the respondent’s planning officers to the premises which revealed on each occasion multiple lettings, of the order of eight or nine separate contracts. On these occasions the effect of the enforcement notice was pointed out to the appellant. Following the final visit a warning letter was issued stating that a prosecution was being considered. Throughout this period the properties continued to be let. Confiscation Proceedings 9. Although they contended that the provisions of Section 75 (2) (c) could be said to be engaged by the facts of the case, the offence having been committed over a period of more than six months and more than £5,000 having been obtained, the Crown limited its claim in the confiscation proceedings to the rental income received during the period covered by the information levelled against the appellant namely 11 October 2007 to 12 August 2011, for all of which time the appellant was himself owner of the property. 10. The rental income received in this period was calculated by reference to the housing benefit that the respondent had paid out to the tenants, which for the period covered by the charge was some £347,410. However the property had continued to be used in breach of the requirements of the notice throughout the confiscation proceedings until the date of the final hearing, by which time the sum concerned has risen to £514,314.30. These figures were not in the end disputed, nor was there any issue as to whether the appellant had assets available which equalled or exceeded that amount. There were a large number of hearings in relation to the confiscation proceedings but by the time of the final hearing the appellant was raising the arguments which are now his grounds of appeal, to which we now turn. The Grounds of Appeal 11. As is well known Section 76 (4) of POCA reads:- “A person benefits from [particular criminal] conduct if he obtains property as a result of or in connection with the conduct” The appellant’s first argument is that he has not benefited from his criminal conduct, namely his refusal to comply with the enforcement notice, and his actions in continuing to allow the premises to be occupied by numerous tenants in breach of planning control, i.e. the criminal offence of which he stands convicted. He says that these rents were “obtained” by Tusculum and he received no benefit, or at most the benefit he could be said to have obtained was the director’s remuneration he received over the relevant period. 12. As it seems to us the relationship between the appellant and Tusculum is clear, and no piercing of the corporate veil is required. They stood in the position of principal and agent, and Tusculum as the agent was instructed and engaged to gather in the rents which at all times were the property of the appellant. Tusculum had no interest in the land nor any right to gather retain or dispose of the money it received from the agents who did the collecting. All rights of disposition and control of the proceeds remained with the appellant, and he was free to do as he wished with them. It appears to have served some purpose of his to have left the funds with the family company Tusculum, but that in no way undermines the obvious conclusion that they were from first to last his money which he was free to dispose of as he did. No reason for this arrangement was explored before the judge or before this court. 13. The appellant therefore did “obtain” the rents within the meaning of s.76 (4). 14. The appellant’s next argument is that, even if he is taken as having obtained the rents, there is no sufficient causal link established between the criminal conduct which has been proved and the property obtained, as this was not “as a result of or in connection with” his criminal conduct. 15. He relies on this court’s decision in Sumal and Sons (Properties) Ltd v The Crown (London Borough of Newham) [2012] ECWA Crim 1840; 2013 1 WLR 2078 . In that case the defendant had let residential properties, lying within a “selected area”, without the necessary licence in circumstances where the Housing Act 2004 Section 95 (1) made it a criminal offence to do so. The particular provisions of that statute were closely examined by this court. These were set out by Davis LJ, giving the judgment of the court, at paragraphs 40-43. These provisions were: (1) Section 96 (3) which stated “No rule of law relating to the validity or enforceability of contracts in circumstances involving illegality is to affect the validity or enforceability of a) Any provision requiring the payment of rent…or b) Any other provision of such a tenancy or licence. (2) The 2004 Act also contained a statutory code by which “rent repayment orders” could be made against a person letting premises without a licence in contravention of the Statute by a tribunal on the application of the local authority – Section 96 (5) (b). As Davis LJ pointed out (paragraph 37) the existence of that code necessarily contemplates that the landlord has in the interim lawfully received the rent or housing benefit. 16. Other distinguishing features of the facts in Sumal, as we see them, were (a) that the particular property concerned had been tenanted prior to the commencement of the licensing regime introduced by the 2004 Act and (b) it was common ground that the defendant would have been granted the necessary license had he ever applied for it. 17. In the present case the judge found more assistance from the earlier decision of this court in R v Luigi Del Basso [2010] EWCA Crim 1119 : 2011 1 Cr App R (S) 41. 18. That case, like the present appeal, concerned a failure to comply with an enforcement notice relating to the use of land. The owner had made an unsuccessful application for planning permission to operate a “park and ride” facility in connection with a local airport. Notwithstanding his lack of success he continued in the face of repeated warnings to operate the proposed scheme. The trial judge had found that more than £1.8m had been received as a result of that activity and made a confiscation order for £760,000 in view of the available amount on the evidence before him. He found that this benefit had been obtained by the appellants who had embarked on and continued to run this operation in knowing defiance of the enforcement notice. 19. The appellant in that case had sought to focus on the lack of profit to him from these activities, saying among other things that virtually all the income from the scheme had been spent on necessary running expenses and significant financial contributions to the local football club which had a lease which covered the relevant land. The judge had found that the appellant had derived a benefit from his conduct and this court had the advantage of three well known decisions of the House of Lords, heard consecutively on this issue, namely R v May [2008] UKHL 28 : [2008] 1 AC 1025 : Jennings v CPS [2008] UKHL 29 ; 2008 1 AC 1046 ; and R v Green [2008] UKHL 30 ; 2009 1 Cr App R (S) (32) . 20. In his analysis of the case law, Leveson LJ, as he then was, stated that it was necessary to go back to the words of the statute as had been explained by the House of Lords, particularly in May , and concluded (at paragraph 38) as follows:- “Thus it is clear that the legislation looks at the property coming to an offender which is his and not what happens to it subsequently; the court is concerned with what he has obtained “so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control”; whatever disposition of that property is made …is irrelevant. If it was otherwise the court would be called upon to make a series of almost impossible value judgments: profit is not the test and the use of the words “true” or “real” to qualify “benefit” does not suggest to the contrary” On that basis the court dismissed the appeal, and it is plain from the judgment of Davis LJ in Sumal that he accepted and did not dissent from this analysis of this position. It was binding on him as it is on us. He reached his conclusion, as we have set out above, influenced by the particular facts of the case that was before him. 21. Returning then to the present appeal and applying a familiar and straight forward test where issues of causation are in play in order to consider Section 76 (4) in this connection, the position can in our judgment simply be said to be this : if the appellant had obeyed the enforcement notice when he became owner with his wife of the premises the lettings would not have been allowed to continue, no new lettings would have been allowed, and therefore but for his criminal conduct in ignoring the notice the rents in the relevant period covered by the charge would not have come into his hands or within his disposition or control as they did. Proportionality 22. This court in Del Basso held that this legislation looked at what the offender had obtained, in the words of May, “so as to own it, whether alone or jointly, which would ordinarily connote a power of disposition or control” whatever disposition of that property is made. Leveson LJ said at 40;- “In the circumstances we reject the argument that the language of the statute permits the court to look at what Mr del Basso “actually made” net of all expenses: the reverse is the case as the first paragraph of the Endnote to May (“benefit gained is the total value of the property or advantage obtained, not the defendant’s net profit after the deduction of expenses”) makes abundantly clear” 23. The appellant sought to re-visit the question of proportionality in the light of the House of Lords’ decision in R v Waya [2013] 1 AC 294 , where the impact of Article 1 Protocol 1 of the Human Rights Convention concerning the offender’s right to property was considered. The House considered cases where goods or money had been appropriated but rapidly restored in their entirety to the loser, such as the burglar who returns all the stolen goods with minimal delay. But it widened its consideration at paragraph 34 in these terms: “There may be other cases of disproportion analogous to that of goods or money entirely restored to the loser. That will have to be resolved case by case as the need arises. Such a case might include, for example, the defendant who, by deception, induces someone else to trade with him in a manner otherwise lawful, and who gives full value for goods or services obtained. … whether a confiscation order is proportionate for any sum beyond profit made may need careful consideration”. 24. As an example of such a difficult case is this court’s decision in R v Sale [2014] 1 WLR 663 , a case of a corruptly awarded contract, where in the absence of complete evidence and any proper analysis of the pecuniary advantage accruing to the offender the court declined to approve a confiscation order which included the additional turnover resulting from the offender’s criminal acts and allowed only the offender’s company’s profits. The court acknowledged that this was a generous outcome for the offender but it was necessitated by an absence of any evidence on the basis of which it could value the other pecuniary advantage obtained, which probably existed but had not been explored in evidence in the lower court. 25. In the present case the trial judge did apply his mind to this problem in his ruling of 12 December 2012 in the light of the Waya decision. Having reminded himself of paragraph 34, which we have cited above, he considered arguments that the appellant had given good value to the tenants in the form of tenancies of these properties, had expended money on the premises and on remuneration to agents collecting the rents. With one exception he saw no disproportion in making the gross sum of money obtained the subject of the confiscation order rather than deducting from it the cost of those items. 26. The judge said in that ruling:- “To think that …would make the mistake of equating Mr Hussain’s breach of the enforcement notice as being a failure to provide proper accommodation of tenants – but that is not the point in this case – it was against the law to provide the accommodation at all in breach of an enforcement notice, however good it [sc. the accommodation] was… The reasons for issuing the enforcement notice referred to planning detriment that had nothing to do with the standard of the flats but had to do with matters such as noise, disturbance of residential amenities and effect on the character of the area.” 27. He continued:- “I do however note the point in paragraph 34 [of Waya] as I have already indicated that while bearing in mind that the whole purpose of the legislation, and bearing in mind what Waya said is that what they say does not entitle a judge to simply take a lenient view as to what he thought “proportionate” would amount to and simply leave it to his discretion. The judge has to be very careful to bear in mind the purpose of the legislation and proportion is a different matter from just general feelings of fairness. But nonetheless it is, it seems to me, important for the judge at the end of the day to step back when he has got the figures in front of him and consider whether or not a confiscation order that goes beyond a profit is still proportionate”. 28. The argument developed before us was that in the first place substantial sums had been spent by the appellant complying with an abatement notice in August 2004 with a schedule of works to be carried out, two notices, one to execute works and another to execute repairs, both served in March 2005 and a further abatement notice at a date which was unclear. It is argued that compliance with these had led to legitimate expenditure of “considerable sums” which should be deducted, though there was no evidence in the event to the court or before us as to what these amounted to, even in broad terms. Mr Khalil was suggesting that if his argument was seen in a favourable light by us then it would be for the parties to agree figures and to that end to adjourn this appeal until the outcome of their negotiations. We would be most reluctant to accede to such a course given the length of time these proceedings have already taken, something the trial judge emphasised in his final remarks. We note that in Waya Lord Walker rejected the submission that all costs and expenses incurred in realising the gain should be excluded and that only the net benefit should be made the subject of an order. He stated that a proportionate order could have the effect of requiring “…a defendant to pay the whole sum which he has obtained by crime without enabling him to set off the expenses “(ibid paragraph 26). Everything therefore turns upon the facts. 29. At the heart of the appellant’s argument lies the proposition that the agreements between the appellant and his tenants were not themselves unlawful. Whether the contract is illegal as performed, and, if so, the consequences, does not fall for decision. Whether the proper analysis of the respective rights and duties of the parties might be, no conclusion stops the continued receipt of rent by the appellant from being criminal conduct, as found by the magistrates, for the reason the judge gave, namely that the whole purpose for the enforcement notice regime was the public interest in adherence to planning controls 30. The appellant before us referred to the arguments which had been advanced unsuccessfully before the trial judge when he declined to stay the proceedings as an abuse of process, against which decision there is no appeal. But the grounds of that application were in general terms namely the length of delay in bringing the proceedings to court and the incentivisation of the respondent by virtue of the fact that it retains a percentage of the confiscation order when recovered. Mr Khalil asked us to consider these matters when addressing proportionality. We have done so and in our judgment they have little or no influence on the outcome of this case. 31. The judge also declined to deduct the commissions paid to the sub-agents who collected the rent from the tenants. He regarded this as a benefit to the appellant because he did not then have to go to the trouble of collecting it himself and so obtained a very real benefit for himself. We agree with that analysis. 32. The judge, however, did consider the question of unpaid rent. He heard evidence from a number of witnesses about that, none of whom seem to have been clear or conclusive in his eyes, but nevertheless he did not dismiss this argument out of hand. He agreed that where a tenant simply did not hand over the housing benefit which he had received in respect of his premises then the landlord did not “obtain that property”. That proposition in principle seemed to him perfectly clear as it does to us. The problem was one of quantification. But the judge did not shrink from that, and he made an estimate having heard the evidence that was put before him. He addressed the question properly and did the best he could with the material before him, deducting £20,000 from the notional gross receipts as representing housing benefit given direct to tenants who then kept it for themselves and did not pass it on to the landlord. We cannot accept that he was wrong in any way in his approach to this or to issues of proportionality generally. 33. It seems to us in the post Waya climate all such cases require to be carefully considered in the light of that decision. This judge in our view did just that and we do not propose to interfere with his order on the ground of lack of proportionality. Sentence 34. The judge did not accept the appellant’s protestations of ignorance as to the existence of the enforcement notice, certainly not from 2007 when he became owner. He had been written to in 2009 and twice in 2011 in addition to the site visits by planning officers to which we have referred above and he had every opportunity to stop the breach. 35. The ground of appeal against the sentence is that it was manifestly excessive because it was the maximum amount of fine that could have been imposed and made no allowances for any mitigation such as the previous good character of the appellant and the fact that, whatever his criminality was, he provided decent accommodation for his tenants over this period. 36. The magistrates were content to retain jurisdiction over this matter and must be assumed to have been aware that their sentencing powers following conviction were a fine not exceeding £20,000. They committed the appellant for sentence solely because the prosecution sought to launch confiscation proceedings. Had the appellant been convicted at the Crown Court the power to fine would have been unlimited, but as it was the judge was restricted to the magistrates’ maximum figure. 37. In his sentencing remarks the judge found that the appellant had neglected his duties as a landlord by failing to comply with these notices and stressed again the reasons for issuing the notices were to protect the rights and enjoyment of others living in that area. He had not ceased his letting activities even when notified of an intended prosecution. The judge could see no mitigation. He had a very good view of this case having spent some ten days hearing the various applications relating to it. With a continuing offence such as this, committed over a period of years, the effect of a previous good character is significantly diminished. 38. This sentence was in our judgment severe but justifiably so and we decline to quash it as being manifestly excessive. 39. It follows therefore that both of these appeals must be dismissed.

```yaml citation: '[2014] EWCA Crim 2344' date: '2014-11-18' judges: - 'SIR BRIAN LEVESON: PRESIDENT OF THE QUEENS BENCH DIVISION' - SIR COLIN MACKAY ```

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Neutral Citation Number: [2014] EWCA Crim 2779 Case No. 2014/00504/B2 & 2014/01856/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 3 rd December 2014 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Thomas of Cwmgiedd ) THE VICE-PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION ( Lady Justice Hallett DBE ) and MR JUSTICE EDIS --------------------------------------- R E G I N A - v - MICHAEL ADEBOLAJO (Also known as Mujaahid Abu Hamza) MICHAEL ADEBOWALE --------------------------------------- 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 D Gottlieb appeared on behalf of the Applicant Michael Adebolajo Mr A Lakha QC and Mr D Hughes appeared on behalf of the Appellant Michael Adebowale Mr R Whittam QC and Mr O Glasgow appeared on behalf of the Crown --------------------------------------- J U D G M E N T Wednesday 3 rd December 2014 Lord Thomas of Cwmgiedd, CJ: Introduction 1. On Wednesday 22 nd May 2013 the applicant Adebolajo and the appellant Adebowale killed Fusilier Lee Rigby in Woolwich. On 19 th December 2013 both were convicted of his murder at the Central Criminal Court before Sweeney J and a jury. On 26 th February 2014 each was sentenced to life imprisonment; a whole life order was made in respect of Adebolajo, and a minimum term of 45 years was fixed for Adebowale. 2. Adebolajo renews his application for leave to appeal against conviction and sentence after refusal by the single judge. Adebowale appeals against the length of the minimum term by leave of the single judge. The circumstances of the killing of Fusilier Lee Rigby 3. Although the brutal murder of Fusilier Lee Rigby was widely reported, it is necessary briefly to summarise the facts. 4. Fusilier Lee Rigby was at the time 25 years old. He had joined the Army in 2006. Amongst many postings he had seen active service in Afghanistan in 2009. He was an outgoing and popular person. At the time of his death he was acting as a recruiting officer dealing with young people. He was also involved in other duties at his Regimental Headquarters at the Tower of London. When he was attacked he was on his way from the Tower of London to the Woolwich barracks. 5. Adebolajo is a British citizen. He was aged 29 at the time of the murder. He is married with four stepchildren and two children. He had three convictions in 2008: failing to surrender to custody, possession of an air weapon, and assault on a constable. 6. Adebowale is also a British citizen. At the time he was aged 22. He lived with his mother in Deptford, having left school at the age of 16. He had convictions in 2008 and 2009 for possession of cocaine. Although brought up as a Christian, he had converted to Islam when he was aged 17. 7. After converting to Islam both were radicalised. Each became an extremist. They decided between themselves, in order to advance their extremist cause as they saw it, to murder a soldier in public in broad daylight. They would do so in a way that would generate maximum media coverage. That included getting themselves killed by armed officers who would be bound to attend the scene in the aftermath of the murder. They saw themselves as martyrs who would each gain a place, as they saw it, in paradise. Each plainly had a political or ideological aim in planning the barbaric murder they intended to carry out. 8. The planning for the barbaric murder took place over a period of time. Adebolajo acquired an old hand gun. It did not work. It was simply to be used at the scene to keep the public at bay and to threaten the armed officers when they arrived, with a view to being killed by the armed officers. On Tuesday 21 st May 2013, the day before the murder, Adebolajo bought five knives and a knife sharpener to sharpen some of the knives in preparation for their use in the murder. 9. On Wednesday 22 nd May 2013 they met up in advance. They went in a car driven by Adebolajo to Woolwich. They had with them a total of eight knives and a gun. They parked in Wellington Street. They waited to spot a soldier to murder. 10. Whilst they were waiting there Lee Rigby happened to walk past. He was instantly recognisable as a soldier. He was wearing a "Help For Heroes" top and was carrying his Army rucksack. Adebolajo and Adebowale stalked him in their car as he walked along Wellington Street, crossed the South Circular Road and went into Artillery Place. There he crossed the road in front of them. Adebolajo seized the opportunity. He accelerated hard to 30-40mph. He ran Lee Rigby down from behind. The impact carried him onto the bonnet of the car. It broke five vertebrae in his back and five ribs. The speed of the car was such that it carried on up onto the pavement and crashed into the support of a road sign and stopped. Lee Rigby was thrown into the area between the front of the car and an adjacent wall. He was unconscious and unable to defend himself. 11. Adebolajo and Adebowale got out of the car, armed with knives. Over a period of two to three minutes they butchered Lee Rigby. Adebolajo concentrated on Lee Rigby's neck. He hacked it repeatedly. He first used a substantial cleaver-type knife. He then used another knife. All this was part of an attempt to decapitate him. Its purpose was to have the maximum horrific effect. Adebolajo failed in that process. Nonetheless, he caused horrendous injuries. Adebowale, in contrast, concentrated on Lee Rigby's torso. He stabbed him a number of times in the chest. This was done in a frenzied fashion with severe force. The judge rightly described what had taken place as a "bloodbath". 12. This was seen, as was intended, by members of the public, in furtherance of their aim to achieve their political and ideological cause and the terrorism they espoused. Once they had finished their murderous assault, both carried and dragged Lee Rigby's body into the road and dumped it there. They brought the traffic to a halt. 13. Thirteen minutes then elapsed between that event and the arrival of the armed police. A number of members of the public came to the scene. Adebolajo and Adebowale, in pursuance of their ideological and political aim, and the terrorism which they espoused, gloried in what they had done. Each held a gun at one point or another and used it to warn off any male member of the public who looked as they he might intervene. Adebolajo handed out a prepared written statement seeking to justify their cause and their actions. In addition, carrying the bloodied cleaver in bloody hands and knowing he was being filmed, Adebolajo made a political statement. Images were broadcast around the world. The effect of the two statements was to seek to justify their joint actions as being retaliation for deaths in Muslim lands and to incite the removal of the Government in the United Kingdom. 14. Armed police officers arrived in a marked police vehicle. Adebolajo was still armed with a cleaver and a knife. Adebowale was armed with a gun and a knife. Adebolajo sprinted towards the officers, jettisoning the knife and carrying the cleaver above his head. He appeared to be intent on attacking one or more of them. Adebowale went down on the adjacent pavement and pointed his gun at the officers. The officers skilfully shot at them and merely wounded them. 15. The judge, who heard evidence from Adebolajo, was satisfied that he was the leader of the joint enterprise, but that Adebowale enthusiastically played his part. It was evident from the way in which the matter proceeded that, apart from what the two intended as part of their political cause, they inflicted upon the family of Lee Rigby indescribable suffering with which they must live for the rest of their lives. That is a matter we take much into account. Adebolajo's renewed application for leave to appeal against conviction 16. There are two proposed grounds of appeal against conviction. (1) The Queen’s Peace 17. The first relates to the definition of murder. The Defence Statement sets out the following: "At all times the [applicant Adebolajo] honestly believed he was fighting a war. He believed he was a soldier fighting that war. He only targeted a serving member of the British armed forces because they were engaged in fighting an unjust war on behalf of the State." 18. After the conclusion of the prosecution case on 5 th December 2013, Adebolajo gave evidence on Monday 9 th December. In his evidence he sought to explain what he had said in his Defence Statement. There was then a delay while the fitness of Adebowale to continue with the trial was examined, a similar issue having arisen before the trial. Adebowale did not give evidence. 19. On Friday 13 th December legal argument took place in relation to the defence which we have set out. The argument was advanced by Mr David Gottlieb who appeared on behalf of Adebolajo. The argument was effectively adopted but not added to by Mr Lakha QC on behalf of Adebowale. He indicated that he adopted the defence on behalf of Adebowale, but proposed to call no evidence. 20. The submission of Mr Gottlieb to Sweeney J was that it had been the law for centuries that the Crown had to prove that a murder was committed under the Sovereign's peace; that did not include killing in the course of a war. The Crown, it was submitted, had to prove that Adebolajo was under "The Queen's Peace" and not at war with the Queen. Whether or not there was a war or rebellion at the time that Lee Rigby was killed was irrelevant. Adebolajo fell to be dealt with upon the facts as he (Adebolajo) honestly, though mistakenly, believed them to be, namely he was at war with the Queen. 21. It was not surprising it was submitted that this element of the offence of murder in relation to the Queen's peace did not normally feature in murder cases because prior to 1997 reliance by a defendant on a state of war would have been likely to involve an admission of treason. On the basis that this argument was available, Adebolajo was therefore entitled to put before the jury his defence that his killing of Lee Rigby was part of a war with the British Government, involving a people's struggle against forceful occupation and aggression; he had not been under the Queen's peace, but at war with the Queen. 22. In support of this argument Mr Gottlieb put before the judge a 28 page skeleton argument and a number of authorities, the list running to some 20 cases. After hearing argument, the judge ruled that, if an element of the offence of murder was that the killing had to be under the Queen's peace, it was a requirement that the victim or deceased be under the Queen's peace and not the killer, as was advanced by Mr Gottlieb. Accordingly, any belief of either appellant, however genuine, as to the existence of a state of war between him and Her Majesty the Queen justifying the carrying out of the killing was entirely irrelevant. The sole issue was whether it was proved that Lee Rigby himself was under the Queen's peace. The judge directed the jury accordingly. 23. In this court, after the refusal of leave to appeal by the single judge, Mr David Gottlieb has renewed this argument before us. We can deal with the matter relatively shortly. 24. Murder is a common law offence. It is not defined by statute. Russell on Crime , 12 th Edition 1964, which was probably the leading textbook on the criminal law during the latter part of the last century, defines murder as: "When a man of sound memory and of the age of discretion unlawfully kills any reasonable creature in being and under the King's peace, with malice aforethought, either expressed or implied by law, the death taking place within a year and a day." This is a distillation of the principles set out in the founding texts of our criminal law, including Coke’s Institutes, Hale's Pleas of the Crown, Hawkins' Pleas of the Crown, East's Pleas of the Crown and Blackstone's Commentaries on the Laws of England . 25. The definition, which is repeated in the current leading textbook on crime, namely Blackstone's Criminal Practice (2015 edition), at paragraph B1.1, includes the ancient element of the crime of murder that the killing must be of a person who is under the Queen's peace. 26. The argument advanced by Mr Gottlieb, on examination, relies upon two cases. The first is that of R v Sawyer (1815) 168 ER 810 , (1815) Russ & Ry 294; reported more fully in a note to R v Serva (1845) 2 C&K 22: (the note beginning at page 41 of that report). The facts in Sawyer were straightforward. The defendant was a British subject. He murdered another British subject, Harriet Gaskett, in Lisbon. He was found guilty of murder at the Old Bailey before Lord Ellenborough CJ, Chambre J and Wood B. The point was taken that, as the offence had been committed abroad, the indictment was not framed in a way to make it triable under a statute of King Henry VIII, namely, 33 Hen. VIII. c.23. It was heard by a court comprising the three Chief Justices of the Courts of Common Law and nine puisne judges. The decision of the court was shortly expressed in the first of the reports as follows: "The judges held that this offence was triable here, though committed in a foreign kingdom, the prisoner and the deceased being both subjects of this realm at the time it was committed. The judges were also of opinion that the stating Harriet Gaskett to be in the king's peace at the time, sufficiently imported that she was the king's subject when the offence was committed, and that the statement in the indictment that this was against the king's peace sufficiently imputed that the prisoner was also at the time a subject of this realm." The argument before the court presided over by Lord Ellenborough CJ is set out in the note to which we have referred. It was long and learned. It is clear that it turned on the construction of the statute of King Henry VIII, and the requirements of the form of indictment in an age when the law was highly technical in what had to be stated in pleadings and indictments. 27. The point that has been taken by Mr Gottlieb was part of the argument of counsel for the defendant that took place before the court of 12 judges. Lord Ellenborough CJ observed that the King's subjects were protected even if out of the realm of England. The following exchange then took place: "[COUNSEL FOR THE DEFENDANT]: The offender must be a person amenable to the laws of this country. That nowhere appears by this indictment, which certainly states him to be 'late of London', but that merely shows that he had been a resident in this country at one time; but he might be foreigner notwithstanding that. LORD ELLENBOROUGH: 'Against the peace of the King' applies to the offender: it relates to his capacity to commit the crime." It is those few words that have been seized upon by Mr Gottlieb to justify his contention that the killer must be under the Queen’s Peace. It is an argument that, in our judgment, is hopelessly misconceived. 28. The decision in Sawyer relates purely to the form of the indictment and whether it was sufficiently established that there was jurisdiction in a court to try a British subject for the murder of another British subject abroad. It is clear from the judgment of the court that the issue was as to jurisdiction and resolved in the manner we have set out. Subsequently there was some doubt as to whether the commission of an offence of murder outside of England and Wales by a British subject of an alien could be tried in England and Wales, but s.9 of the Offences against the Person Act 1861 made clear that it could be. The case of Sawyer therefore provides absolutely no foundation for the misconceived submission made by Mr Gottlieb. 29. The second case was that of R v Page [1954] 1 QB 170 , in which a corporal in the Royal Corps of Signals had been tried and convicted by a Court Martial in Egypt for the murder of an Egyptian national in an Egyptian village. The issue in the appeal was whether a Court Martial had jurisdiction under the statute creating it to try for murder a British subject who had killed an alien abroad in circumstances which would amount to murder if the killing was done in England and Wales. It was submitted by Mr Kenneth Diplock QC, who appeared for the soldier, that the conviction was bad in law because it was not murder under the statute or at common law as the murdered man was not within "the Queen's peace"; that was a requirement for the offence of murder and as the murdered man was not under the Queen’s Peace no offence of murder had been committed. 30. In giving the judgment of the Court Martial Appeal Court, Lord Goddard CJ, sitting with Havers and Glyn Jones JJ, again examined the origins of the offence of murder. Lord Goddard explained that the general rule of English law had been that the offences committed by British subjects out of England were not punishable by the criminal law of England. Statute had made exceptions to that rule, including the statute of King Henry VIII to which we have referred. After considering the statutory provisions that governed the jurisdiction of Courts Martial, the court concluded that a person subject to military law could be tried for any offence, wherever committed, which would be an offence against the law of England; the crime of murder when defined in a statute had the meaning it always had: an unlawful killing with malice aforethought. The appeal therefore failed on that simple ground. 31. The only relevance to the argument constructed by Mr Gottlieb related to some observations made by Lord Goddard when he referred to the observation of Lord Ellenborough which we have set out. Lord Goddard observed that it was entirely intelligible, as no one would suggest that an English Court should try an alien for an offence not committed on British soil. That was all Lord Goddard said; again it founds no basis whatsoever for the arguments put before Sweeney J by Mr Gottlieb. 32. Finally, in an article entitled Murder Under the Queen's Peace [2008] Crim LR 541, Professor Michael Hirst traces the ambit of the meaning of the term "the Queen's peace" in the offence of murder. He concludes that the phrase essentially goes to jurisdiction and the ambit of the offence of murder under English law, but may be of relevance to the killing of a victim in a time of war. 33. The law is now clear. An offender can generally be tried for murder wherever committed if he is a British subject, or, if not a British subject, the murder was committed within England and Wales. The reference to "the Queen's peace", as originally dealt with in the cases to which we have referred, went essentially to jurisdiction. Although the Queen’s Peace may play some part still in the elements that have to be proved for murder as regards the status of the victim (and it is not necessary to examine or define the ambit of that), it can only go to the status of the victim; it has nothing whatsoever to do with the status of the killer. The argument was completely hopeless. We have set out at some length why it was hopeless; it should never have been advanced. We dismiss this ground of appeal as entirely misconceived. (2) The representation order 34. We can deal more briefly with the second ground of appeal. It relates to representation. Mr Gottlieb seeks to advance an argument in relation to the way in which the judge made orders under Regulation 14(2)(B)(1) of the Criminal Defence (General) (No 2) Regulations 2000. 35. An application was made to Sweeney J for the services of a Queen's Counsel and junior advocate. The judge granted the application. He considered that, under the regulations, that was the appropriate representation. On a number of occasions when the matter came back before him, the judge concluded that, having decided that that was the appropriate representation, it was not within his jurisdiction under the regulations to change that representation, unless there had been a material or significant change of circumstances which went to the representation required. 36. In our judgment the judge was right. If a judge decides that a Queen's Counsel alone, or a Queen's Counsel and a junior are the correct representation, then there is no power to substitute two juniors, unless there has been a material and significant change of circumstances which justifies the change of representation. There was none in this case. It is unarguable that there were any. In any event, even if there had been any merit in this point – and there was none – this was a point that could not conceivably affect the safety of the conviction. 37. It is for those reasons, therefore, we consider both points advanced by Mr Gottlieb to be wholly unarguable. Accordingly, the renewed application for leave to appeal against conviction is refused. Adebolajo's renewed application for leave to appeal against sentence 38. By paragraph 4 of Schedule 21 to the Criminal Justice Act 2003 the appropriate starting point for a murder that is committed for the purpose of advancing a political, religious, racial or ideological cause is a whole life order. The judge concluded that the murder was committed for such a purpose and the purposes of terrorism. 39. It has been urged upon us that the judge should not be bound by the reasons that Adebolajo had given for his actions, but should have regarded the offence as one motivated by simple religious hatred or the equivalent of the murder of a police officer. 40. We cannot see any basis on which such an argument could properly be advanced. It is clear, in our judgment, that there was more than sufficient evidence upon which the judge could have concluded that this murder was committed solely for the purpose of advancing a political or ideological cause aimed at the State. We should record that Adebolajo did not suffer from any mental illness. On the contrary, it was asserted that the actions were deliberate and carried out in the full understanding of what was done. 41. Having made that finding, the judge concluded that it was one of those rare cases where not only was the seriousness exceptionally high, but the requirements of just punishment and retribution made a whole life order the just penalty. 42. We have carefully considered the submissions that have been made before us. It has been suggested that we should carefully review the imposition of a whole life order and that we should give Adebolajo a chance to atone for what he has done and not uphold the order that will mean that he will spend the rest of his life in prison. 43. In the case of any whole life order a court is bound to review with the utmost care the circumstances of the murder, the motives for it, and the submissions made both before the judge and before us. We have done so. We have also taken into account the devastating effect that Lee Rigby's family will continue to suffer for the rest of their lives. 44. In our judgement it is plain that Adebolajo intended to commit a barbaric murder for political and ideological purposes. His actions were aimed against the State and against any civilised society. He carried out the murder in a horrific manner. It was intended to have the maximum effect to promote the misguided political and ideological cause he espoused. Having killed Lee Rigby, he did not stop there; he gloried in the murder and sought to use it to advance his ideological causes by publicising it and making the statements he did. 45. Taking all of the circumstances of the case into account, we can see no conceivable basis upon which it can be argued that a whole life order was not the just penalty for such a horrific and barbaric crime. The renewed application is therefore refused. Adebowale's appeal against sentence 46. We turn finally to consider the appeal by Adebowale which is made by leave of the single judge. Sweeney J concluded that in his case also the murder was carried out for the purposes of advancing a political, religious, racial or ideological cause. There was plain evidence on which he was entitled to come to that conclusion. He took the view, similar to that in the case of Adebolajo, that the offence was of exceptionally high seriousness and that his starting point should be a whole life term. He identified three aggravating factors: a significant degree of planning and premeditation; the fact that the victim was performing a public duty; and the way the body was treated. He considered, however, that there were mitigating factors: first, Adebowale's lesser role; second, his youth; and third, his pre-existing and continuing mental condition. The judge concluded that it was not appropriate to impose a whole life term, but that there should be a substantial minimum term. He settled upon the period of 45 years. 47. On behalf of Adebowale, it is properly accepted by Mr Lakha QC, who has made his submissions with the restraint to be expected in such a case, that on the facts of the case and on the application of the principles in Schedule 21 to the Criminal Justice Act 2003 , there could be no doubt that the judge had been correct to identify the aggravating factors and that he was entitled to reach the view that he did. 48. He therefore advanced an eloquent submission as to why the minimum term of 45 years was manifestly excessive, grounded upon Adebowale's mental condition. As we have already noted, issues arose as to his fitness to stand trial. In reports made in November 2013 a number of psychiatrists concluded that he had signs of a psychotic episode. Reports were obtained from a number of other psychiatrists who diagnosed him as suffering from time to time from psychosis. The judge ruled that he was fit to stand trial. No challenge was made to the ruling. It is clear from our re-examination of those reports in the light of the submissions that have been made before us today, that it was clear at the time – and this is a very important factor – that it was accepted that the mental element played no part in Adebowale's culpability for the barbaric murder of Lee Rigby. 49. After sentence, it became apparent in late May 2014 that Adebowale's mental condition was deteriorating. He was transferred to Broadmoor on 3 rd July 2014. The latest medical evidence before us is based on a report made on 14 th November 2014. It is said that Adebowale has substantially recovered from the further episode of psychosis. It is said that when he was interviewed he was rational and understood the nature of the appeal. However, the conclusion of Dr Boast (the psychiatrist) was that there was a high risk of a further episode of psychosis and the possibility of him developing an enduring schizophrenic condition. Dr Boast also pointed out that another element of his mental condition was depression. It was his opinion that the stress of Adebowale's current sentence produced understandable depression, but the stress of the length of the sentence had been a factor in the most recent episode of psychotic mental illness. He also considered that hopelessness in the context of depression was a major risk factor. 50. On the basis of the reports that were before the judge, and the most recent report that is before us, it was urged upon us that Adebowale suffered from clear and significant psychotic episodes after the offences. He had shown some symptoms of mental illness prior to the offence, albeit not significant enough to be a proper basis on which to found a defence of diminished responsibility, or in any way to lessen his culpability for his actions. However, his mental condition was a mitigating factor; it was recognised and it should be taken into account. 51. It was also submitted that we should take into account Adebowale's lesser role, the fact that although he had pleaded not guilty he did not contest or challenge the evidence in relation to the murder. The only challenge was in relation to the inference to be drawn in relation to the attempted murder of a police officer (of which he was acquitted). We were also urged, most importantly, to take into account his youth. 52. We have carefully considered all of those submissions. We have paid particular attention to the evidence in relation to his mental condition. At the time of the trial, as we have set out, it is clear from the reports of Dr Boast and the other psychiatrists that there was no evidence that the mental illness had any role at all in Adebowale's culpability. Nonetheless, we think that the judge was right to take into account the mental illness from which he had suffered thereafter, his symptoms at the time, his lesser role, the part he played and his youth. We consider that the judge fairly took all of those matters into account. 53. We have also had regard to the current report of Dr Boast. His view is that, prior to the trial and probably at the time of the offence, there might have been an element of psychosis. However, having carefully looked at this and having considered all the other reports, we are quite satisfied that there is no evidential basis on which it can be put before this court that psychosis played any part at the time of the offence, or that any other aspect of his mental illness affected his culpability for, the offence. 54. On that basis, therefore, we consider that the judge was entitled to pass the sentence that he did. It was within the range of the minimum term appropriate for this barbaric crime. Accordingly, we dismiss Adebowale's appeal against sentence. _____________________________________

```yaml citation: '[2014] EWCA Crim 2779' date: '2014-12-03' judges: - MR JUSTICE EDIS ```

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2022] EWCA Crim 477 No.s 202101340/B2 & 202101333/B2 Royal Courts of Justice Wednesday 30 March 2022 Before: THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (LORD JUSTICE FULFORD) LADY JUSTICE WHIPPLE DBE SIR NIGEL DAVIS REGINA V CARL PHILLIPS __________ 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 D HUGHES appeared on behalf of the Appellant MR P JARVIS appeared on behalf of the Crown _________ J U D G M E N T LADY JUSTICE WHIPPLE: Background 1. On 1 March 2021 in the Crown Court at Sheffield the appellant, who was then aged 28, changed his pleas to guilty to counts 3 and 4 on the original indictment. On 8 April 2021 in the same court in front of His Honour Judge Dixon the appellant was sentenced to 12 years and nine months on count 3, which was a charge of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, and the same term of 12 years and nine months to be served concurrently on count 4, which was a charge of possession of a firearm at the time of committing an offence, contrary to section 17(2) of the Firearms Act 1968. Two other counts were ordered to lie on the file. 2. The appellant's co-accused Ben Jones pleaded guilty to a single count of affray on 1 March 2021 and was also sentenced on 8 April 2021 to nine months' imprisonment which was suspended for 18 months. 3. The appellant now appeals against sentence with the leave of the single judge and applies for leave to appeal against conviction in respect of count 4, that application having been referred to the full court by the single judge. We are satisfied that the delay was not the fault of the appellant and we grant the appellant an extension of time of 47 days in order to seek leave to appeal against conviction. Further, we are satisfied that the point raised by way of appeal against conviction is arguable and we grant leave to appeal against conviction. Facts 4. The facts in brief are these. On 31 July 2020 at about 10.00 in the morning, one of the complainants, Jason Riley received a telephone call from somebody called 'Joe' demanding payment of £2,500, said to be outstanding fees or wages for construction work supplied to Mr Riley who was in the building industry. Mr Riley did not think payment was due for another week. Mr Riley employed the co-accused Ben Jones and his father, the appellant was sub-contracted to Ben Jones and his father. 5. At about 3.00 pm that afternoon Ben Jones together with the appellant and three other males arrived at a construction site in Nottingham where they made demands for the money from Mr Riley. Mr Riley said the men were armed with hammers. The men used threatening behaviour but there were no physical blows. This was the affray which formed the count to which Ben Jones pleaded guilty. The appellant was also charged with involvement in this affray but that was one of the counts that was left on the file. 6. Mr Riley went to see a friend, Sulius Sunglia who described Mr Riley as being stressed and panicking. Mr Sunglia advised Mr Riley that the best thing to do was to simply pay the money. Mr Riley therefore raised the £2,500 to pay the men and initially asked for them to come and collect it. They told Mr Riley that he would have to come to them in the Sheffield area. A meeting was eventually arranged for later that day, 31 July 2020. 7. Mr Sunglia drove the car to the arranged meeting place which was in a remote lane in the Ulley reservoir area. Mr Riley was the front seat passenger and three of Mr Riley's employees travelled in the back. At the meeting point Mr Sunglia stopped his car about three metres behind a Volkswagen Golf which contained the appellant and a number of other males. Mr Sunglia and Mr Riley both got out of their car at about the same time as the appellant got out of the Golf. The appellant was holding a sawn-off shotgun and without any request for money or discussion he raised the gun and shot Mr Sunglia in the shin area of his left leg. The appellant then fired a second shot which hit the front of Mr Sunglia's car. Mr Riley was not struck by either shot. The men then got back into the Golf, including the appellant, and they drove away. 8. Mr Sunglia felt immediate pain and described blood spurting everywhere. He tried to use his phone to photograph the Golf's number plate without success and then got Mr Riley to use his belt as a tourniquet before describing that everything went black. Mr Sunglia was taken to hospital. He was noted to be in acute pain when he was admitted, initially to the Rotherham General Hospital and subsequently on transfer to the Northern General Hospital. He underwent a surgical procedure to wash out and debride the wound on 1 August 2020. The operation note indicates that there were multiple deep and superficial led fragments found, there were both entry and exit wounds, he had a fractured mid-shaft of his left fibula. Mr Sunglia was discharged from hospital on 3 August 2020 with a follow-up regime. It was thought at that stage that he would be fully weight-bearing as soon as he was comfortable. No formal plastic surgery followed up was required but he had been reviewed by the plastic surgeons. History of Proceedings 9. So far as the case history is concerned, the appellant was arrested on 7 September 2020 when he denied any involvement in the offending. He was charged on 19 September 2020 in relation to the events of 31 July 2020. He pleaded not guilty at the PTPH on 7 October 2020 and trial was fixed for 3 March 2021. It appears that at this stage that Ben Jones had not been charged; he was charged subsequently and became a co-defendant later that year. 10. At the PTPH on 7 October 2020 the appellant's representative requested sight of certain telephone evidence on which the prosecution intended to rely. That evidence was not provided by the prosecution. The defence made a disclosure application which was heard on 8 December 2020 when the prosecution were ordered to provide it by 17 December 2020. The evidence was not disclosed by that date, so the defence made another application to the court, leading to another order for the prosecution to disclose this material by 16 February 2021. That deadline also passed without the evidence being disclosed by the prosecution. The defence then applied to vacate the trial, citing the failure of disclosure as a reason, but that application did not succeed. 11. In the event the evidence was served by the prosecution on 26 February 2021. The defence commissioned an expert report to consider it. Having received that expert report, on 1 March 2021 the appellant entered his guilty pleas to counts 1 and 2. This was two days before the trial was due to start. Appeal against conviction 12. The appellant argues that his guilty plea to count 4 was entered in error. Count 4 charged the appellant with possessing a firearm at the time of committing an offence, contrary to section 17(2) of the Firearms Act 1968 which provides as follows: "If a person, at the time of his committing or being arrested for an offence specified in Schedule 1 to this Act, has in his possession a firearm or imitation firearm, he shall be guilty of an offence under this subsection unless he shows that he had it in his possession for a lawful object." 13. The particulars of count 4 on the indictment alleged that on 31 July 2020 at the time of committing an offence specified in Schedule 1, "namely an offence of wounding or causing grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861", the appellant had in his possession a firearm, namely a shotgun. It was not until the appellant's counsel Mr Hughes came to draft the notice of appeal against sentence that he spotted a defect in the particulars of count 4. The problem is this: paragraph 2 of Schedule 1 to the Firearms Act 1968 lists those offences under the Offences Against the Person Act 1861 to which section 17(2) applies; the offence of wounding or causing grievous bodily harm with intent contrary to section 18 of the 1861 Act is not included in that list. The appellant thus pleaded guilty to an offence under section 17(2) which does not exist. 14. The Crown accepts that the plea of guilty to count 4 as set out on the indictment as flawed and that in its current terms the conviction is unsafe. However, the Crown invites this Court to correct the defect using powers under section 3A of the Criminal Appeal Act 1968, which provides as follows: "(1) This section applies on an appeal against conviction where— (a) an appellant has been convicted of an offence to which he pleaded guilty (b) if he had not so pleaded, he could on the indictment have pleaded, or been found, guilty of some other offence, and (c) it appears to the Court of Appeal that the plea of guilty indicates an admission by the appellant of facts which prove him guilty of the other offence." (2) The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the appellant's plea of guilty a plea of guilty of the other offence and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity." 15. The Crown submit that by his plea to the section 18 offence, count 3, the appellant has admitted facts which prove him guilty of an offence under section 20 of the 1861 Act. Section 20 is a lesser offence which is necessarily incorporated in a plea to section 18: see R v Mandair [1995] 1 AC 208. Section 20 is included within schedule 1 of the Firearms Act 1968. Indeed, the Crown argue that the appellant could have pleaded guilty to count 4 on the basis that the offence he committed at the time he had the shotgun in his possession was an offence contrary to section 20, and if he had done that there would be no difficulty now. 16. The appellant by Mr Hughes accepts that this is a pragmatic way to resolve the difficulty he has identified. It was obviously regrettable that no one present at the sentencing hearing identified the flaw in the way count 4 was drafted, but in this case it makes little difference in practice, given that the maximum sentence for the section 18 offence is life imprisonment and the inclusion of count 4 did not therefore serve to increase the court's sentencing powers. Further, the judge imposed the same sentence for counts 3 and 4 and ordered them to be served concurrently, and he did not increase the term on count 3 to reflect the offending on count 4 because the facts giving rise to counts 3 and 4 are in effect identical, so the inclusion of count 4 on the indictment did not serve to increase the sentence in fact imposed. In this case, the error is purely technical. 17. Having considered the options and noting that Mr Hughes does not resist the course proposed by the Crown, we accede to the Crown’s proposal. It is preferable that the indictment should contain a count to reflect the appellant's use of a firearm. It is appropriate for the appellant’s record to show a conviction for using firearms in the course of committing the section 18 offence. Mr Jarvis told us that this approach is consistent with CPS guidelines which indicate that where a firearm is used the indictment should in general contain a firearms offence. He also told us that if the point had been appreciated at an earlier stage, it may well be that count 4 would not have contained an offence under section 17(2) of the Firearms Act 1968, but rather would have contained some other offence under that statute. We are where we are and in our judgment the Crown's proposed solution is a pragmatic and reasonable one. 18. We therefore exercise our powers under section 3A of the Criminal Appeal Act 1968 to correct the error on the indictment. We substitute for the offence currently charged another and different offence of possessing a firearm at the time of committing an offence, contrary to section 17(2) of the Firearms Act 1968, namely an offence under section 20 of the Offences Against the Person Act 1861. To that limited extent this appeal is allowed. Appeal against sentence 19. In his sentencing remarks, the judge noted that the appellant was 28 and of effective good character. He fell to be sentenced for a very serious offence of section 18 and with possessing a firearm whilst committing an indictable offence. The judge had regard to the assault guideline. We interpose to emphasise that that guideline was replaced by a new guideline on 1 July 2021 but we, like the judge, will have regard to the old guideline. 20. The sentencing judge described this offence as causing harm which was serious in the context of this offence. It was serious because of how it was occasioned, the fracture of the limb that was caused, and the other pellets in the leg that were sustained as a result of the gun being used. That put it into the greater harm category. In terms of culpability, the judge said there was a significant degree of premeditation. The complainant was lured down the road. A shotgun was obtained, taken to the scene, produced from the car and used. The use of a weapon was obviously an aggravating factor. The only reason to discharge the weapon twice was to cause more serious harm than actually resulted. This was targeting somebody in a vulnerable position by virtue of being lured to where they were and by virtue of the fact that the appellant had the gun. The appellant played a leading role in this group. These were factors indicating higher culpability. 21. On the lower culpability side, it was said that the appellant was remorseful. It was said that he was subordinate in the group and that culpability therefore should be lower, but the judge rejected that latter submission. 22. The judge held that this was higher culpability and greater harm which put this offending in Category 1. That category has a bracket of nine to 16 years with a starting point of 12 years. The appellant's counsel had argued on his behalf that it was Category 2 because the harm was not of the most serious type for this offence. The judge did not accept that submission but said that in any event, even if the defence was right on that, the number of aggravating factors in terms of culpability would be such that this case would be raised to Category 1 in any event. 23. The judge then turned to the guideline for section 17(2) of the Firearms Act 1968. He said that this was a case where a firearm was discharged. It was conduct intended to maximise fear or distress and the serious nature of the intended or actual associated offence put this clearly within higher culpability, but the number of factors was of note. The harm was certainly serious. Whether it got to severe was a moot point, but the combination of factors that were in the culpability bracket, alongside this being serious physical harm, if not more, put this into Category 1A. That category gave a range of 10 to 16 years with a starting point of 12 years. 24. In terms of the aggravating factors, the appellant had no previous convictions of note, no bail, no motivation, but if this was a sawn-off shotgun as described it would be prohibited by statute. It was a firearm modified to make it more dangerous. The firearm had not been recovered. The offence was committed as part of a group. All of those factors aggravated the starting point. 25. In terms of mitigation, the appellant had no previous convictions. He was said to be remorseful. It was said in effect that he had been led along, which the judge did not accept. To the contrary, the judge said this was wicked, disgraceful violence, the sort of violence that the courts would not tolerate. 26. Reflecting on the appellant and all the judge knew about him, taking into account the powerful materials in his favour and letters that had been submitted on his behalf, the appropriate starting point after trial would have been one of 15 years. 27. The way the Crown had conducted the prosecution was criticised by the judge. The reality was that they did not make available to the defence materials that should have been made available much earlier. But the other side of the coin is that the appellant knew he had discharged the firearm. He did not make an indication of plea in the Magistrates' Court. He entered a not guilty plea at the PTPH and it was only after material that effectively compelled him to plead that he did so. As a result in the judge's view the appropriate discount for credit was 15 per cent. 28. The effect of that meant the sentence concurrent on both counts was one of 12 years and nine months' imprisonment. The judge understood it would be difficult for the appellant in terms of bringing up his child, relationships and the like but the reality here was that the court would not tolerate the use of firearms causing violence in this way, particularly when it was organised and to do with money with a motive behind it. 29. Ben Jones was dealt with for the affray and on the basis that Jones had pleaded guilty at the PTPH the judge gave him 25 per cent credit for his guilty plea. 30. The appellant appeals against sentence on grounds that the sentence of 12 years and nine months was manifestly excessive. In the Notice of Appeal three grounds are pursued. First, it is argued that the judge erred by placing the offences in the highest category within the Sentencing Council Guidelines. It is submitted that the principal offence was that of causing grievous bodily harm with intent and that the appropriate category was 2A, which would have produced a starting point of six years' imprisonment rather than the 15-year starting point identified by the judge. Secondly, it is argued that the judge failed to afford the appellant the appropriate level of credit for his guilty pleas. The pleas were entered only days after he was advised about the contents of an expert report, which was only commissioned once the prosecution had belatedly complied with an order for disclosure of telephone evidence. Further, it is argued that the appellant should have been given the same level of credit as his co-accused Ben Jones. Third, it is argued that the judge failed to have any or any adequate regard to the appellant's personal mitigation, including good character and the fact that his partner had given birth to their first child in early 2021. 31. We are grateful to Mr Hughes for his oral submissions today. In those submissions he has focused with economy on the first ground of appeal. 32. We turn to the first ground. The appellant concedes that the shooting on 31 July 2020 was high culpability, but it is important to note that the judge found there were a number of factors which put this into the high culpability range, whether under the assault guideline or the firearms guideline. Those factors, together with the appellant's use of a sawn-off shotgun modified to make it more dangerous and the fact that he acted as part of a group served to increase the seriousness of the offending. Mr Hughes argues that this was not greater harm in the context of section 18 offences. We are not so persuaded. The judge was entitled to conclude that a shotgun wound to the leg involving a fractured bone, entry and exit wounds and the consequential need for surgery and on-going treatment did count as greater harm, even in the context of section 18 offences which are of their nature very serious. By his conduct the appellant was guilty of creating an enormous risk to life and limb and the outcome could have been a great deal worse. 33. Given that this offending involved such a high level of culpability and greater harm, the judge was right to put this offending in the top category in the guidelines and then was justified in going above the indicative start point by some margin to arrive at the notional sentence after trial. Fifteen years was within the range open to the judge. Thus the first ground of appeal against sentence fails. 34. The judge credited the appellant with a discount of 15 per cent for his guilty plea. The appellant had pleaded not guilty at the PTPH and he then entered guilty pleas very close to the date of trial. As the judge noted, the appellant knew whether he had committed these offences and it was not necessary for him to wait for disclosure or for his expert's report. A discount of 15 per cent was well within the ambit of the judge's discretion for a plea entered at this stage and in these circumstances. The discount given to Mr Jones was irrelevant. We see no error in the discount accorded to the appellant to reflect his guilty plea and the second ground of appeal on sentence fails. 35. Finally, we note that the judge referred in terms to the appellant's personal mitigation, including his good character and the fact that his partner had recently given birth; these matters were taken into account. Such personal mitigation could not carry much weight in the context of offending of this gravity. The third ground of appeal against sentence fails. 36. In conclusion, we are not persuaded that this sentence of 12 years and nine months on a plea was manifestly excessive and we dismiss the appeal against sentence. Conclusion 37. We allow the appeal against conviction and substitute for the offence currently charged the offence of possessing a firearm at the time of committing an offence, contrary to section 17(2) of the Firearms Act 1968, namely an offence under section 20 of the Offences Against the Person Act 1861. We dismiss the appeal against sentence. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2022] EWCA Crim 477' date: '2022-03-30' judges: - LADY JUSTICE WHIPPLE DBE - SIR NIGEL DAVIS ```

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No: 2004/5368/D1 Neutral Citation Number: [2006] EWCA Crim 1267 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 15 May 2006 B E F O R E: LORD JUSTICE GAGE MR JUSTICE FORBES MRS JUSTICE COX DBE - - - - - - - R E G I N A -v- CLIFFORD NORMAN ASHTON - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR S RIORDAN QC appeared on behalf of the APPELLANT MR P COOPER appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE GAGE: Clifford Ashton is now aged 36. On 2nd November 1998 at the Birmingham Crown Court he was convicted of murder and sentenced to life imprisonment. On 11th June 1999 the full court dismissed his appeal against conviction. He now appeals against conviction upon a reference to this court by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 . The basis of the Reference is that there is now fresh evidence of his psychiatric condition at the time of the offence. 2. The facts in summary are as follows. On 14th February 1998 the appellant was involved in a fight with Trevor Blackwood, in the course of which he stabbed Mr Blackwood nine times with a butcher's knife. Mr Blackwood later died as a result of his injuries. It was the appellant's case that he had acted in self-defence or, in the event that the jury considered the force used to be excessive, that Mr Blackwood's actions had amounted to provocation. 3. The only witness to the incident was the appellant's landlady, Mrs Rowe. She ran the butcher's shop below the appellant's flat. Mrs Rowe had witnessed a number of acts of violence perpetrated by the appellant over previous weeks and she was in fear when a dispute arose over the electricity supply to the appellant's flat on the morning of 14th February 1998. She told the court that her husband had been away and so she had asked Mr Blackwood, a family friend, to accompany her when she went to confront the appellant about this matter. Mr Blackwood had agreed to do so and carried with him a wooden canopy pole in case the appellant turned violent. 4. Mrs Rowe said that the appellant had been rolling dough in his kitchen when she and Mr Blackwood entered the flat. The appellant picked up a knife and there was a scuffle in the course of which Mr Blackwood tried to defend himself. She saw the two men drop their weapons and tumble down the stairs into the butcher's shop. She lost sight of the men while she went down the stairs entering the shop in time to see the appellant plunge a knife into Mr Blackwood. During the final stages of the struggle, the appellant struck Mr Blackwood with a knife a number of times while falling away towards the door. Mrs Rowe gave evidence that the knife that the appellant had used was one she had left on a chopping board in the shop having chopped some meat with it that morning. 5. The appellant did not give evidence at trial. In his police interviews he acknowledged that he had been present, that he had inflicted the wounds upon Mr Blackwood and that when he had done so he had been aware of what he was doing. It was his case that Mr Blackwood had been the aggressor, that he had seen Mr Blackwood looking towards a row of knives in the shop and that fearing he might use these to attack him, he had picked up one to defend himself. Of his actions he said: "It was controlled anger because I had to do what I had to do in the line of defence." 6. Following his conviction he sought leave to appeal. The single judge granted leave and the Court of Appeal, on 18th June, dismissed his appeal. The ground of appeal was a misdirection in relation to certain evidence of statements made by the appellant at interview. The court considered that it was a technical misdirection and in the circumstances dismissed his appeal. 7. He applied to the Commission on 14th October 1999 for a review of his conviction, arguing that Mrs Rowe's evidence had been beset with inconsistencies and untruths. The Commission in June 2000 wrote to the appellant in informing him of its final decision which was not to refer his conviction to the Court of Appeal. 8. The appellant submitted a fresh application to the Commission on 28th May 2003. This time the application was based on fresh psychiatric evidence on the basis that is now before this court. 9. Before this court there are reports from four consultant forensic psychiatrists. Two of them, Drs Holloway and Hopley, conclude that the appellant suffers from paranoid schizophrenia. One, Dr James Collins who saw the appellant shortly before his trial, concludes that the appellant suffers now from schizophrenia. The fourth Dr Fearnley, the responsible medical officer treating the appellant at Ashworth Hospital, believes that the appellant is suffering from schizophrenia but points to the difficulties of making a diagnosis in his current state. All three of Dr Collins, Dr Holloway and Dr Hopley are of the opinion that the appellant's condition pre-existed the killing in February 1998. Dr Collins explained that due to the shortage of time before trial he had insufficient time to make a proper diagnosis before the trial. He did, however, in his report dated 8th September 1998, state: "Whilst it is impossible to point to any conclusive evidence that he suffers from a mental illness, the above consists of a significant body of evidence that he might well have developed a paranoid psychosis in recent years." Following his conviction, the appellant was transferred to Ashworth hospital and has been there ever since. Dr Hopley, in a report dated 17th January 2005 commissioned by the Crown Prosecution Service, gave his opinion in the following terms: "13.6. Unfortunately Mr Ashton was only detained in Ashworth Hospital for two weeks prior to his trial. This was an inadequate time period to facilitate a full psychiatric assessment of his mental health and his likely mental state at the time of the alleged offence. Therefore it is unsurprising that a mental illness was not diagnosed and no psychiatric defence was raised at the time of his trial. 13.7 With the benefit of hindsight, it can be demonstrated that Mr Ashton's paranoid schizophrenia impaired his ability to consider all available defences to him at the time of his original trial. Mr Ashton's absolute lack of insight at the time led to him instructing his defence team to pursue the defences of self-defence and/or provocation. He would have believed with absolute conviction that he was being persecuted and that therefore he had been provoked and/or was acting in self-defence." All the doctors who expressed the opinion that the appellant suffered from schizophrenia or paranoid schizophrenia conclude that at the time of the killing he was suffering from an abnormality of mind such as to diminish his responsibility for the killing. The prosecution now accept that if the court admits the fresh evidence the conviction of murder must be quashed and a verdict of manslaughter by reason of diminished responsibility substituted. 10. Mr Cooper, who appears for the prosecution today and was junior counsel at the trial, submits that this court is entitled to receive this fresh evidence in the interests of justice. We do so. We are quite satisfied that in the circumstances of this case that is a proper course for the court to take. We admit the evidence of the four doctors. We deem it expedient to do so in the interests of justice. Having done so, we are satisfied that the verdict of murder must be quashed and a verdict of manslaughter by reason of diminished responsibility substituted. 11. We now turn to the question of disposal. This morning we have heard from Dr Collins. In addition to giving evidence about matters which are set out in his report which go to the question of the appellant's condition pre-trial, he has also given evidence as to his opinion on the proper order that this court should make. Accordingly, we are satisfied that the conditions and terms relevant to sections 37 and 41 of the Mental Health Act are satisfied. There is a report from Dr Fearnley who, as we have already said, is the appellant's responsible medical officer. There is a bed for him where he is currently residing at Ashworth Hospital in Liverpool. In the circumstances what we propose to do is make an order that he be treated at that hospital under the supervision of his responsible medical officer, namely Dr Fearnley. The hospital is, as we have said, the Ashworth Hospital. We also make an order under section 41 that he resides there without limitation of time. For those reasons the appeal is allowed and those orders made.

```yaml citation: '[2006] EWCA Crim 1267' date: '2006-05-15' judges: - LORD JUSTICE GAGE - MR JUSTICE FORBES - MRS JUSTICE COX DBE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2009] EWCA Crim 52 Case No: 200706365/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 14th January 2009 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE WILKIE SIR GEOFFREY GRIGSON - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID JOHN CHANEY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr H Roberts appeared on behalf of the Application Miss S Ferrier appeared on behalf of the Crown J U D G M E N T 1. SIR GEOFFREY GRIGSON: This application has been referred to the full court by the Registrar. There is an application for leave to appeal against sentence passed on the applicant for rape and coupled with it an application for an extension of time in which to pursue that appeal. 2. Mr Roberts, who appears for the applicant today, makes further application for leave to appeal against conviction in respect of three of the counts on which the applicant was convicted and for the appropriate extension of time. Those applications are granted and we treat this hearing as the appeal. 3. The appellant, David Chaney, is 59 years old. He began offending as long ago as 1961 but his convictions were for minor offences for example simple possession of Class B drugs. On 7th August 2007 in the Crown Court at Cardiff he was convicted after trial on eleven counts of the indictment, each count arising in relationship with a young woman, DS. 4. On 8th August he was sentenced as follows: on counts 1 to 5, each a charge of indecent assault on DS, 5 years' imprisonment on each, each to be served concurrently. Count 6 charged the appellant with rape of DS, the sentence was imprisonment for public protection, with a specified period of 5 years. The judge said that had he been imposing a determinate sentence, the sentence would have been one of 10 years. Count 7 charged him with procuring DS to become a prostitute. He was sentenced to 20 months' imprisonment for that offence. Count 8, living on prostitution, 5 years' imprisonment. Counts 9 and 10 charged him with supplying DS with cannabis and the sentence was 2 years on each. Count 11, supplying DS with Ecstasy, the sentence of 3 years. All the determinate sentences were to be served concurrently. It is absolutely plain that in passing the determinate sentences the judge, bearing in mind that he was imposing a sentence of imprisonment for public protection had regard to the principle of totality but did not distinguish individually between those offences. 5. It is conceded by Mr Roberts that a determinate sentence was to be passed the minimum period fixed in respect of count 6 was wholly appropriate. The appeal is based on technical grounds. In those circumstances it is unnecessary to detail the facts. Suffice it to say that the applicant groomed and then sexually abused, in the most extreme and appalling way, a young and very vulnerable woman. He did not have the advantage of a guilty plea. He had a fair trial. The judge described him as a wholly contemptible human being and a thoroughly dangerous and unscrupulous man. With that judgment we agree. 6. There has been some suggestion that the judge passed imprisonment for public protection on counts 1 and 5 and 7 and 8. There is no real evidence to suggest that he did. Those were determinate sentences. 7. The problems in this case arise from the drafting of the indictment and from the lack of precision in identifying the date or dates on which the appropriate offences occurred. Count 6 alleged that the applicant had raped DS on a day between 4th April 2003 and 3rd April 2005. Section 225 of the Criminal Justice Act 2003 created the sentence of imprisonment for public protection and it came into effect on 4th April 2005 and only applied to offences committed after that date. It follows that such a sentence was not available to the court. The illegality of that sentence is the only ground of appeal against sentence. That illegality was only recognised after the 28 days had elapsed from the date of sentence, so that the Crown Court had no power to rectify the error. 8. Once the Crown had been alerted to the problem caused by the dates, Miss Ferrier, who represented the prosecution, realised that the problems did not end there. Counts 6, 7 and 8 are pleaded as occurring between 4th April 2003 and 3rd April 2005. The Sexual Offences Act 2003 came into force on 1st May 2004. If the offences were committed before that date, they were contrary only to the previous statutory regime. The evidence does not assist in identifying whether the offences were committed before or after 1st May. 9. The problems thus caused were recognised in R v A (Prosecution Appeal) [2006] 1 Cr App R 28 . Where there is no evidence which would enable the jury to decide under which statutory regime a particular offence fell, then the defendant must be acquitted. Parliament sought to remedy this defect in section 55 of the Violent Crime Reduction Act 2006 , but for that section to have been relied upon each offence should have been charged in the alternative under the new regime and the old. That was not done. 10. It is plain from the authorities and in the particular from F v The Queen [2008] EWCA Crim 994 , that when the above procedures are not followed and the evidence is inconclusive as to when the offences were committed, any conviction must be held to be unsafe. It follows that the convictions on counts 6, 7 and 8 must be quashed. 11. One is left with the question of the overall sentence. The five counts of indecent assault could have been subject of consecutive sentences, the last two counts being particularly serious and involving a dog. The offences of supplying drugs equally could have been made consecutive. They were distinct offences and had the aggravating feature that the purpose of the drugs was to further undermine such Resistance as the young woman might have displayed against the machinations of the appellant. 12. We are constrained by section 11(3) of the Act not to pass any sentence more than that which could have been imposed on the indictment which the appellant faced. We are satisfied that had the judge been imposing determinate sentences, he would have recognised the seriousness of the offending by making some of the sentences which have in fact been made concurrent consecutive. In our judgment the appropriate course to take is to leave the sentences for the indecent assaults on counts 1 to 5 as they are but in relation to the drugs offences, counts 9, 10 and 11, while the sentences imposed remain concurrent with each other, they should be consecutive to the 5 years imposed for the indecent assaults. The result is that the appellant will serve a determinate sentence of 8 years in all. To that extent the appeal is allowed. The other orders made by the judge remain. 13. LORD JUSTICE HUGHES: Leave to appeal against conviction on counts 6, 7 and 8, appeal allowed and convictions quashed. As to sentence as my Lord has said. 14. MR ROBERTS: Would your Lordships consider extending an order for legal aid for appeal against conviction? 15. LORD JUSTICE HUGHES: Yes.

```yaml citation: '[2009] EWCA Crim 52' date: '2009-01-14' judges: - LORD JUSTICE HUGHES - MR JUSTICE WILKIE - SIR GEOFFREY GRIGSON ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2009] EWCA Crim 2113 Case No: 200805611 B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 9 October 2009 B e f o r e : LORD JUSTICE HUGHES (Vice President of the CACD) MR JUSTICE SILBER HIS HONOUR JUDGE MORRIS QC Sitting as a Judge of the CACD - - - - - - - R E G I N A v PETER ANDREW BRADSHAW - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 0207 404 1424 (Official Shorthand Writers to the Court) - - - - - - - Mr M Butt appeared on behalf of the Appellant Mr J Wright appeared on behalf of the Crown - - - - - - - J U D G M E N T 1. LORD JUSTICE HUGHES: This defendant was convicted of offences of historic sexual abuse against his daughter and, on a much more limited basis, against a friend of hers. His appeal challenges directly the judge's decision that evidence of what may have been a confession was admissible. Most of the details of the allegations are not critical to the resolution of that issue. 2. The daughter, who is now 28, alleged that the defendant had indecently assaulted her habitually over a period of about five or six years between the ages of roughly 6 and roughly 12 in about 1986 or 1987 to about 1992 or thereabouts. Thereafter, the defendant and his wife (the mother of the complainant) had separated, and the complainant had had nothing further to do with him. 3. The complaints were of indecent touching. They did not include penetration. The first was an allegation of making the daughter take hold of his penis, but after that the complaint was that he either touched or, more often, licked her private parts. 4. The complainant daughter had a friend of roughly similar age, perhaps a year or two younger. The friend complained of two incidents, specific rather than a general course of conduct as in the case of the daughter. She said that on one occasion when the defendant was babysitting he had tickled her and, in the course of doing that, put his hand inside her undergarments and touched her private parts. On a second occasion she said that he had been playing a game described as "the horsey game" with both her and her sister, and in the course of it had touched her over her clothing on or near her private parts. 5. For his part, the defendant's case was that, with the possible exception of the horsey incident, nothing that was alleged against him had ever occurred at all, nor anything like it: in other words, the complaints were falsely invented. As to the horsey game, he agreed that he had played it, and he accepted that his hand would, in the course of it, have been near the relevant area, but he said that, if there had been any touching, that was entirely innocent or accidental in the course of perfectly legitimate play. 6. As so often in a case of this kind, there were quite difficult questions of fact for the jury to resolve. There was the direct conflict of evidence which we have identified. The girls were both giving evidence about events which, if they had happened, had happened many years before. There were a number of inconsistencies especially in relation to the evidence of the daughter between what she said now and what she had told her friend and her friend's mother in the past, albeit most of it not contemporaneously with the period of the alleged offences but rather later. There was a decision which the jury had to make about the significance of the admitted fact that, in about 1988, she had told her doctor that she hated her father "for what he had done to her family and to her". 7. The friend's mother was called. She gave evidence which was agreed to be admissible about what her own daughter had said, either at the time or subsequently, about what the defendant's own daughter (the principal complainant) had said, not at the time but some years afterwards, and about speaking to the defendant near the time about the horsey incident, which alone had been reported contemporaneously, and receiving in effect an explanation from him similar to the one that he advanced to the jury. 8. Thus far the evidence of the friend's mother was agreed to be admissible. However, according to the friend's mother, she had had another significant conversation with the defendant. The defendant's ex-wife, the complainant's mother, had re-married in 1998, sadly, as it would seem, when already ill with a condition from which she died not long afterwards. It was common ground that the defendant arrived at that wedding. According to the friend's mother, who was also there, the defendant was in a rather emotional and noisy state, though the defendant disputed that. What was common ground was that, for whatever reason, the defendant and the friend's mother had left the party together, and gone quietly away somewhere else for a cup of coffee or some other refreshment and had spoken together. In the course of that conversation, according to the friend's mother, the defendant had said this: he had asked had the lady heard anything of the things that the daughter had been saying. He had then said, according to her: "He had had a bit of a fall out with her. He had done something really terrible. I said 'could you tell me what this is'? He said 'No, it's too awful, I'm sorry for anything that's going to come out, I'm sorry if I have done anything to hurt you or the girls'. He said it was too awful to tell anyone. He could not live with himself. He was thinking about leaving the island because what he had done was so terrible. I said [said the friend's mother], 'If it's that bad it may be better if you do leave the island'. He said that [R] had been saying some stuff about him and when it came out, everyone was going to hate him." 9. On behalf of the defendant, Mr Butt, who appeared for him then as he does now, asked the judge to exclude this evidence. After hearing argument, the judge ruled that it was admissible. He did so in short terms, indicating, as Mr Butt has explained to us, that he would give a longer reasoned judgment later if required. No such request was ever made of him, and Mr Butt realistically does not make any complaint about the terms of the judge's ruling. His complaint is not about the terms, but he contends that it was wrong. 10. In a helpfully expressed and succinct skeleton argument, reinforced today by helpful oral submissions, Mr Butt makes a number of contentions. First and foremost he accepts that the statement reported by the friend's mother was capable of being construed as a confession to the charges on the indictment, among other constructions. He contends, however, that it was too vague and too uncertain for it to be possible for any jury to be sure that it was a confession to indecency with the daughter at least. If that is right, he contends the judge should have withdrawn it from the jury and thus avoided the potential adverse or prejudicial effect which it necessarily had if it could not be regarded by the jury as plainly relating to the allegations that they were trying. 11. The defendant's case in due course as to this conversation was that it had never taken place. Nothing had ever been said to the friend's mother along any of the lines that she recounted, nor anything like it. 12. It follows that the defendant advanced no alternative construction or meaning for the words which the friend's mother asserted that he had spoken. He was of course under no obligation whatever to advance such an explanation. The result was that there were two questions for the jury. First, was it sure that the friend's mother was telling the truth? There was not much room for mistake. It was either the truth or it was a lie. If the jury was not sure that the defendant did say it, the words alleged fell out of the case completely. If the jury was sure that he said it, the second question was: was it or was it not a confession, at least in part, to what was alleged on the indictment? Was it a confession to indecent abuse of the daughter at least? 13. The judge left those questions to the jury in precisely the correct manner. He told the jury that they would have to be sure that the answer to both those questions was adverse to the defendant. He told them first: "If you are sure, and only if you are sure, that she is telling you the truth, then the prosecution invite you to conclude that what the defendant must have been referring to was sexual abuse of his daughter ... Because of the burden and standard of proof you would have to be sure that this is the only proper conclusion or interpretation to put on that conversation before you could use that evidence against the defendant." 14. Mr Butt advances a number of factual submissions which, in the contention of the defendant, went to suggest that the evidence of the friend's mother was unreliable. In short, they went to support the defendant's case that the friend's mother was lying. Those, we are satisfied, were entirely factual questions for the jury, and they had no bearing whatever on the admissibility of the conversation. 15. The thrust, however, of Mr Butt's careful submission goes to the second question left to the jury: could it be sure, assuming that the relevant things were said, that they amounted to a confession? We are quite satisfied that the judge was correct to admit this evidence. It very often happens that a remark which is either accepted or disputed is relied upon as a partial acknowledgment of guilt, that is to say, as a confession, and that the jury has to decide the two questions in sequence which were left to the jury in this case. We are also quite satisfied that the terms of this conversation, assuming that the jury found that it was sure that it had taken place, were such that the jury was entitled to be sure that the defendant must have been speaking about indecency with his daughter at least. Of course the defendant is not obliged to offer any kind of explanation for something which he says was never said. He was in fact given the opportunity in the course of his evidence to say whether or not there was anything in his past to which he might have referred in terms such as were alleged, and he said that there was not. That of course would not prevent the jury from asking itself the question whether there might be such a thing which even now he was not prepared to admit. But it is the fact that neither before the judge when admissibility was in question, nor before the jury, nor before us, has any plausible alternative construction for the words which the friend's mother alleged were spoken been advanced. 16. In those circumstances, we are quite satisfied that the judge's ruling was right and that the challenge to it must fail. We should record that we permitted Mr Butt to attach to his submission a challenge to all the verdicts of guilty, including those relating to the friend rather than the daughter, because we took the view that if inadmissible evidence had been put before the jury, it was at least arguable that it might have affected all of the convictions rather than only those relating to the daughter. But since the evidence was not admissible, that possibility does not arise. In those circumstances, despite Mr Butt's helpful arguments, this appeal against conviction must be dismissed. (Submissions relating to sentence follow) 17. LORD JUSTICE HUGHES: The judge passed sentences as follows. On the counts relating to the daughter, he passed concurrent sentences of six years' imprisonment, and on the two counts relating to the friend, he passed sentences of 18 months' imprisonment concurrent to one another, but consecutive to the six years on the other counts; that is to say, seven and a half years in all. The first thing to say is that the judge inadvertently fell into understandable error in relation to count 1. Count 1 charged an offence of indecency with a child. At the relevant time the maximum was two years. The sentence of six years is unlawful. It makes no difference to the total, but it must be corrected. We quash the sentence on count 1 and substitute a sentence of 12 months' imprisonment. 18. The question which matters is whether the overall sentence of seven and a half years is outside the bracket within which the judge should have passed sentence. The judge expressly said that he had sought guidance from the Sentencing Guidelines Council's recent guidelines. The difficulty about those is that they are guidelines geared to the offences as they stand under the Sexual Offences Act 2003 . Offences under that Act are defined differently from the offences with which the judge was dealing, although of course they cover much of same ground, and, more importantly, in many cases the statutory maximum is significantly raised under the 2003 Act . In particular, for most of the offences of sexual misbehaviour with a child under 13, which this girl was, the maximum is now 14 years, and in some cases greater, but was at the time 10 years. 19. We think Mr Butt is probably right that, insofar as one can look for some general steer from the 2003 Guidelines, the nearest to the present case is probably to be found on page 33 of the Guidelines: where the victim is under 13 a starting point of 13 years and a range of 1 to 4 years. But it needs to be remembered, first, that that is geared to a maximum of 14 years rather than 10, but equally importantly that it is geared to a single offence, whereas the judge was passing sentence for many, many offences, committed regularly over a period of around five years at the least. 20. This was a very serious course of conduct in relation, in particular, to the daughter. The defendant made use of his position as her father to treat her in a perverted manner. She was not in any position to resist, partly because she was extremely young, and secondly because she was his daughter. To put it in the terms in which sentencing is nowadays supposed to be expressed, the offences were significantly aggravated by her youth, by his repetition and by his status as her father and abuse of the position of trust which that put him in. In addition to that, the judge was in a position to see the damage which had been done to the principal complainant, the daughter, although of course it is right to say that some of that might be attributable to other features of the unhappy marriage and breakdown. 21. Mr Butt is right to point to the fact that there was no violence, no threats, no physical damage and no escalation. Those are perhaps better described as an absence of additional aggravation than as features of mitigation, but the two plainly are two ways of looking at the same feature. The case was missing those additional elements which sadly this court and all courts have frequently to encounter in cases of this kind. 22. In addition to that, the defendant is now 52 years old. Although there are some very old convictions for quite dissimilar offences, he is effectively a man of good character. The offences came to an end something like 17 or 18 years ago, and his conduct of himself since then has been without reproach. 23. That he had to go to prison we have no doubt at all. That he had to go prison for a significant period we have no doubt at all; he richly deserved it. We have however reached the conclusion that, overall, the judge's sentence was too long. The offences against the daughter were a great deal more serious than the offences against the friend. It aggravates his case and calls for a consecutive sentence that the offences were against two girls, but we pay attention to the fact that, in relation to the friend, there were two specific incidents, rather than a course of conduct, and that the second of them, the so-called horsey game incident, appears to involve behaviour near the foot of the scale of indecent assaults of this kind. 24. Looking at the case afresh, we have come to the conclusion that this defendant is properly and seriously punished if we substitute for the sentences on counts 2 to 7 inclusive a sentence of five years' imprisonment, and for the sentences on counts 10 and 11, a sentence of 12 months concurrent with one another, but consecutive to the other sentences, that is to say - five plus one - six years in all. To that extent but to that extent only, the appeal against sentence is allowed. 25. Time spent on remand will count as it did before.

```yaml citation: '[2009] EWCA Crim 2113' date: '2009-10-09' judges: - LORD JUSTICE HUGHES ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Case Nos: 2013/03604/A7 & 2013/03860/A7 Neutral Citation Number: [2014] EWCA Crim 49 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/01/2014 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE MITTING and MRS JUSTICE THIRLWALL - - - - - - - - - - - - - - - - - - - - - Between: R Respondent - and - Sellafield Limited R - and- Network Rail Infrastructure Limited Appellant Respondent Appellant - - - - - - - - - - - - - - - - - - - - - Richard Matthews QC and Eleanor Sanderson for the appellant Sellafield Limited Barry Berlin (instructed by the Principal Solicitor at the Environment Agency and Senior Solicitor of the Health and Safety Executive ) for The Crown Prashant Popat QC and Oliver Campbell for the appellant Network Rail Infrastructure Sarah Le Fevre (instructed by the Prosecutor at the Office for Rail Regulation) for The Crown Hearing date: 19 November 2013 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales : Introduction 1. These two appeals are being heard together as they raise issues of principle in relation to the level of fines to be imposed for breaches of safety and environmental protection legislation on very large companies –Sellafield Limited (Sellafield Ltd) with a turnover of £1.6bn and Network Rail Infrastructure Ltd (Network Rail) with a turnover of £6.2bn. i) Sellafield Ltd was fined £700,000 at the Crown Court at Carlisle on 7 February 2013 for offences arising out of the disposal of radioactive waste. ii) Network Rail was fined £500,000 in the Crown Court at Ipswich on 27 June 2013 for an offence arising out of a collision at an unmanned level crossing, causing very serious injuries to a child. 2. Both companies seek leave to appeal on the basis that the fines were manifestly excessive. We grant leave. 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 of 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 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. 4. There can be no doubt as to the objective in applying these principles when sentencing a company for offences against health and safety and environmental legislation. As Scott Baker J stated in giving the judgment of this court R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249 at 255, [1999] 2 Cr App R (S) 37 at 44 “The objective of prosecutions for health and safety offences in the work place is to achieve a safe environment for those who work there and for other members of the public who may be affected. A fine needs to be large enough to bring that message home where the defendant is a company not only to those who manage it but also to its shareholders.” 5. Where a fine is to be imposed a court will therefore first consider the seriousness of the offence and then the financial circumstances of the offender. The fact that the defendant to a criminal charge is a company with a turnover in excess of £1 billion makes no difference to that basic approach. 6. The fine must be fixed to meet the statutory purposes with the objective of ensuring that the message is brought home to the directors and members of the company (usually the shareholders). The importance of the application of s.164 in relation to corporate defendants was reinforced in the Definitive Guideline of the Sentencing Guidelines Council Corporate Manslaughter & Health and Safety Offences Causing Death, published in 2010. It has been reflected in more recent decisions of this court: see for example: R v Tufnells Park Express Ltd [2012] EWCA Crim 222 at para 43 (the fine after trial on a company with a turnover of £100m and profitability of £7.7m was £225,000; this represented, as the court noted, 2.9% of its operating profit). 7. It will therefore always be necessary in the case of companies with a turnover in excess of £1 billion to examine with great care and in some detail the structure of the company, its turnover and profitability as well as the remuneration of the directors. Although the appellant companies are similar in that they are companies with such a turnover, they differ considerably. Sellafield Ltd is an ordinary commercial company which makes profits for its shareholders who are large multinational companies. In contrast, the parent company of Network Rail, Network Rail Limited, has no shareholders who receive profits; its members derive no profit from the company. It invests its profit in the rail infrastructure. Both discharge important services of a public nature that have from time to time been directly undertaken by the State. This appeal illustrates the close analysis required. We turn to that analysis at paragraphs 52 and following after we have set out the facts and considered the seriousness of the offence; as this court has repeatedly stated, the size of the penalty will depend on the facts of each case. 1. THE SERIOUSNESS OF THE OFFENDING OF SELLAFIELD LTD (1) The stringent standards of safety imposed by the legislative regime 8. The processing and storage of nuclear waste is a by-product of an activity of national economic importance: the generation of electricity by nuclear power. 9. It carries with it potentially grave risks. To mitigate those risks the most stringent standards have been adopted at national and international levels. In the United Kingdom they have been laid down in licences granted under the Radioactive Substances Acts 1948, 1960 and 1993 and, more recently, by the Environmental Permitting Regulations 2010. The UK is also a signatory to the European Agreement for the International Carriage of Dangerous Goods by Road – an agreement made under UN auspices – to which effect is given by the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009. These instruments set out detailed and specific provision for the sorting, carriage and disposal of nuclear waste. 10. The public rightly expects strict compliance with those standards. (2) The offences committed 11. Between 15 November 2008 and 19 April 2010 Sellafield Ltd breached those standards in a variety of ways in relation to the system for segregating non-radioactive waste from radioactive waste and for disposing of it. 12. On 7 February 2013, Sellafield Ltd had pleaded guilty at the Magistrates’ Court at Workington to seven offences. The Magistrates committed Sellafield Ltd to the Crown Court as they considered their sentencing powers were insufficient; the maximum penalty they could have imposed was £230,000. 13. A fine of £700,000 was imposed on 14 June 2013 by HH Judge Peter Hughes QC at Carlisle Crown Court, being made up of a fine of £100,000 for each of the seven offences. Five contraventions of different statutory requirements were set out in seven charges. Two pairs of charges covered the same factual allegations, but were separately laid because of change in the statutory regime which took effect on 5 April 2010. Sellafield Ltd i) Operated a regulated facility other than in accordance with an environmental permit on or about 12 April 2010 by disposing of radioactive waste at a landfill site contrary to Regulation 38(1) of the Environmental Permitting (England and Wales) Regulations 2010. ii) Failed to comply with or contravened a condition of an authorisation or permit by failing to check the effectiveness of systems equipment and procedures for the disposal of radioactive waste contrary to Section 13 of the Radioactive Substances Act 1993 between 1 November 2009 and 5 April 2010 and Regulation 38(2) of the 2010 Regulations between 6 April and 19 April 2010. iii) Failed to comply with or contravened a condition of an authorisation or permit by failing to have a management system, organisational structure and resources in place sufficient to achieve compliance with their conditions contrary to Section 13 of the 1993 Act between 15 November 2008 and 5 April 2010 and Regulation 38(2) of the 2010 Regulations between 6 April and 19 April 2010. iv) Did not comply with a condition of an authorisation or permit by failing, prior to 5 April 2010, to comply with appropriate criteria for accepting monitoring equipment inter-service contrary to Section 13 of the 1993 Act. v) On and before 12 April 2010 caused or permitted non-exempt radioactive waste to be carried in a manner which did not comply with the European Agreement for the International Carriage of Dangerous Goods by Road contrary to Regulation 5 of the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009. (3) The processing of exempt waste and the failures by Sellafield Ltd (i) Exempt waste 14. Sellafield Ltd generates substantial quantities of waste from its activities at its extensive site at Sellafield in Cumbria. Much of it is not radioactive. Such waste may be disposed of as non-toxic waste by ordinary means of waste disposal, principally in landfill sites. This is known as “exempt waste”. (ii) The new system for identifying exempt waste 15. In 2009 Sellafield Ltd set about establishing a means of identifying exempt waste gathered from all over the site for disposal as such. The template was a system already established in one of the buildings on site for waste generated within it – B222.5. Waste was to be sorted by a so-called “waste route” into radioactive and exempt waste. The first step was to identify categories of waste likely to be classifiable as exempt waste – for example mop-heads and office equipment. The next was to measure surface radioactivity by handheld monitors. The results were logged on a form known as “F116/Form 2”. The waste was then taken in bags to a purpose-designated building F116. 16. In that building the waste was to be passed through two monitoring devices similar to those operating in B222.5: an Initial Segregation Monitor and an Exempt Waste Monitor. Each device contained two detector heads, set to measure the risk, if any, posed to humans by radiation in microsieverts per hour – the dosage of radiation: a G35 monitor head which measured radiation up to 20 microsieverts per hour, and a G64 head which measured radiation up to 100 microsieverts per hour. The G35 head was so configured that it could not measure a dosage greater than 20 microsieverts per hour. Waste with a dosage above that level was passed to the G64 head for measurement. 17. Any waste passed through the Initial Segregation Monitor with a dosage level greater than zero (or, perhaps, greater than a fraction above zero) should have been set aside as low level radioactive waste – non-exempt waste. Apparently exempt waste was then passed into the Exempt Waste Monitor for a second and final check. It produced an assay report, retrievable at the press of a button, for each bag of waste. If a bag was not radioactive, the measured dose should have been shown in microsieverts per hour as zero or near-zero. If the detector heads in both devices were properly calibrated, no waste other than exempt waste should have been passed for disposal as such. 18. Unfortunately they were not. The G35 monitors were correctly calibrated in both devices and performed their function satisfactorily; but the G64 monitors were not. For them to function effectively, their software had to be adjusted to apply an Activity Conversion Factor – i.e. a multiplier – to the dosage which they were measuring. As installed and delivered by the manufacturers, the multiplier was set at zero. It had to be re-calibrated to function effectively. It was not. Accordingly, whatever dosage was given off by waste bags passing the G64 heads, the dosage registered was zero. It was, accordingly, possible for waste with a dosage over 20 microsieverts per hour to be passed through the devices as if the dosage was zero and so set aside for disposal as exempt waste. (iii) The extent of the failure in the system 19. The system was installed in May 2009 and brought into full operation in November 2009. The first batch of exempt waste was dispatched from the site on 12 April 2010 to a nearby landfill site. Four thousand further bags of supposedly exempt waste passed through the monitors with an apparent dosage of zero microsieverts per hour. In fact a small number of bags – five out of five thousand – had dosage levels in excess of 20 microsieverts per hour. The error in the setup of the devices was discovered by chance on 19 April 2010 when, during a training exercise, a bag of waste with a dosage of 41 microsieverts per hour was passed through them and wrongly classified as exempt waste. 20. The error was discovered when the operator checked the assay produced by the Exempt Waste Monitor and saw the dosage level there recorded. This led to the taking of immediate steps to identify the problem and its extent and to alert the relevant authorities and the operators of the landfill site to which the first batch of one thousand bags had been dispatched. 21. Once alerted to the problem, Sellafield Ltd did all they could to ensure that no harm came to anyone. It is as near certain as can be that none has. Five bags were identified from the assay report with dosages of between 23 and 32 microsieverts per hour. Four had been dispatched to the landfill site and one retained on site. Measurements taken at the landfill site vastly exceeded the low level permitted to be deposited at the site – 0.4 bequerels per gram (a measure of the radiation emitted by an object). Three of the bags were within the lowest category of toxic waste – low level radioactive waste – and one was within the next category – intermediate level radioactive waste. 22. There was expert evidence that exposure to the four bags by anyone who might have handled them would have been no greater than a passenger would experience on a flight to Paris. There was agreed expert evidence that had the problem not been discovered for a long time – years – and non-exempt waste of this category had been regularly handled, there would have been a very small but perceptible increase in the risk of death from cancer to those handling it. (iv) The errors should have been avoided 23. The prosecution case, which was not disputed, was that the errors which led to this state of affairs were readily avoidable and that Sellafield Ltd had numerous opportunities to avoid them, as follows: i) There was an error in specification. Sellafield Ltd ordered two Exempt Waste Monitors instead of one Initial Segregation Monitor and one Exempt Waste Monitor. In consequence, the manufacturers did not calibrate the G64 detector head on the Initial Segregation Monitor to enable it to perform its function. ii) The re-calibration necessary of the G64 head in the Initial Segregation Monitor (and as was carried out after 19 April 2010) of the G64 head in the Exempt Waste Monitor was not performed by the staff of Sellafield Ltd. There was no system in place to ensure that it would be. iii) The G64 head in both monitors was not tested during trials. If a test similar to that performed on 19 April 2010 or a simulated exercise replicating the conditions of that test had been performed, the miscalibration would have been revealed. iv) No comparison was ever made between the results produced by the handheld devices used to measure surface radiation on the bags recorded in F116/Form 2 and the results produced by the Exempt Waste Monitor. v) No check of the assay reports produced by the Exempt Waste Monitor was made. If it had been, it would have alerted the operator to the dosage of the five bags of waste wrongly classified as exempt waste. vi) No routine checking of the calibration of the detector heads was performed. (v) Culpability and harm 24. The judge summarised the significance of the failures: “The mistake that was made in this case was a fundamental one in the setting up, the testing and the subsequent monitoring of the equipment. That such a basic mistake could possibly occur in what needs to be an industry managed and operated with scrupulous care for public safety and the environment is bound to be a matter of grave concern to everyone and particularly local residents in Cumbria. What adds significantly to the concern and the seriousness of the mistake is that it had been in existence and allowed to go undetected for the period of 4 months or so that the system had been in use.” 25. The prosecution alleged, Sellafield Ltd accepted, and the judge found, that these failings “indicate basic management failures and a deeply concerning lack of procedures formally established and rigorously enforced to ensure that equipment was properly set up at the outset and regularly and routinely checked.” 26. This led the judge to conclude that “The management failures are not confined to specific individuals or failures at certain levels to follow established procedures. They demonstrate… a custom within the company which was too lax and…to a degree complacent , and senior management must bear its share of responsibility.” (Our emphasis). 27. He identified three aggravating features: i) The failure was not isolated but systemic. ii) It potentially exposed those who handled waste off-site and the public to unnecessary risk. iii) It was not a first offence. A prohibition notice had been served on 28 June 2008, one year before installation of the new monitors, by the Department of Transport for breach of Regulation 5 of the 2009 Regulations. Sellafield Ltd had been fined twice for incidents involving the emission of radioactive material in 2005 and 2007 - £500,000 and £75,000 respectively. 28. He also took into account the mitigating factors already mentioned. The breaches were not deliberate or reckless; no harm had been done and the actual risk of harm was relatively low; Sellafield Ltd had readily co-operated with the authorities and had pleaded guilty at the first opportunity. (4) The grounds of the appeal 29. It was submitted that the fine was manifestly excessive. There was no actual harm and a very low risk of harm. No credit was given for the guilty pleas and the degree of co-operation with the Environment Agency and the Health and Safety Executive. The level of fine imposed equated with a major public disaster or loss of life, a significant nuclear event or an unmitigated environmental pollution incident. There was no appeal against the order for costs. (5) Our conclusion on harm and culpability 30. There was in effect no actual harm, as we have explained at paragraph 22. There was a foreseeable risk of some perceptible harm if the failure had not been detected for a number of years; this risk can properly be characterised as very low. We therefore take into account, as s.143(1) requires us to do, the fact that there was in effect no actual harm but there was a very small risk of some harm. 31. The judge found that there had been a custom in the company Sellafield Ltd which was too lax and complacent; that senior management must bear a share of the responsibility. We can see no basis for criticising that finding. The failure was easily avoidable and could and should have been detected very quickly; there was the clearest negligence. We therefore conclude that for an incident of this kind the culpability was medium. 2. THE SERIOUSNESS OF THE OFFENDING OF NETWORK RAIL (1) The accident (i) The level crossing at Wright’s Crossing 32. Network Rail took over the rail infrastructure in 2002 and has since then been responsible for the level crossings on that infrastructure. One of these crossings is Wright’s Crossing on the East Suffolk line. It is what is known as a user worked crossing. It is on private land and provides access to a farm split into two distinct parts by the construction of the line. At Wright’s Crossing the East Suffolk line is a single line with a speed limit for trains of 55mph. About 19 trains a day pass over the crossing. 33. The crossing is protected by gates across the road. To cross the line in a car the gates have to be opened before the vehicle crosses and closed when it has crossed. Safe use of the crossing depends on the user seeing an oncoming train. However the sight lines are not good, as the track is curved with high vegetation on each side. There was no telephone, but in bad weather or when large machinery was crossing the line, Mr Wright, the farmer whose farm was accessed by the crossing would telephone the signal box at Saxmundham. (ii) 3 July 2010 34. On 3 July 2010 at about 8.30 in the evening, Mr Wright drove his 4x4 car to the crossing. He was accompanied by his 10 year old grandson and his dog. Mr Wright stopped at the crossing, opened the first gate looked both ways, crossed on foot and opened the second gate. He looked both ways again and then re-crossed the track back to his car. He told his grandson to get out of the driver’s seat and back into the rear seats. His grandson did so after about 15-30 seconds. Mr Wright got into the car and drove towards the crossing. 35. As he was about to cross the line, he saw a train coming and braked, but the car slipped on the loose gravel and was hit by the train. The grandson was thrown out of the car and his head struck the track. Mr Wright was badly bruised but his grandson had suffered a brain stem bleed; despite extensive hospital treatment the accident has changed his life. 36. The victim impact statement in respect of the grandson sets out the devastating effect that the accident had had. The hospital had given him a 5% chance of survival. He had not had a normal childhood. He would need teaching support, a scribe and a reader throughout his education; his brain’s processing speed was 50% of normal. He had right side blindness, his peripheral vision was damaged and he had to avoid all contact sports. He had a titanium plate in his head. His future prognosis would not be known until he was 21 or 22. (2) The proceedings (i) Network Rail’s plea of guilty 37. Network Rail accepted that it was guilty of significant failings in relation to the risk assessment of Wright’s Crossing; that, if a proper risk assessment of the crossing had been made prior to the accident, then a telephone connected to the signal box would have been installed. One had been installed at the crossing after the accident. 38. Network Rail therefore pleaded guilty, on a basis of plea, at the Lowestoft Magistrates Court on 13 March 2013 to an offence of failing to discharge a duty under s.3(1) of the Health and Safety at Work Act 1974. The basis of plea reflected the facts and aggravating and mitigating features to which we will refer. It apologised to the grandson and his family. The magistrates committed the case for sentence to the Crown Court at Ipswich, as the maximum fine it could impose was £20,000. On 27 June 2013 the sentencing hearing took place before Judge Holt sitting at the Crown Court at Ipswich. (ii) The significant failures of Network Rail 39. In 1996 guidance was issued in the form of Railway Safety Principles and Guidance in respect of user worked crossings. The guidance set out a number of factors that had to be taken into account in any risk assessment of such a level crossing. 40. Prior to the accident there were risk assessments on 15 January 2000, 24 September 2003, 4 March 2007 and 12 April 2009. Those in 2007 and 2009 were carried out by Mobile Operations Managers for Network Rail. There was a maintenance inspection on 28 January 2010. 41. Elementary mistakes were made in the assessment. It should have been obvious to those conducting the risk inspections and to those more senior persons within Network Rail responsible for level crossings that, because of the nature of the use of the crossing and the sight lines, a telephone should have been installed so that anyone crossing the line could ring up and find out if a train was on its way. The sight lines were such that, given the time it would take to cross and the speed of the trains on the line, there was an obvious and serious risk of a collision. It is also of particular importance that in the risk assessment carried out in 2003 the assessor concluded that the crossing was not safe, but no steps were taken to remedy it over the following 6 years, particularly by installing a telephone. As we have noted, after the accident, a telephone was installed at Wright’s Crossing. 42. The judge found that there was that obvious risk and it was readily reducible. He also found that the risk assessments were poorly done; there were repeated failures to follow the correct guidance. In 2007, Network Rail had installed a computer system; the risk assessments in 2007 and 2009 were inputted into it, but the programme used did not spot the inconsistencies. Network Rail were unable to explain this failure. We consider that these findings were amply justified on the evidence. (iii) The aggravating and mitigating factors 43. In accordance with the decision of this Court in R v Friskies Petcare UK Limited [2000] 2 Cr App R (S) 401, aggravating and mitigating features were identified in what is commonly called a “ Friskies schedule” . The aggravating features were:- i) The injuries to Mr Wright and his grandson resulted from exposure to risk at Wright’s crossing. ii) Serious injury was eminently foreseeable. iii) The risk had been obvious for many years. iv) Network Rail’s assessment of the risk and its implementation of control measures fell substantially below the standard expected. v) All users of the crossing had been exposed to risk. 44. There were the following mitigating features:- i) Network Rail pleaded guilty at the first available opportunity. ii) Network Rail has cooperated with the investigation. iii) Network Rail acted after the accident to improve safety by implementing a speed restriction and the installation of telephones. It made changes to its level crossing teams and their approach to the assessment of risk and implementation of control measures after the accident. iv) Network Rail had in recent years taken steps to improve safety at level crossings. v) Network Rail took its health and safety responsibilities very seriously. Safety performance had improved significantly in recent years. In the context of its size and the complexity of its organisation, Network Rail had a good safety record. vi) Network Rail’s failings did not arise from an attempt to save money or place profit before safety. vii) Network Rail’s income came from public funds and profit was reinvested in the network to improve safety and performance. 45. In his very clear sentencing remarks, the judge carefully examined this schedule; the fact that it was agreed does not mean that the judge in performance of his duties should accept it uncritically. In our judgment, he was quite entitled to make the following observations in relation to the mitigating features relied on by Network Rail: (a) As to (iii) that the accident was a poor indictment of the training of Network Rail’s staff who had a very important role in assessing the safety of unmanned level crossings which was a recognised source of danger nationally. (b) As to (iv), the judge found it difficult to accept that the installing of the computer system in respect of level crossings was a panacea on the basis of what had been explained to him. This conclusion was criticised by Network Rail as the computer system had been approved by the Office of the Rail Regulation. We do not consider this criticism of the judge’s view was justified. It was no panacea. Network Rail had not, as we have set out at paragraph 42, explained how the use of the system had failed to expose the serious inconsistencies between the assessments, which would have demonstrated the lack of safety at Wright’s Crossing. Moreover as the Crown rightly pointed out, the utility of the programme depended on the data inputted into it. (c) As to (v), its safety record, the judge considered that that record had to be seen in the context of its previous convictions. He concluded that Network Rail’s record was not unblemished; the size and complexity of an organisation was not much mitigation. (d) As to (vi), he did not regard that as significant mitigation as tax payers and the public expected first call on public funds to be the safety of the public and those who used level crossings. We see no basis for any possible criticism of these clear findings. (iv) Network Rail’s previous convictions 46. The list of previous convictions provided to the Crown Court and to us show a number of convictions for breach of the Health and Safety at Work Act over the years from 1997. Some were relatively minor such as inadequate maintenance of line side fencing and some very serious such as the fine of £3.5m imposed upon Network Rail in 2005 in respect of the deaths of 4 persons when a GNER passenger train derailed at Hatfield on 17 October 2000. Four convictions for breach of s.3 of the Health and Safety at Work Act were of particular relevance as the events had occurred prior to the accident at Wright’s Crossing. i) A conviction on 16 July 2009 in respect of an incident when a passenger train was derailed at Croxton AHB level crossing in September 2006; Network Rail was fined £70,000. ii) A conviction on 26 November 2010 when Network Rail was fined £75,000 in respect of a fatal accident at West Lodge footpath crossing on 22 January 2008. iii) A conviction on 15 March 2012 when Network Rail was fined £1m in respect of the killing of two teenage girls when crossing a station footpath in December 2005; Network Rail had failed to carry out proper assessment of the risk to safety of members of the public in the years 2001 and 2005. iv) A conviction on 12 June 2012 when Network Rail was fined £356,250 in respect of its failure to act on evidence that pedestrians using a crossing in Wiltshire had insufficient sight of approaching trains. A death had resulted in May 2009. (v) The sentence at the Crown Court 47. Network Rail was fined £500,000, ordered that they should pay £23,421.74 by way of costs and £15 victim’s surcharge. The application for leave to appeal was only against the fine imposed. (3) The grounds of the appeal 48. It was submitted that, as there had been a guilty plea at the first available opportunity, the starting point was far too high. The judge had failed to take into account previous cases; in R v Network Rail [2010] EWCA Crim 1225 where this court had observed that a fine of £666,667 imposed where two had been killed was severe. Reference was made to other cases where lower fines had been imposed such as R v TDG (UL) Ltd [2009] ICR 127 , R v John Pointon and Sons Ltd [2008] 2 Cr App R (S) 82, R v Merlin Attractions Operations Ltd [2012] EWCA Crim 270 . It was submitted that fines with a starting point of £750,000 would only be appropriate where there was more than one fatality (or there was some significant aggravating factor), or in cases involving a public disaster and where the defendant had been convicted of the offence of corporate manslaughter. 49. It was also submitted that the judge had also failed to give sufficient credit for Network Rail’s record, its commitment to safety and that it had taken steps in recent years to improve safety. (4) Our conclusion on harm and culpability 50. The actual harm caused in the present case was, as is evident from the facts we have set out, serious; much greater harm was foreseeable. 51. As to the level of culpability of Network Rail, there was no evidence of specific senior management failures. The failures, serious and persistent though they were, were at lower operational levels. 3. THE LEVEL OF FINE TO BE IMPOSED IN RESPECT OF THE SERIOUSNESS OF THE OFFENCES 52. We turn to consider how, in the light of our conclusions on the seriousness of the offences committed by the two offenders and their financial circumstances, each of the statutory purposes of sentencing can best be achieved. (1) The provision of financial and corporate information to the sentencing court 53. To enable us to consider the financial circumstances of the offenders, we called for the accounts of both companies prior to the hearing of the appeal. 54. It is important that well in advance of the sentencing hearing there is provided to the sentencing court the accounts of the offending companies and any other information (including information about the corporate structure) necessary to enable the court to assess the financial circumstances of the company and the most efficacious way of giving effect to the purposes of sentencing. The provision of that information to the court and to counsel for the Crown will enable counsel for the Crown to present the information to the sentencing court so that it can carry out the analysis required. (2) The corporate structure of Sellafield Ltd and its finances 55. The site at Sellafield, Cumbria is owned by the Nuclear Decommissioning Authority on behalf of the State. The Nuclear Decommissioning Authority has awarded Sellafield Ltd a contract to operate the relevant part of the site. Sellafield Ltd is a company owned by Nuclear Management Partners, a consortium of three major shareholders – the multinationals, URS Corporation, Amec plc and Areva Group. Sellafield Ltd holds the site licence. 56. Sellafield Ltd is therefore an ordinary company owned by corporate shareholders with a Board of Directors. It seeks like other commercial companies to make a profit for the benefit of its shareholders on the contract it has with the Nuclear Decommissioning Authority. In 2012, it had a revenue of £1.6bn and made a profit of £29m. Its profits go to its shareholders by way of dividend. A financial penalty will therefore directly affect the shareholders. As it is such a narrowly held company, there is no difficulty in the three shareholders holding the directors to account and requiring them to remedy the failures which resulted in the criminal convictions. (3) The corporate structure of Network Rail and its finances 57. Network Rail is entirely owned by Network Rail Limited. Network Rail Limited is a “not for dividend company”. It has members who appoint the directors and to whom the directors are accountable. As it has no shareholders who receive profits by way of dividend, it is in reality quite different from Sellafield Ltd. 58. Its revenue of £6.2bn in the year ended 31 March 2013 is derived almost entirely from fees paid by the train operating companies which utilise its track and from grants provided by the Department for Transport. The profit of £780m made is re-invested in the rail network. 59. The primary governance of Network Rail Limited is the responsibility of its Board which comprises substantially the same persons as the Board of its subsidiary Network Rail. The Board is appointed by the members. These are over 50 in number. The Department for Transport is a member with special rights; the other members are appointed members of the public. The members are responsible for holding the Board to account. 60. The executive directors were paid in the year beginning 1 July 2013 basic pay of between £577,000 and £348,000 with the addition of contributions to a pension scheme and performance related bonuses. According to the annual report, the purpose of a bonuses is to allow the business “to target, reward and recognise exceptional performance for stakeholders” through an annual incentive plan and a long term incentive plan. The amount of the additional remuneration (which can be up to 60% of annual salary under the annual incentive plan) is determined by the Remuneration Committee by reference to a number of factors such as passenger and freight performance, cost efficiency and passenger and customer satisfaction. As to safety, the position of the Board of Network Rail Limited, as set out in its annual report for the year ended 31 March 2013, is: “Safety of the workforce, passengers and general public remains the paramount consideration. We believe that it is not appropriate to include safety as a specific performance measure. The executive directors already treat safety measures as a priority as they strive to continuously improve performance in this area. Nevertheless the remuneration committee retains a wide discretion to adjust any award downwards for poor safety performance, particularly in the case of a catastrophic accident for which Network Rail was found culpable”. (4) Our conclusion (a) Sellafield Ltd 61. We approach the fine imposed as an overall total fine for the course of conduct reflected in the offences charged. 62. We have set out at paragraphs 30-31 our conclusions on the seriousness of the offending by Sellafield Ltd – medium culpability extending to management but with no actual harm and a very low risk of harm. We take into account the guilty pleas made at the first available opportunity and the very considerable cooperation that Sellafield Ltd displayed after the discovery of the failures. Both these factors deserve very considerable credit. We also take into account the previous offences. 63. It is not appropriate, as was submitted on behalf of Sellafield Ltd, to consider a fine of £1 million as apposite only to a major disaster. To accept that submission would be to ignore the court’s obligation under s.164 of the CJA 2003 to have regard to the financial circumstances of the offender and the approach made clear in the Sentencing Guidelines Council Guideline to which we have referred at paragraph 6 above. There is no ceiling on the amount of a fine that can be imposed. 64. In considering those financial circumstances, we have regard to its turnover of £1.6 billion (or £30.7 million per week) and its annual profit of £29m (or £560,000 per week). It is clear that viewed in the light of the financial circumstances of this company, a fine of £700,000 after a guilty plea is a fine which reflects a case where the culpability was moderate, the actual harm in effect nil and the risk of harm very low. It must be viewed against the requirement that those engaged either as directors or shareholders of companies engaged in the nuclear industry must give the highest priority to safety as Parliament has directed. 65. A fine of the size imposed, even though only a little more than a week’s profit and about 2% of its weekly income, would, in our view, in the circumstances achieve the statutory purposes of sentencing by bringing home to the directors of Sellafield Ltd and its professional shareholders the seriousness of the offences committed and provide a real incentive to the directors and shareholders to remedy the failures which the judge found existed at the site at Sellafield as we have set out at paragraphs 24-27, particularly the custom within the company which was too lax and to a degree complacent. If it does not have that effect, then, as in the case of any other offender, the sentence of a court for any further culpable failure would have to reflect that a fine of the size imposed for the current offences had not achieved some of the statutory purposes of sentencing. 66. We therefore see no grounds for in any way criticising the level of fine imposed by the judge. We dismiss the appeal. (b) Network Rail 67. We have set out at paragraphs 50-51 our conclusion on the seriousness of the offending by Network Rail. The actual harm was serious and even greater harm was foreseeable. The culpability of local management was serious and persistent, but there was no specifically identified failure by senior management. However those failures must be judged in part in the context of Network Rail’s poor previous offending in respect of level crossings (which reflect on the senior management) but also in the light of Network Rail’s expenditure of £130m on level crossing safety – a fact that was agreed before us. We take into account the guilty plea, the remedying of the safety failures at Wright’s Crossing and the other mitigating and aggravating factors we have set out. 68. We reject the submission made on behalf of Network Rail that a fine of £750,000 was appropriate only where there had been a fatality. As we have explained in respect of Sellafield Ltd that would be to ignore the statutory obligation to consider the means of the offender – in the case of Network Rail a turnover of £6.2 billion (or £119m per week) and annual profitability of £750m (or £14.4m per week). 69. However, a significant fine imposed on Network Rail would, unlike the case of Sellafield, in effect inflict no direct punishment on anyone; indeed it might be said to harm the public. That is because the company’s profits are invested in the rail infrastructure for the public benefit; the profits make an addition to the state funds that are otherwise provided to meet the requirements of the provision of that infrastructure. It is likely that any shortfall in the requirements as a result of a fine will have to be met from public funds or in a reduction in the investment. That is a factor which a court must take into account: see R v Milford Haven Port Authority [2002] 2 Cr App R 423 ; R v Network Rail [2011] Cr App R (S) 44, [2010] EWCA Crim 1225 at para 24. 70. A fine will, nonetheless, serve three other purpose of sentencing if it reduces criminal offences of the kind committed by Network Rail, reforms and rehabilitates Network Rail as an offender and protects the public. To ensure that a fine will achieve these statutory purposes of sentencing, the fine must be such that it will bring home to the directors and members of Network Rail these three purposes of sentencing. i) We were told that the Members of Network Rail would not be involved with issues of safety at level crossings. However although the extent of the responsibility of the Members was unclear, it is clear that their responsibilities must include appointing to the Board executive and non-executive directors who put at the forefront of their duties compliance with Network Rail’s responsibilities for the safety of people’s lives from the risks of their operations and the reduction of offending by Network Rail. ii) As we have set out at paragraph 67, Network Rail has invested substantial funds in level crossing safety. Nonetheless the record of Network Rail reflects the fact that accidents at level crossings were prevalent. That makes clear the necessity for all the directors to pay much greater attention to their duties in this respect. iii) We have set out in paragraph 60 the statement by the non-executive directors as to how they will reduce bonuses if safety performance is poor; it appears to concentrate on a catastrophic accident and not accidents of the kind with which this appeal is concerned which has had such a devastating effect on a child. There was evidence before us (but not the judge) that the bonuses of the directors had been adjusted downwards to a minor (though inadequate) extent in part because of the poor level crossing safety record to which we have referred. Plainly the bonuses should have been very significantly reduced. For the future, it will be important for Network Rail to ensure that full information is provided to the sentencing court, as it is highly material to the assessment of the response of the board of the company to the statutory purposes of sentencing in a case where a fine inflicts no direct punishment on anyone. If, as is accepted by the board of Network Rail, a bonus incentivises an executive director to perform better, the prospect of a significant reduction of a bonus will incentivise the executive directors on the board of companies such as Network Rail to pay the highest attention to protecting the lives of those who are at real risk from its activities. In short, it will demonstrate to the court the company’s efforts, at the level of those ultimately responsible, to address its offending behaviour, to reform and rehabilitate itself and to protect the public. 71. We can infer from the fact that Network Rail has invested £130m in level crossing safety and there was some minor adjustment downwards of the directors’ bonuses that it is attempting to reduce its offending behaviour, is being reformed and rehabilitated in this aspect of its offending behaviour and is taking steps to protect the public whose lives have been at risk at level crossings. 72. Nonetheless, the fine of £500,000 imposed on a company of the size of Network Rail can only be viewed as representing a very generous discount for the mitigation advanced; we would observe that if the judge had imposed a materially greater fine, there would have been no basis for criticism of that fine. Indeed, were it not for the matters to which we have referred, a fine of the size imposed would have been very significantly below that which should be imposed for an offence committed by a company of this size where the harm was relatively serious and the culpability at local operational management was serious and persistent. 73. We therefore dismiss the appeal.

```yaml citation: '[2014] EWCA Crim 49' date: '2014-01-17' judges: - MR JUSTICE MITTING - MRS JUSTICE THIRLWALL ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2024] EWCA Crim 304 Case No: 202302230B5 ; 202303562B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHWARK THE HONOURABLE MR JUSTICE COOKE T20170213 HIS HONOUR JUDGE GLEDHILL QC T20167025 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/03/2024 Before : LORD JUSTICE BEAN LORD JUSTICE POPPLEWELL and MR JUSTICE BRYAN - - - - - - - - - - - - - - - - - - - - - Between : (1) TOM HAYES (2) CARLO PALOMBO Appellants - and – REX Respondent - - - - - - - - - - - - - - - - - - - - - Adrian Darbishire KC and Tom Doble (instructed by Karen Todner Solicitors ) for the First Appellant James Hines KC, Gillian Jones KC and Max Baines (instructed by The Serious Fraud Office ) for the Respondent in Hayes Tim Owen KC, Katherine Hardcastle and Tim James-Matthews (instructed by Hickman & Rose Solicitors for the Second Appellant ) James Waddington KC and Max Baines (instructed by The Serious Fraud Office ) for the Respondent in Palombo Hearing dates: 14, 15 and 18 March 2024 Approved Judgment This judgment was handed down remotely at 11.30am on 27 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives. Lord Justice Bean, Lord Justice Popplewell and Mr Justice Bryan: 1. This is the judgment of the court to which we have all contributed. Introduction 2. The Appellants, both traders for major banks at all material times, were convicted in 2015 and 2019 respectively of the common law offence of conspiracy to defraud pursuant to allegations that they had dishonestly conspired with others to manipulate LIBOR and EURIBOR rates respectively. Their convictions are said by the Appellants to have depended on the construction of LIBOR and EURIBOR adopted at their trials, a construction which has been consistently adopted and confirmed in five decisions of this court, including two which dismissed appeals against conviction by each of them. 3. In July 2023, the Criminal Cases Review Commission (“the CCRC”) referred the Appellants’ convictions to the Court of Appeal, Criminal Division (“CACD”) following the decision of the United States Court of Appeals for the Second Circuit (“the Second Circuit”) in United States v Connolly and Black , No. 19-3806 (2d Cir. 2022) (“ Connolly and Black” ) on the basis that the decision adopted a different construction of LIBOR from that adopted by this court in its previous decisions, which logically extended to EURIBOR. LIBOR and EURIBOR 4. LIBOR (London Interbank Offered Rate) was, in essence, a benchmark representing the rate at which a bank could borrow money in London at 11am each business day. It was in operation from 1986, and at the relevant time (2006-2010) it was one of the main, if not the main benchmark used for many types of financial transactions (including consumer loans and mortgages, many forms of commercial lending, and derivatives). It was operated by the British Banking Association (“BBA”), a trade association representing the interests of the banking industry operating in London. LIBOR was published each day, in ten currencies, including Sterling, US Dollars and Japanese Yen. Rates would be published for various notional borrowing periods, from overnight to 12 months, known as “tenors”. The rates were calculated from submissions made from a number of panel banks, appointed by agreement with the BBA, to Thomson Reuters, who conducted the LIBOR setting exercise on behalf of the BBA. In major currencies, such as Sterling, US Dollars and Japanese Yen, there were 16 contributor panel banks. On each business day, each panel bank would submit its estimate of the interest rate that it would be charged if it were to borrow funds from another bank at 11am on the day in question, for the relevant currency and tenors. For each currency/tenor, the submitted rates would be ranked in order, with the highest and lowest quartiles excluded and the mean taken from the middle quartiles (that is, the average of the middle 8 in a 16-bank panel). The “trimmed mean” average was then published as LIBOR. 5. At all relevant times, the LIBOR setting process was governed by a document published by the BBA entitled “The BBA Libor Fixing – Definition”. It provided, amongst other matters, as follows:- “1. BBA LIBOR is the BBA fixing of the London Inter-bank Offered Rate. It is based on offered inter-bank deposit rates contributed in accordance with the Instructions to BBA LIBOR Contributor Banks . 2. The BBA will fix BBA LIBOR and its decision shall be final…. 3. BBA LIBOR is fixed on behalf of the BBA by the Designated Distributor [Thomson Reuters] and the rates made available simultaneously via a number of different information providers. 4. Contributor Panels shall comprise at least 8 Contributor Banks. Contributor Panels will broadly reflect the balance of activity in the inter-bank deposit market. Individual Contributor Banks are selected … on the basis of reputation, scale of activity in the London market and perceived expertise in the currency concerned, and giving due consideration to credit standing. 5. The BBA, in consultation with the BBA LIBOR Steering Group, will review the composition of the Contributor Panels at least annually. 6. Contributed rates will be ranked in order and only the middle two quartiles averaged arithmetically. Such average rate will be the BBA LIBOR Fixing for that particular currency, maturity and fixing date. Individual Contributor Panel Bank rates will be released shortly after publication of the average rate. … 9. If an individual Contributor Bank ceases to comply with the spirit of this Definition or Instructions to BBA Libor Contributor Banks , the BBA, in consultation with the BBA LIBOR Steering Group, may issue a warning requiring the Contributor Bank to remedy the situation or, at its sole discretion, exclude the Bank from the Contributor Panel.” 6. The “Instructions to BBA LIBOR Contributor Banks” provided:- “A. An individual BBA LIBOR Contributor Panel Bank will contribute the rate at which it could borrow funds, were it to do so by asking for and then accepting inter-bank offers in reasonable market size just prior to 1100. B. Rates shall be contributed for currencies, maturities and fixing dates and according to the quotation conventions specified in Annexe One. C. Contributor Banks shall input their rate without reference to rates contributed by other Contributor Banks. D. Rates shall be for deposits: X made in the London market in reasonable market size; X that are simple and unsecured; X governed by the laws of England and Wales; X where the parties are subject to the jurisdiction of the courts of England and Wales. … F. Rates shall be contributed in decimal to at least two decimal places but no more than five. G. Contributors Banks will input their rates to the Designated Distributor between 1100hrs and 1110hrs, London time. The Designated Distributor will endeavour to identify and arrange for the correction of manifest errors in rates input by individual Contributor Banks prior to 1130. The Designated Distributor will publish the average rate and individual Contributor Banks= rates at or around 1130hrs London time. Remaining manifest errors may be corrected over the next 30 minutes. The Designated Distributor then will make any necessary adjustments to the average rate and publish as the BBA LIBOR Fixing at 1200hrs.” 7. The key definition of the LIBOR rate which the panel banks were required to submit was therefore the rate at which that panel bank “could borrow funds, were it to do so by asking for and then accepting inter-bank offers in reasonable market size, just prior to 11.00 London time.” We shall refer to this as ‘the LIBOR definition’. 8. EURIBOR (EU Interbank Offered Rate) was devised at the time of the creation of the Euro currency in 1999. It was principally devised by the European Banking Federation (“EBF”) representing national banks and the Financial Markets Association (“ACI”) representing European Banks. Two entities (EURIBOR - ECF and EURIBOR - ACI) were established, under Belgian law, to supervise the operation of EURIBOR. The purpose of the rate was to provide participants in Euro denominated transactions with a benchmark comparable to those found in many money markets, including LIBOR. 9. Like LIBOR, there was a different EURIBOR rate for a range of tenors, from one week to one year. EURIBOR was commonly designated as a reference rate for interest rate swaps or other derivative transactions. For the purposes of setting the daily EURIBOR rate for each “tenor”, submissions were received prior to 11am Brussels time on each day from banks on a designated panel. The number of such panel banks fluctuated from time to time but was generally 48. The EURIBOR daily rate was fixed by averaging the submissions of each panel bank for the respective tenor, but with the highest and lowest 15% of the respective submissions being excluded. The remaining submissions would be averaged and the result rounded to three decimal places, producing the daily rate which was then published by Thomson Reuters. No panel bank was permitted to see any other panel bank’s submission during the relevant window before 11am. 10. The process for setting EURIBOR was set out in the EURIBOR Code of Conduct 1999 (“the Code”). This was replaced in 2008, but in materially identical terms. The Code was then comprehensively revised in 2013, but that version is not directly relevant to Mr Palombo’s appeal because it postdates the indictment period. 11. It is common ground that the Code was governed by Belgian law. 12. The Preface of the Code for the relevant period stated as follows: “The EURO Interbank Offered Rate – “EURIBOR” – is the new money market reference rate for the euro. This Code lays down the rules applicable to EURIBOR and the banks which will quote for the establishment of EURIBOR. EURIBOR is the rate at which euro interbank term deposits are being offered within the EMU zone by one prime bank to another at 11.00 am. Brussels time (“the best price between the best banks”). It is quoted for spot value (two Target days) and on actual/360 day basis.” 13. Article 1 of the Code set out the various criteria for qualifying as, and remaining, a panel bank. It was specifically stated, among other things, that panel banks “must be of first class credit standing, high ethical standards and enjoying an excellent reputation” (at [3]). 14. After provision for the number and spread of panel banks and for periodic review of the constitution of the panel, Article 6 dealt with the obligations of panel banks, providing as follows:- “ARTICLE 6: OBLIGATIONS OF PANEL BANKS 1. Panel banks must quote the required euro rates: • to the best of their knowledge, these rates being defined as the rates at which euro interbank term deposits are being offered within the EMU zone by one prime bank to another at 11.00 a.m. Brussels time ("the best price between the best banks") • for the complete range of maturities as indicated by the Steering Committee • on time as indicated by the screen service provider • daily except on Saturdays, Sundays and Target holidays • accurately with two digits behind the comma 2. Panel banks must commit themselves to transmit to the European System of Central Banks all the necessary figures to establish an effective overnight euro rate, and in particular their aggregate loan volume and the weighted average interest rate applied. 3. Panel banks must make the necessary organisational arrangements to ensure that delivery of the rates is possible on a permanent basis without interruption due to human or technical failure. 4. Panel banks must take all other measures which may be reasonably required by the Steering Committee or the screen service provider in the future to establish EURIBOR. 5. Panel banks must subject themselves unconditionally to this Code and its Annexes, in their present or future form. 6. Panel banks must promote as much as possible EURIBOR (e.g. use EURIBOR as reference rate as much as possible) and refrain from any activity damageable to EURIBOR.” 15. The key definition of the EURIBOR rate which the panel banks were required to submit was therefore “to the best of their knowledge, the rate at which euro interbank term deposits are being offered within the EMU zone by one prime bank to another at 11.00 a.m. Brussels time ("the best price between the best banks")”. We will refer to this as the ‘EURIBOR definition’. Unlike LIBOR, this was an estimate of the cost of borrowing for prime banks generally, not the submitting panel bank. There was no further definition of who was included as a prime bank or “best” bank. Factual and Procedural background 16. Mr Hayes is a British citizen, born on 26 October 1978. Between 8 August 2006 and December 2009, he was employed in Tokyo as an interest rate derivatives trader by UBS Securities Japan Limited (“UBS”). From 3 December 2009 to December 2010, he was employed in the same capacity in Tokyo by Citigroup Global Markets Japan Inc. (“Citigroup”). 17. In December 2012, Mr Hayes was indicted by authorities in the United States on charges of conspiracy to commit wire fraud, bank fraud and anti-trust violations in relation to his alleged manipulation of the Japanese Yen LIBOR during his employment at UBS and Citigroup. 18. On 11 December 2012, Mr Hayes was arrested by the Serious Fraud Office (“SFO”) on suspicion of the common law offence of conspiracy to defraud related to the same alleged conduct. Following his arrest, Mr Hayes entered into a formal agreement with the SFO on 27 March 2013, pursuant to sections 73 -74 of the Serious Organised Crime and Police Act 2005 (a “SOCPA agreement”), to plead guilty to any offences arising from the SFO’s investigation. As a result, he was not extradited to the US. 19. Mr Hayes was interviewed at length between 31 January 2013 and 11 June 2013 as part of the SOCPA process. During the course of those “scoping interviews”, he made admissions that he had acted dishonestly and that he had sought to influence the LIBOR submissions of his own bank, and other panel banks, in order to benefit his trading. 20. On 18 June 2013, Mr Hayes was charged by the SFO with eight counts of conspiracy to defraud. On 9 October 2013, he withdrew from the SOCPA agreement, maintaining that he had only co-operated with the SFO out of fear of extradition. He entered not guilty pleas to each count. He was tried alone; his alleged co-conspirators were tried, and acquitted, in separate trials. 21. On 5 December 2014, following a preparatory hearing for Mr Hayes’ trial, Cooke J made a ruling to the effect that there was a legal duty on a bank to submit a rate in accordance with the definition of LIBOR, and that the definition implicitly excluded taking into account the bank’s commercial interests. On 21 January 2015, the CACD (Davis LJ, Simon and Holgate JJ) dismissed Mr Hayes’ interlocutory appeal against that ruling: R v H [2015] EWCA Crim 46 . 22. On 3 August 2015 Mr Hayes was convicted (then aged 36 years) of all eight counts of conspiracy to defraud (Counts 1-8) before Cooke J and a jury, in the Crown Court at Southwark. He was sentenced to a total of 14 years’ imprisonment. On 23 March 2016, he was made subject to a confiscation order for £878,806 under section 6 of the Proceeds of Crime Act 2002 . This was revised on 29 June 2016 to £852,560.94 on the basis that there had been a mathematical error in the original order made. 23. On 21 December 2015, the CACD (Lord Thomas CJ, Sir Brian Leveson PQBD and Gloster LJ) dismissed Mr Hayes’ appeal against his convictions and granted leave to appeal against sentence: R v Hayes [2015] EWCA Crim 1944 ; [2018] 1 Cr. App. R. 10. The court quashed the sentence imposed by Cooke J and substituted a sentence of 11 years’ imprisonment. On 8 March 2016, the court refused to certify that a point of law of general public importance was involved in the decision. On 28 March 2018, the court (Davis LJ, Edis J, HHJ Field QC) dismissed Mr Hayes’ appeal against the confiscation order. 24. On 29 June 2016, three former employees at Barclays Bank plc (“Barclays”), Jay Merchant, Jonathan Mathew and Alex Pabon were convicted following trial in the Crown Court at Southwark, before HHJ Leonard QC and a jury, of conspiracy to defraud in respect of fixing the US dollar LIBOR rate. Before the trial, Judge Leonard had given a ruling in which he followed the approach in relation to the legal directions taken by Cooke J in Mr Hayes’ trial. Merchant and Mathew were sentenced to six-and-a-half years and four years’ imprisonment respectively. On 22 February 2017, the CACD (Lord Thomas CJ, Dingemans and William Davis JJ) dismissed Merchant’s and Mathew’s appeals against their convictions and approved the court’s construction of LIBOR in R v H and R v Hayes : R v Merchant and Mathew [2018] 1 Cr. App. R. 11. 25. Mr Hayes applied to the CCRC in February 2017 for a review of his case. The main points the CCRC explored in its review related to Mr Hayes’ submissions that: his Asperger’s Syndrome (diagnosed shortly before his trial) was inadequately dealt with during the SFO’s investigation and at his trial; a prosecution expert witness (Mr Saul Haydon Rowe) had been discredited in separate appeal proceedings since the trial; there were new expert witnesses who could support his trial evidence about the range of legitimate answers to the LIBOR question; and there was evidence not disclosed at the trial which could show the extent that commercial influence on LIBOR was endemic within the industry. The CCRC reached the conclusion that those matters, whether viewed individually or cumulatively, did not give rise to a real possibility that Mr Hayes’ conviction would be overturned, and therefore issued a decision on 7 December 2021, declining to make a reference. 26. Mr Palombo is a French citizen, born on 14 October 1979. At all material times he was employed by Barclays. He worked on the Euro Money Markets and Derivatives Desk in their London office, trading interest rate derivatives, colloquially referred to sometimes as “swaps”. He was tried, in the Crown Court at Southwark, alongside five others (Christian Bittar and Achim Kraemer, both former employees of Deutsche Bank, and Philippe Moryoussef, Colin Bermingham and Sisse Bohart, all former employees of Barclays) on a single count of conspiracy to defraud in relation to the manipulation of EURIBOR. 27. On 27 February 2017, in preparation for the EURIBOR trial, HHJ Gledhill QC made a ruling concerning the legal duty on a panel bank in relation to the submission of EURIBOR, which treated the “LIBOR cases” ( R v H, R v Hayes and R v Merchant ) as providing guiding principles. On 31 January 2018, the CACD (Davis LJ, Teare and Bryan JJ) dismissed an interlocutory appeal from that ruling on behalf of Christian Bittar and determined that it had been legitimate for the judge to have regard to the underpinning reasoning of the courts in the “LIBOR cases”: R v B [2018] EWCA Crim 73 . 28. On 26 March 2019, Mr Palombo was convicted (by a majority of 10 to 2) following a retrial before Judge Gledhill and a jury in the Crown Court at Southwark. On 1 April 2019, he was sentenced to 4 years’ imprisonment. On 9 December 2020, the CACD (Fulford LJ, VPCACD, Cutts J and Sir Nicholas Blake) dismissed Mr Palombo’s appeal against conviction: R v Bermingham and Palombo [2021] 4 WLR 113 . 29. On 27 January 2022 the United States Court of Appeals for the Second Circuit (Circuit Judges Kearse, Cabranes and Pooler), granted appeals against the conviction and sentence of Matthew Connolly and Gavin Black for wire fraud and bank fraud relating to US dollar LIBOR manipulation. The basis for that decision is at the heart of the present appeals and we discuss it below. In short it was treated by the CCRC on the current references (“the CCRC references”) as deciding that making LIBOR submissions influenced by a bank’s own derivatives traders, for the benefit of the bank’s derivatives trading positions, could comply with the LIBOR definition on its proper construction and operation, and that submissions which did so were not for that reason anything other than genuine or honest: “ Connolly and Black ”. On 27 October 2022, Mr Hayes’ indictment in the US was dismissed, following this decision. 30. On 6 July 2023 the CCRC referred Mr Hayes’ case to CACD under sections 9 and 14 of the Criminal Appeals Act 1995 . This followed consideration of submissions in connection with Connolly and Black on behalf of Mr Hayes (21 November 2022, 30 March 2023) and the SFO (27 February 2023). The referral was on the basis that: “There is a real possibility that the Court of Appeal will prefer the findings of the US appeal court in Connolly and Black regarding the definition and proper operation of LIBOR to those which were reached in Mr Hayes’s own case, and will conclude that this renders his conviction unsafe.” 31. On 12 October 2023 the CCRC referred Mr Palombo’s case to the CACD following “a comparison of the evidence and legal directions in his case against the evidence, legal directions, and CCRC referral reasoning in Mr Hayes’s case” in the context of the alleged analogy between EURIBOR and LIBOR. The Crown Court proceedings in the case of Mr Hayes 32. As we have noted, Mr Hayes’ trial took place before Cooke J and a jury, sitting in the Crown Court at Southwark, in 2015. The trial lasted 47 days. The prosecution (SFO) case was that between 8 August 2006 and 7 September 2010, Mr Hayes conspired with others to dishonestly manipulate the LIBOR setting process, to enhance profits for his employing banks and thereby to increase bonus payments for himself. Counts 1-4 related to his employment at UBS and Counts 5-8 to Citigroup. Both his employing banks were Yen LIBOR panel banks. 33. The particulars of each of the eight counts of the indictment were framed as follows:- “Tom Hayes… conspired together with [others]… to defraud in that: (1) knowing or believing that [UBS/Citibank], through the trading activity of Tom Hayes and others, was a party to trading referenced to the London Interbank Offered Rates for Japanese Yen (“Yen LIBOR”); (2) they dishonestly agreed to procure or make submissions of rates by [UBS/Citibank]… into the Yen LIBOR setting process which were false or misleading in that they: (a) were intended to create an advantage to the trading of Tom Hayes and others; and (b) deliberately disregarded the proper basis for the submission of those rates, thereby intending to prejudice the economic interests of others.” 34. Particulars were given of what was meant by the expression “deliberately disregarded the proper basis” in the indictment as follows: (a) “proper basis” The proper basis for the submission of rates was in accordance with the definition of LlBOR published by the British Bankers' Association, namely: “The rate at which an individual Contributor Panel Bank could borrow funds were it to do so by asking for and then accepting inter bank offers in reasonable market size just prior to 11.00 London Time" (“the Definition”). (b) “deliberately disregarded” The submissions deliberately disregarded the proper basis by purporting to comply with the Definition when they did not, in that they were intended to create an advantage to the trading position of Hayes and others. 35. To prove the existence of the conspiracies and to show that Mr Hayes and co-conspirators appreciated they were acting dishonestly, the prosecution relied on uncontested documents including electronic communications, messages, Bloomberg chats as well as recorded telephone conversations; and Mr Hayes’ extensive admissions in the SOCPA process during his interviews from 31 January 2013 to 11 June 2013. 36. The defence case was that Mr Hayes had not conspired to manipulate the LIBOR rate and that there was an absence of any agreement, either with known or unknown persons, to establish a wide or specific conspiracy. Mr Hayes gave evidence in his own defence that he had not acted dishonestly, and he relied on his previous good character. He had never agreed with any individual to procure the making of a submission by a bank of a rate that was not the bank’s genuine perception of its borrowing rate in accordance with the LIBOR definition. Mr Hayes’ case was that he had not acted dishonestly in that (as summarised by the CACD in R v Hayes at [8]): “i) he had not agreed with any individual as named in the indictment to procure the making of the submission by a bank of a rate that was not the bank’s genuine perception of its borrowing rate in accordance with the LIBOR definition; ii) he was never trained in the LIBOR process and, in particular, as to what was or was not a legitimate consideration for a submitter to take into account in making a LIBOR submission; iii) he had no regulatory or compliance obligations imposed on him by either UBS or Citigroup when he was employed by them; iv) he saw that other banks answered the question as to what was the appropriate LIBOR submission in a manner favourable to their own commercial trading interests; v) he perceived that the activity at panel banks in making the LIBOR submissions gave rise to an inherent conflict of interest as the banks would always have a commercial incentive to make submissions which inured to their commercial advantage; vi) he considered that what he was doing was common practice in the banking industry at the time and was regarded as legitimate by a significant number of submitters, traders and brokers. He understood that the banks, as a matter of practice, based submissions on their own commercial interests; vii) was aware that banks were involved in the practice of low-balling (i.e. the submission by a particular bank that the LIBOR should be lower than that particular bank’s actual cost of borrowing in order to enhance that bank’s reputation, i.e. that it was able to borrow at a lower rate than in fact was the case); viii) actions were not only condoned, but also encouraged by his employers and he was instructed to act in the way which he did; ix) there was a range of potential answers to the LIBOR question which could be justified as a subjective judgment of the panel bank’s borrowing rate. The defendant did not personally realise that the selection of a figure within that range by reference to a trader’s or bank’s trading advantage was dishonest by the standards of ordinary, reasonable and honest people.” 37. At preparatory hearings leading up to the trial, on 27 November and 5 December 2014, Cooke J made a number of rulings concerning the nature of the alleged economic prejudice caused to the counterparties to the relevant trading, and the definition of LIBOR. His rulings on 5 December 2014 concerning the legal duty on a panel bank in relation to LIBOR submissions were as follows:- “3. I am asked to make specific rulings in relation to three further matters… The defence require, it is said, the following rulings: “1. That there is no legal duty to submit in accordance with the definition of LIBOR and that as a result there is no unlawful act in relation to the submission process. “2. If a range of figures is available to a submitter then any submission within that range accords with the definition, even if prompted by a request from another party and cannot therefore be false. 3. If the definition is a black letter definition, then the prosecution cannot import a rule of “no commerciality” into the submission.” 4. The prosecution’s case is that there is a legal duty when making a submission not to put forward a rate which is not a genuine assessment of the rate at which an individual contributor panel bank could borrow funds in accordance with the definition. It is said that there is a duty not to make dishonest fraudulent misrepresentations in putting forward a rate which is known not to be a genuine assessment of borrowing rate but is in fact a rate designed to advantage the bank’s trading. 5. In my judgment the prosecution is right in that submission. In putting forward a rate which is not believed to be the single figure which represents a genuine assessment of borrowing rate, the submitter or those responsible for the submission would be attempting to defraud. 6. As far as the second proposition is concerned, which deals with the question of a range of figures potentially being available to a submitter, much the same point in truth applies. What a submitter is obliged to do when putting forward a figure is to answer the question at what rate the bank in question could borrow funds in accordance with the definition. That would give rise to a single figure. It is no doubt true that in many cases that single figure could be a number of different figures within a range, because an assessment of the borrowing rate is not always a straightforward matter, particularly in an illiquid market. 7. But as I said before in my ruling on 3 July, whether or not a panel bank could legitimately take the view that a number of figures in a range could properly be submitted as the rate at which it could borrow in an appropriately sized market on the day in question, the issue is not whether the rate put forward could be justified by one method or another, but whether Mr Hayes, in seeking with others to influence the rate, was seeking to defraud by procuring the submission of rates which did not reflect any genuine view on the rate, but instead represented a rate which would advantage him and his employers in the trades that he had concluded. As to the third rule sought, the prosecution submits that it is not seeking to import anything into the rule at all. The definition to which I have already referred requires a genuine assessment of borrowing rate and nothing else. The fact that the rule does not specifically state that a party is not to put forward a rate which is intended to benefit its trading position as opposed to its genuine assessment of borrowing rates is neither here nor there. The guidance makes it plain that that is what the rule means. It is what the rule means. If it be a matter of law – and I am inclined to think that it is – the meaning of the definition is perfectly straightforward; it is an assessment of borrowing rate which is required and nothing else. Of course – as has been said on numerous occasions by many different people and by myself, I think, on a number of occasions at previous hearings – in an illiquid market a bank may draw on its experience of commercial trading in order to make a genuine assessment of its borrowing rate, but the question is still: what is the borrowing rate? That is the question which falls to be answered and it is improper to answer it by reference to a rate which will advantage the bank’s trading position as opposed to representing its borrowing rate. I make none of the rulings that are sought by the defence in this case…” 38. Mr Hayes made an interlocutory application for leave to appeal these rulings as determinations of questions of law under section 9(11) of the Criminal Justice Act 1987 . Cooke J refused Mr Hayes leave to appeal. The application was referred to this court by the Registrar. In dismissing the appeal ( R v H ), the court (Davis LJ, Simon and Holgate JJ), held amongst other matters, as follows:- “24. … We have carefully considered those rulings and the respective arguments advanced before us which, to a considerable extent, track the arguments advanced to the judge below. We have come to the conclusion – and we have to say the clear conclusion – that the judge was right and that he was right for essentially the right reasons. That being so, there is relatively little purpose in setting out at enormous length on this interlocutory application in our own words our reasoning, when really it would be a duplication of the judge's concise reasoning. Accordingly, we propose to deal with the arguments advanced before us relatively briefly… … 41. It is submitted that the definition contained in the BBA description of LIBOR, as we have read out above, connoted no legal duty on the submitting panel bank. Consequently, it is said, there was no unlawful act involved in the submission made in this case as allegedly induced by the conspirators. 42. In our view, and in entire agreement with the judge, it is inherent in the whole LIBOR scheme that the submitting panel bank is putting forward its genuine assessment of the proper rate. Indeed, it might be asked: how otherwise could the scheme ever work? The definition provided by the BBA does, it is true, call for a statement of opinion which involves subjective considerations; but otherwise it is by reference to what is an objective matter: the rate at which an individual contributor panel bank could borrow funds, et cetera. 43. As it seems to us, if a panel bank makes a submission then it is under an obligation to do so genuinely and honestly as representing its own assessment. Not to do so is potentially dishonest. The judge regarded that as self-evident. So do we. It serves no purpose at all to play around with the word "duty". The point is that there was an obligation ("duty", if you like) to give a genuine, to give an honest, opinion as to what the rate was. Indeed, if it were otherwise, then one can conceive that the individual submitter could simply, and perhaps even be said to be obliged to under his duties as an employee, make a submission that would further the interests of his own employing bank notwithstanding that the submission itself did not reflect his own opinion: an almost unthinkable proposition. 44. As to the third ground, that too is not sustainable. It is of course the case that various submissions by panel banks can legitimately differ. They can legitimately differ because views as to the appropriate rate can legitimately differ. But that does not displace the requirement that the submission actually made must represent the genuine opinion of the submitter. Accordingly, that the figure could be within a range provides no answer if the figure actually submitted does not represent the genuine opinion of the person submitting that figure. In truth, this point is really just a variation of the first ground and has no greater validity. 45. What the judge said was this in his further ruling: "... whether or not a panel bank could legitimately take the view that a number of figures in a range could properly be submitted as the rate at which it could borrow in an appropriately sized market on the day in question, the issue is not whether the rate put forward could be justified by one method or another, but whether [the applicant], in seeking with others to influence the rate, was seeking to defraud by procuring the submission of rates which did not reflect any genuine view on the rate, but instead represented a rate which would advantage him and his employers in the trades that he had concluded." 46. We agree with that . We also record that in argument, Mr Hawes had great difficulty in dealing with certain examples taken from other contexts (such as valuations by estate agents) which were put to him. He was in a position to say that some of the examples put to him were perhaps somewhat extreme; but nevertheless the logic of his argument really showed that an unacceptable result would be reached if it were right. 47. The final ground is to the effect that on the BBA definition itself, the prosecution was unable, so it is said, to import a requirement to the effect that a panel bank cannot rely on its own commercial interest into its submissions. It is said in this regard that the BBA definition is not prescriptive or black letter. If that were right, then again for the reasons we have summarised above one would query how the LIBOR scheme could ever work. Indeed, we agree with Mr Hawes QC, who appeared for the Crown, that this submission in fact turns on its head the BBA definition. The definition requires the submitter to state what is there provided. There is no other indication that the submitter is free to take the bank's own commercial interest into consideration. Mr Hawes submitted that it was not specifically excluded as a matter and therefore it could be taken as included. That is an untenable argument. In effect, that comes close to saying likewise that because bad faith has not been explicitly excluded, then bad faith may be allowed: which of course is quite ridiculous. 48. Mr Hawes sought to rely on certain points illustrated in, for example, a document dated 30 July 2009, which says that a document giving guidance for submitting rates could not be prescriptive, as the fundamental basis of LIBOR is that it is a bank's own view of the markets in general and its own cost of funds in particular. As we see it, that extract is in fact against his argument. Of course submitters may have regard to considerations such as "market colour" and their knowledge of what is going on; further, the considerations of panel members thereby may differ as between each other. That reflects the subjective exercise involved: and to that extent the valuation exercise cannot be prescriptive. But as this document itself makes clear, and is obviously the case, the fundamental basis of LIBOR nevertheless is that it is the bank's own view of the markets in general and its own cost of funds in particular that counts. That accordingly emphasises that what must be submitted is the bank's own view (that is to say, its own genuine view) as to what the rate should be. 49. It seems to us that all the elaborate arguments advanced under this head come to nothing. It is self-evident, as the judge found, that a bank, in making its submission to Thomson Reuters, is not free to let its submission be coloured by considerations of how the bank may be advantaged in its own trading exposure. That simply is contrary to the definition set by the BBA and to the whole object of the exercise . Again, we note that various examples were put to Mr Hawes in argument which illustrated the potentially remarkable results that could arise if his argument were correct.” (our emphasis added) 39. In a Ruling on 6 July 2015 during the course of the trial, Cooke J summarised his understanding of what had been decided in R v H as follows: “1. The Court of Appeal has decided that to take into account a trader's or bank's trading advantage when making a LIBOR submission is not permissible at all. Whilst there may be a range of figures, all of which could be objectively justifiable, a submitter has to submit the one figure which represents his honest opinion as to the rate at which his bank could borrow. If instead of submitting that figure the submitter puts in a different figure influenced by the perception of trading advantage, the submission is not a genuine answer to the LIBOR question and does not accord with the LIBOR definition. 2. If therefore Mr Hayes agrees with another to procure the making of a submission which is perceived to be to his trading advantage when, uninfluenced by any such consideration, the submission would have given rise to a different figure, or regardless of whether the rate would actually have been different, then Mr Hayes has agreed to procure a submission which does not accord with the LIBOR definition. 3. On this basis if the evidence shows that this is what Mr Hayes did, which in my judgment it does, though of course this a matter for the jury, the sole remaining question is whether Mr Hayes was dishonest in making such agreements.” 40. After the judgment in R v H , Cooke J gave the following jury directions in Mr Hayes’ trial concerning “the definition of LIBOR”:- “You know the definition well by now, I think, but it appears in the reference bundle at C/1. The rate at which an individual contributor panel bank could borrow funds, were it to do so, by asking for and then accepting interbank offers in reasonable market size just prior to 11.00 am London time. A LIBOR question to be answered was: at what rate could you borrow funds, were you to do so, by asking for and then accepting interbank offers in reasonable market size just prior to 11.00 am? It's clear, and the courts have so decided as a matter of law, that this means that the panel bank, when making a submission to Reuters, must make a genuine, honest assessment of the rate at which it could borrow funds on the day in question without reference to its own perceived commercial advantage. In making a LIBOR submission, a panel bank is not free to let its submission be influenced at all by considerations of how the bank may be advantaged in its own trading. Obviously if the bank is not actually borrowing funds at about that time in the tenor in question, whether for one, three or six months or whatever it may be, it will have to use information available to it to make an honest assessment of the rate at which it could borrow such funds. It's undisputed that such information may include the rates at which the bank borrowed for other lengths of time or in other currencies from banks in the London market or elsewhere, similar rates at which it borrowed from its customers which were not banks, rates at which it borrowed the day before or when it last borrowed, its own credit rating, the rate at which it lends to other banks, currency exchange, currency swaps, the rates at which derivatives trade and the like. It must, however, be an honest assessment of its borrowing rate and not one which takes into account its trading advantage or is simply a figure designed to look as though it is such an honest estimate when it is in fact a figure designed to secure a trading advantage for a derivative trader. So as a matter of law the courts have decided, and I direct you in the following way: first, a bank when submitting a LIBOR rate must put forward its own genuine, honest assessment of the rate at which it could borrow in the currency and tenor in question. The submission must be the bank's genuine opinion as to that rate, whether the conclusion is reached by the submitter after discussion and collective assessment or not. Second, the fact that making such an assessment is not always easy and that the figure could be within a range of possible figures depending on the subjective judgment of the submitter, after taking account of a number of factors, is neither here nor there if the figure submitted is not genuine, honest opinion of the submitter as to the correct rate in accordance with the LIBOR definition. The submitter must arrive at one figure which represents the honest assessment of the bank as to its borrowing rate. Third, the bank is not entitled to take into account that which would or might advance its own commercial interest at all in putting forward its LIBOR submission. It's the borrowing rate which is to be the subject of the submission and not any perceived trading advantage of the submitting bank or any other bank or person. To take such commercial matters into account would be to act in a way that was contrary to the LIBOR definition. To answer the LIBOR question by taking into account such commercial interests of a bank would be to bring in factors which should play no part when assessing the rate at which it could borrow. Fourth, if a submitter considered that there was a range of possible figures which could be submitted, each one of which could be justified as a subjective judgment on the information he had, and then submitted a figure within that range which was different from the figure he would have submitted, if he had not taken into account such commercial interests of the bank or of any other bank or person, that submission would not accord with the LIBOR definition, nor be a genuine, nor proper answer to the LIBOR question. Fifth, if a submitter considered that there was a range of possible figures which could be submitted, each one of which could be justified as a subjective judgment on the information he had, and then submitted a figure within that range which took account of such commercial interests of the bank or any other bank or person, even if the submitted figure did not differ from the figure which would have been submitted without taking such commercial interests into account, the submitter would not have made a genuine assessment of the bank's borrowing rate in accordance with the LIBOR definition. Sixth, there's no need for anyone, whether Thomson Reuters or the BBA or elsewhere, to be deceived into thinking that the rate put forward by any bank is a genuine assessment of the borrowing rate. Even if Thomson Reuters or the BBA or other banks as counterparties suspected or even knew that other banks' submissions into the LIBOR setting process were skewed or that low-balling occurred, it would make no difference to the question whether the counterparty's rights were at risk. As I already said, it's possible that a genuine, honest assessment unaffected by consideration of its derivative trading advantage might coincide with a bank's assessment after taking its trading advantage into account, but consideration of that trading advantage is an illegitimate factor which should not be taken into account in answering the LIBOR question at all. If consideration of that advantage resulted in a different figure from that which would have been submitted without regard to it, then the figure submitted would not accord with the LIBOR definition, but even if the figure was the same it would not be an assessment of the bank's borrowing rate in accordance with the LIBOR definition because trading advantage had been taken into account. So an agreement between individuals to seek to move a bank's submission to such a different figure for that reason would be an agreement to make or procure a submission contrary to the LIBOR definition. Also an agreement between individuals to put in a submission or procure a submission which took into account a perceived trading advantage, even if the figure did not differ from the figure which would otherwise have been submitted, would also be an agreement to make or procure a submission contrary to the LIBOR definition because that factor shouldn't be taken into account at all. 41. Having directed the jury on the proper basis for the submission of LIBOR (“as a matter of law”), Cooke J continued:- “The question for you, therefore, is whether Mr Hayes dishonestly agreed with others to seek to procure that UBS, Citi or other banks should make submissions which were not, in accordance with the LIBOR definition, their honest, true assessment of their borrowing rate or rates but the rate or rates designed to secure a trading advantage for himself or his bank. There are two elements to consider. First, there must be an agreement or, as the prosecution allege here, several such agreements and, secondly, there must be dishonesty in making such an agreement or agreements. … It's clear, and undisputed, that Mr Hayes asked submitters at UBS and the trader submitter at Deutsche to put forward rates intended to advantage his or the bank's trading and that he asked traders at other banks, such as JP Morgan Chase, RBS, HSBC, as well as at UBS and Citi, to ask their submitters to do the same, whilst asking brokers to make some latter requests of other bank representatives, traders, submitters or trader submitters, or to influence their opinion in other ways, whether with broker run-throughs, recommendations, suggestions or spoof offers or bids. He asked them to take account of his and his employer's commercial interests by putting in rates which would advantage his or his bank's trading.” 42. Cooke J directed the jury to approach its finding on “dishonesty” in accordance with the two-limb test derived from R v Ghosh (1982) 75 Cr. App. R. 154 ; [1982] QB 1053:- “In order for you to be sure of Mr Hayes's guilt, you need to be sure that he was acting dishonestly. That means that you have two questions to resolve. First, was what Mr Hayes agreed to do with others dishonest by the ordinary standards of reasonable and honest people? I will say that again. Was what Mr Hayes agreed to do with others dishonest by the ordinary standards of reasonable and honest people? Not by the standards of the market in which he operated, if different. Not by the standards of his employers or colleagues, if different. Not by the standards of bankers or brokers in that market, if different, even if many or even all regarded it as acceptable, nor by the standards of the BBA or the FXMMC, but by the standards of reasonable, honest members of society. There are no different standards which apply to any particular group of society, whether as a result of market ethos or practice. You must form your judgment as to what those standards are in the light of the arguments that have been put before you. If what Mr Hayes agreed to do was not dishonest by those standards, the prosecution fails. Second, must Mr Hayes have realised that what he agreed to do would be regarded as dishonest by those standards? It is dishonest for a person to act in a way which he knows ordinary, reasonable and honest people consider to be dishonest, even if he thinks he is justified an acting in the way he does, whether because he thinks that others in the market do it or thinks that everyone tries to do it or because his employers or others encourage him to do it or appear not to object to him doing it. In deciding this second question, you must consider Mr Hayes's state of mind at the time of the events in question. If, after taking into account all the evidence, you're sure that the answer to both of these questions is "yes", then the element of dishonesty is proved. If you're not sure of that, the element of dishonesty is not proved and Mr Hayes is not guilty of the offences charged.” 43. Cooke J then identified that Mr Hayes’ case was that what he did was not dishonest under the objective limb, which was a matter for the jury to decide; and that he was not dishonest under the subjective limb, which was also for the jury to decide. In the latter context Cooke J set out the eight factors summarised at [8] (ii) to (ix) in the judgment in R v Hayes which we have quoted above. 44. Cooke J gave the following direction concerning Mr Hayes’ participation in the SOCPA interviews:- “The prosecution say that Mr Hayes confessed each and every ingredient of the offences of which he's now charged in the SOCPA interviews which he voluntarily attended. You have agreed summaries of those interviews which took place over a period of some 82 hours, in which Mr Hayes explained to investigators what he had done and named those persons with whom he had reached agreement to seek to manipulate the LIBOR rate to his trading advantage. The prosecution points out that he admitted that he was dishonest within a dishonest system, which is, you may think, the main point on which you have to reach a decision in this trial, since the documents show what Mr Hayes was requesting and what the response was of those to whom those requests were directed. There's no dispute about the records of the interviews and what it was that Mr Hayes said at the time to the investigators. Mr Hayes's case is that everything he said in those interviews was said out of fear and a desire to avoid extradition to the United States and prosecution there where he would be separated from his family and there was the possibility of a 60-year sentence. He said that for that purpose he needed to be charged and had to admit wrongdoing. … So a word about those interviews. Before each of his interviews Mr Hayes was cautioned. He was first told that he didn't need to say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court and that anything he did say might be given in evidence. Mr Hayes told the Serious Fraud Office a great deal, as can be seen from the agreed summaries you have in the interview bundle. As part of his defence before you Mr Hayes has said that he was not dishonest, that he did not appreciate that what he was doing was dishonest. The prosecution not only say that this is something that he never said to the Serious Fraud Office in his interviews, however much he sought to qualify the extent of his dishonesty as compared with other people, but that he said the very opposite and they rely on his confessions of dishonesty in those interviews. You can see what he said for yourselves. The prosecution say that if there was any truth in this defence at all, he would have said throughout these long interviews that this was the position in the light of the factors he now relies on. He would then have said that what he did was not dishonest and that he did not appreciate at the time that what he was doing was dishonest. The fact that he did not, says the prosecution, shows that this is a fabricated defence put forward at a later date, once the risk of extradition had diminished as a result of being charged. Mr Hayes says that he told the Serious Fraud Office what he thought he had to in order to avoid or minimise the risk of extradition, but never in fact thought that he had been dishonest in what he did. This question of his dishonesty is a central issue in the trial and he's given you reasons why he says he confessed to being dishonest in the interviews, whether with or without qualification at different times. You will need to come to a view about this and about what he told you in evidence. Which is correct? You have to decide whether you're sure what he did was dishonest by the ordinary standards of reasonable and honest people and whether he knew that what he was doing was dishonest by those standards, whatever the standards in UBS, Citi or other banks or brokers at the time.” 45. Cooke J took the jury through the ingredients of the indicted offences by reference to Count 1, saying in respect of the “deliberately disregarding the proper basis” element: “That requires a little more explanation. What it says is this: the persons concerned agreed that UBS, in this example, or the other panel banks in question in the other counts, should make submissions of rates to Thomson Reuters, that is into the LIBOR setting possess, which were intended and designed to benefit Mr Hayes' trading or his bank's trading and did not represent a genuine assessment of the true rate at which UBS could borrow funds at 11.00 am on the day in question, contrary to the LIBOR definition requirements that I explained to you yesterday.” 46. Cooke J provided a route to verdict, in writing, and read it to the jury, directing them to ask and answer the following questions:- “1. Did Mr Hayes agree with any individual as named in the counts, to procure the making of a submission by a bank of a rate which was not that bank's genuine perception of its borrowing rate for the tenor in question in accordance with the LIBOR definition but was a rate which was intended to advantage Mr Hayes's trading? If the answer is No, Mr Hayes is not guilty on that Count. If the answer is Yes, proceed to Question 2 2. Was what Mr Hayes did dishonest by the ordinary standards of reasonable and honest people? If the answer is No, Mr Hayes is not guilty on that Count. If the answer is Yes, proceed to Question 3 3. Did Mr Hayes appreciate that what he was doing was dishonest by those standards? If the answer is No, Mr Hayes is not guilty on that Count. If the answer is Yes, the Mr Hayes is guilty on that Count.” 47. On 3 August 2015, Mr Hayes was convicted of all eight counts and sentenced by Cooke J to 14 years’ imprisonment. Mr Hayes’ 2015 appeal: R v Hayes 48. Mr Hayes advanced six grounds of appeal to the CACD: i. The trial judge had wrongly applied the objective limb of the Ghosh test of dishonesty. ii. The trial judge had misdirected the jury regarding the definition of dishonesty. iii. The trial judge had been wrong to refuse to allow a defence submission that the results of an internal inquiry conducted by Tullett Prebon into the activities of their employee, Noel Cryan, should not be allowed into evidence. iv. The trial judge had been wrong to refuse to allow into evidence the interview transcript of Andrew Walsh dated 9 July 2014. v. The trial judge had been wrong to refuse to admit medical evidence regarding Mr Hayes’s mental health at the time he had entered the SOCPA agreement. vi. The trial judge had been wrong to refuse to allow disclosure of documentation Mr Hayes had requested and referred to in evidence; namely his “daily profit and loss accounts”, his “daily risk” and his “trade blotter”. 49. The CACD (Lord Thomas CJ, Sir Brian Leveson PQBD, Gloster LJ) granted leave in relation to the first ground only and also granted leave to appeal against sentence. In its judgment, dated 21 December 2015, the court, having considered all six grounds put forward in some detail, dismissed Mr Hayes’ appeal against conviction : R v Hayes [2015] EWCA Crim 1944 ; [2018] 1 Cr App R 10 . 50. The court summarised the decision in R v H concerning the definition and true effect of LIBOR in the following terms at [9]: “i) it was inherent in the LIBOR scheme that the submitting panel bank was putting forward its genuine assessment of the proper rate . Although it had the subjective element inherent in an opinion, it was otherwise to be made by reference to an objective matter—the rate at which the panel bank could borrow funds etc; ii) any submission made had to be made under an obligation that the submitter genuinely and honestly represented its assessment; iii) assessments by different panel banks could legitimately differ, but that did not displace the obligation that the submission made must represent the genuine opinion of the submitter; iv) where there was a range of figures, the submission made had to represent a genuine view and not a rate which would advantage the submitter ; and v) the submitting bank could not rely on or take into consideration its own commercial interests in making its assessment. The bank was not free to let its submission be coloured by considerations of how the bank might advantage its own trading exposure; that would be contrary to the definition and the whole object of the exercise .” (emphasis added) 51. The judgment addressed Cooke J’s directions to the jury on the definition of LIBOR from [34] in a section addressing the second ground of appeal, namely that evidence relevant to dishonesty had been wrongly excluded: “34. As this court, in January 2015, had determined the definition of LIBOR as a matter of law (as we have set out at [9]), it was accepted that the judge was correct in referring the jury to that. However, it was submitted that the judge had gone further than the decision of this court and wrongly included what were matters of fact in the third to sixth propositions he had set out in his directions. 35. It was submitted that save for the matters that this court had dealt with, the interpretation and the application of the LIBOR definition were matters for the jury to determine. Particular criticism was directed by way of illustration at the fifth proposition: “Fifth, if a submitter considered that there was a range of possible figures which could be submitted, each one of which could be justified as a subjective judgment on the information he had, and then submitted a figure within that range which took account of such commercial interests of the bank or any other bank or person, if the submitted figure did not differ from the figure which would have been submitted without taking such commercial interests into account, the submitter would not have made a genuine assessment of the bank’s borrowing rate in accordance with the LIBOR definition.” 36. In our judgment, however, taking this as an example, the judge was doing no more than spelling out helpfully for the jury the decision of this court that it was impermissible as matter of the legal definition of LIBOR for the submitting bank’s assessment to be coloured by taking into its consideration its commercial interests. As a matter of law, the submitter was not entitled to take those interests in any way into consideration. 37. On examination, it is clear that the other criticised propositions are all explanations to the jury in line with decision of this court on the legal definition of LIBOR and the obligations to which it gave rise. In the circumstances, there is no arguable merit in this ground of appeal; leave to appeal is refused.” (emphasis added) 52. Expressing its conclusions on Mr Hayes’s appeal against conviction, the court stated at [86]-[87]: “86. It is important to underline that the critical issue for the jury’s consideration in this case was whether they believed that the appellant may have been telling the truth when he said that his admissions of dishonesty and LIBOR manipulation in his SOCPA interviews had not been genuine admissions of guilt (and, in particular, dishonesty), but had merely been an opportunistic means of avoiding extradition to the USA. That was the critical issue on which all turned and in respect of which there was not merely the interviews but the contemporaneous recordings which substantiated those interviews. Standing back from the detail, once the objective standard of dishonesty was established as the correct test for the first limb of the Ghosh direction, it is difficult to see how the application of the subjective standard to what the appellant was saying while undertaking these trades could have led to any different conclusion. 87. In the circumstances, in deference to counsel and the detailed arguments presented to us, we have dealt with each of the grounds in some detail. In the event, none have any merit and although we grant leave to appeal in relation to the first ground, the appeal is dismissed.” 53. However, the Court of Appeal allowed Mr Hayes’ appeal against sentence, quashing the total sentence of 14 years and substituting in its place a total sentence of 11 years. R v Merchant 54. Following the conviction and appeal of Mr Hayes, five former Barclays traders stood trial in proceedings brought by the SFO on charges of conspiracy to defraud in relation to US dollar LIBOR manipulation. The indictment particulars were materially identical to those in Mr Hayes’ case. Judge Leonard followed the approach of Cooke J in Mr Hayes’ trial, directing the jury that the case turned on the question of dishonesty. On 29 June 2016, three of the five traders, Jay Merchant, Jonathan Mathew and Alex Pabon, were convicted. Mr Merchant and Mr Mathew appealed to the CACD on grounds including that those directions of law were wrong. 55. The CACD (Lord Thomas CJ, Dingemans and William Davis JJ) dismissed the appeal against conviction in its judgment of 22 February 2017: R v Merchant . In reciting the history of the LIBOR cases, the court said of Hayes’ case at [15] that: “The approach by Cooke J was upheld on a pre-trial appeal against the ruling by Cooke J by Davis LJ in R v H ... The approach by Cooke J was part implicitly and part expressly approved in the judgment of this court in R v Hayes …The approach adopted by Cooke J was itself followed by Hamblen J in another LIBOR rate fixing trial [This was a reference to Hamblen J’s directions in R v Read & others in which the defendants were acquitted]” 56. As recorded at [22] of the judgment, there were two aspects to the appeal in R v Merchant . The first was that that the judge’s directions on the elements of the offence conflated issues of falsity in fact with the intention of the defendant when giving directions on the LIBOR question. This involved a submission that R v H was wrongly decided such that “the appeal against conviction involved, as a principal though not exclusive ground, a comprehensive attack on the approach taken in other LIBOR trials, an approach which has been approved by this Court in R v Hayes .” That contention was rejected in the following terms at [32], [36]-[38] and [41]-[42] under a heading “H and Hayes rightly decided”: “32. At the heart of the submissions made on behalf of Mr Merchant by Mr Jonathan Crow QC in seeking to persuade us that the approach in H was wrong, was the proposition that whether a statement is true or false is a question of fact which does not depend on the belief in which or the intention with which the statement is made. It was said that so long as the answer to the LIBOR question was within a range of permissible interest rates, the answer was not false just because the submitter had adjusted the rate to take account of requests made by traders, who were hoping for an advantage to their trading position. … 36. We consider, in agreement with Cooke J’s initial ruling and his second ruling on 5 December 2014, and the judgment of this court in H , that the person making the LIBOR submission was under an obligation to give their honest and genuine assessment. That the submitters will give their honest and genuine assessment is implied into the LIBOR submission ; long established authority (some of which was referred to in [377]-[379] of Asplin J’s judgment) shows that, when an answer is given in such circumstances, it must be an honest or genuine assessment by the person making the answer. 37. It is clear from the transcript of the argument in H that the court fully considered both the meaning of the LIBOR question and the issue as to legal duty. The court clearly concluded that the operation of the LIBOR market and the answer to the LIBOR question entailed a legal duty to provide, when answering the question, an honest or genuine assessment. Indeed it is difficult to understand how the market which depended on the setting of a benchmark could have operated in any other way. As Davis LJ observed, unless when answering the question there was a legal duty to give an honest and genuine assessment the market could not operate. It followed that in making a LIBOR submission there was a legal duty to provide an honest and genuine assessment. That was the proposition which Cooke J accepted, and which was accepted without hesitation in both H and Hayes . It is hardly surprising in the circumstances that the matter was dealt with shortly by such an experienced commercial judge as Cooke J, and by the Court of Appeal in H . 38. We ourselves cannot see how a benchmark could have been set in any way other than through discharge of such an obligation when answering the question . Quite apart from the decisions in this court, it is important also to note that Hamblen J, another very experienced commercial judge, followed the same approach as Cooke J. … 41. We therefore reject the submission made on behalf of Mr Merchant to the effect that the LIBOR question requires only an answer of one of the rates at which the bank could borrow and no legal duty to the effect suggested was owed. In our judgment, the judges who considered this question in the earlier cases were correct and the bank was required to give a genuine assessment. They were right in concluding that this is so obvious that it was to be implied in the return. An answer which was not a genuine assessment was a false answer . For these reasons H was rightly decided, founded as it was on well-established legal principles. 42. In these circumstances it was not necessary for the prosecution to prove that the actual submissions made by Barclays in answer to the LIBOR question were outside the permissible or acceptable range; what needed to be proved by the prosecution was that they were not genuine submissions. This is because a submission would be false, even if within the range, if it was either higher or lower than the bank believed a genuine answer would have yielded . As the evidence demonstrated, very small movements, within the permissible range, were capable of increasing profitability for the bank and reducing profits or increasing losses to the counter-parties.” (emphasis added) 57. The second aspect to the appeal in R v Merchant did not depend upon the correctness of R v H and R v Hayes . It was that the judge had not given proper directions in a number of respects. In one respect this submission was accepted, namely that the judge had not given a direction that the ingredient of the offence at paragraph 2(b) of the indictment (which was in materially identical terms to the indictment in Mr Hayes’ case) had to be made out; this was the allegation that the defendant had agreed that the proper basis for a LIBOR submission should be disregarded, which required his knowledge /intention that the LIBOR submission would be a false one. This is in substance the point Mr Hayes seeks to raise as Ground 2 of his present appeal. At [48]-[49] the court nevertheless dismissed Mr Merchant’s appeal against conviction on the basis that on the specific facts of his case the jury must have been satisfied of that question because they could not otherwise have found Mr Merchant to have been dishonest. 58. Although the case did not involve an appeal by Mr Hayes, the court specifically addressed whether the same point would have affected the conviction of Mr Hayes, in whose trial the directions had been framed in materially identical form. At [24] the court drew attention to the factual circumstances in R v Hayes being specific to that case, including that at the time of the rulings by Cooke J Mr Hayes had made extensive admissions and that the defence had itself said (prior to the 6 July 2014 ruling) that the question for the jury was one of dishonesty. At [25] the court emphasised that directions must always be tailored to assist the jury in relation to the particular facts and issues in each case in the following terms: “25. ……It is always necessary to remember that the evidence in each trial may be different, and directions appropriate for one trial might not be appropriate for another trial. It is the principled aim of every summing-up to provide succinct, focussed directions on the issues raised in the specific trial. Directions which have been appropriate in one of a series of trials being heard separately for proper reasons of case management, even if those directions have been approved on appeal, might not be appropriate in a subsequent trial in the series in which there are different issues and evidence. As has been said on numerous occasions, crafting the directions for each case is essential.” 59. At [46] The court said: “Cooke J dealt with the issue of deliberately disregarding the proper basis as a general issue for the jury under the issue of dishonesty. This may have been because, as noted above, the central issue before Cooke J had been identified as one of dishonesty. We accept that the issue can be addressed under dishonesty and because of the focus of the issues in that case, it was right to do so . However in the present case, properly analysed, deliberately disregarding the proper basis was, as drafted in the particulars of the offence of this indictment, part of the element of the particulars of this offence of defrauding.” (emphasis added) The Crown Court proceedings in the case against Mr Palombo and others 60. Mr Palombo’s trial (and subsequent re-trial) took place before Judge Gledhill and a jury, in the Crown Court at Southwark in 2018-2019. Mr Palombo was tried alongside five others: Christian Bittar and Achim Kraemer, both former employees of Deutsche Bank, and Philippe Moryoussef, Colin Bermingham and Sisse Bohart all former employees of Barclays. The prosecution (SFO) case was that between 1 January 2005 and 31 December 2009, Mr Palombo conspired with the co-defendants and others to make false submissions of EURIBOR to the EBF, in order to gain commercial advantage in respect of swaps contracts made between Barclays and its contractual counterparties. The indictment was in materially identical terms to that in Mr Hayes’ case save for the differences in the individuals and dates, and the involvement of EURIBOR rather than LIBOR submissions, alleging that the submissions would be false in that they would deliberately disregard the proper basis for EURIBOR submissions. 61. The prosecution case was that the conspiracy had three essential aspects: i. “Interbank” – The first central allegation was that traders in different banks liaised with each other to arrange for their cash desks to make submissions on a concerted basis with a view to achieving a rate which benefited the various banks’ economic positions. This aspect was advanced against Mr Palombo but not Mr Bermingham or Ms Bohart; and only on two occasions. ii. “Intrabank” – The second critical assertion was that traders at Barclays including Mr Palombo made requests of their cash desk for a higher or lower submission to benefit the bank’s economic position. This criminality was said also to have involved Mr Bermingham and Ms Bohart. iii. “Cash-pushing” – The third limb was the prosecution’s allegation that Mr Bermingham and Ms Bohart (but not Mr Palombo) agreed to make bids and/or transactions in the market in order to manipulate the actual market price. 62. The prosecution case against Mr Palombo, therefore, was mainly of involvement in the “intrabank” aspect of the conspiracy, making requests of the Barclays cash desk for a higher or lower submission to benefit the bank’s economic position. 63. At the retrial, the prosecution relied upon the following, amongst other matters, to prove its case: i. The fact that Christian Bittar had pleaded guilty to the indictment, and that Philippe Moryoussef had been convicted at the first trial (in his absence), proved the existence of the conspiracy. ii. Archived communications recovered from Barclays and other panel banks relating to EURIBOR submissions during the indictment period (all audio and written electronic communications which had been recorded for compliance purposes, including emails, Bloomberg electronic messages, transcripts of telephone and intercom calls, the submissions, and published EURIBOR rates). 64. Mr Palombo’s defence case was that: i. Whilst accepting a degree of involvement in seeking to influence Barclays EURIBOR submissions on certain dates, he denied he was part of any conspiracy, that he was attempting to procure submissions that were false or misleading, or that there was any element of dishonesty in his actions. ii. Where the EURIBOR submission was within a range of possible submissions which were legitimate (i.e were not inaccurate answers to the EURIBOR question), that it was legitimate for the submitter to have regard to the bank’s commercial position in selecting a submission within that range. iii. He had not worked in banking prior to joining Barclays as a graduate trainee. He received no specific training on applying the EURIBOR Code. He was told to learn on the job, and when he was assigned to work with Moryoussef, specifically told to learn from him. He learned that the cash desk might arrive at more than one figure which could be the “proper basis” for a submission. If there was a range of figures, it was honest for the cash desk to submit any of the figures that fell within the definition. iv. The whole Euro swaps desk believed the same and if a member of the desk wanted a higher or lower submission, a request would be made of the cash desk on the basis that the figure was within in legitimate range. The practice was discussed and conducted in an entirely open basis. v. Whilst he accepted his role in requests made to the cash desk, he was not aware of the interbank nature of Moryoussef’s dealings, and if the appellant was said to be involved to any extent, it was as a proxy for Moryoussef. He accepted that on two occasions he had asked traders at other banks to request a particular rate. This was done at the specific direction of Moryoussef on days when Moryoussef was not present, and on such days he bore a heavy overall responsibility which caused him significant anxiety and consequently he gave not thought to the directions but simply to carry them out as instructed along with many other tasks. 65. On 22 September 2017, Judge Gledhill made a ruling concerning the proper construction of the EURIBOR Code and the definition of EURIBOR in preparation for the trial. As already noted, the EURIBOR Code was governed by Belgian law and the judge heard expert evidence as to the Belgian law principles of contractual construction. The judge held that applying Belgian law principles (as he had established them to be), the proper interpretation of the Code was a matter of law for him. He then expressed his decision on the ultimate issue before him at paragraph 46 of his ruling in the following terms:- “46. RULING ON THE ISSUE I. The common intention of the parties to the Code is clear from the EURIBOR definition, as stated in Article 6.1 of the Code. The panel banks were not permitted to take into account their own trading advantage when submitting the daily rate. The common intention was that each panel bank would submit a rate which to the best of their knowledge was the rate at which euro interbank term deposits were being offered within the EMU zone by one prime bank to another at the given time. The common intention was that each bank was to make an independent and genuine assessment of the rate submitted. When putting forward its assessment of the rate there is a subjective element to the assessment, as any assessment is to an extent a matter of opinion. But otherwise the rate was to be assessed objectively as to the rate at which deposits were to be offered by one prime bank to another at the given time. II. The common intention is also clear from the other intrinsic elements of the Code. In particular, the Preface states that EURIBOR is the new market reference rate for the Euro. The rate was to be used on the financial markets and would be relied on by third parties. III. In these circumstances, having determined the common intention, Belgian law does not require the court to consider the extrinsic elements and there is no other reason to do so in this case. IV. Pursuant to the principle of good faith, the Code is to be supplemented by the requirement that panel banks should not take into account trading advantage when submitting the rate. V. I reject the defence submission that the fact that the taking into account of the bank’s own trading position is not expressly prohibited means that the Code must be construed as if it were therefore permitted. There was no common intention of the parties that the panel banks were permitted to manipulate the rate for their own advantage or the advantage of others – and conversely, to the disadvantage of others. VI. I also reject the defence submission that the bank was permitted to take into account trading advantage when selecting the rate to be submitted as long as the rate was within the range of justifiable rates. If the banks were permitted to take their own interest/s into account, the rate submitted would not be objective and would not be submitted to the best of their knowledge. On the contrary, it would be subjective and would distort the EURIBOR rate. VII. There is no need in the circumstances to apply Article 1162 of the Civil Code. VIII. As I have ruled at paragraph III above, I am not required to hear evidence of the extrinsic elements. However, I am conscious that such evidence will be relevant, or at least some of it will be, at the trial. It is admissible if it goes to the issue of the defendant’s state of mind, and in particular, to whether he or she was acting honestly. Indeed, it may very well be that the real issue in this case is whether the prosecution can prove that the defendant was dishonest, within the meaning as set out by the Court of Appeal (Criminal Division) in the case of R v Ghosh 75 Cr. App. R. 154.” 66. Having so held, the judge went on briefly to say that he also accepted that the various decisions of the CACD in the LIBOR cases (cited above) were “highly relevant” to the case before him, and that "the principles set out in these cases should guide this court as to the correct approach in law”. He held that “the correct approach is as set out in the LIBOR cases” (at [47]-[48]). 67. Judge Gledhill’s ruling at the preparatory hearing was the subject of an appeal to the CACD by Mr Palombo’s co-defendant, Christian Bittar: R v B . The court (Davis LJ, Teare and Bryan JJ) upheld the judge’s ruling. Having set out the appellant’s indictment, the court referred to the “LIBOR cases”, noting (at [13]-[16]): “13. It is now established that conduct of such a kind (if proved), undertaken with the requisite dishonest intent (if proved), can constitute a criminal conspiracy, under English law, where carried out with regard to the fixing of the Libor rate. 14. This is established at this level by a series of three cases in the Court of Appeal (Criminal Division): H [2015] EWCA Crim 46 ; Hayes [2015] EWCA Crim 1944 ; and Merchant & Mathew [2017] EWCA Crim 60 . With regard to alleged Libor fixing the following five principles have in particular been identified (see paragraph 9 of the judgment in Hayes ): i) It was inherent in the Libor scheme that the submitting panel bank was putting forward its genuine assessment of the proper rate. Although it had the subjective element inherent in an opinion, it was otherwise to be made by reference to an objective matter – the rate at which the panel bank could borrow funds etc. ii) Any submission made had to be made under an obligation that the submitter genuinely and honestly represented its assessment. iii) Assessments by different panel banks could legitimately differ, but that did not displace the obligation that the submission made must represent the genuine opinion of the submitter. iv) Where there was a range of figures, the submission made had to represent a genuine view and not a rate which would advantage the submitter. v) The submitting bank could not rely on or take into consideration its own commercial interests in making its assessment. The bank was not free to let its submission be coloured by considerations of how the bank might advantage its own trading exposure; that would be contrary to the definition and the whole object of the exercise. 15. It may be noted that in Merchant & Mathew it was sought to be said that H and Hayes were wrongly decided. In particular, it was sought to be said that so long as the relevant submission for a particular tenor was within a range of permissible rates then submitted rate within that range at the behest of traders hoping for an advantage in their trading position. This challenge failed: see paragraphs 41 and 42 of the judgment of the court delivered by the Lord Chief Justice. 16. However, that is the position under English law with regard to Libor. In the present case, the judge was concerned with Euribor: which, as we have said, was, unlike Libor, governed by the Code (in the version extant at the time) and which was itself subject to Belgian law.” In upholding Judge Gledhill’s ruling and dismissing the appeal, the court said at [51]-[56] and at [63]-[64]: “51. Mr Hunter launched a strong attack on the judge's conclusion that, approaching the matter intrinsically, the meaning of Article 6.1 was clear. In our view, however, the judge's conclusion to that effect was entirely justified. 52. On any view of Belgian law, the judge was at least entitled to look at all the provisions of the Code to assist in the determination of the meaning of Article 6.1. And it is noteworthy that the Code, among other things, stipulates: (1) The rate is to be “the best price between banks”: it is clear from the words of the Preface that hypothetical prime banks are contemplated, not any particular individual panel bank. (2) Panel banks are required to have high ethical standards and enjoy an excellent reputation. (3) The submission is required to quote the rate “accurately with two digits behind the comma”; and (4) Panel banks are to refrain from any activity damaging to Euribor. 53. These points, taken both individually and cumulatively, tell strongly against the appellant’s argument that an individual panel bank can have regard to its own trading advantage in making its submission. 54. The point, however, is then put beyond any real doubt by the opening words of Article 6.1 itself. The submitted rates are required to be by reference to the rates at which euro interbank term deposits are being offered “by one prime bank to another” – that is, viewed objectively, again by reference to a hypothetical prime bank (not the individual panel bank). And that is then all qualified by the requirement that the quoted rate is “to the best of their knowledge”. This language is specific. It is not, pace Mr Hunter, vague. And it is wholly inconsistent with the panel bank being entitled in effect to skew the submitted rate to its own trading advantage: for that would not then be putting forward its “to the best of their knowledge” assessment of what is, objectively, the best price between the best banks. 55. We think it legitimate to have regard also, if necessary, to the underpinning reasoning of the courts in the Libor cases. This is not to use those cases as extrinsic materials but simply to point out that aspects of the underpinning reasoning in those cases in principle would apply equally to Euribor. This is, essentially, because both rates (Libor and Euribor) are designed to be a comparable benchmark for the relevant markets for the day in question (as the summary of the background facts before the judge itself indicated). It is hard to conceive how such a benchmark, if to work, ever could have been intended to be permitted to be influenced by the trading advantage of individual submitting panel banks. (Indeed, as was put to Mr Hunter in argument, that prospectively would confer on panel banks a potentially great commercial advantage denied to other, non-panel, banks.) So to permit would be contrary to the whole object of the exercise. As stated by the court in H and in Hayes (see in particular at paragraph 47) unless the requirement was to give a genuine assessment of the rate the market could not operate. Those sorts of considerations surely must apply as much to Euribor as to Libor: and are also wholly consistent with the language of Article 6 of the Code, read as a whole, and with the words “to the best of their knowledge” in particular. 56. This reading thus also disposes of the appellant’s central argument that to submit a rate designed to advantage the submitting bank is permissible if that submitted rate is within the (or perhaps a) justifiable range. In our judgment, one cannot get that out of the language of Article 6. Article 6.1, after all, is directed at a single rate, to be submitted (to two decimal points) to the best of the submitting bank’s knowledge. The Article simply is not directed at a range of rates from which a submitting bank then may choose to suit its own advantage. In any event, what is the “justifiable range”? Is that range to be determined with or without reference to a panel bank’s own trading advantage? And might not such a range itself thereafter become capable of being skewed if all panel banks are entitled on preceding occasions to submit rates to their own advantage? Again, the underpinning reasoning in Merchant & Mathew – where the like point as to “range” had been specifically pursued – surely has equal purchase in the Euribor context. … 63. By this ground the appellant complains, as we have said, that the judge wrongly and unfairly had regard to the decisions of the English courts on the Libor cases (cited above). Not only were those cases governed by English law and did not involve the Code but in any event it was unfair and inconsistent for the judge to, in effect, take those cases into account as extraneous materials. 64. There is nothing in this point. The fact is that, in broad terms, Euribor was intended to be a benchmark, comparable to Libor, for euro denominated transactions. Mr Cameron rightly conceded that the judge was entitled to have regard to the underpinning reasoning in the Libor cases to the extent that such reasoning bore on the intrinsic meaning and intended effect of the Code (as indeed we have ourselves done in earlier parts of this judgment). Although the judge's remarks in paragraph 48 of his ruling are perhaps not ideally worded, it is plain enough that that had been his approach and that was what he was intending to indicate. That was a justified approach.” (emphasis added) 68. Judge Gledhill’s directions to the jury at Mr Palombo’s trial reflected the terms of the preliminary ruling and the decision of the CACD in R v B [2018] EWCA Crim 73 . The jury were provided with a written document headed “Legal Directions – 2”. So far as is relevant, those directions provided as follows:- “CONSPIRACY TO DEFRAUD To defraud or to act fraudulently is dishonestly to prejudice another’s right, knowing that you have no right to do so. Prejudicing another’s right includes causing economic loss or exposing another to the risk of economic loss. … Before you can convict any defendant of conspiracy to defraud, you must be sure: … 3. that the defendant you are considering was a knowing party to the Conspiracy, in that he/she agreed with one or more employees of a Euribor panel bank to make or procure submissions of Euribor rates which were false or misleading in that they: a. were intended to create an advantage to the trading positions of employees of one or more of the panel banks, and b. deliberately disregarded the proper basis for the submission of those rates, thereby, intending that the economic interests of others may be prejudiced. … PROPER BASIS FOR THE SUMBISSION OF EURIBOR RATES The proper basis for the submission of Euribor rates includes: i. A submitter at a Panel Bank, when submitting a Euribor rate, must put forward his/her assessment, to the best of his/her knowledge, of the rate at which Euro interbank term deposits in the relevant tenor are being offered within the EMU zone by one prime bank to another at 11 am Brussels time. ii. Assessments by different Panel Banks could legitimately differ, but that did not displace the obligation that the submission must represent the assessment of the submitter, to the best of his/her knowledge. iii. Where there was a range of figures, the submission made still had to represent an assessment to the best of his/her knowledge and not a rate intended to advantage the submitter or trader or the bank at which he/she worked. The fact that the figure could be within a range provides no answer if the figure submitted does not represent the assessment to the best of the knowledge of the person submitting the figure. iv. A submitter is not entitled to take into account that which would or might advance his/her own or another Bank’s commercial interests or those of a trader in putting forward his/her Euribor submission. To take such commercial matters into account would be to act in a way that was contrary to the Euribor Code of Conduct, as it plays no part in an assessment to the best of his/her knowledge of the borrowing rate. v. You must bear in mind that although this was the law of England and Wales during the period covered by the Indictment, and indeed has always been so, it was set out by the Court of Appeal for the first time in January 2018. This was therefore not available to the Defendants beforehand. (Please see the written Answer to Jury Note 2 – JB 3 Tab A). Deliberate Disregard The prosecution must prove so that you are sure in the case of each defendant that he/she agreed to procure or make submissions that deliberately disregarded the proper basis for the submission of those rates. For a defendant to “deliberately disregard” the proper basis, he/she must know what the proper basis for submissions is at that time. He/she must know that the submissions deliberately disregarded that proper basis for the submissions. … DISHONESTY … Dishonesty is a central issue in the case. When considering the question of dishonesty, you must: 1. Ascertain the defendant’s actual knowledge or belief as to the facts - that is, ascertain what the defendant genuinely knew or believed the facts to be. When considering the defendant’s belief as to the facts, the reasonableness or unreasonableness of his/her belief is a factor that is relevant to the issue of whether the defendant genuinely held the belief. However, it is not an additional requirement that the belief must be reasonable. The question is whether the belief was genuinely held. 2. Having determined the defendant’s state of knowledge or belief, go on to determine whether the defendant’s conduct (as you have found it to be) was honest or dishonest by the standards of ordinary decent people. There are no different standards of honesty which apply to any particular profession or group in society, whether as a result of market ethos or practice. If you are sure that the defendant’s conduct was dishonest, by the standards of ordinary decent people, the prosecution does not have to prove that the defendant recognised that the conduct was dishonest by those standards.” 69. It may be noted that there are two relevant differences between these directions and those of Cooke J in Mr Hayes’ case. First, in accordance with the decision in R v Merchant , the jury were expressly directed that f or a defendant to “deliberately disregard” the proper basis, he/she must know what the proper basis for submissions is at that time. He/she must know that the submissions deliberately disregarded that proper basis for the submissions.” Secondly the dishonesty direction was no longer in the terms required by R v Ghosh but in accordance with the decision of the Supreme Court in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 . 70. On 26 March 2019, Mr Palombo was convicted by a 10 to 2 majority. On 1 April 2019 he was sentenced to four years’ imprisonment. Mr Palombo’s 2020 appeal: R v Bermingham and Palombo 71. On 9 December 2020, the Court of Appeal (Fulford LJ, VPCACD, Cutts J, Sir Nicholas Blake) dismissed Mr Palombo’s and Mr Bermingham’s appeals against conviction. One of the grounds of appeal was that the judge had misdirected the jury on the “proper basis” for the EURIBOR submissions. Giving the judgment of the court, Fulford LJ rejected this ground as “unarguable”, for the reasons set out at [78]-[82]: “78. In the present case, this issue was resolved after full argument. The Court of Appeal should only revisit an earlier decision if satisfied that it was reached per incuriam in accordance with the exceptions to stare decisis identified in Young v Bristol Aeroplane Co Ltd [1944] KB 718 , or because this step is necessary in the interests of justice vis-à-vis an appellant because the law had been misapplied or misunderstood, and the accused had been improperly convicted ( R v Taylor [1950] 2 KB 368 ; R v Spencer [1985] QB 771 ). 79. The evidence now relied on was irrelevant to the issue of the correct approach to be taken to the interpretation of the common intention of the parties to the Code. The judge had concluded, wholly sustainably, that the intention of the parties was clearly established by the Euribor definition, as set out in article 6(1). It has not been challenged on this appeal that Belgian law provides that if the common intention is clear from the contract, there is no need to rely on extraneous evidence. Accordingly, there is no suggestion that the judge or the Court of Appeal misapplied Belgian law in this regard. 80. We consider, furthermore, that the decision of this court is unassailable in upholding the judge’s decision that the meaning of article 6(1) was clear (see Bittar at para 52). As Davis LJ observed, the Code required that the rate is to be “the best price between banks”, and this is by reference to hypothetical prime banks and not particular individual banks. Panel banks are required to have high ethical standards and enjoy an excellent reputation. The submission by the bank has to quote the rate “accurately with two digits behind the comma”. The Panel banks were expected to refrain from any activity damaging to Euribor. We agree that these points strongly indicate that individual panel banks could not have regard to the institution’s own advantage in making its submission. Furthermore, this was an objective test to the best of the individual’s knowledge, which further tends to exclude considerations of trading advantage (see Bittar at para 54). 81. It follows that the aspects of the evidence of Guido Ravoet and Helmut Konrad that are submitted to be determinative of this ground of appeal, to the contrary, were irrelevant on this issue. Testimony of this kind, as foreshadowed by the judge in his ruling (see para 70 above), was germane, inter alia, to the defendants’ state of mind and, in particular, as to whether they acted honestly: this material potentially assisted on how the applicants interpreted the Code by throwing light, for instance, on the discussions concerning the banks’ commercial interests at the design stage and during the Steering Committee meetings. Any evidence of an interpretation of the Code that tended to contradict the judge’s direction in law did not create a “legal no man’s land” for the jury. It was clear that the jury were obliged to follow the judge’s directions, and the jury would have focussed on the evidence of Helmut Konrad (and to a markedly lesser extent to Guido Ravoet) when considering the applicants’ contention that they had not knowingly and dishonestly participated in a conspiracy to disregard the proper basis for making Euribor submissions. 82. It follows that it is unarguable that the decision in Bittar was wrong in law or was decided per incuriam, or that the jury were provided with inadequate guidance by being left in a “legal no man’s land”. We decline to grant leave to appeal on this ground.” (emphasis added) 72. On Mr Palombo’s behalf Mr Owen KC advanced a further ground, namely that the conspiracy charge lacked the certainty required at common law, reinforced by article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), as enacted in domestic law by the Human Rights Act 1998 . This submission was comprehensively addressed and rejected at [83]-[104]. Although Mr Owen sought to advance the same argument as Mr Palombo’s third ground of appeal before us, we do not need to set out the entirety of the judgment rejecting it. The following suffices: “94. It is regrettable that there was no authoritative guidance as to whether taking account of a submitting bank’s commercial interests was unlawful before the trial judge’s ruling in this case was confirmed by way of the interlocutory appeal in Bittar . It is also regrettable that the test of what constituted dishonesty changed during the proceedings. However, despite Mr Owen’s eloquent and erudite submissions to the contrary, we are satisfied that the requirements of legal certainty were fully met in this case by both the indictment and the agreed legal directions on the elements of the offence given by the trial judge. … 96. There was, accordingly, a close connection between the two issues relating to intention on which the prosecution needed to satisfy the jury to the criminal standard of being “sure”. First, that each defendant deliberately disregarded the proper basis for the Euribor submissions when they either made or procured them. Second, that they did so dishonestly according to the reformulated Ivey test. Under the first requirement, a defendant could only deliberately disregard the proper basis if he or she knew what the proper basis was and despite this made or acted on false representations not permitted by the Code. Under the second, a jury could only be sure that the defendant had acted dishonestly if they had established (subjectively) the state of the individual’s knowledge or belief as to the facts and, in the light of that, that the conduct was dishonest by the (objective) standards of ordinary decent people. Applying the first element of the Ivey test meant that the jury must have rejected the defendants’ account of what they said they knew and believed as to the proper basis of making submissions to Euribor. 97. Together this set a demanding test for the prosecution to meet. In these circumstances, we are to an extent unsurprised that in the absence of authoritative guidance on the requirements of the Code a number of traders in the Euribor and Libor prosecutions have been acquitted. In this case, however, the jury must have concluded that the defendants’ evidence as to their states of mind was false, and their deliberate disregard of what they knew was the proper basis for setting the rate was dishonest, applying the objective test of the standards of ordinary decent people to the defendant’s state of mind. It is apparent from a number of questions the jurors asked during the trial that they were acutely aware of the difference between the state of knowledge of the defendants at the time they did the acts alleged and what is now known about the proper meaning of the Euribor Code of Conduct. … 100. In the present case, both unlawfulness and dishonesty needed to be established; these ingredients were the subject of clear and comprehensive directions; and they were established to the jury’s satisfaction, as reflected in their verdicts. We are satisfied that the principle of legal certainty was not impugned in this regard. … 102. We do not accept that these defendants were disadvantaged by the change in the standard dishonesty directions from Ghosh to Ivey . The first limb of the Ivey test gives a substantial measure of protection from the application of an objective test unrelated to the state of mind of the defendant under consideration… … 104. In these circumstances there is simply no basis for a submission that the applicants were unfairly convicted because they did not realise at the relevant time that what they were doing was wrong and the conduct made them criminally liable.” Connolly and Black (US Court of Appeals for the Second Circuit) 73. On 27 January 2022, the Second Circuit gave judgment quashing the convictions of Matthew Connolly and Gavin Black. Both were employed by Deutsche Bank (“DB”) which was one of the 16 US dollar LIBOR panel banks. They were traders, based in New York and London respectively. They were charged with, and convicted of, offences of conspiring to commit wire fraud and bank fraud contrary to 18 USC para 1349 in connection with US dollar LIBOR submissions; and of the substantive offences of committing bank fraud and wire fraud contrary to para 1343. The substantive counts alleged wire fraud “by inducing co-workers to submit to the [BBA] false statements that could influence LIBOR rates, in order to increase their employer’s profits – or decrease its losses – on existing derivatives contracts”. 74. The trials took place over 4 ½ weeks in the Federal Court before Chief Judge McMahon and a jury. Connolly and Black brought motions, initially at the close of the US Government’s case and again following conviction pursuant to Federal Rule of Criminal Procedure Rule 29, arguing (so far as relevant to this appeal) that the Government had failed to introduce sufficient evidence to establish the elements of the counts of which they were convicted. This is recorded in the judgment of McMahon CJ dismissing the motions at p. 2 ( USA v Connelly and Black 16 CR. 370 (CM)) where the principles of the sufficiency of evidence are set out. The principal evidence adduced by the prosecution was expert testimony from Dr Youle, an economist, and factual evidence from alleged co-conspirators Messrs King, Curtler and Parietti, who had entered into cooperation agreements with the Government. Mr King and Mr Curtler were responsible within DB for making the LIBOR submissions, and had each used a “pricer” to assist in reaching a conclusion as to the rate to submit. Also relied on was documentary evidence in the form of emails, Bloomberg chats and records of telephone conversations. 75. In allowing the appeals, the Second Circuit expressed its conclusion as being that “Finding that the evidence was insufficient as a matter of law to permit a finding of falsity, we reverse the judgments of conviction and remand to the district court for entry of judgments of acquittal” (p.2, lines 15-18; see also p.28, lines 15-18). The Government accepted that the conspiracy charges must stand or fall with the substantive wire fraud charges (p.28). The court said at p. 28: “Because we conclude, for the reasons which follow, that the evidence was insufficient to prove that the defendants caused DB to make LIBOR submissions which were false or deceptive i.e. to prove that they engaged in conduct that was within the scope of para 1343, we reverse defendants’ convictions.” There were other grounds of appeal which the court did not consider it necessary to address. The court set out at p.37 and 39 the Government’s case which it had set out to prove as its “theory of falsity” as being that there was (a) one true interest rate (b) automatically generated by Mr King’s pricer (c) which generated DB’s LIBOR submission except when there was a request from a trader. It held that the Government had failed to adduce sufficient evidence on each of the three elements. There was not “one true interest rate”. The submissions had been made taking into account market matters other than Mr King’s pricer. DB’s LIBOR submission had differed from the pricer even where there was no request from a trader. 76. We will examine the decision in more detail below when considering Mr Palombo’s first ground of appeal. The CCRC References 77. On 6 July 2023, the CCRC referred Mr Hayes’ case to the CACD following consideration of submissions in connection with Connolly and Black on behalf of Mr Hayes (21 November 2022, 30 March 2023) and the SFO (27 February 2023). It did so accepting submissions on behalf of Mr Hayes that the Second Circuit had ruled upon the definition and operation of LIBOR as a matter of law, and as such its decision conflicted with the decisions of the English courts. We will address whether that is the correct characterisation of the decision, which Mr Darbishire KC and Mr Owen KC no longer maintained in oral argument before us. The grounds for the reference identified for the purposes of section 14 (4A) of the Criminal Appeal Act 1995 are set out at [87i]): “There is a real possibility that the Court of Appeal will prefer the findings of the US appeal court in Connolly and Black regarding the definition and proper operation of LIBOR to those which were reached in Mr Hayes’s own case, and will conclude that this renders his conviction unsafe.” 78. On 12 October 2023, the CCRC referred Mr Palombo’s case to the CACD following “a comparison of the evidence and legal directions in his case against the evidence, legal directions, and CCRC referral reasoning in Mr Hayes’s case” (at [17]). Its reasoning for making the reference was the same as that in the Hayes reference given the close analogy between EURIBOR and LIBOR. The grounds identified for the purposes of section 14 (4A) of the Criminal Appeal Act 1995 are set out at [50]: “There is a real possibility that the Court of Appeal will prefer the findings of the US appeal court in Connolly and Black regarding the definition and proper operation of LIBOR – and by close analogy, the definition and operation of EURIBOR - to the reasoning which was used in Mr Palombo’s case, and conclude that this renders his conviction unsafe.” The Grounds of Appeal 79. Mr Hayes seeks to advance two grounds of appeal: 1. The judge’s direction to the jury that there was an absolute legal prohibition on commercial considerations in the LIBOR setting process was wrong in law. The relevant legal obligation on the submitter was to give an “honest” and/or “genuine” assessment of the LIBOR rate: his or her honest opinion. Whether and when a submitter was in breach of that obligation was a question of fact, dependent on the state of mind of the person involved. There was no basis for a direction to a jury that a submission could be neither “genuine” nor “honest” as a matter of law, simply because the submitter had considered commercial interests in determining the borrowing rate to be submitted. 2. The judge was wrong to direct the jury that, as a consequence of the legal prohibition on commercial considerations, if the Appellant agreed to procure submissions which were intended to advantage his trading then the sole remaining issue was dishonesty. The prosecution was required to prove each element of the indicted agreement, including that the Appellant agreed to the deliberate disregard of the proper basis for the submission of LIBOR rates and as a result agreed to the submission of rates which were false or misleading. Those factual issues were always in dispute, and the jury should have been directed to consider and resolve those factual questions before the issue of dishonesty could arise. 80. Mr Palombo seeks to advance three grounds of appeal: 1. The definition and proper operation of EURIBOR was, by analogy with LIBOR, correctly characterised by the Second Circuit in Connolly and Black . Insofar as the case against Mr Palombo proceeded on the basis that he had agreed with others to procure EURIBOR submissions which were “false or misleading” for the reason that ‘trader-influenced’ submissions were necessarily false or misleading, that approach was flawed. 2. The judge’s direction to the jury that there was an absolute legal prohibition on commercial considerations in the EURIBOR submission process withdrew important matters of fact from the jury. The relevant legal obligation on the submitter was to give an assessment of the EURIBOR rate which was to the “best of their knowledge”. Whether and when a submitter was in breach of that obligation was a question of fact, dependent on establishing the actual state of mind of the submitter and was not to be pre-empted and restricted by legal directions. 3. Mr Palombo’s conviction is unsafe because the indicted conspiracy to defraud was advanced on a basis that is incompatible with the requirements of legal certainty at common law and/or under Article 7 of ECHR. 81. There are two potential hurdles to each of these grounds being entertained by this court. The first arises from the fact that the current appeals arise out of the CCRC References. The second arises from the doctrine of precedent (‘ stare decisis ’) under which this court is bound by its previous decisions save in limited circumstances. We address each in turn. The scope of grounds which may be argued on a CCRC reference 82. As identified above, the CCRC were careful to define the ground on which the reference was made in each case. The significance of the formal definition of the ground referred is that it limits the scope of the grounds which may be argued on this appeal. Section 9(1) of the Criminal Appeal Act 1995 is the statutory basis on which the CCRC may refer a conviction to the CACD following a trial on indictment in England and Wales. Section 9(2) provides that such reference shall be treated for all purposes as an appeal against the conviction under section 1 of the Criminal Appeals Act 1968 . Appeals under s. 1 of the 1968 Act are not as of right: there is a filter of obtaining leave to appeal. Moreover, once there has been an appeal against conviction which is dismissed, there is no right to pursue a second appeal to the CACD in the absence of a CCRC reference. For this reason the 1995 Act seeks to restrict the grounds which can be argued on a reference to those which relate to the ground which is referred. A CCRC reference is not to be treated as if it were an ordinary appeal. It is not an opportunity to argue any grounds which the appellant wishes to. Section 14 (4A) and (4B) of the 1995 Act (as amended by s. 315 of the Criminal Justice Act 2003 ) provide as follows: “(4A) Subject to subsection (4B), where a reference under section 9 , 10 or 12A is treated as an appeal against any conviction, verdict, finding or sentence, the appeal may not be on any ground which is not related to any reason given by the Commission for making the reference. (4B) The Court of Appeal … may give leave for an appeal mentioned in subsection (4A) to be on a ground relating to the conviction, verdict, finding or sentence which is not related to any reason given by the Commission for making the reference.” 83. A question therefore arises in relation to each of the grounds of appeal which Mr Hayes and Mr Palombo seek to advance whether the ground relates to any reason given by the Commission for making the reference; and if not whether leave should be granted pursuant to s. 14 (4B) to permit the unrelated ground to be advanced. If the answer to those questions is in the negative, the ground cannot be considered. The doctrine of precedent 84. The main authorities are R v Taylor [1950] KB 368 ; R v Gould [1968]; 2 QB 65; R v Spencer [1984] 1 QB 771 ; R v Simpson [2004] QB 118 ; R v Magro [2011] QB 398 ; R v Barton [2021] QB 685 ; R v Bermingham and Palombo [2021] 4 WLR 113 ; and R v Layden [2023] EWCA Crim 1207 , from which we derive the following principles: i. There is a rule of stare decisis which applies in CACD, just as in the Civil Division, which binds the court to follow a previous decision on a point of law by the CACD, or its predecessor the Court of Criminal Appeal, subject to certain exceptions: Spencer at p. 779D-F; Simpson at [26]-[27]. ii. Those exceptions include the exceptions which apply to civil appeals as identified in Young v Bristol Aeroplane Ltd [1944] KB 718 , namely where (i) the previous decision conflicts with another previous decision of the CACD; or (ii) the previous decision cannot stand with a decision of the House of Lords or Supreme Court although not expressly overruled; or (iii) the previous decision was reached per incuriam : Spencer at p. 778E-F. iii. The second of these applies where there is in effect an instruction by the Supreme Court not to follow the previous decision, albeit strictly obiter : Barton at [96], [102], [104]. iv. There is an additional flexibility in criminal cases where the liberty of the subject is in issue: in such a case the court can depart from a previous decision, where this step is necessary in the interests of justice vis a vis an appellant because the law had been misapplied or misunderstood: Taylor at 371, Gould at 68-69, Spencer at p779D-F, Bermingham and Palombo at [78]. This was described in Simpson at [38] as a residual discretion. Although initially identified as applicable only to prevent a wrongful conviction, the discretion is not so limited: Simpson at [34], Barton at [96]. v. Such residual discretion must be exercised circumspectly: Magro at [30]. It must take into account the principle that the rules as to precedent are of considerable importance because of their role in in achieving the appropriate degree of certainty as to the law, which is a foundation stone of the administration of justice and the rule of law: Simpson at [27]; Barton at [103]. In deciding whether to depart from a previous decision, the constitution of the court making that decision is a relevant factor: Simpson at [38]. Even where the court considers the previous decision wrong, it should not depart from it if it is carefully reasoned and has not overlooked any relevant argument or information: Magro at [30]-[31]. vi. One factor in favour of exercising the residual discretion is development of the law to meet contemporary needs: Simpson at [27]. 85. These cases all concern the impact of a previous decision of this court in a different case to that with which it is dealing on the subsequent occasion. In the present appeal, however, we have previous decisions, at both an interlocutory stage and on full appeals against convictions, in the very cases of Mr Hayes and Mr Palombo which we are being asked to consider. We are unaware of any case considering the doctrine of precedent involving this particular circumstance, and were told that the combined researches of counsel had not found any. It must, we think, impose a heavy burden on an appellant to show that substantial injustice would be caused if they were not permitted to reopen the previous decisions of this court which decided the very points which are sought to be advanced. In this connection we observe that where there has been a change in the law since the date of conviction, but without a previous appeal, this court will not ordinarily grant an extension of time to appeal unless satisfied that there has been substantial injustice; and a change in the law will not of itself justify an extension of time if the conviction was in accordance with the law at the time and followed a fair trial: R v Cotterell [2008] 1 Cr App R 7 at [42]-[46]. Those principles, which are applicable to extensions of time for out of time appeals, may be applied to dismiss an appeal even where there has been a CCRC reference, by reason of s. 16 C of the Criminal Appeal Act 1968 . Palombo ground 1 86. We find it convenient to address this ground first because it is the only ground, in our view, which relates to reasons for the CCRC making the references. 87. We have highlighted by way of emphasis above the passages in R v H , R v Hayes , R v Merchant , R v B and R v Bermingham and Palombo which explain the reasoning for the conclusion, consistently reached in each of those cases, that a submission which is influenced by trading advantage is not a genuine or honest answer to the question posed by the LIBOR and EURIBOR question. We agree with that conclusion and those reasons, and do not propose to repeat or paraphrase them. Mr Darbishire submitted that R v Merchant decided no more than that the duty on a LIBOR submitter was to make a genuine and honest assessment, but that is not a tenable view of the decision; it clearly endorsed R v H and R v Hayes as rightly decided in holding that trading advantage could never be taken into account. 88. At the heart of the challenge on this ground was the argument advanced by both Mr Darbishire and Mr Owen that there was a range of rates which could represent the submitter’s honest and genuine assessment; and the submitter was free to take into account trading advantage in deciding where within the range of honest and genuine assessments to make the submission. There is, it is said, a false dichotomy between a genuine and honest assessment and one which takes into account trading advantage because if the submission is within the range of genuine and honest assessments available it can be placed anywhere within the range based on trading advantage and remain a genuine and honest assessment. 89. We reject this argument. It begs the question “genuine assessment of what?” That is a matter of construction of the LIBOR Definition or the EURIBOR Definition which defines the question which the submitter has to answer. That was the question of law addressed in the LIBOR cases, and as we explain when dealing with Mr Hayes’ first ground and Mr Palombo’s second ground, that was correctly treated as a question of law for the court. In the LIBOR Definition what is required is an assessment of the rate at which the panel bank “could borrow”. That must mean the cheapest rate at which it could borrow. A borrower “can” always borrow at a higher rate than the lowest on offer. But the higher rate would not reflect what the LIBOR benchmark is seeking to achieve, namely identification of the bank’s cost of borrowing in the wholesale cash market at the relevant moment of time. If in a stable and liquid market a submitting bank seeks and receives offers for a reasonable market size at the very time it is to make its submission, and receives offers ranging from 2.50% to 2.53%, it would accept the offer at 2.50%. It would be absurd to suggest that the LIBOR question could then properly be answered by a submission of 2.53%. The bank “could” borrow at that rate in the sense that it was a rate which was available, but that is obviously not what “could” means. When pressed in argument as to what “could” meant if it did not mean the lowest at which the bank could borrow, Mr Darbishire suggested that it meant the rate “at which it would have to borrow”. This is a reformulation without a difference. The rate at which a bank would “have to” borrow is the lowest rate at which it could borrow. This remains the criteria which has to be applied in the more common scenario when there are a number of factors other than contemporaneous offers which have to be taken into account in answering the question. In an illiquid market, it may be very difficult to reach an answer to the question, and views between different banks might legitimately differ. But that does not change the nature of the question which the LIBOR Definition requires to be answered, which is the selection of the single figure which in the genuine estimation of the submitter represents the lowest cost at which the panel bank could borrow. There is no range of genuine and honest assessments in the sense that the submitter can treat each of them as a genuine assessment of the answer to the question, because the question demands a single rate by reference to an objective criterion which defines a single rate. 90. This is not undermined by the fact that a rate might differ by reference to the size of the borrowing. In Connolly and Black the evidence was that the rate for larger borrowings would be higher because of their size (see below). However if the rate at which the bank could borrow an amount properly within the description “reasonable market size” is at 2.50%, but twice that amount at only 2.51%, the LIBOR Definition question would have to be answered as 2.50%. That is obviously so as a matter of language in what is meant by “could”. It also meets the purpose of the LIBOR Definition as a benchmark. 91. The same is true of EURIBOR, which expressly requires “the best price”. Mr Owen submitted that this still imported a range because it did not specify whether the bank being spoken of was a borrowing bank or a lending bank and, because there would or might be a bid/offer spread, the rate might be different depending on the answer. We are unable to accept this submission because the EURIBOR Definition requires identification of the “rate at which euro interbank deposits are being offered”. That is the offer price and it is the same for the lending and borrowing bank. It is the “best” rate for the borrowing bank because it is the lowest at which it can borrow; and it is the “best” rate for the lending bank as it is the highest offer price which will be accepted by the borrowing bank. 92. This is why it was regarded as significant in the LIBOR and EURIBOR decisions in this court that the definitions required a single rate to be submitted to at least the nearest basis point. The submission had to be of a single figure, not a range, because the question being asked only admitted of an assessment of a single figure. Indeed any other construction would be unworkable. If the assessment could be of a range, the Definition does not define the criteria by which the range is to be confined: it is easy enough to identify the bottom of the range as the lowest at which the bank (in the case of LIBOR) or a prime bank (in the case of EURIBOR) could borrow; but there is nothing to identify where the top of the range is at which the bank could borrow more expensively, when a bank can always pay more than the lowest rate it could achieve. Moreover, if there were a range, the Definitions provide no criteria as to how a submitter is to go about choosing where in the range to make the submission. To draw on an answer Mr Hayes gave in one of his interviews, would it be permissible to roll a dice? Obviously not; that would be the very antithesis of an independent benchmark seeking to represent accurately the cost of borrowing between banks in the wholesale cash market. Mr Hayes’ answer to the question was, in effect, that because that was absurd, the absurdity was avoided by being able to take account of trading advantage. But that is not only contrary to the language of the LIBOR and EURIBOR Definitions, which require an assessment of a single rate, but also contrary to its purpose as an independent benchmark: it would bake into the system an ability for panel banks to boost their profits at the expense of non-panel banks, which obviously cannot have been intended. The absurdity is avoided by the fact that there is no range, in the sense relied on. 93. The fallacy in the range submission, therefore, is to treat the LIBOR and EURIBOR questions as being capable of being answered by a genuine assessment of a range. They cannot. The question being asked is for a single figure which is clear as a matter of objective interpretation: the lowest rate at which the/a bank could borrow. Of course the exercise required subjective judgment. Different submitters might reach different figures, not only because in the case of LIBOR it was a rate for that particular bank, but more fundamentally for both LIBOR and EURIBOR because it was not a mechanistic exercise, and required a judgment based on multiple factors such as those enumerated in Cooke J’s summing up which we have quoted. In that sense there was a range in which the answers might lie, none of which could be said objectively to be incorrect, because they were opinions reached as a matter of subjective judgment. In that sense there was no “one true rate” or “one correct rate”. But from the point of view of an individual panel bank there could only be one genuinely assessed rate, because the assessment required was of a single rate. 94. It was suggested that this was a new point which this constitution of the court had identified for the first time. We disagree. It is a fundamental part of the reasoning in each of the LIBOR and EURIBOR decisions. In particular, it is contained either expressly, or as the underlying premise for, the following passages in the cases: i. R v H identifying the range argument at [21] and rejecting it by endorsing the judge’s reasons at [24]; and at [42], [43] and [44] referring to “ the proper rate”; and at [46] approving the dichotomy drawn by Cooke J between a rate which reflected a genuine view and a rate taking account of trading advantage. ii. R v Hayes at [9(i)]: “ the proper rate… by reference to an objective matter ”; and at [9(iii)-(v)] referring to the range as being by different panel banks. Cooke J had addressed and rejected the range argument in his summing up: “ The word "range" was used by Mr Hayes to describe a number of potential individual figures that might represent a realistic possible answer to the LIBOR question in a thin or non-existent cash market from which he said any one figure could be submitted after taking account of trading advantage. Mr Hayes's case is that there was no one figure which did answer the LIBOR question and that any number of answers could be given as to the borrowing rate. I have already given you directions of law as to the inapplicability of that concept in relation to a proper submission in relation to the LIBOR definition. The submitter had to submit one figure only which was the best assessment of the bank's borrowing rate and had to come to that conclusion without reference to the bank's trading interest. There may have been a number of different figures that a bank could have put forward as realistic without criticism from others because they all appeared to be objectively reasonable, but the submitter had to put forward one which represented the honest best opinion of the borrowing rate.” iii. R v Merchant at [41]-[42]; the court at [42], when referring to “a permissible or acceptable range”, must be referring to what is a range which subjective judgments might produce, not a range of genuine assessments by the submitter of the answer to the LIBOR question; otherwise it would not have been possible to say that “a submission would be false, even if within the range, if it was higher or lower than the bank believed a genuine answer would have yielded.” iv. R v B at [56] expressly rejecting any range; and at [54] “what is objectively …the best price”; and adopting the LIBOR reasoning at [55] and [64]; v. R v Bermingham and Palombo treating R v B as correct for the reasons identified at [80]-[82], especially the reference to an “ objective test ” in the last sentence of [80]. 95. Mr Owen and Mr Darbishire relied on evidence that this was not the view which had been expressed by a number of those involved in the operation of LIBOR and EURIBOR at the relevant time, including by way of example only, Mr John Ewan, BBA LIBOR Manager, in a deposition taken for the Connolly and Black proceedings; Fred Sturm, Director of the Chicago Mercantile Exchange in a letter to Mr Ewan on 3 July 2008; and Ms Bohart’s evidence at Mr Palombo’s trial. These and other pieces of evidence undoubtedly show that some involved in the operation of LIBOR and EURIBOR at the time took a different view. Equally there are market participants who have espoused the view that “could” does mean the lowest price at which the panel bank could borrow (see, for example, the evidence of Dr Youle and Mr Curtler recorded in the judgment of McMahon CJ in Connolly and Black ). That is neither here nor there in relation to the true construction of the question posed by the LIBOR and EURIBOR Definitions in the respective Codes, which in this country is a question of law for the judge. It was not suggested that there was a settled market practice as to the interpretation of those instruments; and in the absence of a settled market practice, what they mean, as a matter of English and Belgian law respectively, cannot be influenced by evidence of what practitioners think they mean or thought they meant. Such evidence is relevant to whether an alleged conspirator knew or intended that what he or she was agreeing should happen would be against the rules, that is to say contrary to what LIBOR and EURIBOR required, and to dishonesty. But it is not relevant to the question of construction which determines what LIBOR and EURIBOR did require. 96. Finally, so far as our own views on the issue are concerned, they are supported by, and consistent with, the publication by the BBA on its website in December 2008, during the Hayes indictment period, of the instruction amplifying the LIBOR definition that “The rates must be submitted by members of staff at a bank with primary responsibility for management of a bank’s cash, rather than a bank’s derivatives book.” We were told that in every panel bank, all those involved in the treasury function of manging the panel banks’ cash and making the submissions would also have trading positions, perhaps because of the need to hedge. However, the distinction must have been drawn here because it recognised the greater conflict of interest to which those conducting the derivatives trading would be subject in making submissions than those exercising a treasury function; and to have been seeking to mitigate that conflict, precisely because taking into account trading advantage could form no legitimate part in the assessment which had to be made in the submission. 97. We turn to the decision of the Second Circuit in Connolly and Black to explain why there is nothing in it which affects our conclusion that the LIBOR and EURIBOR decisions of this court were rightly decided for the reasons which they gave. Connolly and Black 98. As is apparent from the terms in which the conclusions were framed (as set out above) and the very test contained in Rule 29 of the Federal Rules of Criminal Procedure, the Second Circuit decision was one about the sufficiency of evidence, not one which rested upon any conclusion of law or construction of LIBOR as an issue of law. 99. The process of reasoning for the conclusions starts at p. 33 after setting out at p. 31 that for a conviction of wire fraud under New York law, the Government need not prove an actual false statement so long as it proves a “scheme to engage in some form of deception, such as a half-truth, i.e. , a “representation stating the truth so far as it goes” but is nonetheless misleading because of the “failure to state additional or qualifying matter””. Section B then addresses the Government’s evidence as to fraud, falsity or deception. It starts by examining “the LIBOR instruction with which the LIBOR Submitters were to comply.” As to that “We look principally to the language of the BBA LIBOR Instruction, to any accompanying elaboration or explanations of the BBA LIBOR Instruction and to the Government’s evidence as to how DB’s submitters arrived at their LIBOR”. Pausing there, the court was not confining itself, even “principally”, to the language of the BBA Definition but was taking into account the evidence from the DB submitters put forward by the Government, primarily Mr King and Mr Curtler, as to how those particular submitters arrived at their submissions in practice. This was because, as the court went on to say in the next sentence, the trial judge had correctly directed the jury that “the government has the burden to negate any reasonable interpretation of the instruction that would make Deutsche Bank’s submission responsive”. This means, as Mr Darbishire confirmed during the course of argument, that the question of how the LIBOR Definition was to be construed was being treated as an issue of fact for the jury, on which the prosecution bore the burden of disproving as a matter of evidence that it was to be construed in the way contended for by the defendants. 100. Having referred to the wording of the LIBOR Definition, and in particular that it required a rate at which the submitting bank “could borrow”, the Second Circuit referred to McMahon CJ’s conclusions that the Government had no obligation to present evidence that DB could not have borrowed at the submitted rate. It said at pp. 34-35: “The BBA LIBOR Instruction did not ask about an actual loan. Rather, it asked a question that was “hypothetical.” … A panel bank was to “estimate” … the interest rate at which the bank “could” … borrow an amount of cash that it would typically borrow, “were it to do so by asking for and then accepting” inter-bank offers in London just before 11 a.m. … (“[b]ecause of that word ‘could,’ this instruction is asking for a hypothetical rate,” “[i]t’s asking for the panel banks to make an estimate”). The district court, in denying defendants' Rule 29 motions for acquittal on the ground of lack of proof that any LIBOR submissions were false, stated that the government had no obligation to present evidence showing that DB “ could not have borrowed funds at [the] rate[s it] submitted” after receiving a request for higher or lower rate submissions by derivatives traders. … (emphasis in original). And in the district court’s view, evidence that DB Bank “ could have borrowed funds at a submitted rate would not have rendered the Defendants’ statements truthful.” … (emphasis in original). We disagree. The precise hypothetical question to which the LIBOR submitters were responding was at what interest rate "could" DB borrow a typical amount of cash if it were to seek interbank offers and were to accept. If the rate submitted is one that the bank could request, be offered, and accept, the submission, irrespective of its motivation, would not be false.” 101. The court went on to refer at p. 36 to the evidence of Messrs Curtler, King and Parietti and said: “Yet none of the witnesses testified that DB could not have borrowed a typical amount of cash at the rate stated in any of DB’s ’LIBOR submissions. And contrary to the district ’court’s Rule 29 Opinion, whether “B “could” do so was the precise question to which the LIBOR submissions were to respond, and was thus the key to whether a given submission was false.” 102. This does not engage with the detailed reasoning of McMahon CJ on the question set out at pp. 6-10 of her judgment. She there expounded a number of reasons for her conclusion. The first was the evidence that if the bank could borrow at one rate, it could always borrow for more, but the latter was not what was meant by the rate at which the submitting bank “ could ” borrow. Dr Youle and Mr Curtler testified that that obviously meant the cheapest at which the panel bank could borrow. McMahon CJ’s second reason for her conclusion was that statements of opinion are not scientifically right or wrong but are either honestly held or not. An opinion not honestly held is a factual misrepresentation, citing Federal case law. The same is true in English law and was spelled out in R v Merchant (at [33] and [36]). The Second Circuit did not address either aspect of this reasoning at this stage of its judgment, although, as will be seen, it does do so later. 103. At p.37 the court identified the Government’s falsity theory of (a) one true number (b) generated by Mr King’s pricer (c) departed from only when requested by a trader). The one true number theory was identified as being that “you borrow at the lowest rate. There’s no range.” At p. 39 the court said: “There are two principal respects in which the trial evidence, viewed as a whole, fails to support the foundations of the government's theory of falsity, i.e. , that there was (a) one true interest rate, (b) automatically generated by the pricer, (c) which was DB's LIBOR submission as generated except when there was a request from a trader. First, the testimony of the government's witnesses revealed that there were many factors other than the data automatically received by the pricer that informed DB's final LIBOR submission. Second, there were many loans available to DB, with varying interest rates; and as DB could agree to such rates, there was no one true rate that it was required to submit.” 104. The first of these addressed paragraph (b) of the Government’s falsity theory, and is of no relevance to the current appeal. The second rejected the one true rate theory on the basis that DB had loans available at various rates but again without at this stage addressing the point which McMahon CJ had made that the bank could borrow at the lowest of those rates and that’s what “could” must mean in the definition. 105. The court came to its reasoning on this point by reference to the evidence at pp. 44–47: “Most importantly, the one-true-interest-rate theory was also belied by the evidence that loans may have different rates of interest simply because they involve different amounts of principal. King testified that the cash desk would "borrow money every single day" (Tr. 657), and that "[t]here were periods where I need to borrow some $20- to $25 billion a day" (id. at 269). He said that "[o]ften it costs you more to borrow more cash than less cash," and thus loans in various principal amounts could be at varying rates of interest. (Id. at 667-68.) Similarly, Curtler testified that "there were days where there would have been a wide range of offered rates." (Id. at 2135 (emphasis added).) He said that "[i]f two counterparties were willing to lend to you, I believe I would borrow the cheapest money first"; but "[y]ou wouldn't borrow one or the other. You would borrow both . . . ." (Tr. 2181 (emphasis added).) And the BBA LIBOR Instruction does not say which of those two prices should be submitted. Curtler testified that he would have told the FBI "that for LIBOR, there are a range of numbers which could be reasonably used as a correct LIBOR rate." (Id. at 1905.) King likewise testified that where there could be loans of the same tenor but of different sizes, carrying different rates of interest, the BBA LIBOR Instruction provided no guidance as to which interest rate should be submitted, hence giving him leeway as to what rate to submit: …. These varying rates are rates that DB would "ask[] for and then accept[]" (GX 1-803 (BBA LIBOR Instruction at 2, ¶ A)), as opposed to "inflated interest rate[s]"--hypothesized by the government--at which DB "could" borrow to its obvious detriment (see Government brief on appeal at 47). …. King, who believed that the "'reasonable market size'" term of the BBA LIBOR Instruction "gave [him] flexibility as to where [he] could actually submit [DB's] LIBOR…….” 106. The court also said at p. 51: “Nor could a reasonable jury infer from Dr. Youle's testimony that the BBA LIBOR Instruction required DB to submit its "one best estimate" (id. at 226; see Government brief on appeal at 44-45). While Dr. Youle testified to "an understanding that [banks] would submit the one best estimate of the true borrowing costs they had" (Tr. 226), he did not link that understanding to the BBA LIBOR Instruction, which contains no similar qualification (see GX 1-803 (BBA LIBOR Instruction)). Nor did he link that understanding to language in the BBA LIBOR Instruction expressing the expectation that panel banks would "comply with the spirit of th[e] Definition or the Instructions to BBA LIBOR Contributor Banks" 107. We have already given our reasons for rejecting the argument that there cannot be one single rate which is the lowest at which the panel bank could borrow for funds “in reasonable market size” merely because the price of loans may vary according to size. The remainder of the reasoning is dependent on the evidence of the witnesses in that trial about how they understood the LIBOR Definition or operated it in practice themselves. Neither is of any relevance to the exercise which the English courts have undertaken, and which if we are to reconsider it, we must undertake, which is what the LIBOR Definition means as matter of English law. 108. The second strand of McMahon CJ’s reasoning, that a statement of opinion carries with it an implied statement of fact that it is honestly given, was addressed at p.49-50: “The government's argument that we should uphold the convictions on the theory that trader-influenced submissions constituted statements of "opinion[s] not honestly held" (Government brief on appeal at 32) suffers the same deficiency. While the government's three cooperating witnesses all testified that it was "wrong" to allow DB's LIBOR submissions to be influenced by existing derivatives trading positions because it gave them an "unfair advantage" over their counterparties (see,e.g., Tr. 278 (King), 765 (King), 1167 (Parietti), 1609 (Curtler), 2152 (Curtler)), not one of the witnesses testified that the submissions that were actually made were not rates at which DB "could"— as defined by the BBA LIBOR Instruction--borrow.” 109. Again, this addresses itself exclusively to the evidence in the trial about the rates at which DB could borrow, which does not touch on the question of construction with which we are potentially concerned. 110. At p. 50 the court said: “Although the government states that the BBA’s “instructions did not allow a panel bank, when submitting its honest estimate of its borrowing costs, to consider the submission’s effect on the profitability of interest rate swaps or other derivatives positions held by the bank’s traders” … in fact the BBA LIBOR Instruction contained no such prohibition. … In contrast, the BBA did evince a concern about collusion between panel banks. The BBA LIBOR Instruction expressly stated that “Contributor Banks shall input their rate without reference to rates contributed by other Contributor Banks.” … But there was no similar prohibition against banks' making their LIBOR submissions with consideration of the bank’s own interest-rate-sensitive derivatives.” 111. It is only in this passage, if viewed in isolation, that the judgment might be interpreted as expressing the court’s own view of the LIBOR Definition as a matter of construction. This seems to have been the interpretation of the CCRC, but we doubt that the judgment is properly to be read in this way. This passage is immediately followed by reference to Dr Youle’s evidence and the whole thrust of the judgment, consistently with the nature of a Rule 29 motion, is to address what was established by the Government’s evidence, it already having been said that what LIBOR meant was a matter of fact for the jury on which the prosecution bore the evidential burden of proof. 112. In any event, we do not find what is said persuasive in the context of an issue of construction as a matter of English law. It is a “black letter” approach, rather than a purposive one which does not address the robust reasoning of Davis LJ in R v H at [47] for rejecting this point in particular, nor the more general reasoning adopted in the English cases, including the purposive construction factors, such as that an ability for a panel bank to use its LIBOR submission to gain an advantage over a non-panel bank in its trading contracts is anathema to the fundamental concept of an independent benchmark for market wide use. 113. The Second Circuit also observed that while the BBA introduced a Code of Conduct in 2013 which did prohibit any “attempt to influence, or inappropriately inform, the contributing bank’s submissions for any reason, including for the benefit of any derivatives trading positions”, during the relevant period (which also encompassed the Hayes indictment period) “there were no such guidelines or prohibitions, and the BBA LIBOR Instruction did not prohibit LIBOR submitters’ consideration of the traders’ positions”. We do not consider that spelling this out in a much more detailed code after the period covered by the indictment casts any light one way or another on the position prior to its introduction. In this respect it does no more than spell out what the LIBOR Definition always meant. 114. For these reasons, therefore, we find nothing in the Second Circuit decision in Connolly and Black which causes us any doubt about the correctness of the English decisions as to the construction of LIBOR as a matter of English law, or by extension, of EURIBOR. In summary that is because the US court was addressing a different question from that being addressed by the English court in its decisions. As we have emphasised, it is apparent from the terms in which the conclusions were framed, and the very test contained in Rule 29 of the Federal Rules of Criminal Procedure, that the US decision was one about the sufficiency of evidence, not one which rested upon any conclusion of law or construction of LIBOR as an issue of law. This indeed was Mr Owen’s submission in a detailed speaking note served shortly before the hearing. The meaning of the LIBOR definition was treated as an issue of fact for the jury on which the prosecution had the burden of disproving that it bore the meaning contended for by the defendants. It was no doubt for this reason that the court never addressed what system of law applied, or any principles of English law. It was no doubt also for this reason that it did not consider any of the decisions of this court on LIBOR or EURIBOR: they would not have been relevant to the exercise which it was undertaking. Moreover, it was concerned only with the sufficiency of the particular evidence which the government adduced in that case, and therefore rested on the personal practices and views of three individuals, namely Dr Youle, Mr Curtler and Mr King. It was not a case which turned upon evidence of general market practice in London. 115. As already noted, the Second Circuit did not address what system of law was applicable to the interpretation of LIBOR, let alone purport to apply English law. That was not a relevant question on a Rule 29 motion when meaning was a question of fact for the jury. The decision therefore has nothing to say on the question of what the LIBOR Definition means for the purposes of criminal trials in England and Wales. That is a question of law, under the lex fori , and is governed by English law because that is the law with which the LIBOR setting system has its closest connection. It is a rate in respect of lending in London, based on the submissions of panel banks selected as those operating in that wholesale cash market, and devised and administered by a British trading association, based in London, and comprised of banks operating in that market. 116. Consequently the conflict which the CCRC perceived there to be between Connolly and Black and the previous LIBOR and EURIBOR decisions of this court simply does not exist. It is not necessary for the purpose of addressing the question of construction, as a matter of English law as the lex fori , for us to express any view on whether Connolly and Black was correctly decided, and it would not be appropriate to do so. Nor is it a question of addressing whether its reasoning is persuasive in relation to the correctness of the previous decisions of this court. It simply has nothing to say about that, because it was addressing a different question, namely the sufficiency of evidence. Stare decisis 117. We have addressed Mr Palombo’s first ground of appeal on its merits, because it was the ground for the reference. However, we would regard the doctrine of stare decisis as preventing us from allowing the appeal even if we had taken a different view. The point has been addressed in five cases in this court, and in each decision the court has reached the same consistent conclusion. To depart from those decisions on the basis of one decision of the US court, which was not addressing the same issue, would not, in our view, engage the residual discretion for a court of the CACD to depart from one of its previous decisions, let alone five. That would be so even if the US decision contained reasoning which was relevant and persuasive, which it does not. Hayes Ground 1 and Palombo Ground 2 Is this ground related to the reasons for the references? 118. The first question is whether this ground is related to the reasons for the references. We have no hesitation in concluding that it is not. The background to the references is that this court had consistently approached the question of the meaning of LIBOR and EURIBOR as a question of law for the court to determine, not a question of fact for the jury. That is clear from each of the decisions: i. R v H was an appeal on rulings as a matter of law, as was recognised at [11] noting that it was an appeal from rulings on a point of law at a preparatory hearing [under s. 9(3) (c) of the Criminal Justice act 1987] so as to found an appeal with leave pursuant to s. 9(11) . It was suggested by Mr Darbishire that all that was decided in R v H was that the prosecution were entitled to advance a case, for consideration by the jury , that taking into account trading advantage rendered a submission otherwise than genuine and honest, but that is quite inconsistent with the language used. ii. In R v Hayes , the court summarised what had been decided in R v H at [9], and went on to describe those as determining “the definition of LIBOR as a matter of law” at [34]. It reiterated at [36] that “as a matter of law” the submitter was not entitled to take into account considerations of its commercial interest. iii. In R v Merchant at [32]-[38] the court addressed the issue as a question which fell to be determined by the court, not a jury, and addressed it by reference English case law; and, moreover, endorsing R v H and R v Hayes as correctly decided. iv. In R v B Davis LJ said in terms at [23] that the meaning and effect of the EURIBOR Code was a matter of law for the trial judge at a criminal trial, citing R v Spens [1991] 1 WLR 624 ; and at [67]-[69] rejecting the submission that it fell to be addressed as an issue of fact by reference to Belgian law, on the grounds that it was a matter for the procedural law of the English criminal courts, the lex fori , which had to be applied to determine whether the question was one of fact for the jury or law for the judge; and confirming that Judge Gledhill had been right to treat the meaning of EURIBOR as a matter of law for his determination as the judge. v. In R v Bermingham and Palombo at [80] the court again treated it as a matter of law for the court’s consideration, and at [82] approved the decision in R v B as correct as a matter of law. 119. In seeking the CCRC reference, the submissions on behalf of Mr Hayes expressly treated the question as one of law, so as to assert an inconsistency with what was said to be the decision of the Second Circuit in Connolly and Black on the same question of law: see for example the CCRC reference at [24(5)], and at [73(3)] recording the submissions on behalf of Mr Hayes as being: “The definition and proper operation of LIBOR were ruled upon as matters of law, both in the English and US Courts”. This was the potential conflict which the CCRC perceived (see e.g. [61(2)]), and it is against that background that the ground referred, namely that “there is a realistic possibility that the Court of Appeal will prefer the findings of the US appeal court in Connolly and Black to those which were reached in Mr Hayes’s own case” must be understood. The reference was specifically on the basis that this was an issue of law on which there were conflicting or potentially conflicting decisions. 120. In Mr Darbishire’s submissions to us he identified the relevance of Connolly and Black as being that the question of whether there was a prohibition on taking into account trading advantage was treated in that case as a question of fact, the legal duty being limited to giving a genuine opinion, and was relevant as a court in another common law jurisdiction taking the approach to the distinction between fact and law which was described as the key conflict with the approach of the English court in R v Hayes . Mr Owen’s Note on Connolly and Black was to similar effect. However Connolly and Black can have nothing to say on whether that is a question of law for the judge or of fact for the jury in an English criminal trial because that is a matter of English procedural law under the lex fori , as Davis LJ identified in R v B . Connolly and Black did not purport to decide what that English procedural law was, and could not do so. Connolly and Black is not, and could not be, relevant to the issue of whether in an English criminal trial the meaning of LIBOR is a matter of law for the judge or of fact for the jury. Nor is there any trace of a suggestion in the reference that that was a basis on which the English court might want to reconsider its previous decisions. The same applies to Mr Palombo’s position under the EURIBOR reference. 121. The question then arises as to whether the court should exercise its discretion under s. 14 (4B) to allow the ground to be argued notwithstanding that it does not relate to the reasons for the reference. 122. In R v Smith [2023] NICA 86 the Court of Appeal in Northern Ireland said:- “The effect of these provisions is that the Court of Appeal may grant leave to appeal on grounds unrelated to any reason given by the Commission for making a reference. The exercise of this discretion is not precluded even if the grounds for making the reference prove unsuccessful. The range of factors that the court can take into account in exercising this discretion are not spelt out. Plainly, the interests of justice will be at the forefront and in considering whether to grant leave in respect of unrelated grounds the court would at a minimum require to be satisfied that the additional grounds are arguable and may undermine the safety of the convictions.” The court in Smith went on to describe this as enabling an applicant to “piggyback” grounds of appeal on those related to the CCRC’s reference. 123. We agree that the proposed unrelated grounds must as a minimum be arguable grounds which may undermine the safety of the conviction. But in addition it must not undermine the purpose of the prohibition in s. 14 (4A) designed to ensure that a reference is not used an opportunity to argue points which were available at a previous appeal but were not taken. This ground was available at Mr Hayes’ and Mr Palombo’s appeals, and the dismissal of those appeals should have been the end of the matter. It would be contrary to the purpose of s. 14 (4A) to allow them to piggyback these unrelated appeals upon the reference concerned with Connolly and Black . Stare decisis 124. For similar reasons, even if we thought there were arguable merit in the point, the residual discretion would not justify departure from the doctrine of precedent in which there have been five decisions of this court, not just one, treating the point as a bad one. The merits of the ground 125. Since the ground is one which we should not properly entertain, we do not need to address it. Nevertheless out of deference to the arguments we will do so, albeit more briefly than if it had been an issue properly before the court. 126. The leading authority is the decision in R v Spens . In that case, Lord Spens was charged with conspiring to induce shareholders to enter into an agreement by dishonest concealment of material facts and with false accounting, by reason of the conduct of Ansbacher, of which he was Chairman, in supporting Guinness in the notorious take over by Guinness of Distillers. Part of the evidence relied upon by the Crown in that respect, although not crucial to its burden to establish the offences, was that the conduct was in breach of the City Code on Take-Overs and Mergers (‘the Take-over Code’). The trial judge determined the meaning of the Take-over Code as a matter for him; the ground of appeal was that it should have been left as a matter of fact for the jury. Watkins LJ, giving the judgment of the court, referred to the decision in R v Panel on Take-overs and Mergers ex parte Datafin plc [1987] QB 815 , in which the role of the Take-over Panel had been examined. He observed at p. 627E, amongst other things, that a breach or breaches of the Take-over Code could have “serious penalising effects on the transgressor in take-over situations”. The ratio of the decision is expressed at p. 632D-F: “Having looked at the case law presented to us by counsel, and of course considered the extremely helpful arguments which they presented to us orally and in their cogently expressed skeleton arguments, we have come to this conclusion. We agree that the construction of documents in the general sense is a matter of fact for determination by the jury. From that generality there must of course be excluded binding agreements between one party and another and all forms of Parliamentary and local government legislation in respect of which the process of construction by the judge is indispensable. …. As to the present case, our view is that the Code sufficiently resembles legislation as to be likewise regarded as demanding construction of its provisions by a judge. Moreover, the Code is a form of consensual agreement between affected parties with penal consequences. A further and almost overriding consideration is that if the judge's construction were not the governing influence, the inevitable danger of inconsistency in juries' findings on the meaning of the Code would arise with possibly disastrous consequences. The very policy of the law militates, in our opinion, against that result. We think the judge's ruling is correct.” 127. Mr Owen referred us also to R v Pouladian-Kari [2013] EWCA Crim 158 , which concerned the construction of letters sent by a government department. Other than the passage at [49] confirming that the principles were correctly stated in Spens , it contains nothing of relevance to the facts of the current case. 128. LIBOR and EURIBOR come within both limbs of the exception identified in Spens . They are binding agreements; and like the Take-over Code, they sufficiently resemble legislation as to be regarded as demanding construction of their provisions by a judge. Moreover, they fall within the rationale expressed in the concluding paragraph, that the policy of the law militates against the interpretation being left to juries because of the potentially disastrous consequences of inconsistent decisions. We expand briefly on each of these aspects. Contract 129. Until a very late stage, it was Mr Palombo’s own case that EURIBOR was a contract between the panel bank and EBF. That was the common ground which gave rise to expert evidence before Judge Gledhill, on both sides, of the Belgian law principles of contractual construction. The judge confirmed that to be the position in his ruling. That position was not resiled from in R v B or R v Bermingham and Palombo , which proceeded on the basis that the issue was one of law for the court. The EURIBOR Code was referred to in R v B at [26] as a “contract or Code”. At [19] of Mr Palombo’s grounds of appeal in the present appeal it was expressly asserted that the EURIBOR Code was a contract made between EBF and the panel banks. It was not until a speaking note was served shortly prior to the hearing that Mr Palombo sought to resile from the position. 130. In our view, the position taken on Mr Palombo’s behalf until the late volte face was the correct one. In return for agreeing to be appointed as one of the panel banks, and the reputational prestige thereby accorded, the panel bank agrees to make the submission in accordance with the Code. It was suggested by Mr Owen that there would be no intention to create legal relations. The question is more properly articulated as whether the agreement was intended to be binding as a matter of Belgian law, which it is agreed covers the Code whatever its status, but the answer is clear. The Code contains detailed terms which both sides would expect to be complied with and binding. This was no mere casual arrangement administered by a trade association, as Mr Owen submitted. It was a formal mechanism for the establishment and operation of a hugely important independent financial benchmark, to be used to govern transactions worth trillions of dollars in international markets. The same considerations apply to LIBOR where the contract was between each panel bank and the BBA. Akin to legislation in a way demanding construction by the court 131. Mr Owen emphasised that at the time of the indicted conduct, making LIBOR and EURIBOR submissions was not a regulated activity as such under statutory regulations operated by the Financial Services Authority as the then regulator; nor was it a criminal offence per se to fail to comply with LIBOR or EURIBOR. That is not, however, determinative. It was not a criminal offence per se to fail to comply with the Take-over Code, but that did not stop it being treated in Spens as something which demanded construction as a question of law in the same way as primary or delegated legislation. Although compliance with LIBOR or EURIBOR was not directly a regulated activity, it was indirectly so: failure to comply with their provisions could give rise to regulatory consequences. This is clear from the penalty imposed upon Barclays by the FSA of £85 million on 27 June 2012, exercising its statutory regulatory powers under s. 206 of the Financial Services and Markets Act 2000 . The penalty was imposed for, amongst other things, manipulating LIBOR and EURIBOR rates as being a breach of PRIN 5 (the Principles for Businesses) which provides that “a firm must observe proper standards of market conduct”. The Penalty Notice was expressly on the basis that the definitions of LIBOR and EURIBOR do not allow for submissions to take into account derivative traders’ positions. Had Barclays wished to challenge that exercise of statutory powers it would have had to do so by judicial review; and the construction of the Definitions would have been a matter for the High Court as part of a public law decision. The meaning and effect of LIBOR and EURIBOR is akin to legislation demanding a construction by the court because it is part of the framework by reference to which the FSA’s statutory powers of regulation are defined. Breach of LIBOR or EURIBOR has penal consequences to just as great an extent as breach of the Take-over Code, if not more so. Inconsistency 132. It is also, in our view, obvious that it would be highly unsatisfactory for juries not to be given guidance as to what was required as a matter of law by a financial code like LIBOR or EURIBOR, with which they would not be expected to be familiar. Such a course would risk juries reaching inconsistent conclusions on identical evidence and identical findings of fact, not because of differences in how they approached the evidence, but on the basis of different interpretations of a financial code. These are just the sort of “possibly disastrous consequences” which the court had in mind in Spens . Other arguments 133. Mr Darbishire argued that whether a representation was genuine or false was always a question of fact for a jury; there was no law of genuineness or honesty. The only matter of law on which the jury could be properly directed was that a submission had to be a genuine assessment, which hardly needed stating anyway. Whether it was a genuine assessment (or more accurately, because these were conspiracy counts, whether the intended submissions would be genuine assessments) was always a matter for the jury. 134. We reject the argument. The jury in these cases could not address whether the submissions were, or would be, an honest or genuine assessment without being given an answer to the question “assessment of what?” The answer to that question depended upon the true construction of the LIBOR and EURIBOR Definitions, because that is where one has to look to find what question the LIBOR/EURIBOR submission must honestly and genuinely answer. 135. In this connection, Mr Darbishire sought support from R v Adams [1994] RTR 220. In that case a defendant was charged with obtaining services and a pecuniary advantage by deception where he had completed a driver’s declaration form (on two occasions) for the purposes of hiring a car and obtaining insurance. He had given the answer ‘no’ to a question divided into three parts, one of which asked whether he had been convicted of driving offences within the last five years (to which the answer ‘no’ would have been truthful) and another of which asked whether he had ”ever been disqualified from driving” (to which the answer ‘no’ was untruthful because he had been disqualified for four years for causing death by reckless driving just over five years prior to the submission of the forms). The judge decided that the interpretation of the declaration form was a matter for him as a question of law and that it should be read disjunctively, and directed the jury accordingly. On appeal it was held that he was wrong to do so and that the meaning was a matter for the jury, however obvious it might seem (although the conviction was upheld as safe on the basis that it was so obvious that the document was to be read disjunctively that the jury were bound to have reached the same conclusion as the judge). Lloyd LJ, giving the judgment of the court, said at p. 223L-224D: “The dividing line between fact and law has been much discussed by [academic writers ever since the House of Lords decided in Cozens v Brutus [1973] AC 854 that the meaning of the word 'insulting' in a statute is a question of fact not law: see, for example, Professor Glanville Williams [1976] Crim LR 472 and 532, and D.W. Elliott, 'Brutus v Cozens ; Decline and Fall' [1989] Crim LR 323. The most recent authority appears to be Reg. v Spens [1991] 1 WLR 624 . In that case this court upheld a ruling of Henry J that the interpretation of the City Code on Takeovers and Mergers was a question of law for the court. But in that case, as Henry J was careful to point out, the meaning of the code was not central to the question of guilt or innocence. Here it is different. Where the central question is whether the defendant has made a representation or not, and, if so, whether it is false, then both aspects of that question are questions of fact for the jury. This is clearly so where the alleged representation is oral. It must equally be so in our judgment where the representation is contained in writing. The question is not in truth as to the meaning of the representation, still less as to the legal effect of the document. The question is simply whether a representation to the effect alleged in the indictment has been made at all. Beyond this we do not think it helpful to generalise …..” 136. Contrary to Mr Darbishire’s submission, the issue in that case did not involve construction of a binding agreement, but of a written representation. It would not have come within the exceptions identified in Spens . Although Spens was identified as involving an interpretation of a document which was not central to the case, that would not of itself have been sufficient to distinguish it. Adams , unlike the present case, was concerned with a representation whose truth or falsity depended upon construction of an instrument which was not, in accordance with the principles identified in Spens , a matter of law for the court rather than one of fact for the jury. The statement that whether a representation is false is a matter of fact for the jury was made by reference to the facts of that case, and is not to be treated as a statement of universal application. Where the truth or falsity of a statement depends upon the meaning of an instrument which, in accordance with Spens , it is for the court to determine as a matter of law, falsity is a matter for the court not the jury (although honesty will be a matter for the jury). We note that the trial judge in Adams , having rejected a submission of no case to answer and given a ruling on what the document meant as a matter of law, expressly directed the jury to consider the questions: “(1) are you satisfied that the accused knew perfectly well that he was being asked about previous disqualification?; (2) Did he deliberately withhold information about his previous disqualification”. Those two questions left the issue of fact as to whether there had been deliberate deception fairly and squarely to the jury. 137. Mr Darbishire also subjected Cooke J’s third to sixth propositions to the same criticisms as were advanced in R v Hayes (and rejected by the court at [34]-[37]), namely that these were matters of fact not law. This is simply mistaken, because they all follow from the correct interpretation of LIBOR as a matter of law. He further submitted that it was unnecessary and therefore unhelpful for these directions to be given when the only relevant question was the (intended) honesty of the submitter. Again we disagree. The prosecution could not make out the indicted offence without establishing that Mr Hayes intended to disregard the proper basis for a LIBOR submission. They therefore needed, and were entitled to guidance on, what would or would not amount to a proper basis for the submission, tailored to the facts of the case which were concerned with the relevance of trading advantage. That was what Cooke J’s six propositions quite properly did. We agree with what the court has already said of this submission in R v Merchant at [31]; “What Cooke J had done (and what this court was approving [in R v Hayes at [36]]) was giving guidance to the jury on the legal effect, crafted in such a way as to be relevant to the facts of that case, of the definition of LIBOR and the legal obligation placed on the submitter. It was no more than that.” Hayes Ground 2 138. Mr Darbishire’s argument started from basic principles, which were not in dispute, that in a charge of conspiracy to defraud the prosecution must prove the agreement which is specifically defined in the indictment. The argument, which was elaborated upon in attractively presented submissions, can be summarised as follows. The indicted agreement in this case required proof that Mr Hayes agreed to a deliberate disregard of the proper basis of LIBOR submissions knowing what a proper basis was and agreeing that it should be disregarded. His case and evidence at trial was that he thought that what he was seeking to achieve was permitted by LIBOR, because LIBOR permitted a range of genuine assessments of the rate, and that taking account of trading advantage was permissible if the submission were within this range. That went to whether the prosecution had proved an essential element of the indicted agreement. The issue of dishonesty only arose if the indicted agreement was proved. If the jury accepted that Mr Hayes’ state of mind was or might have been as he testified, he was entitled to be acquitted. The judge was wrong to direct the jury in a way which withdrew this aspect of his defence from the jury as an ingredient of the indicted offence, and treat the only issue as one of dishonesty. The errors in the approach adopted in the written directions stemmed from his conclusion to that effect expressed clearly in [1]-[3] of his ruling on 6 July 2015. Does it relate to the reasons for the reference ? 139. Again, the first question is whether this ground relates to the reasons for the reference. Again, the answer is clearly not. It is, in essence, the argument which was advanced on behalf of Mr Merchant on appeal by reference to Judge Leonard’s directions to the jury at his trial 140. In Mr Hayes’ case, it depends upon a close examination of the directions to the jury given by Cooke J in his summing up. The judge did not direct the jury that the only issue for them was dishonesty. Question 1 of the route to verdict asked: “1. Did Mr Hayes agree with any individual as named in the counts, to procure the making of a submission by a bank of a rate which was not that bank's genuine perception of its borrowing rate for the tenor in question in accordance with the LIBOR definition but was a rate which was intended to advantage Mr Hayes's trading?” 141. Had the direction stopped after the words “LIBOR definition”, the ground would be unarguable: the jury could only have convicted if satisfied that the indicted agreement were proved and that Mr Hayes knew and intended that what he was seeking to achieve would be contrary to what was permitted by LIBOR. There was no issue that he knew that the LIBOR definition required the submission to be the bank’s genuine perception of its borrowing rate for the tenor in question. The addition of the words “but was a rate which was intended to advantage Mr Hayes's trading” would be equally unobjectionable if “but” meant “and”, which was the formulation by Cooke J when taking the jury through the ingredients of the offence, saying in respect of the “deliberately disregarding the proper basis” element: “That requires a little more explanation. What it says is this: the persons concerned agreed that UBS, in this example, or the other panel banks in question in the other counts, should make submissions of rates to Thomson Reuters, that is into the LIBOR setting possess, which were intended and designed to benefit Mr Hayes' trading or his bank's trading and did not represent a genuine assessment of the true rate at which UBS could borrow funds at 11.00 am on the day in question, contrary to the LIBOR definition requirements that I explained to you yesterday.” 142. The argument proceeded from the way Cooke J had structured his summing up; his directions to the jury in his six propositions that a submission taking into account trading advantage was necessarily not an honest submission; and the way in which he had dealt with Mr Hayes’ case that he did not think he was doing anything contrary to what was permitted by LIBOR under the subjective heading of dishonesty. In those circumstances, it was argued, the “but” in Q1 of the route to verdict would have been treated by the jury as meaning “because” so as to ask only a single question, which would be answered unfavourably to Mr Hayes if the jury were satisfied that he intended the submitter to take into account trading advantage. The judge thereby removed from the jury consideration of an essential element of the indicted offence, namely whether he made the indicted agreement, which required proof that he knew that the intended submission would be in deliberate disregard of the proper basis for a submission by intending that it should take into account trading advantage; in short that by seeking to get submitters to alter their submissions to take account of his trading advantage, he was doing something he knew was against the LIBOR rules. That was not merely one issue which went to dishonesty, which the jury were told they could accept or reject. If the jury concluded that he thought or might have thought that a submission taking account of trading advantage was a genuine and honest one, permitted by the LIBOR definition, he was entitled to be acquitted because the indicted agreement would not have been made out. 143. This is an argument which depends on a close analysis of the quite lengthy wording of Cooke J’s directions in Mr Hayes’ case. It is unrelated to, and unaffected by, anything which was under consideration by the court in Connolly and Black . 144. This argument was not advanced at Mr Hayes’ first appeal against conviction. We have set out the six grounds of appeal above, and examined the grounds themselves in detail. It is true that at [13] of Hayes the court recorded: “Before addressing the specific grounds of appeal, Mr Neil Hawes QC, on behalf of the defendant, made certain introductory remarks. In particular, he emphasised that, whilst the key issue before the jury was that of dishonesty, it was not the only issue which the jury had to decide. A prior issue was whether there had been an actual agreement so as to satisfy the requirements of a charge of conspiracy.” 145. However, the present argument, which mirrors that on behalf of Mr Merchant in R v Merchant , was not advanced on the appeal. Mr Darbishire did not make any criticism of Mr Hawes in that respect and nor would we. Mr Hawes must have been very familiar with the detail and nuances of the evidence in this case; and the particular difficulties for the defence arising from the indisputable documentary evidence showing that what Mr Hayes was seeking to do, to move the LIBOR rate, was accompanied by attempts to keep it secret, as well as his frank admissions of dishonesty in the scoping interviews. Both carried the clear implication that he knew that what he was doing was not permitted by the LIBOR rules. 146. As to the former, the evidence was summarised at 83[8] of the CCRC’s first Decision of 7 December 2021 (prior to Conolly and Black ) refusing Mr Hayes’ application for a reference in this way: “The prosecution particularly relied upon the fact that Mr Hayes often asked for any approach to the LIBOR submitters to be in person rather than in writing (see, for example, p54G of summing-up transcript for 24 July 2015). At 79G-81B of the summing-up on 24 July 2015, the judge summarised the evidence regarding “secretive requests”, i.e. Mr Hayes’s requests in documents to: “be surreptitious, not in writing, catch him on his own, not with his boss, on the way to the toilet, not in public, off line, on mobiles, not on recorded line, a quiet word, keep it super casual, sort of subtly say, don't be pushy, have a casual chat, don't effing put it on chat”. 147. As to the admissions in interview, there was a dispute before us as to whether Mr Hayes had not only admitted that what he had done was dishonest (which was undisputed) but had admitted that he had known that what he was doing was contrary to the proper operation of LIBOR. It is not critical to resolve that dispute, because if he did make such admissions, he undoubtedly sought to resile from that position in his evidence. But for what it is worth, we are satisfied that he did so on at least one occasion in relation to discussions with Guillaume at Deutsche Bank in which he was seeking to influence how LIBOR would be fixed over a period of the following eight weeks, when as he accepted in interview he knew he could not justify it because he could not know how LIBOR was going to move in the following eight weeks. 148. Whether or not he made that admission, it affords an example in which his conduct cannot be reconciled with his case that all he was seeking to achieve was a higher or lower rate within a permitted range which would be a genuine assessment of the borrowing rate. So too, to take just one other example, on 21/22 July 2009, Mr Hayes in Bloomberg chats with Mr Read of ICAP wrote “ 11th aug is the big date...i still have lots of 6m fixings till the 10th ”; Read replied “ if you drop your 6m dramatically on the 11th mate, it will look v fishy, especially if hsbc and deut go with you. I'd be v careful how you play it, there might be cause for a drop as you cross into a new month but a couple of weeks in might get people questioning you”; Hayes responded “ don't worry will stagger the drops...ie 5bp then 5bp”. Read replied “ ok mate, don't want you getting into shit; Hayes explained “ us then deut then hsbc then us then deut then hsbc” to which Read replied “ great the plan is hatched and sounds sensible”. 149. It is, therefore, unsurprising that Mr Hawes had at an early stage identified the issue for the jury as whether Mr Hayes was acting dishonestly (as recorded in R v Merchant at [24]). This was not the result, as Mr Darbishire submitted, of the judge insisting that he would not have obfuscation. The judge said that, according to a note, at the preparatory hearing on 6 February 2015, whereas the formulation by the defence that the issue was one of dishonesty was made at the outset in a document dated 18 November 2013. Mr Hines told us that Mr Hayes’ case at trial, that he did not think he was doing or seeking anything which was not permitted by LIBOR, was not framed in the way now identified in Ground 2 but as going to dishonesty. Given the evidence we have seen of Mr Hayes’ exchanges, we do not find that surprising. And it is not, therefore, surprising that Cooke J treated it as something to be addressed by the jury under the issue of dishonesty. 150. We have emphasised these matters because they provide the context for why it would not be appropriate to grant leave to advance this unrelated point on the present appeal pursuant to s. 14 (4B). Mr Hayes had the opportunity to appeal against conviction and did so, represented by experienced trial counsel. This point could have been taken on the appeal if it had any merit, but it was not. The court determined that his conviction was safe. Mr Hayes could not mount a second appeal save in the exceptional circumstances of a reference by the CCRC. He unsuccessfully sought one on grounds which expressly included this ground, as Ground 14. In its first Decision refusing a reference, this was rejected by the CCRC as a basis for a reference for each of two reasons. The first was that the court had dealt with the point in R v Merchant at [46], and there was no real possibility that a Court of Appeal would overturn his conviction on the basis of the submission (at [193]). The second was that in any event, even if the Court of Appeal were persuaded that there was a misdirection, there was no real possibility that the conviction would be treated as unsafe. In this respect the CCRC referred to the similar conclusion in the case of Mr Merchant at [49] of R v Merchant , and expressed the view that in the light of the evidence against Mr Hayes, which it had summarised at [83] and described at [84] as a strong prosecution case, the court would reach the same conclusion in his case for the same reasons ([194]-[195]). 151. In those circumstances it would not be appropriate to grant leave under s. 14 (4B) to raise this point, irrespective of the fact that it was expressly considered and rejected by this court in R v Merchant at [46]. It would be “piggybacking” on the wholly unrelated Connolly and Black reasons for the matter being before the court, so as to have a second attempt to appeal on grounds not taken, but available, at an appeal which was pursued and dismissed; and in the face of a specific conclusion by the CCRC that the argument did not justify a reference. The fact that the point was expressly considered and rejected by this court in R v Merchant is an additional powerful reason for refusing to allow it to be raised now. The merits of Ground 2 152. Since the ground is not one which we should properly entertain, we do not need to address its merits. We will, however, say something about it in order that Mr Hayes understands that it would not have resulted in a successful appeal even if we had reached a different conclusion about the argument being available. We can in these circumstances deal with it quite briefly. 153. Given the context which we have identified as to the evidence and the course of the trial, we do not think that Cooke J can properly be criticised for dealing with the point under the issue of dishonesty. It is significant that Mr Hayes’ trial counsel did not seek to do so on the appeal against conviction. In that respect we agree with what was said at [46] of R v Merchant . Moreover, we are in any event satisfied that the conviction is safe. The jury’s verdict meant they were sure that Mr Hayes acted dishonestly; and they could not have been so satisfied if they had concluded that he thought, or might have thought, that what he was seeking to achieve was permitted by the LIBOR process; and the nature of the conduct identified in the recorded exchanges, his repeatedly expressed desire to keep it secret, and his admissions in the scoping interviews, provided a very strong case against him. Palombo Ground 3 Ground 3 of Mr Palombo’s appeal 154. This argues that Mr Palombo’s conviction is unsafe because the indicted conspiracy to defraud was advanced on a basis incompatible with the requirements of legal certainty at common law and/or Article 7 of the ECHR. This ground is not related to any reason given by the Commission for making the reference. Indeed, it is not even mentioned in the CCRC reference in Mr Palombo’s case. It cannot be said to arise out of the decision of the Second Circuit in Connolly and Black . That was concerned with what the prosecution had to prove as a matter of evidence to establish the offence of wire fraud in US law. 155. We have already observed that for leave to be appropriate under s. 14 (4B), the proposed unrelated grounds must as a minimum be arguable grounds which may undermine the safety of the conviction. In this context it must also be remembered that save in exceptional circumstances, the CCRC may only make a reference because of an argument or evidence “not raised in the previous proceedings” leading to the conviction ( Criminal Appeal Act 1995 s. 13(1) (b)). In most cases referred to this court by the CCRC it is fresh evidence which is said to undermine the safety of the conviction; in other cases it is a change in the law. In the present case it was the arguments related to the Second Circuit’s decision which the CCRC considered might be said to do so. We do not consider that, save in exceptional circumstances, the discretion given to the court by s. 14 (4B) can properly be exercised to allow an appellant to “have another go” at raising the same points of law as were fully considered and rejected in his first appeal. 156. The arguments put forward on Ground 3 are, as Mr Owen frankly recognised, the same as those which he advanced on behalf of Mr Palombo in his original appeal against conviction. In the decision of this court in R v Bermingham and Palombo [2021] 4 WLR 113 this court dealt in detail with the argument that the offence of conspiracy to defraud failed the test of legal certainty. The court set out Mr Owen’s submissions at para [83]- [93], and at paragraphs [94]-[109] it rejected them, refusing leave to appeal on that ground. It noted that in R v Barton [2021] QB 685 this court had expressly rejected the suggestion that the offence of conspiracy to defraud lacked certainty. The court said at [103] that “we are bound by Barton but even if we were free to depart from it we would not do as we consider it is undoubtedly correct.” They concluded at [104] that “there is simply no basis for a submission that the Applicants were unfairly convicted because they did not realise at the relevant time that what they were doing was wrong and the conduct made them criminally liable”. 157. We are bound by the decisions in R v Barton and in R v Bermingham and Palombo . There is nothing in the US decision which is capable of undermining that conclusion. Mr Owen submitted that the authority of R v Bermingham and Palombo on this point was diminished by the fact that this court refused permission to appeal on the point rather than giving permission and then dismissing the appeal. In the Civil Division of this court it is well established that a decision refusing permission to appeal does not carry the force of binding precedent. So too in the Criminal Division with the decision of a single judge refusing permission to appeal, or the decision of a two or three judge court refusing a renewed application for permission to appeal where it has only heard argument from one side. But this principle cannot possibly apply to a fully reasoned judgment of this court following argument from both sides in which, as in R v Bermingham and Palombo, the court holds that some or all of the grounds of appeal are so weak that permission should be refused. It would be ironic if the force of that conclusion was any less than a conclusion that the relevant ground of appeal was arguable but nevertheless should be dismissed. 158. This ground therefore fails because: i. it is not related to the reasons for the reference and there is no good reason to exercise the discretion to grant leave pursuant to s. 14 (4B); ii. we are bound by the doctrine of precedent to follow the decisions of this court in R v Barton and R v Bermingham ; and iii. it is wrong for the reasons set out in those decisions. Conclusion 159. For these reasons both appeals are dismissed.

```yaml citation: '[2024] EWCA Crim 304' date: '2024-03-27' judges: - LORD JUSTICE BEAN - MR JUSTICE BRYAN ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

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

```yaml citation: '[2014] EWCA Crim 421' date: '2014-03-18' judges: - LORD JUSTICE TREACY - MR JUSTICE KING - MR JUSTICE TURNER ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2014] EWCA Crim 143 Case No: 201202542 B3/201202635 B3/201202560 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT His Honour Judge Stephens QC T20117178 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/02/2014 Before : LADY JUSTICE RAFFERTY DBE MRS JUSTICE THIRLWALL DBE and HIS HONOUR JUDGE CAREY QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : NATHANIEL GRANT ANTHONY MCCALLA KAZEEM KOLAWOLE Appellants - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Edward Brown QC (instructed by CPS ) for the Respondent Stephen Kamlish QC (instructed by Virdee Solicitors ) for GRANT Mark Milliken-Smith QC (instructed by Rustem Guardian ) for MCCALLA Courtenay Griffiths QC (instructed by Virdee Solicitors ) for KOLAWOLE Hearing date: 19 th December 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Rafferty : 1. Nathanial Grant ( 22) Kazeem Kolawole (21) Anthony McCalla (21) on 26 th March 2012 at the Central Criminal Court were convicted of attempted murder (Count 1) and of two counts of causing grievous bodily harm with intent to cause grievous bodily harm (Counts 2 and 3, but 4 and 5 originally). On 19 th April 2012 they were sentenced to concurrent sentences of custody for life on each count with minimum terms of 17 years for Grant, 14 years for Kolawole and McCalla. 2. The original counts 2 and 3 (attempted murder) had been dismissed pre-trial following submissions. The jury was not required to return a verdict on count 6 (which became count 4) tried in the alternative. 3. They appeal against conviction by limited leave of the single judge. 4. On 29 th March 2011 three males on bicycles drew up outside the Stockwell Food and Wine shop directly after Roshaun Bryan had run inside at 9.07pm. One gunman fired two shots into the premises. One bullet hit and paralysed 5 year old Thusha Kamaleswaran (“Thusha”) and one hit, and remains in the head of, a customer, Roshan Selvakumar (“Selva”). Bryan was unhurt. 5. CCTV footage from nearby Foxley Square recorded the movements of various youths during the early evening of 29th March 2011. It showed association between the three Appellants prior to the shooting. Thirty minutes before the shooting said the Crown, there had been near Foxley Square a test firing of the gun to be used in the shop. Footage, although not continuous, showed three masked men on bicycles leaving Myatts Field and emerging onto Stockwell Road. Two men, one of them Bryan, ran across Stockwell Road chased by the trio on bicycles. Bryan and his companion took refuge in Stockwell Food and Wine. The Crown’s case was that the trio intended to kill Bryan with a gun. 6. The trio circled on bicycles outside the shop. A shot was fired in the direction of the shop. The gunman halted outside the open shop door, straddled his bicycle and fired a second shot through the door. The gunman was said to be Grant, Kolawale and McCalla secondary parties. The bicycles have not been recovered or seen again. No clothing of interest was recovered from searches following the arrests other than a top which may have been worn by McCalla under his jacket on the night and a pair of jeans said to be linked to him. 7. Pre-trial on 29 th October 2011 HHJ Rook QC dismissed the then Counts 2 and 3. At trial a submission at the close of the Crown’s case of no case to answer was rejected. 8. The Crown’s case was that the appellants were the trio on bicycles, members of or associated with the Grind and Stack gang (GAS) or Organised Crime/One Chance gang (OC). Bryan was or was suspected to be a member of a rival gang, the All ‘Bout Money gang (ABM). It suggested Count 1 reflected the trio’s plan to kill Bryan or another ABM member. They travelled together, tested their gun, chased Bryan and made off together. Grant was the gunman but they were all jointly responsible for the attempted murder of Bryan. Thusha (Count 2) and Selva (count 3) were shot by bullets intended for Bryan and fired intending to cause “at least” very serious injury to Bryan. 9. The case for Grant and Kolawole was alibi. Neither gave evidence. Their cases were that there was no evidence either had been (Grant) or was (Kolawole) a member of a gang or of enmity between the gangs concerned. The police had deliberately kept from the jury CCTV evidence showing Grant in Stockwell, so-called enemy territory, on 28 th and 29 th March. CCTV of the night showed the gunman’s clothes and bicycle differed from his. 10. Kolawole aligned himself to an extent with McCalla’s case. There were 3 critical gaps in CCTV continuity, only 2 cyclists seen en route to the shop and there were differences between Kolawole’s cycle and that seen at the shooting. Cell site evidence was inconclusive. 11. McCalla’s case was that he had met Grant and Kolawale at Foxley Square and cycled off with them. He had separated from them and met two others he would not name, believing that he and they were to rob a drug dealer. With that plan in mind he was, by coincidence, at the shooting. It shocked him and he rode away. He disposed of his jacket and bicycle and met Grant on return to Foxley Square. He had not known a gun would be involved and was not in possession of one. 12. The Judge identified for the jury the issues: i) Count 1: was the jury sure it was the defendant whose case it was considering who had attempted to murder Bryan? Grant and Kolawole; was it sure the defendant whose case it was considering was at the shooting? Grant: was it sure Grant was the gunman and he intended to kill Bryan? McCalla: was it sure he was at the scene participating in the attempt to murder Bryan? Kolawole and McCalla: was it sure the defendant whose case it was considering was supporting and encouraging Grant, intending to kill or realising Grant might shoot and intend to kill? ii) Counts 2 and 3: Principles of joint responsibility applied save that the jury had to be sure that on the case it was considering the defendant had an intention to cause “at least” really serious injury. Grant and Kolawole: was it sure the defendant whose case it was considering was there? McCalla: was it sure he was at the scene engaging in the offence charged? iii) Count 4 Grant: was it sure he had a gun with him and that intended to use it with intent to endanger someone’s life? Kolawole and McCalla: was it sure the defendant whose case it was considering knew Grant had a gun and each intended he should if necessary use it to endanger life? 13. The Crown led expert evidence about gangs and produced messages from a BlackBerry belonging to Sarah Amin, McCalla’s girlfriend, in which Kolawole referred to disputes with pagans (rival gangs or individuals mistrusted) and to territorial issues, by deduction with ABM. Amin referred to Grant as one of the senior members. Bryan hung around with ABM. Bryan r emembered little because he had smoked cannabis. He awaited trial for supplying drugs. Selva, standing by the door of the shop, heard what he thought was gunfire and saw Bryan and his friend run into the shop and to the back. He saw a man sitting on a stationary bicycle a metre from the front door. The gunman fired into the shop and Selva felt a blow to his face. 14. In the left front pocket of jeans belonging to McCalla was a moderate amount of type 8 gunshot residue (“GSR”) associated with .22 ammunition used in the shooting. It lent some support to the suggestion that jeans and wearer had had contact with a .22 calibre gun. No GSR was found on any of McCalla’s other clothes including the jacket he wore on the night. 15. Grant called a member of ABM, Byron Robinson, who told the jury that months after the incident Bryan had a telephone call from OC gang telling him that they would get him next time. Robinson had first mentioned the conversation 2 weeks before he gave evidence. 16. McCalla told the jury that when he left prison in 2010 he wanted to get away from the gang and was looking for work. When the shots were fired he was outside the shop, neither Grant nor Kolawole with him. He had not known a gun was to hand. He would not say who had been there because it would place his family in danger. He met two youths who supplied him with a mask and bandanna. He could not explain how covering his face with a mask and bandanna fitted in with posing as purchaser of drugs for the purposes of robbery. He did not know who was to be robbed or anything about a gun. In Foxley Square at 8.48pm with Grant and Kolawole he discussed cannabis with Grant, borrowed gloves and at 8.53pm returned to Grant to arrange where to meet (after the robbery of the drug dealer) so as to sell cannabis. At 8.54pm he met Grant and Kolawole and rode with them to Fountain Place where they parted. 17. As the others pursued a youth holding a sports bag McCalla joined in thinking him the robbery victim. He heard a shot and was about to ride away when he was called by one of the men, who shot again. When the gunman left McCalla followed. They threw their bicycles over a fence and jumped over it. The gunman told him to remove his body warmer and leave it and his bicycle in the park. He did, anxious to get away. As arranged he met Grant, explained what had happened, Grant left his bicycle and dumped his jacket. He and Grant just walked around, Grant sold some cannabis and McCalla stayed the night with him. He did not answer questions in interview lest he be in trouble with his associates for cooperating. He did not know if the jeans taken from his hostel even belonged to him. He could not explain how GSR got on to them. He had committed robberies with the OC. There were no issues between the OC and the ABM. 18. Natalie Birchard of the Young and Safe programme told the jury of McCalla’s progress. Her job was to try to move him on from the OC. She knew he was in fear for his life and would avoid certain places. Submissions 19. The Judge ruled against McCalla’s opposition to the introduction of the evidence of GSR on jeans found in McCalla’s hostel. Grant submitted that the Crown should be made to elect between count 1 or counts 2 and 3. McCalla and Kolawole submitted that the survival of count 1 depended on the removal of counts 2 and 3 which were bad in law. The complainants in counts 2 and 3 were not the intended victim. Different specific intents had to be proved, in Count 1 to kill, in Counts 2 and 3, to cause grievous bodily harm. They were mutually inconsistent, and could not found convictions based on different intents but one actus reus. The Judge ruled that if a defendant shot with the intention of killing he intended to cause at least really serious bodily harm. A single act could amount to more than one offence, and the relevant counts in the indictment were not mutually exclusive. The lesser intent may be subsumed in the greater. 20. McCalla submitted that counts 2 and 3 were bad in law, he being a secondary party. The wording of section 18 of the Offences Against The Person Act 1861 did not permit the Crown to allege that a defendant caused grievous bodily harm to X with intent to do grievous bodily harm to another. Counts 2 and 3 were outside the pleaded and provable enterprise in his case, such that there was no or insufficient evidence of his commission of them. The Crown was conflating transferred malice with joint enterprise and those principles were mutually inconsistent. He could not be liable for the actions of the primary party who went outside the agreed enterprise by shooting an unintended victim. The Crown submitted that legislative history made clear that section 18 was designed to deal with a defendant who caused grievous bodily harm to an unintended victim intending to cause it to another. The 1861 legislation contained “any” altered from “such'' which settled the point. The trial judge rejected the submissions. Grounds 21. Common to all three appellants: The judge erred in ruling against the submissions of no case to answer. It was not possible to seek a conviction for two different offences of specific intent which had an identical actus reus and mens rea. 22. Ground advanced by Grant: The judge erred in rejecting the submission that the allegation of criminal intent in respect of anyone other than Bryan was wrong in law and fact. 23. Ground advanced by McCalla: The judge erred in refusing to exclude GSR evidence and failed to give sufficient reasons for doing so. He failed to direct the jury on how to treat the GSR evidence against McCalla. Renewed applications 24. The reference to Grant as opposed to “the gunman” in Steps to Verdict was unfair. The judge failed fairly to represent Grant’s case and denigrated it during his summing up. 25. The judge misdirected the jury orally and in the Steps to Verdict document as to the ingredients of counts 2 and 3 and his directions were incompatible with his ruling on the submission of no case to answer. 26. He refused to correct his direction about McCalla’s bad character. He should have reminded the jury about McCalla’s reliance on his own previous convictions Developed arguments 27. It is convenient to take the combined submissions of all Appellants together. It was submitted that counts 2 and 3 were inconsistent in fact and in law with the count of attempted murder as all three counts alleged a crime of specific intent arising out of the same act and intent, the firing of the gun at Bryan intending to kill him. There was no basis upon which the Crown could prove that the gunman who intended to kill Bryan also intended to do grievous bodily harm to Bryan, identified in Counts 2 and 3 as “another”. Seriously injuring the victims as opposed to killing Bryan was, on the Crown’s case, a mistake and thus not intended. 28. Grant argued before us that as soon as the jury was satisfied a defendant intended to kill Bryan it would not have to consider whether any element of S18 were proved before it convicted upon Counts 2 and 3. The Crown need prove only the elements of Count 1 to prove Counts 2 and 3. Further, once the elements of Count 1 were proved the jury would convict upon the Court’s direction and any direction that the counts required separate consideration was a misdirection. Upon a count of attempted murder, a direction that the Crown must prove the defendant intended “at least really serious bodily harm” was a misdirection. 29. By finding that a lesser specific intent “may be subsumed” into the greater the Court is said to have transformed two crimes of specific into two of basic intent. The ruling that the lesser intent “may” be subsumed into the more serious was likely to have been so as to avoid the criticism at the heart of the submission of no case to answer. 30. The argument before us was said by Grant to recognize that shooting in a public place must leave an offence on the indictment which could result in a conviction. That recognition could be achieved, so we were told, by requiring the Crown to elect between Count 1 and Counts 2 and 3, treating them as alternatives. The effect of that course would have been that a conviction upon Count 1, attempted murder, required no verdict on Counts 2 or 3, causing grievous bodily harm. Sentence for attempted murder would encompass the harm caused to Thusha and to Selva. If unsure the gunman intended to kill Bryan the jury would consider whether he intended seriously to harm an individual, intending when the gun was fired to cause really serious harm. 31. The involvement of HHJ Rook at the dismissal hearing provides a degree of narrative sitting at the back of the argument advanced to the trial judge and to the submissions before us. In his brief ruling on the topics of interest in this appeal, HHJ Rook said: “The remaining submissions raise the legal point as to whether…transferred malice can be applied to (i) attempted murder (ii) causing grievous bodily harm with intent to do grievous bodily harm….The main focus…has been on (sic) upon the two counts alleging attempted murder of the unintended victims. The mental element of attempted murder is intent to kill a particular victim – in this case Bryan. The offence…is complete once the gun was fired. It is submitted on behalf of [the Appellants] that the intent to kill Bryan (the intended victim) cannot be transferred to a (sic) charges of attempted murder in respect of the unintended victims. It is argued that this applies whether [the Appellant] was a principal or a secondary party. Furthermore in seeking to apply…transferred malice to secondary parties the Crown is watering down a mental element that requires a specific intent to kill a particular person to criminal liability based on foresight that a gun might be used. In the absence of English authority I have been referred to People v Bland (2002) 28 Cal.4 th 313, 121 Cal.Rptr. 2d 546; 48 P.3d1107 in support of the contention that the intent to kill cannot be transferred to the unintended and unexpected victim of a non-fatal injury. The paucity of authority on this point may derive from the fact there is no obvious lacuna in the law and the point is theoretical…. There are great difficulties in applying…transferred malice to attempted murder of an unintended victim. The intent alleged…is…to kill a particular victim, Bryan. No further intent can be said to have been formed after the pulling of the trigger. The offence was complete at that stage. …In my view it is not open to the Crown to put before the jury counts alleging attempted murder of the two unintended victims. The position is not the same as with murder…This does not expose a lacuna in the law. The shootings are the proper basis of Count 1 (attempted murder of the alleged intended victim) and Count [6] possession of a firearm with intent to endanger life. Furthermore…the Crown are entitled to proceed as against all defendants on the 2 counts alleging grievous bodily harm with intent in respect of the actual victims…. it is submitted on behalf of the alleged secondary parties K and M that… transferred malice cannot apply to secondary parties in respect of…..S18 and the Crown must limit themselves to allegations under S20. …It is illuminating to consider the legislative history which makes it clear that S18 is designed to deal with…a defendant [who] causes grievous bodily harm to an unintended victim when intending to cause serious harm to another. The wording of particular statutes created difficulties in the nineteenth century as to the application of …transferred malice in respect of offences alleging ain intent to do grievous bodily harm. (see Criminal Law Glanville Williams 2 nd Ed 1961..). S4 of the Offences Against the Person Act 1837 required an intent to harm “such person” ie the one actually harmed. This led to conflicting decision as to whether this permitted the introduction of transferred malice. This was addressed in the 1861 legislation with the wording being altered from “such” to “any”. That settled the point beyond doubt. This applies to secondary parties who are in the words of Glanville Williams.. …responsible not only for the principal’s mistake but for his clumsiness of execution. It follows that [counts 2 and 3] are good in law in respect of all three [Appellants] …..” 32. In Bland a decision of the Superior Court of Los Angeles County the court said: “In its classic forms, the doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder. Whatever its theoretical underpinnings, this result is universally accepted. But conceptual difficulties arise when applying the doctrine to other facts. Here, defendant shot at three persons, killing one and injuring, but not killing, the other two. “We conclude that transferred intent ….does not apply to an inchoate crime like attempted murder. A person who intends to kill only one is guilty of the attempted (or completed) murder of that one but not also of the attempted murder of others the person did not intend to kill. Thus, in this case, whether defendant is guilty of the attempted murder of the two surviving victims depends on his mental state as to those victims and not on his mental state as to the intended victim. ” 33. Reference was made to People v Czahara in which the rule was summarised: Where a single act is alleged to be an attempt on two persons’ lives the intent to kill should be evaluated independently as to each victim and the jury should not be instructed to transfer intent from one to another.’ There was no need to employ the legal fiction of transferred intent in order fully to punish the defendant for the attempt. It said: “To be guilty of attempted murder the defendant must intend to kill the alleged victim, not someone else.” 34. Bland is of no assistance on these facts. The court is no longer concerned with the attempted murder of more than one victim, consequent upon the ruling of HHJ Rook. Conclusion on the primary argument 35. In our view there has been identified no rule of law nor any legal principle nor any policy ground which supports the arguments advanced. Within the Appellants’ intention to kill Bryan lay an intention to cause really serious physical harm to Bryan. 36. Proof of the mens rea for attempted murder by definition involves proof of the mens rea for causing grievous bodily harm with intent. Once that is clear the fallacy in the submissions is exposed. An useful test of whether submissions to us were well founded lies in considering the obverse. If the point were well made it would follow that an intent to kill must exclude an intent to cause grievous bodily harm. 37. The assertion that as a matter of law the two specific intents are mutually exclusive or inconsistent does not withstand scrutiny. Let us assume Bryan died as a result of being shot, that bullets went on to injure the other two victims, and that all three Appellants were charged with the murder of Bryan and with causing grievous bodily harm to the other two victims. 38. The jury when considering murder would be directed that it must be sure of either i) an intention to kill or ii) of an intention to cause really serious harm. It would not be necessary that the jury should agree upon which intention provided it agreed it was one or the other. Were the two specific intents mutually inconsistent as a matter of law that course would not be possible. The jury would have to be directed to deal with the counts sequentially and tell the court how it found. 39. The point falls into yet sharper focus when considering the necessary direction upon the grievous bodily harm counts. Were the Appellants’ submissions well founded the Judge would have to direct the jury that it should go on to consider the section 18 counts only if it were not satisfied of an intention to kill, because an intent to kill on the argument advanced is inconsistent with an intention to do really serious harm. That is plainly untenable. There would be no reason not to leave the grievous bodily harm counts to the jury if it had convicted of murder. 40. On these facts a finding of intention to kill (count 1) leads inevitably to a finding of intention to cause grievous bodily harm (counts 2 and 3) - the consequence of the hierarchy of intent, with intention to kill at the top. It is impossible to kill without causing really serious harm. 41. When dealing with counts of attempted murder and counts of grievous bodily harm the jury is in general directed to approach the intents sequentially. That is not since they are mutually inconsistent but so as to permit the Judge to identify where, in the hierarchy, the intent falls so as to determine the level of criminality for the purposes of sentence. 42. Counts 2 and 3 are freestanding offences known to law. If, on particular facts, a jury were almost certain to convict of a count or counts as a consequence of its decision to convict on one it considered earlier, that cannot render the subsequently reached convictions wrong in law. There may be little for a jury to do, but that is a separate point and without more falls far short of a ground of appeal. Often, as here, a trial judge will tell a jury that if a particular course is followed a verdict on another count is unnecessary. It does not elevate to a matter of law the near inevitability of the overall verdict nor can it without more mean that the direction requiring separate verdicts becomes a misdirection. It is no more than a day-to-day exercise in pragmatism. 43. Neither are these counts alternatives such that the Crown should have been required to elect. There were different de facto victims. The facts which founded the counts simply amount to a near inevitability that conviction on Count 1 would mean conviction on Counts 2 and 3. That is not the same as an alternative basis. There is nothing in this point. Ground 2 Steps to Verdict wrong in law and a linked misdirection 44. This Ground relies upon the criticism we have set out above, and adds complaint as to a part of the summing-up when the Judge said: “The bullet was meant for Bryan and was intended to cause him at least really serious injury.” 45. “A t least ”, Grant argued before us, is meaningless – the only intended harm more serious is an intent to kill - and potentially confusing. Its effect, we were told, permitted the jury to convict upon Counts 2 and 3 on a finding of intent to kill. Consequent confusion both on this point and cumulatively renders the verdicts unsafe. Additionally, “at least” adds to the statutory definition of Section 18 an element bad in law. 46. We can take this Ground shortly. We have already reached a conclusion on the primary point. The words the Judge chose in the summing-up must be seen in context. There is nothing confusing about them nor do they add impermissibly to a statutory definition. They convey, clearly and without fuss, “not less than” really serious injury. That is the answer and an end to the point. Ground 6 reference in Steps to Verdict to ‘Grant’ as opposed to ‘the gunman’ 47. Before the jury retired Steps to Verdict were distributed. They read as follows: “Steps to Verdict Grant . There is no dispute that on 29 March 2011 two shots were fired into Stockwell Food and Wine store and that Thusha and Selva were hit and each was caused really serious injury. 1. Are we sure that Grant fired the shots? If yes go on to question 2, it no grant is not guilty of counts 1 2 3 and 4. 2. Are we sure that when he fired the gun Grant intended to kill Bryan? If yes Grant is guilty of count 1, go to question 2. If not Grant is not guilty of count 1, go to question 3. 3. Are we sure that when he fired the gun and caused really serious injury to Thusha Grant intended to do really serious injury to a person? If yes is guilty of count 2, go to question 4. If no he is not guilty of count 2, go to question 4. 4. Are we sure that when he fired the gun and caused really serious injury to Selva Grant intended to do really serious injury to a person? If yes is guilty of count 3, you go no further. If no he is not guilty of count 3, go to question 5. 5. Are we sure that Grant had the gun in his possession with intent by means thereof to endanger life? If yes he is guilty of count 4 if no he is not guilty of count 4. Steps to Verdict Kolawale. There is no dispute that on 29 March 2011 two shots were fired into Stockwell Food and Wine store and that Thusha and Selva were hit and each was caused really serious injury. 1 Are we sure that K was present at the scene when the gun was fired? If yes go to question 2, if no K is not guilty of counts 1 2 3 and 4. 2. Are we sure that K, knowing that the gunman had a loaded firearm and …that he had it with the intention of killing or realising that he might fire it with than intention encouraged and intended to encourage the gunman to kill Bryan? If yes he is guilty of count 1, go to question 2. If no he is not guilty of count 1 go to question 3. 3. Are we sure that K, knowing that the gunman had a loaded firearm and that he had it with the intention of causing really serious injury to a person or realising that he might fire it with that intention encouraged and intended to encourage the gunman to fire the weapon thus causing really serious injury to Thusha? If yes he is guilty of count 2, go to question 4. If no he is not guilty of count 2, go to question 4. 4. Are we sure that K, knowing that the gunman had a loaded firearm and that he had it with the intention of causing really serious injury to a person or realising that he might fire it with that intention encouraged and intended to encourage the gunman to fire the weapon thus causing really serious injury to Selva? If yes he is guilty of count 2, go to question 5. If no he is not guilty of count 2, go to question 5. 5. Are we sure that K knew Grant had a gun with him and he intended that Grant should if necessary use it to endanger life? If yes he is guilty of Count 4, if no he is not guilty of count 4. Mutatis mutandis the same Steps were recited in respect of McCalla.” 48. Counsel reminded the Judge that where relevant to McCalla and Kolawole “the gunman” featured in all but the final paragraph which read “Grant”. That the gunman was Grant was a decision not made since no verdict had been returned. 49. The guilt or innocence of the two alleged to have assisted the gunman did not depend on his identity. McCalla claimed he had left Grant and Kolawale shortly after leaving Foxley Square and was near the shop with two others. Kolawale advanced no positive case but at no stage conceded presence. The Crown agreed that for “ Grant” there should be substituted ‘the gunman’ albeit when the Judge declined so to do its position was and remains that the safety of the conviction is not affected by his refusal. 50. The misdirection, as it was described before us, we were told was expanded to a precondition that Grant must be found to have been the gunman before Kolawale or McCalla could be convicted of any offence. On 20 th March 2012 the jury sent a note asking when it was necessary for the offenders to have made Bryan their target for the purpose of Count 1. In his answer the Judge named Grant rather than referring to the gunman. The argument advanced before us was that Counts 1, 2 and 3 stood or fell together so that misdirection, as it was described, went to all counts. 51. It would have been better had the Judge amended the Steps to Verdict as counsel suggested. It would also have been preferable when answering the jury’s question to say “the gunman”. However, the jury was well aware of how parties put their cases. The Steps and the answer, seen against the backdrop of the contested trial, recite the case for the Crown. That being the task for the jury in any event, and the jury being well aware that from alpha to omega Grant contested his role as gunman, we see no reason to conclude that this use of words challenges the safety of the conviction. Ground 7 failure to represent Grant’s case and denigration of it. 52. Grant’s case was that he could not have been the gunman; he was a friend of Bryan and had spent time with him in ABM territory. Grant called Robinson after the close of his case on the basis that Robinson had learned latterly that Bryan claimed not to know Grant. Robinson told the jury inter alia that Bryan had claimed the OC gang told him (Bryan) it had failed to kill him the first time but would get him next time. Bryan, recalled to deal with this, admitted he knew Grant and had spent time with him. He could not say whether he had been told of the OC position. 53. The Judge said in summing up: ““Bryan was recalled to the witness box as [counsel for Grant] had come up with a witness…“[Grant] called …Robinson, albeit at the last moment. ..Bryan and Grant are friends, according to Robinson, says counsel”” He dealt with the evidence of Bryan on this topic in short order, and, counsel complained to us, did not remind the jury that Bryan and Grant were friends, that Bryan knew of no reason why Grant should want to harm him, that they had socialised locally in what the Crown called enemy territory for Grant, and that Bryan did not dispute the possibility of the Otrey position statement. In summarizing this part of the evidence the Judge referred only to how the Crown put its case. 54. This passage from the summing-up is unfortunate. Leaving aside the absence of a summary of how Grant put his case, leading counsel was obliged to do all he properly could to advance the position of his lay client and, absent tenable accusations of poor professional conduct, was entitled to better than the slight he endured. That said, the jury heard what we are confident was his powerful final speech and could hardly have wondered how Grant put his case. There is nothing in this point. 55. McCalla: Ground 2, refusing to exclude GSR evidence and to give reasons therefor and Ground 5, failure to direct the jury as to how to treat GSR 56. It is convenient to consider these two Grounds together. The evidence, counsel submitted, was crucial in view of McCalla’s case that he did not know of the presence of a firearm prior to his arrival at the scene and had not come into contact with that item or any of its parts. It should have been excluded given that: i) It did not found any proper inference that McCalla was in contact with the firearm and thus was not relevant; ii) In the alternative, any probative value was outweighed by its prejudicial effect and the Court ought to have exercised its discretion to exclude pursuant to s78 Police and Criminal Evidence Act 1984. 57. For McCalla the primary issue was what enterprise he had agreed to embark upon and his intent at the material times. His case was that he was a cannabis user (as shown by his antecedent record), and intended to rob a cannabis dealer of his goods. There was some evidence to found the suggestion that Bryan was a drug supplier in possession of drugs at the crucial moment. McCalla told the jury he was no longer a gang member on 29 th March and was seeking to distance himself from gang activity. 58. Addresses connected to McCalla revealed a top that he had been wearing on the night of the shooting and numerous pairs of jeans. The front left pocket of one pair was contaminated with a moderate quantity of Type 8 GSR particles. The Crown’s case was that they were similar to those used in the shooting. The unrecovered 0.22 calibre hand gun would have discharged bullets with type 8 GSR, present in about 3% of all ammunition submitted to the Crown’s expert’s laboratory but one of the most common types of ammunition in circulation. 59. The Crown’s GSR expert Mr Warman found no GSR on any item save one pair of jeans: “…several particles that are potentially Type 8 GSR ….mostly in a cluster in the left front pocket…. constitute a moderate (4-12 particles) level….The GSR …suggests something with this type of GSR on it has come into contact with the pocket, possibly a hand, the gun or a spent cartridge at some time. Their presence does not help to address whether or not the jeans were exposed to the discharge of the gun…Particles are easily transferred from one surface to another so could be picked up without any direct association with firearms.” 60. His conclusion was that the GSR on the jeans lent some support for the jeans or wearer having contact with a .22 calibre gun, but did not address whether either were exposed to the shots fired. Type 8 residue is rarely encountered in calibres other than 0.22 and on average about 3% of cartridges examined in his laboratory contain Type 8 but it was one of the most common particles in the general population. It was more likely a cluster would get into a pocket by direct contact with a fired gun or spent cartridge or a hand which recently touched a gun or spent cartridge than by exposure to discharge. 61. McCalla denied coming into direct contact with the gun or the GSR. He told the jury the jeans were not his. There was evidence that youths on Myatt’s Field regularly swapped clothes and CCTV footage showed McCalla borrowing gloves on 29 th March 2011 which he relied on as one way in which GSR could be transferred. It was not in issue that the jeans recovered were not worn by McCalla from the day before the shooting until his arrest. 62. The Crown contended for inferences that the GSR was from the gun used in the shooting and was deposited between shooting and arrest, thus linking gun and McCalla, so as to set up knowledge by McCalla prior to the shooting. McCalla criticised this approach as unreasonable speculation. The expert evidence was that once in a pocket GSR could remain undisturbed for a very considerable time, it was not possible to say how long it had been in the pocket, and the high water mark for the Crown was no more than that it might have come from the spent cartridge and/or gun. 63. The ruling (there is no transcript) is said inadequately to have addressed the submissions or set out reasons for admitting the material and, given the crucial importance of the evidence, its wrongful admission undermines the safety of the convictions. The Judge is said to have summed-up the evidence without identifying for what purpose or in what way the jury could use it. The only reference to the Defence evidence was: “[the expert] confirmed…that no residue was found on any of McCalla’s other clothes, including the jacket… he was seen wearing on the night of the shooting. That is the one with the rather ornate decoration on it.” 64. Mr Warman’s evidence was summarised thus: “ In my work.....of the .22 cartridges we have tested, Type 8 has been found in 3 per cent of the cases ”. 65. The witness had confirmed that while that was an accurate description of the items his laboratory had tested, type 8 GSR was one of the most common particles in the general population. The expert, said the Judge: “does not purport to say how it could have got there”. 66. The effect, we were told, was to allow the jury to use GSR as quasi-bad character evidence without any direction on how it could assist it to resolve the issues. Without a direction as to how to use the evidence the jury was left to speculate. The evidence went to the heart of the issues, i.e. would McCalla have gone to Stockwell knowing that others had a firearm and did he do so on 29 th March? None of those questions could or should have been answered by reference to GSR. 67. This evidence was rightly admitted. Its scope was narrow and its potential relevance obvious. If McCalla were found by the jury to have had connection to the GSR then his link to the shooting was arguably stronger. In issue was his knowledge of the gun. Were the jury to reject his evidence that the explanation for his not wearing a particular pair of jeans at the relevant times was the common currency among his peers of clothes-exchange, it was entitled to go on to consider any relevance of Type 8 GSR in jeans found in an address connected to him. Even tersely expressed reasons would have added little to this distillation, which no listener could have failed to grasp. It is unnecessary for us to consider S78 Police and Criminal Evidence Act. 68. Next, the entirety of the relevant evidence on the topic was before the jury. Not only was it offered assistance from the expert, but McCalla himself explained his case. It could not have failed to understand, particularly, we assume, after listening to his counsel’s final speech, that McCalla relied on the concessions made in the course of the expert’s evidence. 69. Some judges might have summed up the evidence on GSR in greater detail. That the trial judge did not is far from fatal to the safety of the conviction. The evidence, both expert and lay, was not remotely complex. It amounted to a small quantity of commonly found GSR in, for an unknown time, the pocket of jeans not worn by McCalla from 28 th March until 31 st March. How it got there was impossible to say. Youths in his milieu commonly swapped clothing. He told the jury he had had no contact with anything which would inculpate him in this regard. There was nothing difficult to understand about any of this, and it was in a narrow compass. The use to which the jury should put it was self-evident. If it disbelieved him, the evidence was capable of supporting the Crown’s case that he was involved in the shooting at whatever distance. There is nothing in these Grounds. Ground 6, refusal to correct a direction on bad character or give reasons for refusing 70. McCalla told the jury he had previous convictions. He explained each one without challenge by the Crown. They were, we are told, led to show: i) His association with cannabis; ii) His involvement in robberies and acquisitive offences; iii) The robberies did not involve his use of weapons; iv) He had not used serious violence; and v) Save one previous conviction for an imitation firearm with intent to cause fear (a pellet gun) he had no association with firearms or ammunition or propensity for gun use. Those factors were said to make it more likely he would join in robbery of a drug dealer but less likely he would join in a shooting. The issue was said to be central. 71. The Judge, to the surprise of all counsel, we were told, gave a bad character direction. Its terms suggested that the Crown pointed to his possession of the pellet gun as relevant to the offence when the Crown had not done so. The direction did not address how it might assist McCalla nor rehearse his election to introduce his history. In accordance with case law and as a matter of fairness the Judge was, so the argument goes, required to do so. 72. The submission advanced to us was that absent a bad character application by the Crown the Judge was wrong to invite the jury so to treat his previous conviction for possession of a pellet gun. Section 101(1)(b) Criminal Justice Act 2003 permits a defendant to disclose his previous convictions for whatever reason he sees fit. The 2012 edition of Archbold reads: “If evidence of his bad character is not and does not become admissible via any of the other gateways then, subject to R v Highton; R v Van Nguyen; R v Carp and R v Campbell the use that may be made of the evidence will be determined by the purpose for which the defendant has introduced the evidence.” 73. The Judge is criticised for allowing the evidence to be used for other purposes. McCalla’s counsel raised the failure to give a proper direction. The Judge’s ruling was: “ Right. Well, I will deal with the first of those matters [something completely different] but not the other two. ”. 74. The following day the Judge rejected a developed submission without giving reasons. 75. The submission before us was that a “full picture” direction should have been given. The effect of the summing-up was to turn a point McCalla sought to make to the advantage of the Crown. 76. Whilst we have some sympathy for the submission, and whilst it would have been preferable for the jury to have a “full picture” direction, the way the Judge configured his summing-up was plainly designed to protect McCalla. He down-played the evidence as against him, warning the jury against giving it too much weight. No damage was likely to have been done to his case. The only remaining issue is thus whether by the omission of the direction for which he argued McCalla is so prejudiced that the safety of his conviction is called into question. 77. Like that as to GSR this evidence was neither complex nor layered. Counsel, we can be confident, spelled out to the jury the advantages to McCalla of how his previous convictions supported his case. The jury certainly had an explanation of how he put his case – there is no complaint as to that, nor could there be – and that, combined with a warning going only to McCalla’s benefit, makes it difficult to see how the safety of his conviction is called into question. It should also be remembered that the jury was told to reach verdicts upon the whole of the evidence. In McCalla’s case that included issue joined on whether he were candid when telling the jury he had turned his back on gangs and crime and would not involve himself with guns. The Crown relied on his having been with Grant, in its contention the gunman, when all the shots were fired, that he remained with Grant afterwards for some hours, and that he was in company with Grant when the latter shed both bicycle and clothing. The jury can have been in little doubt that the competing cases were as the Crown suggested and as McCalla suggested, fortifying his evidence by reliance on his previous convictions and his arguably improved behaviour. 78. That being so the way in which the summing-up was configured did him no disservice such as to call into question the safety of the conviction. 79. Consequently, for all the reasons given we reject all Grounds and this appeal is dismissed, the renewed applications are rejected.

```yaml citation: '[2014] EWCA Crim 143' date: '2014-02-13' judges: - LADY JUSTICE RAFFERTY DBE - HIS HONOUR JUDGE CAREY QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2013] EWCA Crim 1962 Case No: 201206525 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 16 October 2013 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE BEAN MR JUSTICE BURNETT R E G I N A v PARMJIT SIDHU 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 FJ Laird QC appeared on behalf of the Applicant J U D G M E N T 1. MR JUSTICE BURNETT: This is a renewed application for permission to appeal against a conviction of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. The applicant was convicted on 18 October 2012 in the Crown Court at Birmingham. He had pleaded guilty to a number of other counts and was sentenced to a total of 6 years' imprisonment. Mr Laird QC has appeared this morning on behalf of the applicant and we are grateful for his submissions. 2. The short facts are that the applicant was at home with his wife on the night of 13 and 14 June 2012 when they were disturbed by a noise coming from a group of late night revelers who had been drinking in a nearby bar. The applicant had asked them to be quiet on a number of occasions without success. At about 5.30am the applicant went into the street armed with a 36-inch long metal bar and a kitchen knife. In the course of a confrontation with the group he struck one of them with the metal bar. 3. There were two distinct injuries: one to the upper body and another to the head causing a depressed fracture of the skull. It appears that the applicant also punched another member of the group and it was that act which founded another of the counts. 4. The applicant gave evidence at his trial. Mr Laird has explained to us that his case was that he intended to strike the complainant to the body and not the head, that there were only two blows and thus that he did not intend to cause him really serious injury. The second blow, on the account given by the applicant, struck the complainant's head but was in a loose sense accidental because the complainant was moving at speed in consequence of the first blow. He meant to hit his body. 5. There were three eyewitnesses to the attack on the complainant. One of them described three blows with the bar, one described a single blow to the head and another described two blows. That was to some extent consistent with the account given by the applicant. 6. In the course of cross-examination of the first eyewitness counsel for the applicant questioned him about a previous inconsistent statement made to the police. The point was a simple one: in his evidence the witness said that there were three blows, whilst in his police statement he had said that there were two. The purpose of the cross-examination was to establish that there had indeed been only two blows struck by the applicant. By virtue of section 119(1) of the Criminal Justice Act 2003 both what the witness said in evidence in court and also the content of his police statement were evidence before the jury. 7. There are two grounds of appeal. The first concerns the way in which the Judge explained to the jury that they should judge the defendant's evidence by the same fair standards as they considered any other evidence. It is submitted that because this observation did not appear in the section of the summing-up headed "Legal Directions", there was a material misdirection. The jury may not have appreciated that they were obliged to treat the applicant fairly. 8. Mr Laird has not pressed this submission with great vigour this morning and, in our judgment, rightly so. It is usual for Judges to say something of this sort to the jury in every summing-up. Many do it in an introductory passage, that is before getting to the section of the summing-up formally headed "Legal Directions"; some may include it as a legal direction; others make the observation when they come to describe the evidence of the defendant himself. 9. We would not consider it a misdirection to leave out that observation altogether because it is not really a legal direction at all. The jury have taken an oath, which amounts to a promise to try the defendant fairly and according to the evidence. They are reminded often in the course of a summing-up of the need to look at the evidence carefully and to make sound judgments about what they accept and what they reject. 10. Be that as it may, the Judge twice reminded the jury in this case of the need to approach the defendant's evidence fairly and in our judgment there can be no proper criticism of the way in which he dealt with it. 11. The second ground, and the ground upon which Mr Laird has concentrated his submissions, is that there was a material misdirection given by the Judge concerning the previous inconsistent statement. He submits that there is a similar failing as underlay the first ground, namely that the Judge failed to make it clear that the direction was a direction of law because he dealt with it as he touched upon the witness's evidence. 12. Furthermore, Mr Laird submits that the direction was insufficient in at least two respects: first, that there was no explanation of the significance of the discrepancy, and secondly, that it was not made clear that the discrepancy might itself affect the credibility of the witness. In particular, it is submitted that the Judge did not remind the jury that the passage of time between the date on which the police statement was made, and the date upon which evidence was given at the trial, might itself have clouded the witness's memory. 13. The Judge summarised both accounts given by the witness. Indeed, he read to the jury the account contained in the earlier witness statement. The explanation to the jury of what they should make of the two accounts was this: 14. "So in terms of what you heard from this witness, the taxi driver, clearly he gave an account in his oral evidence to you that there had been three blows, and in his statement he said that there were two. You need to appreciate that the account given in his statement also forms part of the evidence in the case. You are not bound to accept either account, but, if, in any respect, you conclude that his written statement is accurate and his oral evidence is not, then you may act upon the statement in preference to his oral evidence. It is a matter for you to assess." 15. The critical point explained by the Judge was the effect of section 119, namely that both accounts were evidence. We agree with the Single Judge's observation that there was no need explicitly to attach a label legal direction to this part of the summing-up because it was entirely obvious. Also we agree with the Single Judge that it could not have made any conceivable difference had that label been attached to this particular paragraph. 16. We accept that the Judge might have said that the inconsistency affected the general reliability of the witness, but, in our judgment, it is not a misdirection not to have done so. It is self-evident from the language used by the Judge and is clearly implicit in what he said. The Judge's summing-up on this point conveyed succinctly the matters arising from section 119 and the previous statement that the jury should be aware of: first, that the earlier account was in evidence itself; secondly, that the jury was not bound to accept either account; and thirdly, that if satisfied in any respect that either account was accurate the jury could act upon it. That language conveyed unambiguously the point that they may find both accounts wanting. 17. Finally, Mr Laird submits that the summing-up should not be analysed line by line with a view to concluding whether a particular sentence is sound or not. The task is to look at it in the round and to consider whether there is any arguable failure which could affect the soundness of the conviction. We agree with that approach. In our judgment, despite the careful submissions made by Mr Laird, there is nothing in the summing-up which gives rise to any legitimate complaint in this case. 18. In those circumstances this renewed application must be dismissed.

```yaml citation: '[2013] EWCA Crim 1962' date: '2013-10-16' judges: - LADY JUSTICE HALLETT DBE - MR JUSTICE BEAN - MR JUSTICE BURNETT ```

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No: 201704332/A1 Neutral Citation Number: [2017] EWCA Crim 2064 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 3 November 2017 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GREEN HIS HONOUR JUDGE AUBREY QC (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 THOMAS ZACHARY PARISH MICHAEL AARON REDFORD - - - - - - - - - - - - - - - - - - - - Mr J Polnay appeared on behalf of the Attorney General Mr S Reiz appeared on behalf of the Offender Parish Mr M Morris appeared on behalf of the Offender Redford - - - - - - - - - - - - - - - - - - - - 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 29th August 2017, in the Crown Court at Inner London, Thomas Parish and Michael Redford, aged 19 and 24 respectively, pleaded guilty to an offence of conspiracy to transfer prohibited firearms, contrary to section 1(1) of the Criminal Law Act 1977. On 31st August 2017 Thomas Parish was sentenced to detention for 5 years in a young offender institution and Michael Redford was sentenced to 5 years 6 months' imprisonment. 2. It appears to Her Majesty's Attorney-General that those sentences were unduly lenient. He applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so the sentencing may be reviewed. We grant leave. 3. The relevant facts are summarised as follows in the reference. On 15th March 2017 the offenders travelled together by car from Farnborough to Slough. There they picked up three Atak eight-shot revolvers; two Ekol Arta five-shot revolvers; a total of 322 live rounds of ammunition, comprising 194 rounds which were suitable for use in the five-shot revolvers and 128 which were suitable for use in the eight-shot revolvers; and a single fired round. 4. Automatic number plate reader cameras showed that the offenders then travelled in convoy behind a white Mercedes, from Slough to London Bridge. At London Bridge, the time now being about 10.30 at night, armed police officers attempted to stop the offenders' vehicle. Parish was driving and Redford was in the front passenger seat. Parish drove through a red traffic signal and stopped. Redford left the vehicle and ran into London Bridge Station. He was not arrested until about eight days later. Parish was detained at the scene. 5. Police searched the car and recovered the firearms and ammunition to which we have referred from inside two distinctive plastic bags with a black and gold striped pattern. One of these bags was underneath the front passenger seat, the other was in the rear nearside footwell. 6. Examination of the revolvers showed that all five were prohibited weapons, within section 5(1)(aba) of the Firearms Act 1968. Given the calibre of ammunition which they fired they were said to be relatively low powered. They did however nonetheless discharge projectiles with lethal force. 7. The live rounds were, as we have said, all suitable for use in one or other of the two types of revolver. Fingerprints of both the offenders were found on both the inside and the outside of the plastic bag which was under the front passenger seat. Three of the revolvers were wrapped in tape. From that tape a DNA profile was recovered which matched a man to whom we will refer simply as "K". K was arrested in July 2017 by the National Crime Agency following the discovery of 79 handguns which had been concealed in engine blocks to be imported into the United Kingdom. When K was arrested he was in possession of keys, which fitted a trailer in Slough. Officers of the National Crime Agency arrested two men seen driving away from that trailer and nine Ekol Arta pistols were recovered on that occasion. They were contained in black and gold striped plastic bags, identical to the ones found when these offenders were stopped. In the trailer there were more black and gold plastic bags. 8. Reverting to the facts of the present case, Parish was interviewed under caution. His initial story was that he had been driving a friend called Michael Smith to London, so that Smith could collect some money which he was owed. Parish said that he would be paid £100 for doing this. He said he collected the money from an address in Bethnal Green and did not know how bags containing weapons had got into his vehicle. Later, he changed that story and said that Redford had brought the two bags into the car when they stopped in Bethnal Green. He said he did not know what was in the bags but assumed it was either drugs or money. 9. Redford, for his part, told the police before formal interview began that he was going to admit possession of the firearms. He did not however do so. Having been cautioned he answered "no comment" to all questions. 10. The offenders made their first appearance before the Crown Court on 19th April 2017. They were arraigned on an indictment charging them jointly with nine offences, contrary to section 16 of the Firearms Act 1968. Five of the counts alleged possession of a firearm with intent to endanger life, there being one count in relation to each of the revolvers recovered. The other four counts were of possession of ammunition with intent to endanger life, there being one count in relation to each of the different makes and calibres of cartridge which were recovered. 11. Both the offenders pleaded not guilty to all charges. By the time of that plea and trial preparation hearing, the fingerprint evidence had already been served. The issues were identified by counsel as follows. On behalf of Parish, it was said that he had no knowledge of the firearms and denied possession of them. He may have touched the plastic bag found in the passenger footwell during the police pursuit. Parish later went on to serve a defence statement in which again he denied possession of the firearms and ammunition. On behalf of Redford the issues were identified as being knowledge/possession. It was said by counsel on his behalf that his presence in the car was accepted, but the guns had nothing do with him and if any fingerprint of his was on the bag it was "inadvertent/innocent". Further pre-trial hearings took place on 4th May, 30th May and 6th June 2017. The trial was fixed for 29th August. 12. In June those representing Redford contacted the prosecution to enquire whether a plea to simple possession of the firearms would be acceptable. Unsurprisingly, they were told that it would not. Later in June, Redford's lawyers again contacted the prosecution, this time inquiring whether a plea of guilty to an offence or offences contrary to section 16A of the Firearms Act 1968, possession of the firearms with intent to cause fear of violence, would be acceptable. Again, they were told that it would not. Redford then served a defence statement in which he said that the firearms and ammunition found in the car had been in the sole possession of Parish. Thus in the run up to the trial, both offenders were denying guilt of any offence and to an extent blaming each other. 13. On the day fixed for trial it was known to the parties that the Crown intended to apply for leave to amend the indictment by adding counts of simple possession of each of the firearms and of the ammunition. It was clear to all that guilty pleas to those counts would not be acceptable, but they would clearly have served the purpose of spelling out precisely what was to be in issue at trial. Later in the day the prosecution were given leave to amend the indictment by adding count 10, the charge of conspiracy to transfer prohibited firearms. The offenders were arraigned on that count and pleaded guilty. 14. The circumstances surrounding that amendment and arraignment are important. Unfortunately, they were not set out with complete clarity in the Reference. Having heard helpful oral submissions from all counsel, we now understand the following to have occurred. In the course of the morning, as is often the case, there were discussions between counsel, on a provisional basis, as to whether possible guilty pleas to possible offences would be acceptable by the prosecution. In the course of that process, but before any decision had been made even as to a specific charge which might be added to the indictment, still less as to whether guilty pleas would be entered to it, it appears that there was a hearing before the learned judge. 15. At that hearing counsel for one of the offenders enquired of the judge, in what are acknowledged to have been very general terms, whether the judge would afford full credit if a new count was, for the first time, added to the indictment and the offenders pleaded guilty to it. The learned judge indicated that in such circumstances full credit would be given. Discussions between counsel thereafter continued. The end result of those discussions was that it became apparent, that if the offenders were to plead to what became count 10, their pleas would be accepted and other counts would in due course be left to lie on the file. That is what happened. 16. We pause to observe, with respect to the learned judge, that this was a highly unsatisfactory position. This was not an application for a Goodyear indication, which would have been addressed with appropriate formality. Instead it was a wholly unspecific enquiry, about whether full credit would be given for any plea to any new count. On the face of it that broad enquiry could have encompassed a plea to a new count of simple possession, even though the offenders had been denying possession for the last several months. 17. It seems to us that in those circumstances it was simply wrong for the judge, with all respect to him, to give the indication he did, in ignorance of what precisely might happen. However, he did give that indication. He gave it in response to the question asked of him of defence counsel. He gave it without inviting prosecuting counsel to make any submission or to contribute one way or the other. In the event, prosecuting counsel did not say anything at the stage when that indication was given. 18. Following the amendment of the indictment and the guilty pleas to which we have referred, the case was adjourned for a short time, in particular to allow an opportunity for those representing Parish to obtain character references and for the prosecution to provide a written note for sentencing. Such a note was provided. It helpfully set out the relevant considerations, but it said nothing at all on the issue of credit for guilty pleas. We have seen a sentencing note submitted in advance of the sentencing hearing by Mr Reiz, who then, as now, acted for Parish. In that note he submitted that in the circumstances in which the pleas had been entered full credit for them should be given. There does not appear to have been any explicit contradiction of that stance by prosecuting counsel, who perhaps felt that the matter had happened without any opportunity on his part to contribute and that it was too late now for him to say anything about it. 19. We come then to the sentencing hearing on 31st August 2017. Parish had been just 19 at the time of the offence. He had three convictions for four offences, none of which was particularly serious and none of which meaningfully aggravated his culpability for the present offence. He was able to put before the court a number of impressive character references, including from family and friends. On his behalf, it was submitted in mitigation that he had agreed to transfer the firearms because it represented a quick and easy opportunity to make some money. Redford was 24 at the time of the offence. His criminal record was markedly worse. He had 71 convictions, for offences predominantly of dishonesty. He had in 2013 received a sentence of 3 years' detention for an offence of conspiracy to burgle. He had received a further sentence of 18 months' imprisonment in April 2016 for a further offence of conspiracy to burgle and he was in due course to receive a sentence of imprisonment for handling stolen goods. He was on licence at the time when the offence with which we are concerned was committed. On his behalf also it was submitted that he had committed the offence because it was an opportunity to make some money. 20. At the sentencing hearing prosecuting counsel referred the learned judge to the familiar case of R v Avis [1998] 1 Cr App R 420 and to Attorney-General's References Nos 128-141 of 2015 and Nos 8-10 of 2016 [2016] EWCA Crim 54 , to which we shall hereafter refer for convenience as “ Stephenson ". The case of Stephenson included consideration of the cases of a number of offenders, and prosecuting counsel particularly drew the judge’s attention to the sentence of 16 years' imprisonment which the Court of Appeal had concluded would have been appropriate after trial for the offender, Ducram. He took the judge to what was said by the court at paragraph 7 of Stephenson , and submitted that in the terminology used in that paragraph, these offenders were facilitators who had played a significant role, putting five prohibited weapons and over 300 live rounds into the hands of criminals knowing that the weapons would be used for the purposes of crime. Mr Reiz, in addition to representing Parish in these proceedings, had been involved, we understand, on behalf of one of the offenders in the case of Stephenson . He therefore had particular knowledge of the case and he draw to the judge's attention a number of features which he submitted made Ducram an inappropriate comparator in the present case. He made submissions about the comparatively low power of the revolvers, the character references and the youth and immaturity of Parish. He pointed out that this would be Parish's first custodial sentence. He invited the judge to treat Parish as one who had been performing a limited function under direction. 21. On behalf of Redford, Mr Morris submitted similarly that the role was a limited one, fairly described as a "one-off courier". He submitted that in terms of paragraph 7 of Stephenson , Redford should be treated as one of those who assisted in putting guns into circulation and so should be sentenced in the range of 8 to 12 years before credit was given for his plea. 22. The learned judge, in his sentencing remarks, indicated that he had taken into consideration the testimonials and the letter which Redford had written to the court. He considered the questions posed by Avis and identified the following features as relevant: "(i) What sort of weapon was involved? In this case five prohibited weapons and three hundred and twenty-two live rounds of ammunition for use with the guns. (ii) What use, if any, was made of the firearms? The weapons and ammunition were being delivered by you to other criminals. What precisely they were going to do with them is unknown but I assume it would be unlawful. (iii) With what, if any, intention did the defendants possess the weapons? Your intention was to provide the weapons and ammunition to other criminals for them to use in the furtherance of crime in return for a reward. (iv) What are the defendants' records? I have dealt with this but neither of you, I repeat, has a previous conviction relating to firearms. (v) Where was the firearm discharged and who and how many were exposed to danger by its use. The answer to this is unknown. It is known that one fired cartridge was found within the ammunition recovered so this is neutral, as I have already said. (vi) Was any injury or damage caused by its discharge and, if so, how serious was it? Again, the answer to that is unknown so that is also neutral." 23. The learned judge went on to refer to Stephenson . In passing sentence, at page 17B, he said: "You both knew that these were firearms and ammunition that you were conveying and that they were capable of being used and were going to be used by someone, not just for private collection but as part of a criminal enterprise. I accept that you were carriers - mules you would be called if one was talking about drugs - but you were the people who assist the real villains of society to carry on their evil enterprises. Without people like you, firearms would not move as freely around the streets as they do. You are the otherwise innocent stooges who have been caught while the real villains carry on in the background until somebody gets shot, then it is very much in the foreground. I accept, because it was a one-off exercise on your part, you were not facilitators and I can distinguish you from the case of Ducram to which I have been referred in the case of Stephenson . But you undoubtedly assisted the suppliers and recipients of these firearms by transporting them." At page 17G the judge continued: "Because of your youth and personal mitigation, bearing in mind what the Lord Chief Justice said in the case of Stephenson , that the starting point could not be less than 8 years, and also bearing in mind the number of firearms and quantity of ammunition involved, I have taken a starting point of 9 years for each of you as I consider your criminality in the offence to be equal. Taking into account your guilty plea to this charge at the first opportunity, that is to say when it was put on the indictment on Tuesday, I am prepared in each case to reduce that sentence by one-third to 6 years. You, Parish, are lightly convicted and are only 19 years old. I am therefore prepared to reduce your sentence by a further 12 months to 5 years. Any time you have spent on remand will count towards that sentence. You, Redford, are 24 and have serious previous convictions although not for firearms offences. For your personal mitigation I am prepared to make a reduction from the sentence by 6 months. That makes 5 years and 6 months. Again, any time spent on remand will count towards that sentence." 24. On behalf of the Attorney General, Mr Polnay submits that the sentences were unduly lenient. He identifies the following aggravating features: the number of firearms; the quantity of ammunition; the fact that the offenders were involved in distributing both firearms and ammunition together; the fact that the firearms were of a prohibited type for which there is no lawful use; the proximity of this activity to the source of importation, as evident from the circumstances we have summarised relating to K; the fact that Redford was on licence; and the fact that both offenders acted for financial gain. 25. As to mitigating factors, he identified the fact that the weapons were neither semi-automatic nor high powered, Parish's age and comparative lack of previous convictions, and the offenders' pleas of guilty. He referred to case law emphasising the gravity of gun crime and the need for deterrent and punitive sentencing. He cited passages from Stephenson . In particular, he referred to the following passages from the judgment given by the Lord Chief Justice in that case. In paragraph 7 the court had identified three categories of offender and in relation to the least serious category the Lord Chief Justice said that: "The role played by those who assisted in these transactions varied, but as Parliament has stipulated a minimum sentence of 5 years for those in possession of a gun, we consider that it was inappropriate to pass sentences with a starting point of less than 8 years for those who assisted in putting guns into circulation. Their criminality lay in assisting in putting guns and lethal ammunition into the hands of a purchaser. Sentences materially greater were required in cases where the assistance was significant; in the present case the sentences should have ranged from 12 to 8 years, depending on the role they played and any previous association with guns." 26. Helpful written responses were submitted to the court on behalf of each offender contending that the sentences may well have been lenient but that they were not unduly lenient. On behalf of each offender, it is submitted that the judge's starting point of 9 years was appropriate because the circumstances fell within the category identified by the Lord Chief Justice in Stephenson , to which we have just referred. 27. A distinct issue arises as to the credit given for the guilty pleas. Mr Polnay, in his written submissions, contended that full credit should not have been given having regard to the circumstances in which the pleas were entered. Counsel on behalf of both offenders submit that the giving of full credit was within the discretion of the judge. In particular, it is submitted on behalf of the offenders that the circumstances in which the indication was given by the judge amounted to an incentive to the offenders to enter the guilty pleas which they then did enter. 28. The overall submission, on behalf of the Attorney-General, can be summarised as follows and serves as a useful introduction to our consideration of the issues. First, Mr Polnay argues that having regard to the number of weapons, the quantity of ammunition and the fact that transfer was being made for financial reward to criminals the judge should have started higher than a 9-year sentence. Secondly, the judge was then incorrect to allow full credit for pleas of guilty entered on the day of trial, given that the offenders had up to that point, including in their defence statements, denied even possession of the weapons. In addition, on this second issue, Mr Polnay points out, correctly, that the judge should have made any reduction for mitigating factors before applying credit for guilty plea and not, as he in fact did, the other way round. Thirdly, Mr Polnay submits that insufficient weight was given to the fact that Redford offended whilst on licence. 29. Stepping back from the details Mr Polnay makes this simple submission. Had either of these offenders been found in simple possession of a single prohibited firearm, even unaccompanied by ammunition, the effect of the relevant statutory provisions would have been a mandatory minimum sentence of 5 years. For what they in fact did in relation to numerous weapons and rounds of ammunition, they received sentences which were not significantly greater than that mandatory minimum. 30. We begin by reminding ourselves that in cases to which section 51A of the Firearms Act 1968 applies, Parliament has indeed stipulated that the court must impose a minimum sentence of 5 years' custody, unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify its not doing so. It is to be noted that the offences to which section 51A applies include simple possession of a prohibited firearm and that no reduction may be made for a guilty plea, if it would reduce the sentence below the minimum level of 5 years. Section 51A applies to a substantive offence of transferring a prohibited firearm, contrary to section 5(2A) of the 1968 Act. It does not apply to an offence of conspiracy to transfer a prohibited firearm. However, as this court has made clear in a number of cases, section 51A is a Parliamentary indication of public concern. The reason for that public concern is obvious. It was stated as follows, by Lord Judge (the then Lord Chief Justice) in the case of Wilkinson [2009] EWCA Crim 1925 at paragraph 2: "The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community." 31. That same public concern has a considerable impact on sentences for an offence of conspiracy such as this. The judge was therefore correct for say in his sentencing remarks that he would bear that point in mind. 32. In Stephenson , in which all the offenders had either pleaded guilty to or been convicted of offences of conspiracy to transfer prohibited weapons, this court stated that the sentences for such offences must reflect the hierarchy of the supply enterprise, the role played in individual transactions and any previous conviction in relation to guns. 33. In the circumstances of that case the court identified three levels of the hierarchy. The leaders of the criminal enterprise which was in the business of supplying guns and lethal ammunition, for whom a very long term of imprisonment was required, with 25 years not to be regarded as a maximum. Secondly, those who sought to buy a gun and ammunition, by clear inference for the purpose of killing, wounding or terrorising in the course of crime, for whom sentences in the region of 15 years were appropriate even if there had been no previous firearms related convictions. Thirdly, those who assisted in the transactions, for whom a sentence in the range of 8 to 12 years would be appropriate as we have already cited. 34. Counsel in their very helpful oral submissions to us this morning have invited consideration to the sentences held to be appropriate in relation to a number of the individual offenders in the case of Stephenson . As counsel already recognised, every case is fact-specific and there is a limit to how much the court can be assisted by looking at the positions of other individual offenders. We should however mention the offender, Ducram, who was referred to by the judge in his sentencing remarks. He had some previous conviction which were not regarded as aggravating his offending. He was in close contact with the principal offenders and was highly trusted by them. He had stored a gun overnight at his home and then delivered it to a purchaser. The court regarded the appropriate sentence in his case, after a trial, as one of 16 years. 35. We would also mention the case of the offender, Ghalib. He had been involved in a transaction relating to a particularly lethal weapon, a sub-machine pistol and ammunition. He had many previous convictions including for supplying drugs but none in relation to firearms. The court found that in his case the appropriate sentence after trial should have been 8 years' imprisonment as follows: "In our judgement, the appropriate sentence for the firearms offence should have been 8 years as he was knowingly involved in a transaction that would put a gun on the street, though he did not know that the firearm was a particularly dangerous weapon capable of automatic fire and played a limited role." 36. We do not think it necessary to go into the details of the cases of other offenders, but we have taken into account the submissions made by counsel. 37. We accept that in the present case the offenders, neither of whom has any firearm-related previous conviction, were engaged as couriers to deliver the consignment of revolvers and ammunition. They acted under direction for financial reward measured in hundreds rather than thousands of pounds. We think it reasonable to infer that they were under the watchful supervision of those in the Mercedes. They were not therefore in the position of being highly trusted by the principal offenders and on that basis alone their positions can be distinguished from that of the offender Ducram in the case of Stephenson . 38. Further, their role in delivering the guns and ammunition was one step further removed from criminal use of any gun than a purchaser would be, and they can therefore be distinguished from the purchasers for whom a sentence in the region of 15 years would be appropriate. However, their role was a very important one, because they were delivering the weaponry which was plainly destined for use in criminal activity. By their pleas they admitted relevant knowledge, and we bear in mind that the packages containing this weighty consignment of guns and ammunition were on the floor of the car in which the offenders were travelling. They must have known that the only reason anyone would want to buy these weapons and ammunition would be so that criminals could use them to kill, wound or terrorise in the course of crime. Most importantly, they were delivering no fewer than five revolvers and 322 live rounds of ammunition. True it is that that within the overall scale of firearms, these were regarded as being comparatively low powered; but they were nonetheless lethal weapons, capable of killing with any one of the 322 bullets. The number of prohibited firearms and the quantity of live ammunition are therefore gravely aggravating features because each gun and each bullet has the potential to kill or wound in the course of crime. 39. We acknowledge the point made by counsel on behalf of the offenders, that in the context of offences which attract the statutory minimum sentence, the effect of the statutory provisions may be that an offender whose crime is more serious, but who pleads guilty, receives a sentence which is not much different from that of a less serious offender who must receive the minimum 5-year sentence. But here, the quantity of guns and ammunition is such that a substantial sentence would have been necessary after trial. In our judgment, the appropriate sentence after trial for these offenders was at the upper end of the range specified for the third category in Stephenson . 40. We next consider the personal mitigation. With respect to the learned judge, he was wrong to leave this consideration until last. The correct sequence is to determine what would be the appropriate sentence after trial, taking into account all aggravating and mitigating features, and then, as a final step, to make any reduction which is appropriate for a guilty plea. 41. We agree with the judge that there was personal mitigation available to both offenders though it could carry only limited weight in the context such serious offending. We also agree with the judge that Parish had rather stronger personal mitigation than did his older and more heavily convicted co-accused who was on licence at the time. 42. Taking into account all the aggravating and mitigating features, we conclude that if these offenders had contested count 10 at trial, the appropriate sentences would have been not less than 11 years in Parish's case, and not less than 12 years in Redford's case. It follows that the judge took far too low a sentence after trial when he started at 9 years and reduced that term by 12 months in Parish's case and by 6 months in Redford's case. 43. We turn next to consider what reduction should have been made from those sentences to reflect the guilty pleas. The Sentencing Council have recently introduced a Definitive Guideline on this topic and we hope and expect that application of it will help to avoid the unsatisfactory situation which, as we have indicated, arose in this case. That guideline however does not apply here because of the dates on which these offenders made their first appearance before the court. The judge should therefore have had in mind section 144 of the Criminal Justice Act 2003, the earlier Definitive Guideline issued in 2007 by the Sentencing Guidelines Council and the guidance given by this court in R v Caley & Ors [2012] EWCA Crim 2821 . 44. Section 144 provides, so far as material: "(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence ... a court must take into account— (a)the stage in the proceedings ... at which the offender indicated his intention to plead guilty, and (b)the circumstances in which this indication was given." 45. The applicable sentencing guideline makes clear at paragraph 4.3, that the level of reduction should reflect the stage at which the offender indicated a willingness to admit guilt to the offence for which he is eventually sentenced. The guideline points out that the largest recommended reduction will not normally be given unless the offender indicates his willingness to admit guilt at the first reasonable opportunity, examples being given in annex 1 of when that opportunity would arise. The guideline goes on to indicate that where the admission of guilt comes later than the first reasonable opportunity, the reduction for a guilty plea will normally be less than one-third. 46. Annex 1 says at paragraph 3 that the first reasonable opportunity may be the first time that a defendant appears before the court and has the opportunity to plead guilty, but the court may consider that it would be reasonable to have expected an indication of willingness at an earlier stage - perhaps while under interview. The court referred to that guideline in Caley and at paragraph 14, said: "There is sometimes confusion in argument between (i) the first reasonable opportunity for the defendant to indicate his guilt and (ii) the opportunity for his lawyers to assess the strength of the case against him and to advise him on it. It is obvious that the second depends on the evidence being assembled and served. The first, however, frequently does not." The court went on to say that in many cases, whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence, he does not require it in order to know whether he is guilty or not. 47. In the present case, neither offender gave any meaningful indication of any level of guilt until the day of trial. They knew what they had done. They would no doubt have needed legal advice as to the legal ingredients of the offences with which they were charged or might be charged. But they did not need a lawyer to advise them that they had conveyed a number of revolvers and a quantity of ammunition to London for reward. Far from indicating any guilt, they denied even knowledge or possession and sought to blame each other. The closest Redford came to making any admission was to enquire whether the prosecution would accept a guilty plea which in fact significantly understated his true criminality. Parish did not initiate any discussion at all. In those circumstances, the mere fact that count 10 was only added on the day of trial does not mean that full credit must necessarily be given. In our judgment, each offender could reasonably have been expected to have indicated, at a much earlier stage, that they had knowingly carried guns and ammunition. They were not of course obliged to make any such admission; but having chosen not do so, they could not, in our view, expect to receive full credit when they eventually pleaded guilty to a new count containing a specific legal description of their conduct in terms which included the element of possession which they had hitherto denied. 48. We recognise that the judge, applying the former Sentencing Guideline, had a discretion. But in our view, no proper exercise of that discretion could have led him to give full credit. We do not think any reduction greater than 20%, or at the very most 25%, could properly be given. 49. We must however now turn to consider whether in the particular circumstances of this case, these offenders should nonetheless receive full credit because the judge told them they would and they entered their guilty pleas on that basis and in that understanding. 50. A number of decisions of this court have made it clear that a judicial indication as to level of sentencing is not in itself a necessary bar to this court subsequently deciding that a sentence passed in accordance with that indication was unduly lenient. However, when a judicial indication is given which presages an unduly lenient sentence, prosecuting counsel has an important role. 51. In Attorney General's References Nos 8, 9 and 10 of 2002 [2003] 1 Cr App R(S) 272, this court said: "We consider that where an indication is given by a trial judge as to the level of sentencing, and that indication is one which prosecuting counsel consider to be inappropriate, or would have considered to be inappropriate, if he or she had applied his mind to it, prosecuting counsel should register dissent and should invite the attention of the court to any relevant authorities ... otherwise if the offender does act to his detriment on the indication which has been given, this court may find it difficult to intervene in response to a Reference made by the Attorney General." In Attorney General’s Reference No 19 of 2004 [2004] EWCA Crim 1239 , this court confirmed that principle, saying at paragraph 21: "It is undoubtedly right that if the prosecution has acted in ways in which it could be said that it had played a part in giving the offender the relevant expectation, then clearly it would not be appropriate for this court to permit the Attorney General to argue that the sentence which was imposed, partly as a result of what the prosecution had said or done, was unduly lenient. But we have, it seems to us, to look in the light of that principle at the facts of each particular case..." 52. Applying those principles to the present case, we reach the following views. First, as we have said, we think it very regrettable that the indication was given in response to a wholly non-specific enquiry about any charge which might at some future stage be added to the indictment. 53. Next, the circumstances in which that indication was given placed prosecuting counsel in a difficult position. Not having been invited to make any submission, and the indication having immediately been given in response to defence counsel's enquiry, we can well understand why counsel may have felt unable then to intervene. Next, we can also understand why over the next two days counsel continued to feel unable to intervene, though we do note in this regard that Mr Reiz's sentencing note spelled out in black and white, that the court would be invited to give full credit for the guilty plea. 54. Lastly, but most importantly, we see considerable force in defence counsel's submission that in the particular circumstances of this case the indication provided some incentive for these offenders to plead guilty. We have reflected carefully on this point. We bear very much in mind these were offenders who had delayed making any admission whatsoever, until the door of the court on the day of trial. Nonetheless, it must, in our judgment, be recognised that the count to which they ultimately pleaded guilty did differ materially from the counts which up to that point had been on the indictment, in particular because count 10, in contrast to counts 1 - 9, did not allege an intent to endanger life. 55. With some reluctance we feel ourselves driven to the conclusion that in the particular circumstances of this case, it would be an injustice for this court now to deprive the offenders of the full credit which they were afforded by the judge. We repeat our expression of hope, that proper application of the current Sentencing Guideline on Reductions for a Guilty Plea will avoid any repetition of the situation which arose here. 56. Drawing these threads together our conclusions are as follows. The sentences imposed below did not properly reflect the seriousness of the crime. We are satisfied that in each case they were unduly lenient. In our judgment, the sentence in Parish's case should not have been less than 11 years after trial. Giving him full credit for his plea, for the specific reasons which we have explained, that results in a sentence of 7 years 4 months. 57. In Redford's case the sentence should not have been less than 12 years after trial. Granting him also full credit for his plea, that produces a sentence of 8 years. 58. We therefore grant the Reference of Her Majesty's Attorney General. We quash the sentences imposed below. In the case of Parish, we substitute a sentence of detention in a young offender institution for 7 years 4 months, and in the case of Redford, we quash the sentence imposed below and substitute for it a sentence of 8 years' imprisonment.

```yaml citation: '[2017] EWCA Crim 2064' date: '2017-11-03' judges: - LORD JUSTICE HOLROYDE - MR JUSTICE GREEN - HIS HONOUR JUDGE AUBREY QC ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2006] EWCA Crim 1433 Case No: 2004/6486/D1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHWARK JUDGE ELWEN T2002/7329 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20 th June 2006 Before : LORD JUSTICE THOMAS MR. JUSTICE WALKER and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - (1) Anthony Bowers (2) Lewis Nicholl (3) Martin Bowers (4) Joseph Ashman (5) Jonathan Michael Turner Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Timothy Barnes QC and Miss J Carter Manning (instructed by CPS ) for the respondent Mr Dafydd Enoch for the first and third appellants Mr T Forster for the second appellant, Mr S Hammond for the fourth appellant and Miss C Firth for the fifth appellant. Hearing date: 3 March 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas: 1. Between August 2002 and April 2003, the appellant Anthony Bowers was the principal of a conspiracy based on the Peacock gym and warehouse at Canning Town in the East End of London which carried out a number of sophisticated crimes of dishonesty. The co-conspirators included the other four appellants. 2. They were charged and committed to the Crown Court at Southwark; the trial date was fixed for April 2004 before HH Judge Elwen. The indictment contained 7 counts. i) Count 1 was a global count of conspiracy ii) Counts 2 and 3 charged respectively conspiracy to obtain by deception and to handle a container load of blenders and a container load of Hi-Fi equipment from Thamesport. iii) Count 4 charged conspiracy to obtain by deception two containers of Absolut Vodka from Grangemouth, Scotland iv) Counts 5 and 6 charged respectively conspiracy to obtain by deception and to handle a container of stationary tape from Felixstowe v) Count 7 charged conspiracy to obtain by deception £1.1m belonging to HSBC Bank at Gatwick Airport 3. On 20 April 2004, Anthony Bowers pleaded guilty to Counts 2, 4 and 7, the appellant Martin Bowers to Counts 3 and 7 and the appellant Ashman to Counts 2, 4 and 7. On 15 June 2004, the appellant Turner pleaded guilty to Counts 2, 4 and 5. It is not necessary to refer to the position of the other defendants who pleaded guilty. 4. There was a trial of two of the defendants. Paul Bowers was found guilty on counts 3 and 7 on 5 August 2004 and the appellant Nicholl was found guilty of counts 3, 6 and 7. 5. On 15 October 2004, the conspirators were sentenced by Judge Elwen as follows: i) Anthony Bowers: a) Count 2: Conspiracy to obtain property by deception, 3 years b) Count 4: Conspiracy to obtain property by deception, 3 years consecutive to Count 2 c) Count 7: Conspiracy to obtain property by deception, 6½ years, consecutive to count 2 This made a total of 12½ years ii) Nicholl a) Count 3: Conspiracy to handle stolen goods, 2 years b) Count 6: Conspiracy to handle stolen goods, 3 years consecutive to count 3 c) Count 7: Conspiracy to handle stolen goods, 6 years consecutive to Count 3 This made a total of 11 years iii) Martin Bowers a) Count 3: Conspiracy to handle stolen goods, 2 years b) Count 7: Conspiracy to obtain property by deception, 5 years consecutive to Count 3 This made a total of 7 years iv) Ashman a) Count 2: Conspiracy to obtain property by deception, 2½ years b) Count 4: Conspiracy to obtain property by deception, 2½ years consecutive to Count 2 c) Count 7: Conspiracy to obtain property by deception, 5 years, consecutive to count 2 This made a total of 10 years v) Turner a) Count 2: Conspiracy to obtain property by deception, 3 years b) Count 4: Conspiracy to obtain property by deception, 3 years consecutive to Count 2 c) Count 5: Conspiracy to steal, 3 years, consecutive to count 2 This made a total of 9 years vi) Paul Bowers (who does not appeal) was sentenced to 2 years on count 3 and 4 years on Count 7, a total of 6 years imprisonment. 6. The five appellants all appeal by leave of the single judge against their sentences; all the appellants contend that the sentences passed on them were manifestly excessive. 7. Anthony and Martin Bowers appeal also on the ground that the sentence passed was contrary to an indication said to have been given by the trial judge that the maximum sentence he would impose, in the event of acceptable pleas of guilty, would be 7 years imprisonment in total; leave was given by the single judge to Anthony Bowers on this ground and we granted leave to Martin Bowers. It is convenient to consider this ground first. The appeal of Martin and Anthony Bowers on the “indication” issue 8. It is contended on behalf of the Bowers appellants that the indication was given through a court official to counsel and that was done with the authority of the judge. It is common ground that any giving of an indication in this way was highly irregular and unorthodox. An application was made to us on behalf of the Bowers appellants for permission to call four barristers and two members of the court staff to give evidence to us on what happened. We granted that application at a hearing for directions and heard that evidence. 9. An application was also made to us on behalf of the appellants at the directions hearing that the judge be asked to provide a statement and that counsel for the appellants should have an opportunity to test it. We decided that we would hear the evidence of counsel and the two members of the court staff and then determine in the light of their evidence what further evidence, if any, was necessary. The proceedings 10. The proceedings were sent for trial from Bow Street on 8 May 2003; the first hearing was on 16 May 2003; further hearings took place at approximately monthly intervals. During one of those hearings the judge indicated in open court that maximum credit would be available until a late stage for any defendant who pleaded guilty. Discussions took place between the lawyers for the prosecution and the defence as to possible pleas that the defendants might make which would be acceptable to the prosecution. The conversations involving Mr Carter 11. Sometime in the early part of the proceedings, probably in December 2003, counsel for Mr Anthony Bowers, Mr David Whittaker, had asked Mr Carter, the court clerk who normally sat with Judge Elwen if the judge would see him on sentence on this matter, as he had wanted to know if any sentences would be concurrent or consecutive. 12. Mr Carter conveyed the message to the judge. Mr Carter’s evidence was that the judge had told him that, as the tariff for the most serious offence (which he, Mr Carter, understood (wrongly) to be the handling) was known, he invited counsel to do his own arithmetic; the judge would not see counsel. The judge agreed he could pass those words on to counsel. Although Mr Carter, as the clerk to the court, clearly knew there was more than one count on the indictment, he told us he did not give any thought to the sentences on the counts for the less serious offences. 13. When Mr Whittaker had been appearing at Southwark Crown Court conducting another trial before a different judge in either January or February 2004, he was told by Mr Carter that the judge would not see him in relation to sentence in the Bowers case; that the judge had said that he could work out what the maximum was and what the maximum credit would be. Mr Whittaker’s evidence was that he understood that would mean seven years, but it did not answer the question as to whether this was concurrent or consecutive. He thought that this approach by Mr Carter was highly unorthodox and irregular. 14. On Thursday 18 March 2004 junior counsel for the prosecution indicated that the prosecution might be prepared to accept a plea to count 1 as sufficient. Leading Counsel for the prosecution, Mr Timothy Barnes QC, took a different view and on 19 March 2004, informed the defendants and the court that such a plea would not be acceptable as it might unduly limit the judge’s powers in respect of confiscation and his sentencing powers as he would not be able to deal with the defendants on multiple counts with the possibility of consecutive sentences. 15. One of the defendants in consequence made an application to the court that the prosecution’s action was an abuse of process and it should not be entitled to proceed on the full indictment; this was subsequently dismissed by the judge The conversations between Mr Turner and Miss Cohen 16. Between Friday 19 March and Wednesday 24 March 2004, probably on Tuesday 23 March 2004, the second junior counsel for Anthony and Martin Bowers, Miss Samantha Cohen, had a conversation with the listing officer of the Southwark Crown Court at the court, Mr Nick Turner to see whether there needed to be a further hearing before the judge about access by the appellants in Bellmarsh prison to video and other equipment for use in preparing the case. Mr Turner had been engaged in listing since 1995 and had been the listing officer at Southwark since October 2003. 17. It was Miss Cohen’s evidence: i) Whilst discussing that issue, she was asked by Mr Turner if there was going to be a trial. She replied that she was not sure, as the defendants would want to know what sentence they were likely to get. Mr Turner then told her that the judge had said it would be 7 for those most involved and less for the others. ii) Mr Turner had used the expression that “this was not attributable to the judge”. She understood from this that, although the indication was from the judge, it was not one that would be repeated in formal circumstances by the judge. It had not come from Mr Turner personally, because he would have had no idea of the sentence in a case like the present. iii) She knew that the maximum sentence for conspiracy to obtain by deception was 10 years and 7 years would be the sentence after full credit; however she wanted to know if it was 7 years on everything or 7 years for count 7, the charge in respect of Gatwick which all regarded (rightly) as the most serious offence. She therefore asked Mr Turner if it was 7 for Gatwick or 7 for everything. Mr Turner had replied that he did not know and would need to find out from the judge. She left the listing office. iv) Shortly after on the same day, she had returned to the listing office. Mr Tuner had told her that the judge had said that it was 7 on everything. She understood that this came from the judge and that the judge intended it to be conveyed to the defendants so they would know what they would get if they pleaded guilty. 18. Mr Turner’s evidence was: i) He had on occasions prior to this been asked by judges at Southwark Crown Court to pass on sentencing indications to counsel; he could not recall the number of such occasions, but it was more than 10. ii) In relation to the present case, he had been approached by some of the defence counsel to ascertain what the views of the judge would be to a plea of guilty. iii) He had seen Judge Elwen and told him this. The Judge had told him that in the event of a plea of guilty he would be minded to give full credit for a plea of guilty and to discount the sentence he would otherwise have passed. He indicated a sentence of 7 years. He asked the judge whether he could pass that information to counsel. The Judge had authorised him to do so. He would not have passed that information without the express authorisation of the judge. He could not recall whether the judge had indicated that the defendants would receive no more than 7 years regardless of the number of counts to which they pleaded or whether it was 7 years on each count. He did, however, see the judge on a number of occasions about the issue of plea and sentence. iv) The judge never told him he would not see counsel. v) Mr Carter was present on some of the occasions when sentence was discussed with the judge, but he could not recall the specific occasions; Mr Carter accepted that he was present at occasions when conversations took place between Mr Turner and the judge on sentence, but he stood to one side to allow them to have the conversation and did not listen. The communication of the conversations to the other counsel 19. After the conversation, Miss Cohen telephoned Mr David Whittaker and also Mr David Burgess, the more senior junior counsel who was appearing with her for Martin Bowers, as well as their solicitor, Mr Peter Hughman. Miss Cohen had not raised the matter with the prosecution or the judge, because the judge had initiated an unorthodox communication and it was not for her to say to the judge that he was acting wrongly and he should do it properly. 20. It was Mr Whittaker’s evidence that: i) He was appearing in Chelmsford Crown Court when he was telephoned by Miss Cohen and told of what Mr Turner had told her. He had never come across this situation before or since. ii) He knew at once what had happened was highly irregular and unorthodox. He wished he had not been made a party to it. iii) He considered whether the indication had come from the judge or whether Mr Turner had been on a frolic of his own. He concluded that Mr Turner was not on a frolic of his own, both because it would be professional suicide for him to have acted without the authority of the judge and because Mr Turner would not know the sentence would be 7 years. Furthermore, if the indication had not come from the judge it would have been an elaborate deception on the part of Mr Turner to have said he would enquire of the judge if it was for one count or for all counts and then to have given an answer. Moreover, the sentence was not out of line if concurrent sentences were to be given. He had also understood that the judge wanted the case to plead as the judge had made it clear that maximum credit would be given and he had heard the judge was going on holiday the day the case was going to start. He also thought that the judge was unhappy with the prosecution because they had not stuck to their agreement to accept the plea on count 1. He was also influenced by the conversation with Mr Peter Rowlands, counsel for another defendant, referred to at paragraph ii) below. iv) His first instinct was to speak to the judge and ask him if this communication, which was unorthodox and wrong, had come from him. He decided, after seeking advice from more senior colleagues, not to see the judge as there would be no point; the judge would not see him and would not confirm the indication. This was because he had been told by Miss Cohen that the judge would not confirm what Mr Turner had told her and because of the earlier conversation with the clerk to which we have referred at paragraph 13. He thought the indication was consistent with that and, from what he had been told by Mr Carter, he thought that the judge would not see him. He also thought that it was highly unlikely that the judge would say in open court what had passed through the court staff. He considered his duty to his client paramount. v) He considered whether he should see the prosecution; he thought that Mr Barnes QC would tell him to go and see the judge. He decided not to, as he had already rejected the course of going to see the judge. He accepted in cross-examination that, in hindsight, he should have told Mr Barnes. vi) He considered whether he should remain silent or tell his client; he concluded it was his duty to tell his client who was concerned at the length of the sentence and the confiscation orders that might be made. 21. The evidence of Mr David Burgess, counsel for Martin Bowers, was that he had no doubt that the source of the indication was the judge, but he did not seek to get confirmation from the judge, as he tended to fall in with Mr David Whittaker’s thinking. He did not think about raising the matter with the prosecution. 22. Mr Peter Rowlands, counsel for the appellant Jonathan Turner, was also engaged in discussions with the prosecution. His evidence was: i) His overall position was that if the prosecution accepted pleas to counts other than counts 1 and 7, then his client, the appellant Turner, would plead guilty come what may; he did not want a sentence indication. ii) In the course of a discussion with Mr Nick Turner as to whether there would be a trial, Mr Nick Turner gave him an indication, which Mr Rowlands understood to have come from the judge, that no matter what pleas were tendered to which part of the indictment, the maximum sentence would be 7 years. He told his client of this. iii) He was also told by Mr Whittaker that he had received an indirect communication from Judge Elwen that any defendant who pleaded guilty would get a maximum of 7 years; he understood this to mean 7 years was the maximum irrespective of the number of pleas which a defendant tendered. He told Mr Whittaker of his conversation with Mr Nick Turner. The appellant Turner does not rely on any indication as a ground of his appeal. The conference on 24 March 2004 23. Miss Cohen arranged for the case to be listed for a mention on 24 March 2004 with the express purpose that Anthony and Martin Bowers would be brought to the cells at Southwark not for an appearance at court, but for a conference with counsel and solicitor in the cells of the court, instead of counsel and solicitors having to go to Bellmarsh prison. A note of the conference in the cells on 24 March 2004, attended by counsel and the solicitor for Anthony and Martin Bowers was taken by Miss Cohen. There was a discussion of the issues; these two appellants were told that the judge had “informally let it be known that [guilty] pleas will get seven years for everything. Although could not go [to the Court of Appeal] with it, he would find it difficult to renege on that.” Mr Whittaker’s evidence was that he told the Bowers appellants that he had thought that the indication had come from the judge, but he could not recall whether he had advised them of his view that the judge would not confirm it in open court. He believed he told them that it was irregular and unorthodox, that he had no reason to suppose that the judge would not honour the sentence indication, but that it would be difficult to pursue the matter on appeal. The pleas of guilty on 20 April 2004 24. On 19 April 2004, there was a further conference with Anthony and Martin Bowers. Miss Cohen’s note of that conference recorded that if the appellants pleaded guilty to Count 7 (Gatwick) and sufficient other counts (probably counts 2, 3 and 4), the judge had commented on the maximum sentence of 7 years and there was the additional benefit of the way in which confiscation proceedings would be dealt with. 25. On 20 April 2004, both these appellants entered the guilty pleas we have set out. 26. It was common ground that: i) no one acting on behalf of the appellants told those acting for the prosecution of what Mr Turner and Mr Carter had said. ii) No defence counsel had seen the judge in his chambers about sentence. iii) No one raised the issue of sentence in open court. The hearings in October 2004 27. The appellants were not sentenced until October 2004 because there was a trial of the defendants who had pleaded not guilty. 28. On 14 and 15 October 2004 the sentencing hearing took place. Nothing was said about what Mr Tuner and Mr Carter had communicated. The judge made clear before passing the sentences to which we have referred that: i) The pleas entered on 20 April 2004 were to be treated as having been entered at the earliest realistic opportunity; these had resulted in the radical shortening of the trial and great savings to the public purse ii) He had therefore given appropriate discounts for those pleas, tempered by the fact that there was irrefutable evidence on each count to which the appellants had pleaded. iii) It was not appropriate to treat these offences as part and parcel or arising from the same facts and that therefore concurrent sentences would not be appropriate; these were separate and discrete criminal ventures and justified consecutive sentences, 29. On 29 October 2004, there was a further hearing at the request of Mr Whittaker. He told the judge that prior to the pleas being tendered on 20 April 2004, they had at their disposal indications on the length of sentence that they had understood had emanated from the judge and had been provided by Mr Turner and Mr Carter. Miss Cohen had been told by Mr Turner that the appellants Bowers who were principals in the case would receive 7 years if they pleaded guilty; that Miss Cohen had sought clarification as to whether this was for a single offence or related to the indictment as a whole; that he could not answer that question immediately and he returned and informed her that it was for the indictment; she had understood that this came from the judge. Mr Whittaker had been given the indication through Mr Carter. He submitted to the judge that the Bowers appellants had a legitimate expectation that the sentence of 7 years was what they would receive if they pleaded guilty. Mr Burgess made a submission to like effect. Letters had been written to Mr Tuner and Mr Carter to which there had been no response. The judge was invited to vary the sentence or hear evidence. 30. Mr Barnes QC made clear to the court that no one had told him or anyone on behalf of the prosecution of these matters before that day. It is common ground that this was in fact the case 31. The judge stated he had read letters written to Mr Carter and Mr Turner setting out what he had been told: “My recollection is quite clear; on a day which I cannot precisely pin-point, but which was before pleas to any particular counts had been indicated, my clerk said to me that counsel wanted to know if I would give an indication. I told him, in no uncertain terms, I did not give indications and that I would not, adding that counsel were experienced and quite capable of working things out for themselves. I understand that this is what my clerk told them. At no time did I authorise Mr Turner to approach counsel and convey any of the information he is said to have imparted. That is my position and I do not propose to accept the invitation put forward by the defence if they want to do anything about it.” 32. When grounds of appeal were initially settled for the appellant Anthony Bowers, no point was taken by Mr Whittaker in relation to the conversations between Ms Cohen and Mr Turner. The position of the judge 33. The evidence we heard established that: i) Miss Cohen was told by Mr Nick Turner that the judge had said it would be 7 for those most involved and less for the others; he made clear to her that this was from the judge, but was not attributable. ii) In response to her enquiry, Mr Turner subsequently told her that the judge had said that it was 7 on everything. iii) Ms Cohen passed this on to the other counsel. 34. Mr Turner’s evidence was unequivocal in that he had said what he had said only because he was authorised by the judge. In Warren v Warren [1997] QB 488 , it was held that, although a judge was competent to give evidence, judges could not be compelled to give evidence in relation to their conduct or matters of which they became aware when performing their judicial functions. 35. We decided in the light of the evidence of Mr Turner to invite the judge to comment on the evidence given by him and by Mr Carter; we directed that transcripts of the evidence be sent to him for him to determine whether he wished to make any comment. 36. The judge responded in writing: “I cannot account for what Mr Turner may have said without my authority. It is worthy of note that no complaint was made by learned counsel, on 15 October 2004, that I had reneged on an indication and passed a sentence significantly different from what they maintain they had been led to believe. I would, respectfully, add that it is not my habit to give indications as to sentence, except formally and with the participation of prosecuting counsel. It was never my intention, in this case, to indicate to anyone that I had in mind a total sentence, embracing the whole of the indictment, and certainly not for such a thing to be communicated informally to defence counsel alone. However, reflecting carefully on what I can recall having taken place almost two years ago, I cannot now say, with absolute certainty, that I did not say to Mr Turner something which he may have misconstrued, although I am unable to think what it might have been” 37. We received written observations from counsel on this statement. We were also required by the members of the bar who gave evidence before us for an opportunity of seeing any observations made about them in the course of this judgment. We acceded to their request and provided them with a copy of the drafts of paragraph 23 to 46 of the judgment. They informed us they had no observations. Our conclusion 38. There are two clear principles that should have governed what happened: i) First, justice must, save in exceptional circumstances, be done in public; see, for example, Rose LJ in Dossetter [1999] 2 Cr App (S) 248 at 253 and the Attorney General’s Guidelines on the Acceptance of Pleas issued on 7 December 2000 where it is stated that “justice in this jurisdiction, save in the most exceptional circumstances, is conducted in public”. An application of that first principle is the clear rule that issues relating to pleas and to sentence should be dealt with in open court, save in exceptional circumstances. Two citations will suffice; in Harper-Taylor and Bakker (1988) NLJ 80, Mustill LJ stated (in a passage cited in Terrence Carl Smith (1989) 90 Cr App R 413 and in Pitman [1991] 1 All ER 468 ) in relation to the practice of seeing the judge in his private room: “ A first principle of criminal law is that justice is done in public, for all to see and hear. By this standard a meeting in the judge's room is anomalous: the essence, and indeed the purpose, being that neither the defendant nor the jury nor the public are there to hear what is going on. Undeniably, there are circumstances where the public must be excluded. Equally, the jury cannot always be kept in court throughout. The withdrawal of the proceedings into private, without even the defendant being there, is another matter. It is true, as this Court stated in Turner (1970) 54 Cr App R 352 at 360, that there must be freedom of access between counsel and the judge when there are matters calling for communications or discussions of such a nature that counsel cannot in the interest of his client mention them in open court. Criminal trials are so various that a list of situations where an approach to the judge is permissible would only mislead; but it must be clear that communications should never take place unless there is no alternative. Apart from the question of principle, seeing the judge in private creates risks of more than one kind, as the present case has shown. The need to solve an immediate practical problem may combine with the more relaxed atmosphere of the private room to blur the formal outlines of the trial. Again, if the object of withdrawing the case from open court is to maintain a degree of confidence, as it plainly must be, there is room for misunderstanding about how far the confidence is to extend; and, in particular, there is a risk that counsel and solicitors for the other parties may hear something said to the judge which they would rather not hear, putting them into a state of conflict between their duties to their clients, and their obligation to maintain the confidentiality of the private room. The absence of the defendant is also a potential source of trouble. He has to learn what the judge has said at second hand, and may afterwards complain (rightly or no) that he was not given an accurate account. Equally, he cannot hear what his counsel has said to the judge, and hence cannot intervene to correct a misstatement or an excess of authority: a factor which may not only be a source of unfairness to the defendant, but which may also deprive the prosecution of the opportunity to contend that admissions made in open court in the presence of the client and not repudiated by him may be taken to have been made with his authority. " In Warth (1991) 12 Cr App (S) 680, Lord Lane made clear “First, once again, no visits to the judge except in the most exceptional circumstances; certainly not to discuss any question of plea. Secondly, if there must be such a visit and if the judge is thought to have made some sort of promise or indication about punishment, counsel should make a note of it then and there and ask the judge to approve the note and initial the note before counsel goes to see his client and makes any mention or suggestion of a promise by the learned judge. It is only in that way that counsel can protect himself and make sure that he understands plainly what it is the judge has said, and make sure that his recollection will not be at fault when he goes to his client. He will then both protect himself and his client from any misunderstandings, misapprehensions or indeed from wishful thinking.” Numerous other cases make this clear: see Grice (1978) 66 Crim App R 167, Atkinson (1978) 67 Cr App 200, Ryan (1978) 67 Cr App 177; Keily [1990] Crim LR 204 and A-G’s Reference 44 of 2000 [2001] 1 Cr App R 27 and the cases cited below. It is no part of our system of justice for anyone whether they be judge, court officer, prosecutor or defence lawyer to seek “to do deals” in private; transparency and openness are the hallmarks of our system of justice and to the maintenance of public confidence in that system. ii) Second, any communication by a party to the court or by the court to a party must be communicated to the other parties. Save in those circumstances where the making of without notice applications is permitted, this rule is again fundamental to the openness and transparency of our system of justice. 39. These two principles were applied in the well known propositions set out in Turner [1970] 2 QB 321 , (1970) 54 Cr App R 352 (reference to the facts of which we make at paragraph 40) and in paragraphs 45.3 and 45.4 of the Consolidated Practice in force in 2004: “There must be freedom of access between advocate and judge. Any discussion must, however, be between the judge and the advocates on both sides. If counsel is instructed by a solicitor who is in court, he too should be allowed to attend the discussion. This freedom of access is important because there may be matters calling for communication or discussion of such a nature that the advocate cannot, in his client's interest, mention them in open court, e.g. the advocate, by way of mitigation, may wish to tell the judge that the accused has not got long to live because he is suffering maybe from cancer of which he is and should remain ignorant. Again, the advocates on both sides may wish to discuss with the judge whether it would be proper, in a particular case, for the prosecution to accept a plea to a lesser offence. It is imperative that, so far as possible, justice must be administered in open court. Advocates should therefore, only ask to see the judge when it is felt to be really necessary. The judge must be careful only to treat such communications as private where, in fairness to the accused, this is necessary. .. Where any such discussion on sentence has taken place, the advocate for the defence should disclose it to the accused, and subject to the exception of those matters of which he should remain ignorant, such as cancer of which he is unaware, inform him of what took place.” 40. There is no appeal against conviction; it is not contended that the breach of these fundamental principles in the circumstances of this case are such that the court should set the plea or conviction aside: cf Llewellyn (1978) 67 Cr App Rep 149, Grice (1977) 66 Cr App R 167 , R v James [1990] Crim L R 815 and Pitman (above). In Turner, counsel had seen the judge in his room and then told the defendant that it was his own personal view that if he was convicted he would go to prison, but if he pleaded guilty he would get a non custodial sentence. The way in which this was done conveyed to the defendant’s solicitor the impression that this had come from the judge and the court accepted that the defendant might well have thought that it came from the judge. The court clerk then came and gave counsel the impression that the message he was authorised to give was that if there was a plea at that stage the court would pass a non custodial sentence. The court concluded that in all the circumstances there had not been a free choice as to whether he should plead, given the fact that the defendant thought that the intimation emanated from the judge. 41. The appeal in the present case is, in contradistinction, one against the sentence imposed. It was contended that the judge should not have passed a greater sentence than that purported to have been indicated through Mr Nick Turner, as the two appellants would retain a legitimate sense of grievance. Although it was accepted by counsel who argued the appeal on behalf of the appellants that what these appellants contended had happened was highly unorthodox and irregular, that did not affect the position of the appellants; that was because the judge had authorised the communication and counsel owed a duty to their client to pass on what they had been told. There was no point in their counsel raising the issue with the judge as the judge had made it clear through Mr Nick Turner that the indication was informal and would be denied if raised openly. 42. It is, in the light of the judge’s statement set out at paragraph 36, possible that there may have been some sort of misunderstanding between the judge and Mr Nick Turner. We set out at paragraph 49 our reasons for concluding that we do not need to resolve whether there had been such a misunderstanding. At this point we observe that, given the necessity of adherence to the two principles which we have set out, it is essential that judges take care to avoid saying anything which could give rise to any possible misunderstanding in relation to sentencing. 43. What then happened, in consequence, in this case went far beyond anything that is set out in the cases or could even have been contemplated in those cases. As relayed in the evidence to us, this was a case where it was believed by those concerned that: i) The indication was one which, although apparently coming from the judge, would be denied if a request was made to mention it in open court; ii) If there was communication to the prosecution, the indication would be brought into the open and denied. Two fundamental principles of the way justice is administered in this country were being negated by any participation in such a process. In essence what was being done on this basis could only be viewed as a device – passing secretly to defendants a message to achieve a result which would be denied if raised openly. It was therefore entirely right for counsel who gave evidence to accept that what they believed had happened in this case was highly unorthodox and irregular. 44. It is clear from the two principles which we have set out (and a review of the cases to which we refer in this judgment) that what should have happened was that: i) What had been communicated by Mr Turner and Mr Carter should have been brought to the attention of counsel for the prosecution. ii) The issue should immediately have been raised with the judge in open court, so the position could be brought into the open and made public and transparent. 45. This did not happen. Counsel for the Bowers appellants decided, in accordance with their duty to their clients, to tell their clients what they believed had happened, without the steps set out in paragraph 44 being taken. This was without doubt an error on their part, but one we are sure was made by them in good faith. However, when they told these appellants what had transpired, we are sure they did so in terms where they made clear to the appellants that the indication was made in an unorthodox and irregular way, that the judge was unlikely to renege on his indication but that it would be difficult to appeal if he did. 46. The court was not asked if the appellants could give evidence; in Nazham and Nazham [2004] EWCA Crim 491 , this court decided it could receive the testimony of appellants where it was contended by the prosecution that the change of plea following an irregularity had not been brought about by that irregularity. Given our findings as to what counsel told these appellants, the ordinary inference to draw in the absence of evidence from the appellants is that they understood what counsel was telling them 47. In these circumstances, these appellants can have had no legitimate expectation that this irregular and unorthodox method of conveying an indication was one they could rely on, even though we accept that they were told that it came in this irregular and unorthodox way from the judge. They were told by counsel what the risks were and decided to take them. We do not consider therefore that the appellants can have a legitimate sense of grievance in these circumstances. This was not a case such as Terrence Carl Smith where the defendant was misled by counsel into believing that the judge had given an undertaking. 48. Nor do we think that a right thinking member of the public would consider that justice required that this court substitute for the sentence passed the sentence mentioned to counsel by Mr Nick Turner. The position is, for example, quite different from Bird (1977) 67 Cr App R 203 . The judge in that case had given an indication of sentence before the trial and during it; during the trial, the judge had sent for both counsel and asked defence counsel if the defence wished to fight on. On being told, the defendant did not, he indicated that he would pass a suspended sentence if the defendant pleaded guilty at that stage, but there would be a sentence of immediate imprisonment if he did not. Counsel, after consulting the authorities, subsequently enquired if this was confidential as he had not passed this to his client. He was told by the judge that it was, the trial continued and the defendant found guilty. The court observed: “ [counsel in the case] quite rightly considered that what transpired in the judge's chambers, or part of it at least, ought to be said in open court in the interests of his client. Counsel has a high duty to the court but it does not override his concurrent duty to his client. It would have been wrong in our view if [counsel in the case] had not sought to make not only plain, but public what ought not to have been said at all in the privacy of the judge's chambers.” In the course of his mitigation, counsel disclosed what had happened in the judge’s chambers and made the point that, if the court had thought that a suspended sentence was the appropriate sentence for a plea of guilty, the court should not pass a more severe sentence because the defendant had exercised his right to put the prosecution to proof. The judge nonetheless passed an immediate sentence of imprisonment, telling the defendant that he had lied in the witness box, but he did not punish him for that. This court concluded: “ It has long been one of the essential requirements of our system of justice that it should not only be done but those that see what is done should respect what is done and understand that it is done as a matter of justice and for no other reason. Anyone who knew what had gone on in the course of this trial must have realised that the principle had not been borne in mind. It had certainly not been applied, and so it comes about that whereas an immediate sentence of imprisonment for 21 months would have been a perfectly proper one, the manner of its imposition was, it seems to this Court, improper. The circumstances which led up to its being passed were so irregular that it cannot be supported. To redress the situation thus created, rather than in the interests of the defendant who has no real claim to clemency, we feel obliged, in order to preserve the good face of justice, to quash the sentence of 21 months' imprisonment and to substitute a suspended sentence.” 49. Given that the appellants can have had no legitimate expectation that the irregular sentence indication would be treated as binding, we find nothing in the present case to indicate that the sentence passed should be reduced in order to preserve the good face of justice, to use the phrase in Bird . We reach that view by examining the position as made known to the appellants, this being our conclusion even if what was made known to them - as to the indication having come indirectly from the judge - was true. This ground of appeal therefore fails without any need to determine what in fact was said by the judge either to Mr Carter or to Mr Turner. We have considered whether we should invite the judge to give oral evidence to us in that regard, though it would of course be for him to determine whether or not to give evidence on the authority to which we have referred at paragraph 34. As such evidence would not affect our conclusion on this aspect of the appeal, we do not think it would serve any useful purpose to do so. We therefore have not asked the judge to agree to give oral evidence; nothing in this judgment should therefore be taken to indicate that we have formed any view one way or the other as to what he actually said, or as to whether there is or is not any substance in potential criticisms which might be made of him, Mr Carter or Mr Turner. 50. We hope that what happened in this case will never happen again. The procedure for obtaining a sentence indication has now clearly been set out by this Court in Goodyear [2005] EWCA Crim 888 and provided the guidance given is followed and the proceedings conducted openly and transparently (as this court made clear in Wedlock-Ward [2005] EWCA Crim 3367 they should), a situation such as this should never occur again. The appeal on the other grounds 51. The conspiracy alleged by the prosecution was, as we have set out, based on the Peacock gym and warehouse; the gym was run as a legitimate business by the three Bowers brothers, but they used the office to plan the offences and the warehouse to store the stolen property. It was the prosecution case that Anthony Bowers was the principal and his lieutenants were Ashman and Bowers. There were extensive audio and video recordings of the premises. 52. The circumstances of the offences charged on the indictment can be briefly summarised: i) Counts 2 and 3 involved the dishonest acquisition of a container of food blenders and a container of hi fi systems to a retail value of over £80,000. These had been obtained on 22 November 2002 by two of the defendants who had arrived at the depot at Thamesport with documentation and vehicles with false registration numbers but which corresponded to those which the genuine haulier was intending to use. The goods were taken to a storage facility booked by the appellant Turner and then transferred to the Peacock warehouse. There was evidence that also linked Ashman, Martin Bowers and Nicholl to this. ii) Count 4 involved the dishonest acquisition of two container loads of Absolut Vodka which had a retail value of over £639,000. These were driven away from Grangemouth on 18 January 2003 by the same two defendants as had been involved in the Thamesport offence. There was evidence which linked Ashman, Turner and Anthony Bowers to this. iii) Counts 5 and 6 involved the dishonest acquisition of a container of stationary tape which had a value of £23,000 on 11 February 2003. The container was driven away from premises at Felixstowe which had been left unsecured. The same storage facility was used as that in Count 2. There was evidence to link Turner and Nicholl to this. iv) Count 7, as we have stated, related to the dishonest acquisition of £1.1m in cash from Brinks Matt at Gatwick Airport on 26 March 2003. This involved an elaborate deception in converting a van into an imitation Brinks Mat van and acquiring false documents and inside information. The cash was handed over, but those involved in the acquisition were arrested as they left the airport. There was evidence to link Ashman, Martin and Anthony Bowers and Nicholl to this. 53. The circumstances of each of the appellants was: i) Anthony Bowers: He was 47 years of age; he had several convictions for offences of dishonesty; for the most serious of these he received a sentence of 7 years for robbery, burglary and theft in 1980. His last conviction was for an offence of assault occasioning actual bodily harm in 1986 He had benefited the local community through the work of the gym; numerous testimonials referred to the work he had done in this respect. ii) Nicholl: He was 57; he had several previous convictions in relation to dishonesty and drugs; the most serious was a sentence of 10 years in 1980 for the importation and supply of drugs. iii) Martin Bowers: He was 54. He had no previous convictions and had played a significant role in establishing the gym as a centre of excellence; again numerous testimonials referred to his work at the gym, his promotion of boxing and in organising summer camps and helping youths in many respects, including young offenders and those on probation. iv) Ashman: He was 37. He had several convictions for offences of dishonesty; the most serious and most recent was in 1991 when he was sentenced to a total of 5 years imprisonment for burglary of commercial premises. v) Turner: He was 44. He had numerous previous convictions, principally for offences of dishonesty, the last of which was in 1990. He had served in 2000 a sentence of 9 months imprisonment for possession of cannabis resin with intent to supply. He had, however, done much for youth football and usefully spent his time on remand. 54. All the appellants, except Nicholl, had the mitigation of guilty pleas for which the judge gave them full credit. 55. We have carefully considered the submissions made in respect of each of the appellants. In essence, it was submitted that the sentences were far too long for the type of crimes committed and the sentences should not have been consecutive; the judge had failed to have proper regard to the principle of totality. It was stressed that no violence was involved and that these were cases to be distinguished from cases such as Turner (1974) 60 Cr App R 67 . We were also referred to R v Beston and others (2004) 2 Cr App (S) 52, R v Luttrell [2004] EWCA Crim 1344 , Sutcliffe (1995) 16 Cr App R (s) 69, Webbe [2001] EWCA Crim 1217 and A-G’s Reference70 of 1999 [2002] 2 Cr App Rep (S) 28. 56. In our judgment, each of the sentences reflected the criminality involved. These were professional criminals operating on a large scale over a period of time; these were not one off offences (such as that considered in Betson) , but serious and meticulously planned criminality involving the corruption of employees of those who either held or transported the goods to provide inside information. No arms were used nor was violence, but each of the offences called for a significant sentence which it was right to make consecutive to one another. i) Anthony Bowers: He was the principal behind the offences and had encouraged others to participate. His sentence for the Gatwick offence reflected the gravity of that offence and the consecutive sentences for the other two offences their lesser nature and the principle of totality. ii) Nicholl had been found guilty by the jury; the judge concluded, as he was entitled, having heard the evidence, that he played a significant role in the offences, though he had not been at the heart of the planning. He was right to do so; we therefore reject the submission made on his behalf that his role was a lesser one or that there was any disparity of his sentence with that of Paul Bowers. The most significant sentence reflected his role in the Gatwick offence, being the most serious. iii) Martin Bowers was an able and active lieutenant to his brother; the judge gave him full credit for the service he had given to the community and for his previous good character; but he had become involved in serious criminality and the sentences passed properly reflected that. iv) Ashman did not participate in the original planning of the offences, but he had acted as an able lieutenant playing a significant role in the conversion of the van for the Gatwick offence. v) Turner, though not a lieutenant, had played a significant role in the offences to which he had pleaded guilty; his sentence reflected that role and the fact that he was not involved in the most serious of the offences. 57. Each of the sentences was severe and towards the upper end of the range of sentences, but none was in our judgment manifestly excessive. The appeal on this ground also fails.

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You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

NCN: [2020] EWCA Crim 351 No: 201902955/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 20 February 2020 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE LEWIS MRS JUSTICE MAY DBE R E G I N A v TRACEY NEWELL REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER S 9 CRIMINAL JUSTICE ACT 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 G Rose appeared on behalf of the Applicant Mr G Wills appeared on behalf of the Crown J U D G M E N T LORD JUSTICE DAVIS: Introduction 1. This is an appeal against sentence, in the form of a confiscation order, brought on a reference by the Criminal Cases Review Commission. It is based on what is said to be fresh evidence which, it is said, only emerged after the confiscation order proceedings were concluded. 2. The original confiscation order made in the Crown Court was in the sum of £17,637.93. The order was made as long ago as 28 May 2013. An appeal against that confiscation order was then dismissed by the Court of Appeal (Criminal Division) on 8 April 2014. 3. The proposed fresh evidence and change in circumstances had, on the face of it, been identified by, at all events, October 2014. Indeed, an application to re-open the confiscation order in the Crown Court was made at that time; but it was rejected on jurisdictional grounds by the Crown Court on 19 December 2014. There was then a delay until an application was made to the Criminal Cases Review Commission by the solicitors for the appellant on 12 January 2016. Even more regrettably, there was then very significant delay thereafter until the actual reference was made to this court. That was done on 8 August 2019, that is to say, nearly 3 years and 9 months after the original application to the Criminal Cases Review Commission. We will need to come back to that. 4. We observe that the prosecutor in the Crown Court proceedings (the London Borough of Southwark) has not opposed this appeal. Ms Rose has appeared on behalf of the appellant. She has presented careful arguments on the appellant's behalf. Mr Wills has today appeared on behalf of London Borough Southwark and we are also grateful to him for his attendance and his observations. Background Facts and Proceedings Below 5. The background, shortly put, is this. 6. On 29 November 2012 the appellant had pleaded guilty in the Crown Court to seven counts of dishonestly failing to give proper notification of a change of circumstances affecting an entitlement to benefit, contrary to section 111A(1A) of the Social Security (Amendment) Act 1992. In short, she had pleaded guilty to benefit fraud. She was in due course sentenced in the Crown Court to a term of 18 weeks' imprisonment suspended for 18 months and with an unpaid work requirement. It may be noted, among other things, that she had a previous conviction for similar offending, albeit on a much lesser scale. A basis of plea had been put forward at the time of sentence which was not accepted by the prosecution. However, it was not thought necessary to conduct any Newton hearing. 7. The circumstances of the offences were that over a period between 1 August 2005 and 5 December 2012 the appellant held money in seven bank accounts which she had failed to notify to the local authority. As a result of that she had received an overpayment of benefit in the sum of £17,637 odd. Four of those accounts had been held in her sole name, whilst three of them had been in the joint names of herself and her father. As at September 2011 the total sum in the sole accounts in her name was just over £4,000, while the total sum in the joint accounts exceeded £67,000. 8. Confiscation proceedings in the Crown Court were commenced and pursued. It may be noted that at that time there were already ongoing tribunal proceedings between the London Borough of Southwark and the appellant with regard to recovery of what is said to be due to her, these proceedings being in the Social Entitlement Chamber. No explanation has been given as to why confiscation proceedings were pursued in the Crown Court, when the relevant proceedings in the Tribunal were ongoing. Nor is it clear whether it was made known to the Crown Court that that was the position. 9. At all events, it was the appellant's case in both sets of proceedings - indeed it had been her case as advanced in a prior interview in 2011 and was her case advanced in the basis of plea tendered at the Crown Court - that so far as the joint accounts were concerned she had no beneficial interest in any of them. Those accounts, she said, had represented the lifetime savings of her father and his twin brother, Miguel, in whose joint names the accounts originally had been held. Miguel had died and at that stage her father was very elderly, being over 80 years old at the time. So the suggestion was made by the bank that she be named as one of the joint account holders in place of Miguel. As was her case, she at no stage had made any contribution to the sums in those accounts and at no stage had she withdrawn any sums from those accounts for her own benefit. The money was initially entirely her father's and her uncle’s and then latterly entirely her father’s. That also was the father's position: he said that money (after Miguel’s death) all belonged to him. 10. Before any decision had been made in the Tribunal proceedings, there was a hearing of the confiscation proceedings in the Crown Court before a Recorder. The appellant and her father gave evidence at that hearing. It was the prosecution case that the benefit figure was the £17,637, representing the calculated amount of the overpaid benefits to the appellant. Although in the section 16 statement it had been advanced that this was a criminal life-style case, it can be seen that, in practice, the benefit was being treated as benefit arising from her particular criminal conduct. It was, amongst other things, also the prosecution case in the Crown Court proceedings that it was not accepted that the appellant had no beneficial interest in the joint accounts. 11. On 28 May 2013 the Recorder made a confiscation order in the amount sought. The Recorder found that the criminal life-style provisions applied: although the relevance of that does not seem to be particularly material for present purposes, in view of the way in which the benefit figure had been confined. 12. The Recorder found that the appellant had not been a frank witness. What he was to say was this: "I did not find Tracey Newell to be a frank witness, given her answers in interview and her answers to me about her entitlement in law or indeed her status in law to being a joint account holder." 13. Having made those somewhat cryptic statements (although the Recorder was at least not cryptic as to his finding her not to be a frank witness) the Recorder then went on rather vaguely to say this: "Tracey Newell called on her behalf her elderly father. It may be that some or indeed the bulk of monies in the accounts held by Barclays belonged to him and/or his late brother Miguel. Even if that was the case, that does not either preclude me from making or indeed enforcing the order with a period of imprisonment in default unless it is unjust so to do." 14. Quite why notions of injustice were built into this ruling in this way is not altogether clear. The Recorder at all events then indicated that he found her conduct "thoroughly dishonest", and that it was right to make the order as sought. 15. There was then an appeal by the appellant to the Court of Appeal (Criminal Division). The appeal related solely to the realisable amount. It was based on the Recorder's asserted failure to make appropriate findings or to determine the realisable assets of the appellant and his failure to make clear findings as to her beneficial interest, if any, in the joint accounts. However, no appeal against the decision as to benefit was pursued (indeed, the amount of benefit appears to have been agreed). Nor was any application to adduce fresh evidence made before the Court of Appeal. 16. In the meantime, the Tribunal proceedings in the Social Entitlement Chamber had been proceeding. There had been an initial hearing in front of Judge Hindley in March 2014. The Court of Appeal, when the matter came before it, in April 2014, was informed of that fact. Although it is not entirely clear, it seems to be the case that in March 2014 the Tribunal judge, whilst not making any final or written decision, had given an indication that he was minded to accept that the appellant in truth had no beneficial interest in the joint accounts, and that the monies had been entirely those of the father and the uncle and then subsequently of the father alone. 17. In addition, the Tribunal by then was having to deal with certain technical points which had arisen, which suggested that the original calculation of the overpayment to the appellant may in any event have been wrong in some respects. 18. On 8 April 2014 the Court of Appeal (Criminal Division) dismissed the appellant's appeal against the confiscation order. As we have said, the focus of the appeal had been on the available amount. It was held by the Court of Appeal (Criminal Division) that, even if the appellant had not beneficially owned all the money in the joint accounts or even one-half, still she could properly have been adjudged to own sufficient of these sums so that, taken together with the sums held by her, whether in the other accounts in her own name or otherwise, they amounted to not less than the benefit figure of £17,637. The substantive finding was that the appellant had failed to discharge the burden of proof resting on her in that regard. Accordingly, the conclusion of the Recorder in the Crown Court was upheld. 19. As to the point made about the ongoing Tribunal proceedings, it appears that an unsuccessful application to adjourn, pending the outcome of the Tribunal proceedings, had been made to the Court of Appeal. In the judgment of the court, given by Jeremy Baker J, this was said: "We have been informed that since the confiscation hearing took place, there has been a hearing before the Social Security Tribunal in which it determined that the monies held in the joint accounts were not owned by the appellant. We understand that the local authority is considering its position as to whether to appeal against that determination. However, regardless of that matter, the determination was of course a matter for the Tribunal for the purpose of the proceedings before it. Accordingly, we do not consider this is a matter which affects the validity of the findings of the Crown Court in this case, nor the legality of the order made by it in these proceedings." 20. So far as the Tribunal proceedings were concerned, the detailed and careful written decision of the Tribunal judge was in due course handed down on 6 June 2014. It was fully and thoroughly reasoned. The First-Tier Tribunal judge amongst other things found, on the documentary evidence and on the evidence of the appellant and her father, that the appellant had no beneficial interest at all in the joint accounts. The judge accepted her and her father's evidence on this. The judge in this respect also had regard to an amount of documentation, not all of which may have been produced in the Crown Court. 21. In dealing with the matter, the judge made clear that he had been made aware of the Crown Court proceedings and the guilty pleas but that otherwise he had very little information about the course of events in the Crown Court. The Tribunal judge, in the circumstances, understandably took the view that he was to regard that as a separate matter and that he was to deal with the matter in accordance with the relevant provisions relating to social security entitlement. 22. Quite apart from the position about the interest in the joint accounts, by this stage the London Borough of Southwark had been accepting before the Tribunal that it had indeed to some extent miscalculated the overpayments; and indeed a fresh calculation in these respects had been directed by the judge. Those errors, put shortly, were to the effect that there had been an inadvertent failure to have regard to a particular Social Security regulation to the effect that in cases of joint accounts the beneficial interest was not to be assessed in excess of one-half; that a sum of money in one of the appellant's own accounts should, under the regulations, have been disregarded, as reflecting the proceeds of a particular kind of damages claim; inadvertent failure to adhere to a rule called the "diminishing notional capital rule", which had been misapplied; and finally, there had been an oversight in carrying forward certain debit balances which should have been set off against certain credit balances. 23. At all events, these particular errors, as was accepted, gave rise to a recalculated figure of £13,458. But if one then added in the Tribunal's judge's finding that the appellant in fact had no beneficial interest in the joint accounts then that figure was further reduced to a revised figure of £3,225. That was the figure which the judge ultimately accepted: as confirmed by him in his final ruling on 30 October 2014. There was no appeal by the London Borough of Southwark against the Tribunal judge's decision. 24. Following that particular decision, in December 2014 the appellant's solicitors applied in the Crown Court for the confiscation order to be reopened and varied. However, the Crown Court judge rejected that application on jurisdictional grounds in December 2014; and no appeal was brought against that particular decision. So the confiscation order stood. 25. So far as enforcement of the Tribunal decision was concerned, in due course, on 14 December 2015, the London Borough of Southwark wrote to the appellant writing off the outstanding balance of the sum then estimated as being due, in the amount of £2,451. Consequently, so far as those Tribunal proceedings were concerned and enforcement thereof, the matter would have seemed to have come to an end. The current Appeal 26. By this appeal, however, it is now said that the confiscation order in the Crown Court has been shown to be erroneous. In particular, it is said that the true figure of benefit was wrongly calculated and should not have exceeded the sum of at all events £3,225; although Ms Rose did also seek to argue for a figure even lower than that. That figure of £3,225 was, of course, the sum which the Tribunal judge had found to be due. 27. As it seems to us, we need to be careful at the outset here. As the Tribunal judge had rightly noted and as the Court of Appeal (Criminal Division) also had rightly noted, the proceedings in the Tribunal were separate from the proceedings in the Crown Court; and, likewise, the proceedings in the Crown Court were separate from the Tribunal proceedings, albeit overlapping issues were raised in both set of proceedings. In the Crown Court the Recorder had heard the evidence. He had rejected the appellant's account and he had rejected her case that she had no interest in the joint account monies. That finding cannot be regarded as superceded simply and solely because, at a later stage and in separate proceedings and perhaps on rather different evidence, a Tribunal judge has come to a different conclusion. 28. How then is the confiscation order, as made by the Recorder, to be set aside? The answer is, so far as the reference is concerned and so far as Ms Rose's submissions are concerned, by reliance on what is said to be fresh evidence. It is said that the findings of the Tribunal judge, perhaps to a degree supplemented by what has since been said in correspondence by the London Borough of Southwark, demonstrate that the amount of the confiscation order made in the Crown Court was wrong and, in particular, demonstrates that the benefit figure was wrongly stated. 29. The first point to which we must allude is to the very great delay that has occurred here. As we have said, the substantive confiscation proceedings were to be regarded as at an end by, at the latest, December 2014. The application on behalf of the appellant to the Criminal Cases Review Commission was not made until January 2016. And the reference was not made to this court until August 2019. 30. This delay is not in any substantial way addressed by the reference itself. This court accordingly, in advance of the hearing today, sought an explanation for what had occurred. The explanation provided to this court yesterday (and we appreciate that the Criminal Cases Review Commission would have had relatively little time to put in a full response) with all respect, barely confronts the realities of the delay. 31. It is said that at the time of the initial application in 2016 there was a huge backlog within the Criminal Cases Review Commission and thus it was that the application was not considered until January 2017. As to the lapse of time thereafter, it then is sought to be said that the subsequent period was to a considerable extent taken up by correspondence between the Criminal Cases Review Commission and the London Borough of Southwark, as well as by internal consideration which was said to be needed in respect of the responses from the London Borough of Southwark. 32. We have noted all that has been thus far said. But the reality is that in this time from 2017 there were in effect two substantive letters from the Criminal Cases Review Commission to the London Borough of Southwark in that time and two substantive responses from the London Borough of Southwark. Periods of months elapsed before the letters were sent, responded to, queried and responded to again. Moreover, it is not at all obvious to us that those responses, lengthy though they are, in truth add anything material to the sum of knowledge which was already known and addressed by the Tribunal judge in 2014. Ms Rose herself accepted as much. 33. The Criminal Cases Review Commission performs a valuable and important function. The Court of Appeal (Criminal Division) has frequently been greatly assisted by it in achieving justice. We also entirely understand that the Criminal Cases Review Commission is under enormous pressure, with a huge case load and limited resources. We have regard to that of course, and we have sympathy for the Criminal Cases Review Commission in its position. But on any view, a delay of some 3 years and 9 months in dealing with a case of this kind is surely unacceptable. There are some cases before the Criminal Cases Review Commission which unquestionably need lengthy and meticulous and time-consuming investigation. But this was not of them. Here, the correspondence conducted was conducted in a desultory way and in effect seems to have achieved nothing of any material consequence different from what had been identified in 2014. No sense of any kind of urgency or indeed any kind of promptitude is revealed, notwithstanding that the case had not even first been addressed until January 2017 and so particular promptitude thereafter might have been expected. 34. Also, it is rather disconcerting, we have to say, that in its very recent written response, the Criminal Cases Review Commission seems to intimate no expression of contrition or apology or regret at all. Indeed, many of the points that need in this case to be addressed – for example, as to the proper application of s.23 of the Criminal Appeal Act 1968 – are not fully addressed in that response, notwithstanding the court’s query. Further, unfortunately it seems that no representative of the Criminal Cases Review Commission was available to appear before the court today, in spite of the court’s request; and we had to raise our continuing concerns with Ms Rose, who, of course, had no instructions on the Criminal Cases Review Commission's behalf. We are grateful to her for her attempt to explain matters; but all we can say is that the position is still to be considered as thoroughly unsatisfactory. 35. We think it necessary to make these points because it can be the case and will often be the case that delay of this order will be wholly contrary to the good administration of justice and may in some circumstances operate to defeat justice. 36. All that said, the next point to consider is what the purpose of these proceedings are. As we have said, the London Borough of Southwark had, by 2015, entirely written off the balance which it was then saying had been due to it. Given all that, this court in advance of the hearing today, had queried what the purpose was in pursuing this appeal. However, the response that we have now received has been to a degree illuminating. It seems, although this court had not been made specifically aware of the fact earlier, that whilst the London Borough of Southwark itself (the original prosecutor) is not pursuing any enforcement of the balance of the sums otherwise due to it under the Tribunal decision, the local Confiscation Unit has seen fit to pursue and maintain enforcement proceedings in the Magistrates' Court in the entire amount, with interest, payable under the confiscation order made in the Crown Court. As we gather, the proceedings in the Magistrates' Court have in the meantime been adjourned pending the resolution of this appeal: that adjournment being very protracted, in view of the intervening delay. Thus it is that so far as the appellant is concerned, this appeal does potentially have a real practical purpose: just because she potentially faces pursuit of enforcement proceedings against her by the Confiscation Unit. 37. There is, however, yet another point of initial concern. The question also has to be asked as to why this purported fresh evidence should be admitted at all. The provisions of section 23 of the Criminal Appeal Act 1968 have to be borne in mind in this context. 38. The point, as we have indicated, is barely addressed in the reference or in the grounds of appeal. The essential fact remains, as we see it, that the potential errors in the London Borough of Southwark's calculation, which had initially given rise to a benefit figure of £17,637, had been fully identified by 2014. It is certainly true that the oversight as to the various technical regulations had not been made known to the Crown Court in 2013 and, if known, would presumably have yielded a lesser benefit figure for the particular criminal conduct, in the sum of £13,458. But even then, that had been identified by the time of the hearing in the Court of Appeal (Criminal Division) in April 2014, so it would appear. Yet it was never sought to be raised in that court. Moreover, as to the principal issue of whether the appellant had any beneficial interest in the various joint accounts, this was indeed raised in the confiscation order proceedings in the Crown Court, as we have said, and was rejected on the evidence. In so far as further and better documentary evidence such as bank statements and so on were produced to the First-tier Tribunal judge in 2014, it may be that those had not been produced in the Crown Court; but no explanation whatsoever has been proffered to explain why those documents had not been produced by the appellant either in her section 17 statement in the Crown Court or at least at the hearing before the Recorder. These were documents of a kind which would have been available to the appellant to obtain. Indeed she had been asked for all supporting documents as far back as 2011 when she had been interviewed. Moreover, this information related as much to benefit as it did to available amount. 39. With all respect to the reference, this point is completely glossed over. The reference shortly and blandly in effect asserts that the evidence was new and was only revealed in the intervening correspondence with the London Borough of Southwark. This, with all respect, by no means conveys the full picture: and simply does not attempt to provide an explanation as to why the documents could not have been produced at the time. 40. The question, nevertheless, ultimately still has to be decided by reference to what is expedient in the interests of justice. So far as the delay is concerned that, in our judgment, ought not, in the particular circumstances of this particular case, to be visited upon the appellant herself. Further, as it seems to us, on any view it can now be seen that the amount of the original confiscation order was wrong; it should at least not have been more than £13,458, given the subsequently identified errors on the part of the London Borough of Southwark: errors of which the appellant and her legal team could not reasonably have known at the time. 41. However, what about the issue concerning the question of whether or not the appellant had an interest in the joint bank accounts? We have hesitated on this. The Recorder had reached a conclusion, which was open to him on the evidence before him, and his decision was upheld by the Court of Appeal (Criminal Division). Ms Rose in this regard submitted that the whole focus in the Court of Appeal (Criminal Division) had been on available amount, when what should have been addressed was the question of benefit. That may or may not be so: but it remains the case that that is not the way in which the argument was put before the Court of Appeal (Criminal Division) in 2014. 42. Moreover, whilst it is right that the Tribunal Judge reached a different decision from the Crown Court Recorder on, it would appear, significantly better and fuller evidence, it is to be clearly understood that a concurrent decision of a Tribunal judge, in the context of social security proceedings, cannot be taken of itself to trump a prior decision of the Crown Court judge in confiscation proceedings. 43. Very much on balance, we have come to the conclusion that we should nevertheless permit this proposed evidence to be adduced. We do take the view that it would be unjust for this confiscation order to stand in its current amount. Unsatisfactory though the position is about properly presenting this evidence, whether before this court in 2014 or before the Crown Court in 2013, the realities are that all the indications would suggest that the amount of the benefit, and not simply the available amount, was significantly overstated. 44. We consider in such circumstances that this court should interfere. Having formally admitted the evidence, we will reduce the amount of the confiscation order to the sum of £3,225: which corresponds to the amount established in 2014 in the Tribunal proceedings and which corresponds to the evidence as it now stands. 45. Ms Rose sought to persuade us to substitute a lesser figure than that; but we see no reason for doing so. She also suggested, and Mr Wills did not oppose, that in terms of proportionality the right order would be that the confiscation order be quashed altogether and that no sum should be due from the appellant under such an order. We can, however, see no justification whatsoever for taking such a course on this appeal brought by way of this reference. The fact remains that the appellant had behaved dishonestly. She had pleaded guilty. She had benefited from her fraud. 46. Accordingly, in the result the confiscation order will be quashed. For it there will be substituted a confiscation order showing benefit in the sum of £3,225. Moreover, in the circumstances of this case, that should be recorded as benefit arising from particular criminal conduct and not benefit arising from general criminal conduct. Whether the Confiscation Unit considers it appropriate or sensible hereafter to pursue enforcement proceedings in respect of that particular amount (if, indeed, there still is any undischarged balance), we leave to the good sense of the Confiscation Unit. 47. Finally, we will direct that a transcript of this judgment is to be provided and considered by the Criminal Cases Review Commission. We do not wish unduly to belabour the point about delay; but, equally, this cannot and should not be glossed over or passed by. It remains of concern that the latest response of the Criminal Cases Review Commission would not seem to indicate much penitence at what has occurred. Delay may be unavoidable in some situations, and we repeat that we understand all the many pressures on the Criminal Cases Review Commission, which has but limited resources. Even so, a delay of 3 years and 9 months in a case of this particular kind is simply not good enough. 48. LORD JUSTICE DAVIS: Are there any points arising? 49. MR WILLS: My Lord, just one point. I take note that the default term is reduced up to 3 months given the adjustment of the order. 50. MS ROSE: Yes, I would agree with the point made by my learned friend. The section 16 statement contains the brackets, so to speak, for the default term and amount exceeding £2,500 but not exceeding £5,000. The default can be up to 3 months. 51. LORD JUSTICE DAVIS: One month. 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]

```yaml citation: '[2020] EWCA Crim 351' date: '2020-02-20' judges: - LORD JUSTICE DAVIS - MR JUSTICE LEWIS - MRS JUSTICE MAY DBE ```

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Case No: 201400668C4 Neutral Citation Number: [2015] EWCA Crim 383 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Peterborough Crown Court His Honour Judge Nicholas Madge T20137051 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/03/2015 Before : LORD JUSTICE PITCHFORD MR JUSTICE COOKE and MRS JUSTICE LANG - - - - - - - - - - - - - - - - - - - - - Between : Mohammed Hussain Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Neil Corre for the Appellant Mr Charles Falk for the Respondent Hearing dates : 5th March 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : The appeal 1. In the appellant’s first trial the jury was unable to agree upon a verdict. On 22 January 2014, following his retrial before His Honour Judge Madge at Peterborough Crown Court, the appellant was convicted of an offence of rape contrary to section 1 (1) of the Sexual Offences Act 2003. He was sentenced to six years imprisonment and the judge made a restraining order. 2. On 2 December 2014 the full court (Treacy LJ, Popplewell and Stewart JJ) granted an extension of time and leave to pursue a single ground of appeal, namely that the trial judge wrongly declined to admit before the jury evidence of the complainant’s bad character. 3. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these proceedings and in order to protect the complainant’s anonymity we shall refer to her in this judgment either as “the complainant” or as “N”. The evidence 4. On Wednesday 7 November 2012, the complainant, who was then age 18 years, attended a house party in Peterborough at the home of a man called Majeed. Also present was the appellant who had been known to the complainant for some weeks. At about 7am on Thursday, November 2012, N went upstairs to go to sleep. She was drunk and needed assistance from a male friend called Ali. They both fell asleep on the same bed. N gave evidence that when she woke she found the appellant on top of her penetrating her vagina with his penis. He had completely removed two pairs of leggings from one of her legs and her underwear that she found on the floor. She protested and resisted forcefully but the appellant continued regardless. Eventually, N managed to struggle free, dressed and went downstairs. She immediately reported to her friend, Holly, that she had been raped by the appellant. Shortly afterwards she went outside, flagged down a passing police car and repeated her complaint. Holly gave evidence that she had seen N and Ali go upstairs together. She knew Ali had to get up early for work. Ali confirmed, in his evidence, that he asked the appellant to wake him up. The appellant woke him at about 8 am. He went off to work. Before he left, the appellant asked N if he could sleep next to her and N agreed. Holly said that later N and the appellant came downstairs. She could not remember in which order. N made a complaint to her that the appellant had raped her. Her eyes were welling with tears. Police officers confirmed that at 9.35 am they were stopped by the complainant who made a complaint of rape. She was upset and had been crying. She gave an account that was consistent with her later video recorded evidence and while doing so she was shaking and crying. The appellant was arrested at 9.45 am. He said that he had done nothing wrong. When interviewed on two occasions, before and after the receipt of the forensic science evidence, he made no comment. 5. The appellant gave evidence. He said that the party met up at a guest house. He and the complainant had argued the week before and they made up. During the evening N asked him to lend her money to buy drugs but he declined. Later they went to Majeed’s house to continue the party. The appellant agreed that Ali asked him to wake him in the morning. At about 8 am the appellant went to the bedroom. The door was locked but the appellant returned after 15 minutes and it was open. Inside the bedroom the complainant was sitting up and Ali said he was going. The appellant said he returned to his own bed and went to sleep. He awoke to find that the complaint’s hand was inside his jeans. He felt something wet on his penis. He just turned away from her. Later they went downstairs. Majeed was angry that they had been in his room. It was only then that the complainant appeared to be upset. At no time did he have sexual intercourse with the complainant. The complainant’s bad character 6. At the commencement of trial Mr Corre applied for leave to cross-examine the complainant about her previous convictions. The appellant did not seek to rely upon the facts of any of the offences, to all of which the complainant had pleaded guilty, but he sought to introduce the fact of all the convictions for the purpose of undermining the complainant’s general credit as a witness. 7. The complainant was born in September 1994. She first appeared in the juvenile court in June 2009 at the age of 14 when she pleaded guilty to an offence of robbery and an offence of assault by beating. On the date of sentence, 11 August 2009, she asked for a further offence of robbery to be taken into consideration. The complainant was made the subject of a referral order for 12 months. She failed to keep to the terms of the order, pleading guilty later in the year to offences of driving a vehicle taken without consent, shoplifting and battery and she was sentenced to a detention and training order for 6 months. In 2010 the complainant pleaded guilty to further offences of battery, burglary, robbery and taking a motor vehicle without consent. She was sentenced to a youth rehabilitation order to which she remained subject in 2011 when she pleaded guilty to an offence of dangerous driving. Finally, in December 2012 she pleaded guilty to battery and received a suspended sentence order. Section 100 Criminal Justice Act 2003 8. Section 100 of the Criminal Justice Act 2003 applied to the appellant’s application. The relevant parts of section 100 are as follows: “(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if – (a) … (b) It has substantial probative value in relation to a matter which – (i) is a matter in issue in the proceedings and (ii) is of substantial importance in the context of the case as a whole, or (c) … (2) … (3) In assessing the probative value of evidence for the purposes of sub section (1)(b) the court must have regard to the following factors (and to any others considered relevant) - (a) the nature and number of events, or other things, to which the evidence relies; (b) when those events or things are alleged to have happened or existed; (c) where – (i) The evidence is evidence of a person’s misconduct, and (ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged incidences of misconduct; (d) … (4) …” 9. It was not being suggested to the judge that the complainant had behaved on the occasion of the alleged rape in a way similar to previous misconduct so as to engage section 100 (3)(c). It was being contended that the complainant’s repetitive criminal misconduct on earlier occasions went to the issue whether she was a person whose accusation against the appellant was worthy of belief. 10. Section 100 (1)(b) provided the threshold for admissibility. There were two essential questions to be considered by the trial judge: (1) whether the evidence had substantial probative value in relation to a matter in issue in the proceedings and (2) whether the matter in issue was of substantial importance in the context of the case as a whole. The natural sequence in which to consider those questions is first to identify the matter in issue and its importance in the context of the trial as a whole and, second, to assess the probative value of the evidence upon that issue. 11. In Stephenson [2006] EWCA Crim. 2325 (Hughes LJ, Mackay and Treacy JJ) this court held that the creditworthiness of a witness is capable of being a matter in issue of substantial importance in the context of the case as a whole. In that case the complainant made an allegation of sexual misconduct. The defence wished to cross-examine the complainant about two cautions and a conviction acquired some eight years before in respect of offences of receiving stolen goods and shoplifting. The trial judge declined to permit cross-examination under section 100 on the ground that the offences of dishonesty did not establish any tendency for untruthfulness. At paragraph 27 of his judgment, delivered on behalf of the court, Hughes LJ said: “27 … It does not follow … that previous convictions which do not involve either making of false statements or the giving of false evidence are incapable of having substantial probative value in relation to the credibility of a non defendant under section 100, or for that matter of a co-accused where the application is made by him under section 101 (1)(e). It is … fully rational that the same degree of caution which is applied to a crown application when considering relevance and discretion does not fall to be applied when what is at stake is a defendant’s right to deploy relevant material to defend himself against a criminal charge. Accordingly (although he cannot be blamed for it), the trial judge misdirected himself in directly applying paragraph 13 of Hanson into the situation which was before him. It may be, therefore, that had he addressed the question without believing himself fettered in that way, he might have come to the conclusion that these three incidents were capable of having substantial probative value in relation to the truthfulness of the defendant, which was an important matter in issue in this case. Whether he would or not would have been a matter for the feel of the case and for him at the time. Whether he would or not, we are satisfied that, had those matters been known to the jury, they could not in this case have made any significant difference.” 12. On the previous day the same constitution of the court had considered a similar issue that arose under section 101 (1)(e) of the 2003 Act: Lawson [2006] EWCA Crim. 2572 . At paragraph 34 of his judgment Hughes LJ said: “34 … A defendant who is defending himself against the evidence of a person whose history of criminal behaviour or other misconduct is such as to be capable of showing him to be unscrupulous and/or otherwise unreliable should be enabled to present that history before the jury for its evaluation of the evidence of the witness. Such suggested unreliability may be capable of being shown by conduct which does not involve an offence of untruthfulness; it may be capable of being shown by widely differing conduct, ranging from large scale drug or people trafficking via house breaking to criminal violence. Whether in a particular case it is in fact capable of having substantial probative value in relation to the witness’s reliability is for the trial judge to determine on all the facts of the case.” 13. This approach to the issue of the probative value of previous misconduct in the assessment of a witness’s credit was followed in Brewster and Cromwell [2010] EWCA Crim. 1194 , [2010] 2CR App R 20 (Pitchford LJ, Maddison and Macduff JJ). The court held that the question is whether the evidence of previous convictions, or bad behaviour, is sufficiently persuasive to be worthy of consideration by a fair minded tribunal upon the issue of the witness’s creditworthiness. At paragraph 23 of a judgment given on behalf of the court Pitchford LJ said at paragraph 23 : “The first question for the trial judge under section 100 (1)(b) is whether creditworthiness is a matter in issue which is of substantial importance in the context of the case as a whole. This is a significant hurdle. Just because a witness has convictions does not mean that the opposing party is entitled to attack the witness’s credibility. If it is shown that creditworthiness is an issue of substantial importance, the second question is whether the bad character relied upon is of substantial probative value in relation to that issue. Whether convictions have persuasive value on the issue of creditworthiness will, it seems to us, depend principally on the nature, number and age of the convictions. However, we do not consider that the conviction must, in order to qualify for admission in evidence, demonstrate any tendency towards dishonesty or untruthfulness. The question is whether a fair-minded tribunal would regard them as affecting the worth of the witness’s evidence.” 14. At paragraph 12 of Braithwaite [2010] EWCA Crim. 1082 the Vice President, Hughes LJ, emphasised that the assessment whether the bad character evidence is of substantial probative value in relation to an issue of substantial importance in the case as a whole is “highly fact-sensitive in each case”. This was the approach adopted by the court in a section 101 (1)(e) case, Phillips [2011] EWCA Crim. 2935 at paragraph 44 in which Pitchford LJ said: “44 … What evidence is of substantial probative value should be judged in a fact-sensitive manner in the context of the trial as it appears at the time the application is made.” The judge’s ruling 15. In his ruling given on 20 January 2014 His Honour Judge Madge accepted that the complainant’s creditworthiness was a matter of substantial importance in the trial. On the other hand, he ruled that the defence was not suggesting that the complainant had concocted the allegation of rape. It was suggested, he said, that the complainant was “mistaken” in her assertion that there had been penetration of the complainant by the defendant’s penis while she was asleep. The judge concluded that the complainant’s previous convictions were not of substantial probative value on the question of her creditworthiness on this narrow issue. 16. Mr Corre submits that the learned judge misconstrued the defence case which was that the complainant was not telling the truth about the incident. He contends that her convictions were of substantial probative value on the question whether her evidence was worthy of belief, although it is conceded that they demonstrated no propensity for untruthfulness. The defence statement 17. Before reaching a conclusion whether the judge was right to rule as he did, it is necessary to consider other features of the evidence. 18. On 28 January 2013 analysts found that a mixture of the DNA of the appellant and the complainant was present on swabs taken from the appellant’s pubic area. The complainant’s DNA was found on the inside of his boxer shorts which also tested positive for semen. In the opinion of the forensic scientist these laboratory findings were what might be expected if sexual intercourse had taken place between the appellant and the complainant. The complainant’s DNA would have transferred to the appellant’s penis and then to the inside of his boxer shorts. 19. Until this point in the proceedings the appellant had given no account to the police as to what had taken place. However, at the adjourned plea and case management hearing a defence statement was served on the court and the prosecution. In its relevant parts it read: “ Nature of the defence 2 The nature of his defence is that the defendant did not intentionally penetrate the vagina of [N] with his penis. Matters of fact on which he takes issue 3 Accordingly he takes issue with the prosecution on the allegations that he intentionally penetrated [N’s] vagina with his penis because that allegation is false. Matters of fact on which he relies for the purposes of his defence 4 On the date in question, when in the company of [N] she acted flirtatiously towards him and asked to borrow money from him to purchase cocaine, which he declined to do. 5 There came a point when the defendant went to bed, alone, in a bedroom in the premises intending to sleep. Sometime after he did so, and whilst he was asleep, [N] got into bed with him, without any invitation or acquiescence on his part. When he awoke to find her in bed with him she again acted flirtatiously towards him and asked if he wanted to have sexual relationships with her, which he declined. She nevertheless unfastened his trouser and masturbated his penis. He further felt something wet upon his penis. It is possible that he ejaculated as a result, but he was extremely tired and sleepy and was semiconscious at this time.” 20. On receipt of this statement the prosecution sought a further opinion from the forensic scientist. In a statement on 2 October 2013 she concluded that her findings were also what she would expect if the complainant had masturbated the appellant or performed oral sex on him. Transference could have taken place so as to produce the result found. The forensic evidence was the subject of written agreement at trial. 21. Also agreed at trial was evidence of a medical examination of the complainant following her complaint during which it was found that her inner thigh was tender to touch and that a 1.5 centimetre bruise was present on the outer left thigh. No injuries were found on the vagina or vulva but when a vaginal examination was attempted with a speculum the complainant experienced soreness and she could not tolerate full opening. Discussion 22. It can be seen that there was a stark clash in the cases being advanced by the prosecution and the defence respectively. While it is true that the central issue was whether sexual intercourse had taken place, there was a gulf between the prosecution and the defence as to the surrounding circumstances including (1) whether the complainant was in a drunken sleep when the appellant removed her clothing and commenced sexual intercourse, (2) when the complainant woke up, protested, struggled and fought him off, or (3) whether, on the contrary, a sexual advance was made by the complainant towards the appellant and (4) she masturbated him to ejaculation. The only common ground appears to have been that both were in a bedroom upstairs in the house and that some act of sexual intimacy took place between them. We cannot agree with the learned judge that the scope of the issue of the complainant’s creditworthiness was as narrow as he described it. Mr Corre conceded before the full court when making his application for leave that he had not spelled out to the judge the full effect of the defence case but made it clear that the credit of the witness in making the allegation of rape was a central issue. Notwithstanding the misdescription of the issue, the judge correctly, in our view, identified that credit was a matter of substantial importance in the context of the case as a whole. 23. The second question for the judge was whether the complainant’s previous convictions were of substantial probative value on the issue of credit as we have described it. In Phillips at paragraph 13 the court concluded that the term “substantial probative value” must mean that the bad character evidence has an enhanced quality of proving or disproving a matter in issue. In our judgment that assessment must be considered not as a generalised and hypothetical question but specifically within its practical and fact sensitive context. 24. The issue of credit that arose in the present case was as to the ‘worth’ of the complainant’s assertions that the appellant had sexual intercourse without her consent; that she did not make sexual advances to the appellant and sexually assault him by masturbating him to ejaculation. It is necessary for this court to consider the circumstances as they were at the time the defence application was made and not as they would have appeared after all the other evidence in the case had been adduced. We are persuaded that, having correctly ruled that the complainant’s general creditworthiness was central to the case, the judge should also have ruled that the convictions were so numerous, varied and recent that they were of substantial probative value upon the issue of whether her accusation against the appellant was worthy of belief. It was for the jury to judge whether in the particular factual context of the present case her general bad character was of any assistance to them in resolving who was telling the truth. 25. We have therefore considered whether the safety of the verdict may have been affected by the exclusion of N’s bad character from the evidence. In our judgment, the bad character on which the appellant relied paled in significance beside a careful examination of the evidence that emerged: of the complainant and appellant respectively, the evidence of other occupants in the house at the time of the complaint, the scientific and medical evidence and the evidence of the police officers to whom the complaint and the complainant’s first account were given. That evidence described a specific context within which the worth of N’s evidence was to be assessed, namely sexual activity between two people after a drunken party. For reasons which follow, we consider that the jury would have been quite unable to conclude that the frequency and nature of the complainant’s misbehaviour in the past provided any ground for rejecting her present complaint against the appellant. Our first observation is that there was nothing about those convictions that established even a tangential connection to the facts of the present case. 26. The appellant chose to make no response to the evidence put to him in interview. He waited until the forensic evidence was available before putting forward an account in his defence statement, which he repeated with notable inconsistencies in the course of his evidence. It was, in our view, the inconsistency between the defence statement and the evidence given by the appellant that exposed the weakness in the assertions he made. There was a powerful prosecution argument that the appellant had held back from giving an account of the incident until the scientific evidence was to hand in order to adjust his case accordingly; having adjusted it, falsely, he had difficulty in giving a consistent account. 27. In the course of his evidence the appellant denied that N had been flirting with him. Later, he alleged that she was. In his evidence in chief the appellant said that he awoke to find N next to him with her hand on his penis; he did not say or do anything but turned over. In cross-examination, when reminded of what he had said in his defence statement, he alleged that N had asked him to fuck her. He had responded, “In a bit”. In his evidence the appellant said that his trousers remained fastened. On being reminded of the defence statement the appellant said that N had unfastened them. The appellant could not explain how the complainant may have suffered bruising and soreness. Downstairs, although he was in the presence of Holly and the complainant, he claimed not to have heard any complaint of rape. 28. The complainant suffered minor injuries that were consistent with her account but not with the appellant’s. She was seen immediately afterwards to be in a state of distress. She gave a consistent account and submitted to an intimate examination. The complainant’s account was given well before the scientific evidence was available and was consistent with it. We have no doubt that had the jury been informed of the complainant’s previous criminal convictions they can have had no significant impact on the specific issues of credit that arose in the case. The complainant was demonstrably truthful on those issues and the appellant was not. 29. In our judgment the verdict was safe and the appeal is dismissed.

```yaml citation: '[2015] EWCA Crim 383' date: '2015-03-17' judges: - LORD JUSTICE PITCHFORD - MR JUSTICE COOKE - MRS JUSTICE LANG ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2009] EWCA Crim 1251 Case No: 2008/5724/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday 28th April 2009 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE HEDLEY MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - R E G I N A v MARK LEONARD - - - - - - - - - - - - - - - - - - - - - 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 C Sekar appeared on behalf of the Appellant Mr S Banerjee appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE AIKENS: This is an appeal against conviction with leave of the single judge. On 30th July 2008 the appellant pleaded guilty to two counts of possessing a controlled drug of class A, viz 4.95 grams of diamorphine (count 3) and 3.6 grams of crack cocaine (count 4). He pleaded not guilty to two further counts of possessing controlled drugs of class A with intent to supply (counts 1 and 2). Those counts also related respectively to diamorphine and crack cocaine. On 26th September 2008 after a trial before Mr Recorder Walker and a jury, the appellant was found guilty of those offences under counts 1 and 2. Immediately after the trial the appellant was sentenced to five years' imprisonment concurrent on each of counts 1 and 2. It appears that no separate penalty was imposed in respect of the counts to which he had pleaded guilty. 2. The appellant lived in a housing association bedsit. On 7th May 2008 police officers conducted a search of that bedsit. The appellant was brought up to the bedsit by one police officer and in the appellant's presence the bedsit was searched and various items were found. The important items were four wraps of heroin in a tobacco tin, a small amount of cannabis, a small Argos safe in a wardrobe which had in the safe £894.60 in cash, five mobile phones and several bits of scrap metal. 3. The appellant was taken to the police station in a police van. In the course of the journey he produced a further 23 wraps of heroin. When he was searched at the police station the appellant produced a further 11 separate wraps of heroin and 20 wraps of crack cocaine in a wrapped bundle. Two further mobile phones were found in the appellant's pockets. In interview the appellant admitted that one was his. The phones were analysed. Two text messages were found, one in the inbox of each of the mobile phones. They are central to this appeal. The first, timed at 10.24 on 2nd May 2008, reads: "Cheers for yday! Well sound gear:-S! feel well wankered today!" The second text message was from a different phone number and was on the second mobile phone. It was timed at 10.51 on 6th May 2008. It read: "Mark, that was a proper dog cunt move mate, that joey was a £5 joey and that was my last £10. Thanks. I dont why I think u would not do that 2 me. I dont." It was clear from the analysis of the two mobile phones that the two messages had been read. The two senders of the texts were never identified. 4. On the morning of the trial counsel for the Crown said that the Crown wished to adduce those text messages in support of its case that the appellant was a street drug dealer as opposed to someone who had heroin and crack cocaine just for his own use. The Crown's argument was that the two texts from two different people were evidence of two drugs transactions by the appellant in the very recent past. It was said that the jury could infer from the wording of the texts that they were about heroin supplies that the appellant had made. Therefore, they were evidence in support of the Crown's case that the appellant possessed drugs with intent to supply them to others. 5. The defence objected to these texts being introduced as evidence. They said that they were (a) inadmissible hearsay evidence, (b) evidence of bad character which the Crown had no leave to adduce before the jury and, in any event, (c) the meaning of the texts was so unclear that they could not be relevant evidence at all. In addition their introduction would be so adverse to the fairness of the proceedings that the judge should not allow their introduction. 6. Underlying the defence objections at the trial was a submission that the court should exercise its discretion under section 78 of the Police and Criminal Evidence Act 1984 to refuse to allow the texts to be adduced in evidence, even if they were otherwise admissible. The defence pointed out that (a) it was not known from whom the texts came, (b) why they were sent, (c) what they meant. In particular the defence argued that the words "joey" and "gear" were not synonymous with heroin. 7. Mr Recorder Walker made three rulings on the admissibility of the two text messages. His first ruling on 21st September 2008 appears to have dealt only with an argument concerning section 78 of the Police and Criminal Evidence Act. He ruled that it would not be unfair to admit the text messages on the basis of that section. 8. His next ruling was on the following day, 24th September 2008. It appears that counsel for the defence had not been able fully to consider the judgment of Sir Christopher Rose, Vice President, in R v Singh [2006] EWCA Crim. 660, [2006] 1 WLR 1564 , which had been produced by counsel for the Crown the previous day. In that case the Vice President held that entries of the appellant's mobile phone number in the memories of co-conspirator's mobile phones were admissible as evidence against the appellant. They were "implied assertions" which as a result of the abolition of the common law relating to hearsay by sections 114 to 118 of the Criminal Justice Act 2003 were no longer caught by the hearsay rule. Furthermore, the Vice President held in that case that those entries were not a "statement", nor were they "matters stated" for the purposes of section 115 of the Criminal Justice Act 2003 and so therefore not caught by the statutory hearsay rules. 9. Mr Recorder Walker held in his second ruling that the decision in R v Singh did not require him to revise his earlier ruling that the texts were admissible. We imply from that conclusion that the Recorder had decided that the texts were not hearsay evidence to which the provisions of Chapter 2 of Part 11 of the Criminal Justice Act 2003 applied. 10. The Recorder's third ruling on these texts was made on the following day, 25th September 2008. It appears that the Crown had in the meantime served a notice to adduce the two texts as "bad character" evidence within section 101(1) (d) of the Criminal Justice Act 2003 , i.e. that the evidence in the two texts was relevant to an important matter in issue between the defendant and the prosecution. The important matter in issue was identified in section 3 of the notice served by the Crown. That was: whether the appellant had the drugs with intent to supply them to another as opposed to having drugs for his personal use only. The notice did not refer to a "propensity" to commit any particular crime or type of crime. 11. The application to adduce this "bad character" evidence was made out of time but the Recorder extended time. The Recorder held: (1) that the texts amounted to evidence of a disposition towards misconduct on the part of the appellant, and (2) that "they had to do with the alleged facts of the offence with which he was charged" within the meaning of section 98 (a) of the Criminal Justice Act 2003 - see page 3D to H of volume 6 of the transcripts we have. On that basis the Recorder should, in our view, have said that the evidence did not fall within the statutory definition of "bad character" evidence under section 98 of the 2003 Act . However, it appears that despite this finding the Recorder went on to permit the texts to be adduced as "bad character" evidence. In so doing the Recorder impliedly ruled that the texts were relevant to an important issue between the prosecution and the defendant in the way that the Crown had identified. 12. It is not clear whether the defence at the time of this particular application expressly applied to exclude this evidence on the ground that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to have admitted them, either under section 101(3) of the 2003 Act or under section 78 of the Police and Criminal Evidence Act, but that is perhaps unlikely given the earlier ruling. The effect of the Recorder's third ruling was obviously to reject such arguments. 13. There was expert evidence before the jury from both the Crown and defence witnesses on the issue of what amounts of drugs were consistent with supply to others, in contrast to mere personal use. The defence expert, Mr Kirkham, a drugs research and adviser, gave evidence that the smallest quantities in which heroin was sold was in what was known as a "£10 bag". He also said that it was not unknown for "£5 bags" to be sold. The Crown expert, P.C. Jackson, also gave evidence that he had researched the meaning of the word "joey" on the Police National Legal Database and it referred, he said, "basically to a person employed by a gang involved in drugs" and the word "gear", he said, referred to heroin. He also gave evidence about various other aspects of drug dealers at street level, including the use of mobile phones. 14. The appellant did not give evidence. When the Recorder summed up to the jury he gave the following directions in relation to the two text messages. First, he said that the jury had to be satisfied so that they were sure that the texts involved "misconduct by the defendant, namely, whether they imply that the defendant dealt drugs shortly before his arrest as the Crown contend." If they were, he said, that would amount to bad character. He then continued: "You have heard this evidence, which the Crown says amounts to bad character, because it may help you to decide whether the defendant had the drugs with the intent to supply them to another rather than for his personal use. Whether or not it does assist you in this respect is a matter entirely for you. You may use it for the particular purpose that I have indicated if you find it helpful to do so. If you think it right you may also take it into account when deciding whether or not the defendant committed the offences with which he is now charged. You must decide to what extent, if at all, the defendant's character helps you when you are considering whether or not he is guilty, but bear in mind that his bad character cannot by itself prove that he is guilty, it would be therefore wrong to jump to the conclusion that he is guilty because of his bad character." 15. The appellant was convicted by a majority of 10 to 1. 16. Mr Sekar for the appellant raises a number of grounds in support of the appeal. His first argument is that the judge should have excluded the evidence of the texts under section 78(1) of the Police and Criminal Evidence Act 1984 . That subsection provides: "(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." 17. Mr Sekar submits, first, that the judge in making his ruling when the issue was raised adopted the wrong test by stating that test as being whether the admission of the evidence would be "grossly unfair to the defendant" - see page 2G to H of volume 2 of the transcripts. We cannot accept that submission. The judge was summarising in short form the effect of the statutory wording. We are quite satisfied that he had the full statutory wording well in mind as the proper test. 18. However, Mr Sekar has more substantial points. First, he makes points about the meaning of the texts. He said there was no evidence that the word "joey" meant heroin or that it had anything to do with a specific drug. That was not what the Crown's expert witness said it meant. Moreover, there was no evidence that the word "gear" meant heroin or a heroin wrap as opposed to drugs in general or any term as the word gear is often used. Next, he submits there was no separate evidence that the texts referred to previously supplied drugs. Further, the senders not were not identified so the authenticity of the texts could not be tested. Nor were the circumstances in which they were sent known. Therefore it was impossible for the defence to challenge the assertions of the Crown as to the meaning and implications to be drawn from the texts. Therefore in all the circumstances the admission of that evidence would have had such an adverse effect on the fairness of the proceedings that the court ought not to have admitted them. 19. It seems to us that there is a vital prior question which must be considered first. That is whether the texts were admissible as evidence at all. Mr Sekar submitted that the two texts were hearsay evidence within the meanings of section 114 and 115 of the Criminal Justice Act 2003 . The Crown sought to introduce the texts as evidence without any hearsay notices. Mr Sekar submits that the Recorder erred in his second ruling by holding effectively that the texts were not hearsay evidence within the terms of the 2003 Act . If he had ruled that they were hearsay evidence then the Crown would have been unable to identify the basis on which the hearsay evidence was admissible under the provisions of section 114 to 118 of the 2003 Act . 20. Mr Sekar also challenges the Recorder's ruling that the texts could be adduced as evidence of the appellant's bad character pursuant to section 101(1) (d) of the Criminal Justice Act 2003 . Contrary to the ruling of the Recorder, Mr Sekar submits that the only possible relevance of the texts was to previous misconduct of the appellant, but they were irrelevant to the facts of the offence charged on counts 1 and 2 on the indictment. He also submits that the Recorder did not properly analyse whether the texts constituted evidence of a propensity to commit offences of possessing class A drugs with intent to supply, nor did he consider whether the evidence was so equivocal that it should have been excluded under section 101(3) of the 2003 Act . As to the direction on bad character in the summing-up, Mr Sekar submits that the judge failed to give proper directions on (a) the issue to which the text messages were relevant, (b) how that evidence could assist the jury in reaching its verdict and (c) the need to be sure that the evidence of the text messages proved the commission of an offence or other reprehensible conduct so as to constitute bad character within the meaning of sections 98 and 112 of the 2003 Act . 21. Mr Sekar submits finally that given all these errors the conviction of the appellant was unsafe so that the appeal must be allowed. 22. Mr Banerjee for the Crown submitted that the texts were not hearsay evidence within the definition of the 2003 Act . Therefore, he submits, they were admissible as evidence without the need for hearsay notices and without the need to satisfy one or more of the conditions set out in section 114(1) of the 2003 Act . He relied on the decision of Sir Christopher Rose, Vice President, in Singh (to which we have already referred) and the decision of this court in R v MK [2007] EWCA Crim. 3150. 23. Next, Mr Banerjee submitted that the two texts were, as the Recorder ruled, evidence that had to do with the alleged facts of the offences of which the appellant was charged so that they did not come within the definition of bad character evidence within section 98 (a) of the 2003 Act . Mr Banerjee submitted that the texts were clearly to do with the alleged facts of the offence, viz. the appellant possessed class A drugs with the intent to supply them at or around the time of the search of his bedsit on 7th May 2008. There was the necessary nexus of time because the texts were sent on 2nd and 6th May 2008. It was evidence that the appellant was involved in the continuing possession with the continuing intent to supply. As such, leave of the court to adduce them as bad character evidence by virtue of one of the gateways set out in section 101 of the Criminal Justice Act 2003 was not necessary. 24. However, he said that the Crown had been cautious and that is why it had made its application to adduce the evidence as bad character evidence on the basis that it was admissible through the gateway of section 101(1) (d) of the 2003 Act . On that basis he submitted that the texts were relevant to an important matter between the defendant and the prosecution within section 101(1) (d) because they were relevant to the issue of whether the appellant had class A drugs with intent to supply. He submitted that the Recorder was correct to admit the evidence under that gateway and under section 101(3) . The Recorder took into account the possible adverse effect on the fairness of the proceedings by his ruling both on 23rd and 25th September 2008. 25. Lastly, Mr Banerjee submitted that the Recorder made no significant errors in his directions to the jury on the significance of the texts or how they should approach them in deciding whether overall the Crown had proved its case against the appellant. Therefore the convictions were not unsafe. 26. It seems to us that the first question that must be considered is: are these texts hearsay evidence or not? If they are not then none of the substantive or procedural provisions relating to the admission of hearsay evidence needs to be considered. Mr Banerjee for the Crown concedes that if the texts are hearsay evidence then that evidence would not have been admissible. He accepts that the only ground on which that evidence might have been admitted is under section 114(1) (d). He recognises, realistically, that if the court had regard to all the nine factors that were set out in section 114(2) of the Criminal Justice Act 2003 it would have concluded that it was not in the interests of justice to admit the texts as hearsay evidence. 27. We only need to consider the other criticisms of the trial and the summing-up by Mr Sekar if we conclude that the judge was right to allow the texts in evidence because they were not hearsay. However, even if we were to conclude that the judge was wrong to admit the texts in evidence, we have to consider whether the convictions are unsafe. 28. Are the texts hearsay evidence or not? The starting point is the wording of the sections. Section 114(1) provides: "In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if— (a) any provision of this Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible." Section 115(1) provides: "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." Section 118(1) and (2) provides: 29. "(1) The following rules of law are preserved. Public information etc ... Reputation as to character ... Reputation or family tradition ... Res gestae ... Confessions etc ... Admissions by agents etc ... Common enterprise ... Expert evidence ... (2) With the exception of the rules preserved by this section, the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished." 30. It is clear from section 114(1) and section 118(2) that the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished with the exception of the rules preserved by section 118 itself. The common law rules are replaced by the statutory code which governs what is hearsay evidence and when it can be admitted as evidence in criminal proceedings. That is confirmed by authority, in particular this court's decision in Singh [2006] 1 WLR 1564 . 31. The statutory code does not expressly define what is meant by "hearsay" evidence for the purposes of criminal proceedings. But as paragraph 11-1 of Archbold points out, the effect of the opening words of section 114(1) and section 115 taken together is to define hearsay evidence as: "any representation of fact or opinion made by a person otherwise than in oral evidence in the proceedings in question when such representation or statement is tendered as evidence of the matters stated in that representation or statement." The statutory code dictates when such a statement "not made in oral evidence" in criminal proceedings may be admitted of "any matter stated" in that statement, if it is sought to adduce such a statement "as evidence of any matter stated in that statement" - see section 114(1) . 32. As Sir Christopher Rose, Vice President, said in Singh at paragraph 14, the inter-relationship between section 114 and section 115 of the Criminal Justice Act 2003 is "deeply obscure". But as we read those sections, section 115 defines what is meant and so what is covered by the expressions "statement" and "matters stated" in section 114(1) . Therefore in order to see whether a certain "statement" that is not made in oral evidence in the criminal proceedings concerned comes within the hearsay evidence code set out in sections 114 to 118 of the 2003 Act , it is necessary first to see whether it falls within the definition of a "statement" as set out in section 115 . If it does not then, it seems to us, the statutory code does not apply. However, if it does, then the court has next to consider why it is sought to admit the statement evidence in the particular criminal proceedings concerned. Is it being admitted for the purpose of it being evidence of "any matter stated in that statement"? Only if it is does, it come within the statutory code. But in order to decide that question it is necessary to consider, at least in the context of this case, the purpose or one of the purposes of the person making the relevant statement. 33. In considering "purpose" we have to ask, does it appear to the court that the purpose of the person making the statement was: (a) to cause another person to believe the matter stated, or (b) to cause another person to act on the basis that the matter is as stated? If the reason why the statement is being adduced in evidence is so that it can be evidence of "any matter stated", as so defined, then it must satisfy conditions set out in the statutory code before it can be admitted as hearsay evidence. If the statement is not being made for one of those purposes then, as it seems to us, the statutory code relating to hearsay evidence cannot apply. 34. It is obvious that the two texts in this case were not statements given in oral evidence. So the first question must be: are the two texts statements of fact or opinion made by a person by whatever means? It seems to us that the answer to that question must be "Yes, they are." In the first case the sender of the text is making statements of fact or opinion that the "gear" was "well sound" and that he feels "well wankered today". He is also thanking the recipient, [the appellant we assume], hence: "cheers for today." That is a statement of fact also; he is thanking the recipient for providing the "gear". 35. In the second case the sender of the text is making a statement of fact that the "joey" [whatever that might be] was a "£5 joey". He is also stating a fact, implicitly at least, that he spent his last £10 on buying that joey. The sender also expresses an opinion: "I dont why I think u would not do that 2 me. I dont." So in our view those two texts are both statements within the meaning of section 115(2) of the 2003 Act . 36. What was the reason for those statements being adduced in evidence? Was it to prove "any matter stated" in those statements? It seems to us that the answer to that question must also be "Yes". We accept that that is only the first step, because the Crown's ultimate purpose in adducing this evidence was to invite the jury to infer from those texts that the appellant had supplied drugs to the senders of the texts. But in order that the jury might make that inference, the Crown first had to establish as fact the matters stated in the texts. The Crown's interpretations of those statements were that, in the first one, the sender of the text was happy with the drugs that had actually been supplied; and in the second that he was not happy with the drugs that had actually been supplied. The Crown wished the jury to infer from those facts, if they were proved, that the appellant was a supplier of class A drugs to others. It was therefore part of the total case towards establishing as a fact that the appellant possessed class A drugs with intent to supply them to others. 37. We therefore have to ask the next question in terms of section 115(3) : are "the matters stated" in the texts ones to which Chapter 2 of the Criminal Justice Act 2003 applies? To answer that question one has to ask: does at least one of the purposes of the person making the statement in each of the texts appear to the court to have been to cause another person (ie the recipient of the text) to believe "the matter" set out in the text, or to cause another person (ie the recipient of the text) to act on the basis that the matter is as stated in the statement? 38. In our view the answers in both cases must be "Yes". It appears to us that the sender of the first text must have sent it with the purpose of informing the recipient of his happiness at the receipt and use of "the gear" and for the purpose that the recipient would believe that the sender was in that state of happiness and contentment as indicated in the text. Equally, it appears to us that the sender of the second text must have sent it with the purpose of informing the recipient of his unhappiness at the receipt of the "joey" and with the purpose that the recipient should at the least believe that state of unhappiness. Whether its purpose, or one of them, was to cause the recipient to act on that state of unhappiness of the sender seems rather less certain. However, in our view the statutory regime for the admission of the hearsay evidence must, given the answers to the questions we have posed, apply to both those texts. 39. The question that then arises is whether these conclusions are inconsistent with the decisions of this court in the cases of Singh and MK . In Singh the issue was whether the fact that the memories of mobile phones of co-conspirators of the defendant contained his mobile phone numbers was admissible in evidence. The purpose of the evidence was to show that the defendant was a party to the conspiracy to kidnap of which the defendant was accused. The judge admitted the evidence and the defendant was convicted. He appealed on a number of grounds. The relevant one for present purposes was that the entries of the defendant's mobile number in the memories of the other mobile phones should not have been adduced in evidence because they came within the definitions of "statements" in section 115(2) of the Criminal Justice Act and the prosecution had wished to adduce evidence of the matters stated in those entries. 40. In our view there is no inconsistency between our analysis of section 115 and its application to this case and the decision of this court in Singh . The first sentence of paragraph 15 of the Vice President's judgment is the key part for these purposes. Entries of phone numbers in a mobile's phone memory are not "matters stated" because no person has made any statement with a purpose of causing another to believe that matter or of causing a machine to operate on the basis that the matter that has been stated by the person is as stated. In any event, we note the court also held that the entries were admissible as hearsay evidence under either section 118(1) ,7 or section 114(2) (d) of the 2003 Act . 41. In MK the prosecution wished to adduce evidence of the words used in a phone call between a person (Barski) wanting drugs and the defendant, who was accused (amongst other things) of being concerned in making an offer to supply a controlled drug of class, ie amphetamines. The police had covertly tapped the call. The prosecution wished to adduce the evidence in support of its case that it was this defendant who was the source of the intended supply of drugs that were the subject of this charge. The trial judge ruled that the prosecution wished to adduce the words as evidence of "any matter stated" and that the words fell within the definition of section 115(3) of the Criminal Justice Act 2003 . Following the ruling the prosecution appealed under section 58 of the Criminal Justice Act 2003 . 42. The Court of Appeal allowed the appeal. The court held that the purpose of the call and the import of the words used by Barski was to discover the availability and the price of amphetamines. Therefore, as we understand the ruling, those words were neither a "statement" within the definition of section 115(2) nor were they "matters stated" within section 115(3) . Whilst we have some difficulty with the latter proposition, there is none with the former. But there is nothing inconsistent between our conclusion in this case and the decisions in those two cases. 43. However, the result of our analysis is that, in this case, the evidence in the two texts that the Crown sought to adduce was hearsay evidence within the meaning of sections 114 and 115 of the 2003 Act . In so far as the Recorder ruled to the contrary in his second ruling, he was wrong. If he had ruled that the texts were hearsay then, as we have noted, it is accepted by Mr Banerjee that the only basis upon which the evidence could be admitted as hearsay would have been by section 114(1) (d) of the 2003 Act , ie that it was in the interests of justice to do so. As we have also noted, before the texts could have been admitted under that heading the court would have had to have regard to the nine matters set out in section 114(2) . Mr Banerjee realistically accepts in this court that the evidence would not have been admitted following a consideration of all those factors. 44. It must follow therefore that the evidence of the texts was inadmissible. It therefore could not have been admitted, whether as "bad character" evidence or otherwise. 45. That therefore leads to this question: is the conviction nonetheless safe? Even without the two texts the case against the appellant was a very strong one. First, there were the circumstances in which a large quantity of two sorts of class A drug were found, both in the Housing Association bedsit and on the appellant himself. Mr Sekar says that class A drug users do buy in bulk. So they may do if they are wealthy, but that could hardly be said of this appellant living as he was in his Housing Association bedsit. 46. Secondly, there was the large amount of money found in a safe in the wardrobe in the bedsit: £894.60 altogether. Thirdly, there were the large amounts of the further class A drugs that were found actually on the appellant's person in the course of the journey to and also at the police station. All these drugs were individually wrapped suggesting strongly that they were ready for sale on the street. Fourthly, there was the fact that five mobile phones were found on the appellant either on him or at his bedsit. He admitted to owning two. There was expert evidence that a large number of mobile phones is effectively part of the paraphernalia of drug dealers at street level. Fifthly, there was the lie that the appellant had bought a large quantity of drugs to share with a lady at the weekend, when in fact she was only going to be released from prison the following week. Sixthly, there was the expert evidence about the modus operandi of street dealers in class A drugs, the number of wraps, the use of mobile phones and the amount of money found in the bedsit, all of which tended to suggest that they were consistent with possession with intent to supply. Lastly, there was the fact that the appellant did not give evidence, although it must be accepted that he had given a full account in interview. Nevertheless Mr Banerjee said there would have been matters that he would have wished to cross-examine the appellant on if he had given evidence. 47. Mr Banerjee says that in the context of all this other evidence the evidence of the two texts was a small part only of a powerful case against the appellant. On that evidence, he argues, the jury would have inevitably concluded that he was in possession of the drugs with intent to supply them. 48. Mr Sekar submits that the text evidence put the whole trial off onto the wrong track and so the remainder of the trial, the summing-up and therefore the verdicts are contaminated by the whole course of the trial after the introduction of that evidence. However, he does not say that the appellant would definitely have given evidence had those texts not been introduced as evidence. He could only say, with some diffidence "it was likely" he would have been. 49. Having considered the matter very carefully we have come to the conclusion that, despite the error of introducing these two texts as evidence, these convictions were perfectly safe. Our only concern has been with regard to that part of the summing-up where the judge gave his directions on bad character, to which we have already referred. However, it is clear, in our view, that the judge was there dealing with the effect of the two texts and what use the jury could make of that evidence alone. The judge did explain that the purpose of the evidence was to assist the jury to decide on whether the appellant had the drugs with intent of supplying them to another rather than for personal use. The judge was careful to confine what he called "bad character evidence as we lawyers call it" to within a very small scope. We have no doubt that the introduction of the inadmissible evidence did not taint the rest of the trial. 50. For those reasons we have concluded the verdicts were perfectly safe. Therefore, despite our ruling on the admissibility of the text evidence, this appeal must be dismissed. 51. MR SEKAR: There are a couple of matters I feel I should address your Lordship on. The first is that one of the mobile phones -- and I apologise for not having addressed your Lordship on this matter earlier -- one of the mobile phones in fact the Crown in fact at the end of the trial, after the verdicts, said was not in fact Mr Leonard's, though it was found in his possession. That is just in effect a typo. 52. The other is that the only reason I did not say that Mr Leonard would have given evidence, but as was adverted to on the last paragraph of my skeleton argument that the matter could have been considerably shorter, was no one knows at the beginning of a trial exactly what may happen. Certainly the likelihood was had the text evidence not gone in that he would have been called. That is the highest I could ever put it and that is the reason I put it so low in the skeleton argument. 53. LORD JUSTICE AIKENS: What are you saying now, that it might have been considered? 54. MR SEKAR: Certainly when the papers first arose, if that is what the reference is to the matter being considerably shortened, it was considered that it was a straightforward case when it was highly likely he would have gone into the witness box and given evidence. That is what the reference is. I acknowledge it is very -- it may be considered to be slightly obscure, but that wording is taken from another judgment which I cannot, I am afraid, refer your Lordships to, where somebody made a similar submission that it is likely that- 55. LORD JUSTICE AIKENS: You are looking at what now? 56. MR SEKAR: Paragraph 17 of the skeleton argument. The sentence does not say that in terms. 57. LORD JUSTICE AIKENS: The sentence rather implies the opposite, does it not? 58. MR SEKAR: Well, no. What was intended, and I acknowledge that it is obscure, what was intended by that was that had the text messages been ruled inadmissible or not been introduced into the trial then the close to three days of legal argument would have meant that it was much shorter because it basically would have been -- almost all the evidence was agreed in one form or another and the likelihood was, subject to what happened during the trial, that Mr Leonard would have given evidence. That is what that intended to mean. 59. LORD JUSTICE AIKENS: It does not say that, does it, Mr Sekar? 60. MR SEKAR: Not in terms, no. 61. LORD JUSTICE AIKENS: Not at all. 62. MR SEKAR: Well, I borrowed that wording from somewhere else. Maybe I should have been clearer. I felt your Lordship, whether for good or ill, I ought to make that-- 63. LORD JUSTICE AIKENS: That was the purpose of inviting you to make submissions on the issue of the safety of the conviction. 64. MR SEKAR: Yes, my Lord. I recognise that now is not the most appropriate time to say it. 65. LORD JUSTICE AIKENS: Thank you very much for those submissions. Is there anything else? 66. MR SEKAR: No. 67. LORD JUSTICE AIKENS: We do not think that it alters our conclusion in any way.

```yaml citation: '[2009] EWCA Crim 1251' date: '2009-04-28' judges: - LORD JUSTICE AIKENS - MR JUSTICE HEDLEY - MR JUSTICE HICKINBOTTOM ```

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Case No: 2002/05484/D1 Neutral Citation No: [2004] EWCA Crim 1099 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SNARESBROOK CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Friday 7 th May 2004 Before : LORD JUSTICE KEENE MR JUSTICE FULFORD and HIS HONOUR JUDGE ZUCKER QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - OMAR NICHOLAS LOBBAN - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Kate Bex on behalf of the Appellant Mr Tim Devlin on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Fulford : Introduction 1. On 22 August 2002 at the Crown Court at Snaresbrook, before His Honour Judge Kennedy and a jury, the appellant was convicted on a retrial of possessing a class A drug with intent to supply. He was sentenced to six years imprisonment. On 2 October 2003 the Full Court granted leave to appeal as regards four grounds advanced on behalf of the appellant, three of which are linked to the decision made by His Honour Judge Reynolds on 28 May 2002 during the first trial, granting the prosecution’s application for the statement of a witness called Heather Moore to be read under the provisions of section 23 of the Criminal Justice Act 1988 . This issue was not reopened during the retrial, counsel having concluded that there were no new facts or arguments such as to justify rearguing the matter. Accordingly this ruling of Judge Reynolds was “adopted” for the purposes of the retrial. The fourth ground of appeal relates to the trial judge’s directions to the jury as to the finding of the appellant’s fingerprints. History 2. Before setting out and analysing the grounds of appeal in respect of which leave has been granted, it is necessary to consider the history to this case in a little detail. On 5 September 2000 police officers executed a warrant at 5 Campion House London N.16, the home of the appellant’s girlfriend. They found a holdall containing £5,094.37 and we observe at the outset that in due course the appellant accepted that the bag and the money both belonged to him. His case in this regard was that he ran what is called a “partner” scheme and this was money he held as the scheme’s “banker”. He called a number of witnesses who both confirmed the existence of the scheme and gave evidence that the applicant ran it. The police officers also searched two vehicles that were parked at the rear of the flat, one of which was the appellant’s red Vauxhall Corsa. The other was a white Ford Fiesta that belonged either to the witness Heather Moore or her partner Carl Dwyer. In the Fiesta the police found 71 wraps of cocaine in the ashtray and a key to that car, that was on a separate ring, was found attached to the appellant’s key ring. Part of the ashtray of the Fiesta was described by a police identification officer as “hanging by the lead to the cigarette lighter from the centre of the dashboard”, and two fingerprints that matched the appellant were found on the ashtray insert. There was a third print in the same general area that did not match any of those involved in this case. We shall return to this evidence in greater detail hereafter, because, as we have indicated, the fourth ground of appeal is founded on the way the judge left the issue to the jury. 3. A roll of clingfilm found in the flat was compared to three pieces of clingfilm used as wrapping for the cocaine and one of the pieces was considered to be a good fit with the end of the roll, such that it “provided very strong support for the proposition that it was the last torn from the roll”. 4. A number of undated photographs were found in the flat that showed the appellant and another man called Noel Edwards, who were both arrested during the search, posing with a large quantity of cash that was laid out on a table in this flat. It was the prosecution’s case that the photographs clearly showed that along with the money on the table, there were rocks of crack cocaine, a set of digital scales and a roll of clingfilm. 5. By way of historical detail, it is to be noted that the prosecution’s case as regards the drugs which, it was suggested, could be seen in the photographs changed over time. At the first trial count 2 of the indictment - that of being knowingly concerned in the supply of crack cocaine - was advanced on the basis that the drugs on the table were not the same drugs as those found in the Fiesta motorcar. However at the second trial the prosecution accepted that the drugs found in the vehicle may have been the same as those revealed in the photographs, and count 2 was advanced as an alternative to count 1, that of possessing a class A drug with intent to supply. 6. The appellant answered questions when interviewed, and stated that he had no knowledge of the drugs in the car, which he said belonged to Heather Moore’s partner, Carl Dwyer, rather than Ms Moore. Of some significance for this appeal is the appellant’s claim that Dwyer had arrived at 5 Campion House the previous night, and that he left the vehicle outside when he went to a “rave” in Dalston. The appellant did not give evidence during the trial, and relied to a significant extent on the answers he had given in interview. 7. Noel Edwards made no comment when interviewed and eventually the case against him was discontinued. 8. Turning to the witness Heather Moore, she set out in a statement made two days after the raid at 5 Campion House and the appellant’s arrest, dated 7 September 2000, that the appellant arrived at 5 Campion House and arranged with Carl Dwyer to borrow the Fiesta motorcar, which she owned and had lent him on previous occasions. He then drove away in that vehicle. She spent the early part of the evening with Carl Dwyer, but he went out, returning during the early hours of the morning. She indicated in this statement that she was willing to give evidence. Accordingly, from an early stage there was a critical clash between the accounts of the appellant and Ms Moore: the inevitable consequence of the appellant’s answers when interviewed was to tend to suggest that Ms Moore’s partner, Carl Dwyer, was likely to be the person primarily responsible for these drugs, whilst Ms Moore advanced that identical suggestion against the appellant. It followed, therefore, that it was impossible to view Ms Moore’s account as necessarily coming from a disinterested source: to the contrary, on the appellant’s case she was simply protecting her partner. 9. At a pleas and directions hearing held on 21 January 2002 the trial was fixed to commence on 3 April 2002; however on that day it was adjourned because of late service by the Crown Prosecution Service of relevant records held by the Forensic Science Service. It is observed by counsel for the appellant that nothing was said on that day indicating any unwillingness on the part of Heather Moore to attend as a witness, and the case was re-fixed for 27 May 2002. 10. Thereafter, on the adjourned date, Heather Moore failed to attend at court, and on the following day, 28 May 2002, a further statement was served from this witness in which she stated “I strongly fear that if I do give evidence he (the appellant) or his associates will come after me and harm me, my husband and my children.” 11. On the basis of that assertion, the prosecution applied to read the evidence of Ms Moore pursuant to the provisions of section 23 , the provisions of which we set out later in this judgment. The judge observed that this statement provided an insufficient basis to justify granting the application and he indicated that if the witness was brought to court, the matter could be further explored through questioning. 12. When Ms Moore attended later that day, the prosecution applied for the hearing into the reasons for her reluctance to give evidence to be conducted either in the appellant’s absence or with the witness screened from the appellant. During an adjournment that originally occurred so that enquiries could be made into the feasibility of installing screens, a hearing took place in the judge’s room in the absence of both the accused and the shorthand writer. We immediately indicate that, sympathetic though we are to the judge because of the difficulties inherent in the problem he had to deal with, we deprecate the use of this procedure. Whilst it is critical that there must be freedom of access between the advocates and the judge, hearings in the judge’s room should only occur when the circumstances really justify this course of action. In the context of judicial indications of sentence, the Lord Chief Justice in Practice Direction (Criminal Proceedings: Consolidation) [2002] 3 All ER 904 , para. 45.3 dealt with this issue as follows: “There must be freedom of access between advocate and judge. Any discussion must, however, be between the judge and the advocates on both sides. If counsel is instructed by a solicitor who is in court, he too should be allowed to attend the discussion. This freedom of access is important because there may be matters calling for communication or discussion of such a nature that the advocate cannot, in his client’s interest, mention them in open court, eg the advocate, by way of mitigation, may wish to tell the judge that the accused has not long to live because he is suffering maybe from cancer of which he is and should remain ignorant. Again, the advocates on both sides may wish to discuss with the judge whether it would be proper, in a particular case, for the prosecution to accept a plea to a lesser offence. It is imperative that, so far as possible, justice must be administered in open court. Advocates should, therefore, only ask to see the judge when it is felt to be really necessary. The judge must be careful only to treat such communications as private where, in fairness to the accused, this is necessary.” 13. To that clear recent direction needs to be added certain observations of this court in R v Smith [1990] 1 WLR 1311 : “If nothing else, this appeal demonstrates yet again the problem inherent in out-of-court discussions between counsel and the trial judge in criminal cases. Of course, on the authority of the well known case of Reg. v. Turner (1970) 54 Cr.App.R. 352 , in some circumstances it is permissible for counsel to see the judge in his room to ascertain his reaction to possible sentencing options open to him. But that should never occur, as has been said on almost innumerable occasions in this court, in the absence of a shorthand notetaker or, alternatively, in the absence of some recording device. In this case there was neither a shorthand writer present nor a recording device. What has happened here is something that from time to time does happen, namely there has arisen a dispute (not to put too fine a point on it) between the judge's account of what was said and the account that has been produced for perusal by this court in the form of affidavit evidence from both defending and prosecuting counsel. The dispute comes before this court when it is ill-equipped to resolve conflicts of recollection between counsel and the judge, and where in seeking to do justice, this court runs the real risk of not achieving it. Instead, a thoroughly unsatisfactory state of affairs is created where either the defendant has a genuine sense of grievance or the prosecution has not properly ventilated its case, or both disquieting consequences ensue. We find it disturbing that despite frequent observations made in this court discouraging unnecessary visits to the judge's room, they appear to continue up and down the country. In the hope - we hope it is not a vain one - that some notice will now be taken of what we are about to say, we remind those who have responsibility in these matters of the words of Mustill L.J. in Reg. v. Harper-Taylor and Bakker 19 February 1988. The Lord Justice said this when dealing with a case not dissimilar to the present, in the sense that there had been a prolonged discussion, ranging over a wide field in the judge's room: "Since we regard the discussion in the judge's room as the source of all the subsequent entanglements, some general observations on the practice of meeting the judge in his private room may be appropriate. A first principle of criminal law is that justice is done in public, for all to see and hear. By this standard a meeting in the judge's room is anomalous: the essence, and indeed the purpose, being that neither the defendant nor the jury nor the public are there to hear what is going on. Undeniably, there are circumstances where the public must be excluded. Equally, the jury cannot always be kept in court throughout. The withdrawal of the proceedings into private, without even the defendant being there, is another matter. It is true, as this court stated in Reg. v. Turner (1970) 54 Cr.App.R. 352 , 360, that there must be freedom of access between counsel and the judge when there are matters calling for communications or discussions of such a nature that counsel cannot in the interests of his client mention them in open court. Criminal trials are so various that a list of situations where an approach to the judge is permissible would only mislead; but it must be clear that communications should never take place unless there is no alternative. "Apart from the question of principle, seeing the judge in private creates risks of more than one kind, as the present case has shown. The need to solve an immediate practical problem may combine with the more relaxed atmosphere of the private room to blur the formal outlines of the trial. Again, if the object of withdrawing the case from open court is to maintain a degree of confidence, as it plainly must be, there is room for misunderstanding about how far the confidence is to extend; and, in particular, there is a risk that counsel and solicitors for the other parties may hear something said to the judge which they would rather not hear, putting them into a state of conflict between their duties to their clients, and their obligation to maintain the confidentiality of the private room. “The absence of the defendant is also a potential source of trouble. He has to learn what the judge has said at second hand, and may afterwards complain (rightly or not) that he was not given an accurate account. Equally, he cannot hear what his counsel has said to the judge, and hence cannot intervene to correct a mis-statement or an excess of authority: a factor which may not only be a source of unfairness to the defendant, but which may also deprive the prosecution of the opportunity to contend that admissions made in open court in the presence of the client and not repudiated by him may be taken to have been made with his authority." 14. We would not seek to improve on that exposition of the general principle or the reasons why the course adopted here was inappropriate. When this hearing took place, the court was in the process of investigating and determining an important procedural issue, and there was no good reason for it to be held in the judge’s room, in the absence of the defendant and the shorthand writer. This court has been dependent on counsels’ recollection which, however scrupulously set out, has been subject to the inevitable fallibilities of memory, and in the result there has been a lack of clarity over what was said by those present. We are told that during the discussion counsel repeated her objection to the proposed exclusion of the appellant and to the judge’s suggestion that he alone was to question Ms Moore about her suggested fear. There is no record of whether any reasons were set out by the judge for the latter proposed course of action, and in that regard we note that there is no evidence before this court suggestive of a disinclination on the part of this witness to answer questions put by counsel. 15. Notwithstanding objections from the appellant’s counsel, when the court reconvened the appellant was excluded from the court and Miss Bex was prevented from asking any questions. Ms Moore gave evidence, but not on oath or by way of affirmation, and her answers to the judge included the following: “The reason being I have a family, I have a son of 8, a daughter of 18 that frequents the area … and I have got an elder daughter, 27, so really it is not all about me, it is about my family.” (Transcript p. 4 A.) “If (the appellant) wants to know where I live he will find out where I live, at this moment not even the police know where I live and that is the way I want to keep it.” “Because, at the end of the day, someone is standing up against, instead of sitting down and being quiet and there could be repercussions, I don’t know and I don’t really want to take that chance.” (Transcript p. 4 E.) 16. When asked by the judge if she had any reason to believe he would be violent towards either herself or her family, she said: “I’ve had words with him in the past and to me he’s just a little, well, I won’t even say what I actually think but I think if someone crosses him to a point where there is no return something will happen to that person or them around them and at the end of the day I’m not prepared to do that.” (Transcript p. 4 G.) 17. She was asked if she had ever received any threats from Mr Lobban. Her reply was: “I’ve actually smacked him once literally …. I’ve actually had to hit him once when he interfered with my daughter, my middle daughter, put him in his place basically, he’s got no respect for nobody or anything.” (Transcript p. 5 B.) 18. In answer to a question as to why she was in fear of her life, she said: “Because it might not be him, he could get somebody else, while he was on remand the letter came out that, well he didn’t threaten me he threatened my partner, and where my partner is concerned I’m there.” (Transcript p. 5 D.) 19. Ms Moore said this letter came from the appellant although she did not know what Carl Dwyer had done with it; further the only basis she had for saying that he was violent was that she had “read a few stories in the papers” (T p. 5 G) about the appellant, one of which concerned an incident in Finsbury Park, which the witness described as follows: “something to do with a car and another occupant in the car” (T p. 6 A). When asked if he had ever been violent to her, she said “No, I wouldn’t give him a chance but as I said it is not about me it’s about my children” (T p. 6 B). 20. The judge asked her what she thought would happen if she did give evidence, and she replied: “What would happen, normal scenario it wouldn’t be him, it wouldn’t be him, it would be somebody else, nine times out of ten they already know where I work and its just a case of following me one day to find out where I actually live, I don’t normally take the same route two days on the trot anyway but its just a matter of time.” (Transcript p. 6 D.) 21. She went on to say that she was worried that her son would be smacked or “whatever” and she was concerned he might bump into her daughter. 22. It is to be observed that the appellant, a Jamaican national, was at the time of his trial 22 years-old and he had only two previous convictions relating to the use of a false passport, and accordingly he had no convictions for violence in this country. Moreover, six weeks earlier he had been admitted to bail when the custody time limits expired, and thereafter he lived in London without causing any suggestion to be made that he had tried to contact this witness, directly or indirectly. 23. As regards criminal convictions and by way of relevant background detail, it is to be noted that Ms Moore has previous convictions for dishonesty, for which she received two sentences of imprisonment in the 1970s. Her partner, Carl Dwyer, has 5 convictions for a total of 22 separate offences, all gained during the currency of his relationship with Ms Moore and they included possessing cocaine. 24. The ruling of the judge was in the following terms: “This is a renewed application on behalf of the Crown to read the statement of Mrs Moore under section 23 of the Criminal Justice Act. I required the witness to be brought to Court and I asked her questions, not on oath, to deal with the issue of whether she was refusing to give evidence as a result of fear or for some other reason. I am quite satisfied that she is refusing to give evidence and that no inducements or protection which the court could afford would persuade her otherwise. I therefore have to ask myself whether that is on the basis of fear for herself or her family or for some other reason. I have been addressed forcefully on the basis that really what she said does not go far enough because objectively there have been no incidents which would give rise to her sense of apprehension at this stage but equally I have to ask myself whether there is any other reason that can be suggested as to why she declines to give evidence, quite clearly it is not because she has changed her mind or anything of that sort and although the background which she fleshed out somewhat in what she said to me does not indicate incidents of violence towards her she was saying that her principle concern was in relation to her son who was aged 8 and her daughter aged 18, she said that they do not know where she lives at the moment but someone could follow her to where she lives. Her son plays out and something would happen to him, or something might happen to her daughter. Having heard what she has said I am driven to the conclusion that her refusal to give evidence is not for any other reason other than she is fearful for herself or her family. It was suggested that the fear had to be well founded in the sense that there had to be objective threats or something of that sort, I do not accept that contention, the proper test, it seems to me is to whether her fear is genuine and I come to the conclusion that it is. It therefore is capable of coming within section 23 (3) (b) and I must look at the matters in section 25 (2). Quite clearly this is a document which is authentic, quite clearly it supplies evidence which is not otherwise readily available, it is relevant and then the key matter, I have to consider whether there is any risk having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not intend to give oral evidence in the proceedings that its admission or exclusion will result in unfairness to the accused or if there is more than one any one of them. The statement as it stands is of some importance but the real complaint is essentially that she is not a person who will be cross-examined, not so much about what she says in her statement but about other matters which will assist the defendant, it is claimed. As I understand what has been said to me, it is not suggested that what is said in the statement is necessarily wrong but that she will be able to provide further matters in cross-examination which might be of assistance to the defendant. That is not a matter which I am at present directly concerned with, I am concerned with whether the statement as it stands, subject to any editing that may be argued about later on, should be read to the jury, and in my judgment, having heard her and having come to my conclusion in relation to the reason for her refusal to give evidence I rule that the statement can be read to the jury.” 25. An important factual mistake made by the judge during this ruling was the suggestion that the content of Ms Moore’s statement was not significantly in dispute. To the contrary, the appellant – as set out in his interview - did not accept that he had gone to Ms Moore’s house in order to borrow the car; this clearly related to a key aspect of the prosecution’s case, namely the allegation that during a highly material time the appellant had been in control of the Fiesta motorcar. At the conclusion of the ruling, the appellant’s counsel pointed out the mistake to the judge, who declined to alter his decision. The Grounds of Appeal 26. Against that background, the four ground of appeal advanced by the appellant are as follows: i) The irregularity as regards the procedure adopted by Judge Reynolds for deciding whether or not to admit the statement of Ms Moore; ii) The judge misdirected himself as regards the relevant test to be applied when exercising his discretion in that he applied the provisions of section 25 rather than section 26 of the Criminal Justice Act 1988 ; iii) The failure by Judge Kennedy in the summing up at the retrial to give the jury a proper direction on how they should approach Ms Moore’s statement; and iv) The failure by the judge to correct his summary of the evidence to the jury relating to the fingerprints. The procedure 27. We have already expressed our views as to the undesirability of holding hearings in the judge’s room, particularly when the defendant and the shorthand writer are not present. In our judgment it may be no coincidence that it was during that informal discussion the judge made, in our view, three important errors as regards procedure. The first was to order the removal of the defendant from the court during the evidence of Ms Moore. The second was to deny the appellant’s counsel the opportunity of cross-examining Ms Moore during the voir-dire in circumstances when the judge should have taken appropriate steps to identify whether this course was necessary. The third was that once a court, on a proper analysis, decides to disallow cross-examination, it should ensure that the procedure adopted thereafter is fair: that did not happen in the instant case. 28. The right of a defendant to be present during all the stages of the proceedings against him, save with his consent or in exceptional circumstances – such as during public interest immunity hearings - is enshrined both in our domestic law and in the jurisprudence of the European Court of Human Rights, because the right to a fair trial implies the right of an accused to be present. In Ekbatani v Sweden 13 E.H.R.R 504 at para. 25 the European Court of Human Rights observed: “…..it flows from the notion of a fair trial that a person charged with a criminal offence should, as a general principle, be entitled to be present at the trial hearing”. 29. This fundamental norm is so firmly established in our domestic law that we need not rehearse its underlying basis in law at any length. It is sufficient for these purposes to refer to R v Jones (Anthony) [2003] 1 A.C. 1 , a decision of the House of Lords in which Lord Bingham during his speech confirmed that: “For very many years the law of England and Wales has recognised the right of a defendant to attend his trial and, in trials on indictment, has imposed an obligation on him to do so. The presence of the defendant has been treated as a very important feature of an effective jury trial.” [6] 30. The devices that have been created to accommodate the legitimate anxieties of frightened witnesses, such as the use of screens or television links, have all preserved that right of the accused to be present during the trial process that may ultimately lead to his conviction. Although it is self-evidently necessary that every proper step should be taken to reassure and protect witnesses, this fundamental right of a defendant should not be infringed save in exceptional circumstances, which on any view these undoubtedly were not. As far as the exigencies of this case were concerned, the use of a television link or screens would have protected the witness whilst preserving the rights of the appellant. 31. Undesirable though it was to conduct the hearing in the judge’s room in this way, if this had constituted the sole ingredient of this ground of appeal we would not have concluded that the conviction was unsafe for this reason alone, not least because this procedure did not form part of the proceedings before the jury, and because the appellant’s interests were well protected by his counsel. 32. However, the second and third errors as regards procedure identified above give rise to far greater concern on our part. In the grounds of appeal, Miss Bex has identified 7 areas of questioning that she would have wished to develop with Ms Moore, as follows: “(i) why she originally told the police that she was willing to attend court; (ii) when she first became afraid; (iii) why she had not communicated her unwillingness to give evidence to the police when she was warned months earlier of the original trial date in April; (iv) why she was afraid now and had not been when she made her statement; (v) why she had not reported to the police receipt of the letter she alleges was sent to her but thrown away; (vi) why she was supporting an application that her statement be read, putting Mr Lobban in a worse position than if she was called and therefore only likely aggravate any antagonism he felt towards her and her family; (vii) why she was not afraid that he would be violent to her or her family if her evidence was read, only if she was called.” 33. In our judgment each of those matters, explored properly, could have elicited important, indeed potentially determinative, answers as regards the exercise of the judge’s discretion, particularly since the fears held by the witness, although clearly expressed, were based on somewhat insubstantial foundations. Even on her account, she had never been threatened directly by the appellant or subjected to violence at his hands; her suggestion that a newspaper article revealed that the appellant was a violent man seems in the circumstances to be improbable; the letter directed at Dwyer, as the evidence stood, begged as many questions as it answered, not least as to its true subject matter; and the involvement of Dwyer with cocaine and his possible use of the Fiesta motorcar that evening raised other critical questions as to why Ms Moore may have preferred not to be cross-examined by counsel on behalf of the appellant. 34. Turning to the law, section 23 of the Criminal Justice Act 1988 renders a witness statement, such as that made by Ms Moore, admissible in criminal proceedings as evidence of any fact of which direct oral evidence by its maker would have been admissible if: "(ii) the requirements of subsection (3) below are satisfied." Subsection (3) of section 23 is in these terms: "The requirements mentioned in (1)(ii) above are -- (a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and (b) that the person who made it does not give oral evidence through fear or because he is kept out of the way." 35. Section 25 sets out the general principles to be followed by the court when exercising its discretion under section 23 , and section 26 sets out particular criteria that apply when the document has been prepared for the purposes of criminal proceedings or investigations. We shall consider one critical difference between sections 25 and 26 hereafter, in the context of the second ground of appeal. 36. As regards procedure, the authorities in this area indicate the following propositions: first, it is necessary for the requirements of section 23 (3) of the Criminal Justice Act 1988 to be proved by admissible evidence: R v Belmarsh Magistrates ex parte Gilligan [1998] I Cr App R 14, and in order to satisfy the requirements of section 23 , it is necessary for the court to hear oral evidence as to fear. This is frequently given, for obvious reasons, not by the witness concerned but by a police officer, as was the case in R v Acton Justices ex parte Mcmullen and others (1991) 92 Cr App R 98 . Second, when a witness gives evidence under s. 23 (3) (b), he should be sworn so that the reasons are properly before the judge: R v Jennings and Miles [1995] Crim LR 810 (although we note the decision of R v James Greer [1998] Crim LR 572 in which this Court found that the requirements of the section were met by evidence not taken under oath or by way of affirmation; however, the point does not appear to have been argued by the appellant in that case). Third, where the defence on proper grounds can point to the necessity for them to be able to cross examine the witness or witnesses called to give evidence about the reason for the inability of a particular witness to attend to give evidence, then, subject to the caveat we set out hereafter, they should be given such an opportunity: R v Wood & Fitzsimmons [1998] Crim LR 213 and R v Elliot and others [2003] EWCA Crim 1695 . As this court observed in R v Wood& Fitzsimmons : “The fact-finding process formed an integral part of (the) trial and the defence were entitled to cross-examine witnesses relied on by the Crown to establish the necessary facts.” 37. An issue that has been debated by some of the commentators is whether the right to cross-examine in these circumstances extends to the witness who is the maker of the statement in issue and who, although not to be called before the jury, is called on the voir dire: see the commentary to R v Wood & Fitzimmons . This is likely only to be relevant in “fear” cases. In our judgment, bearing in mind the terms of the section and the authorities in this area, and in particular R v James Greer , the clear answer is that the relevant witness can be called to give evidence in relation to whether or not he is in fear. He would then be potentially liable to cross-examination, and to this possibility we now turn our attention. 38. It is trite to observe that cases vary infinitely, and what is necessary to ensure fairness will differ from situation to situation. One constant is that whenever dealing with witnesses who may genuinely be frightened the court must act with sensitivity and care whilst simultaneously ensuring that the defendant’s right to a fair trial is not eroded. When the relevant witness is called to give evidence of his fear, in our view the normal course of events will be for counsel on both sides to conduct the questioning in the usual way. However, there may be cases in which the court concludes, having heard submissions and having carefully considered the matter, that this is not an appropriate course. For instance, some vulnerable witnesses may insist, for reasons which the judge feels he should act on, that they are only prepared to be questioned by the judge. In those circumstances it may be appropriate to depart from the usual course, but reasonable steps, such as have been identified with the assistance of counsel, then should be taken to protect the interests of both the prosecution and the defence. The most obvious of these is that counsel should be asked to identify the questions and issues they respectively wish to have explored with the witness during the voir dire. Thereafter, it will be for the judge to determine what questions should be asked, but the identification of the relevant issues in this way will significantly help to ensure the proceedings are fair. Additionally, it may be necessary, as we have already indicated, to separate the accused from the witness by means of screens or a television link. 39. In the present case none of these steps were taken. Because of the procedure adopted, no proper basis was established to justify refusing counsel the opportunity to cross-examine and the questions that were asked did not cover many of the areas relevant to the exercise of the judge’s discretion. In our judgment it is critical that once the necessity for asking questions has been made out, the judge should ensure that the relevant issues are explored either by the court or through counsel. 40. Accordingly, as regards the procedure adopted in this case we consider this ground of appeal is made out. The test 41. As already set out, the learned Judge applied section 25 during his ruling rather than section 26 . The respective sections are as follows: “25. Principles to be followed by court (1) If, having regard to all the circumstances - (a) the Crown Court - (i) on a trial on indictment; ……………….. is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted. (2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard - (a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic; (b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available; (c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and (d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them. 26. Statements in documents that appear to have been prepared for purposes of criminal proceedings or investigations Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared, otherwise than in accordance with section 3 of the Criminal Justice (International Co-operation) Act 1990 or an order under paragraph 6 of Schedule 13 to this Act or under section 30 or 31 below, for the purposes - (a) of pending or contemplated criminal proceedings; or (b) of a criminal investigation, the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard - (i) to the contents of the statement; (ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and (iii) to any other circumstances that appear to the court to be relevant.” 42. Because Ms Moore’s statement had been prepared for the purposes of pending or contemplated criminal proceedings, section 26 of the Criminal Justice Act 1988 was the section relevant to the exercise of the judge’s discretion. Accordingly, the judge applied the wrong test during his ruling, and we note that during submissions when he referred to the exercise of his discretion under section 25 , counsel on both sides failed to correct him. The two sections apply significantly different criteria. Section 25 provides that a statement shall be admitted unless the court is of the opinion that it is in the interests of justice that it should not, whereas section 26 provides that leave to admit a statement made for the purposes covered by the section shall not be granted unless the court is of the opinion it ought to be admitted in the interests of justice. Self-evidently this difference between the sections is of potential importance: R v Jennings and Miles. 43. In this case, as we have already observed, the judge misunderstood the critical extent to which the appellant disputed the evidence of Ms Moore, which in turn supplied a key ingredient in what was essentially a circumstantial prosecution case. Accordingly in our judgment if he had applied the correct test with a complete understanding of the significance of the challenges to her account, he may have exercised his discretion in favour of excluding the statement. In those circumstances, this ground of appeal is made out. The lack of a direction to the jury 44. Although the terms of the direction will need to be tailored to the facts of the particular case, there is no doubt as to the need for there to be a clear indication to the jury of the limitations of evidence that is not agreed and that has not been subjected to cross examination. In particular the jury should be warned that they would have had a clearer idea of whether the evidence is honest and accurate if they had seen the witness in the witness box and, further, because it had not been subjected to cross examination they were denied the opportunity of seeing how the evidence survived the challenge; they should be told to take this into account when deciding what weight to attach to this evidence: R v Samuel and others 1992 Crim L R 189; R v Hardwick [2001] 3 Archbold News 2 [2001] EWCA Crim 369 ; R v McCoy [2000] 6 Archbold News 2 and R v Denton [2001] 1 Cr.App.R. 16 ; [2001] Crim LR 225. 45. In this case the trial judge gave no direction to the jury on this subject, notwithstanding the request by the appellant’s counsel that he should do so, save to say that the statement was not accepted by the appellant. In our judgment that constituted a serious deficiency in the summing up, particularly given the significance of Ms Moore’s evidence. The failure to give the jury directions on other aspects of the evidence 46. This ground of appeal relates to the direction the learned judge gave the jury as regards the position of the appellant’s fingerprints in the Fiesta motorcar. We can deal with this issue briefly. The appellant’s fingerprints were found on the outside surface of the right side of the black ashtray insert and on the outside sloping lower surface of the ashtray itself. When the judge reminded the jury of the statement of the officer who found the prints he accurately summarised that evidence: SU 14 D. Complaint is made that earlier at SU 11 A, when dealing with circumstantial evidence, the judge referred to the fingerprints having been found “both inside and outside the ashtray”. In our judgment even if that summary may have involved a slightly incorrect description of their location, it was wholly rectified by the later full rehearsal of the evidence on this subject when the judge reminded the jury of the officer’s evidence. In those circumstances, we consider that there is no complaint of significance that can be founded on the directions the judge gave to the jury in this regard. Accordingly, this ground of appeal fails. The failure to refer to the defence 47. Although the appellant did not give evidence at trial, in his defence he relied substantially on the answers he gave to the police when interviewed. The account he set out at that stage, as summarised at [6], included the following matters: i) he had no knowledge of the drugs in the car, which he said belonged to the Heather Moore’s partner, Carl Dwyer, rather than Ms Moore; ii) Dwyer had arrived at 5 Campion House the previous night, and that he left the vehicle outside when he went to a “rave” in Dalston. 48. Accordingly, the appellant not only denied the offence with which he was charged, but he set out in interview an account as to the relevant events that was wholly consistent with his suggested innocence. That account had a strong tendency to point the finger of blame at Carl Dwyer. However, during the summing up the judge did not refer to the appellant’s defence, save as follows when directing the jury as to the issue of whether the appellant intended to supply the drugs (SU p. 16 D): “That those drugs would have been supplied to others is not, you may think, disputed. The defence put the Crown to proof that this defendant intended to carry out such supply. By his plea his contention is that he did not so intend. He need prove nothing. It is of that intention of that possession that the Crown must make you sure in relation to Count 1.” 49. Later, the judge dealt with the appellant’s interview shortly (SU p.20 B): “The defendant was arrested and was taken to the police station for interview. You will no doubt wish to study that interview with care. I have already told you how it is to be approached in the absence of evidence to you from the defendant personally.” 50. Finally, the judge summarised the evidence of the witnesses called to deal with the “partner scheme” (see [2]). 51. At no stage did the judge summarise the critical elements of the defence, or the main arguments developed in support of it. It was incumbent on the judge to set out, at least in summary form, the main points made by the defendant in interview and by his counsel during the trial: R v Badjan 50 Cr App R 141 and R v Akhtar [2000] 1 Archbold News 2. What the appellant said about his and Dwyer’s movements, and who had driven the car, were critical matters that the jury should have been reminded of during the summing up because they went to the heart of the issue that the jury had to decide, namely who was responsible for these drugs. We note, therefore, that the defence advanced by the appellant went substantially further than simply putting the prosecution to proof, as suggested by the judge. 52. Although this failure by the judge to refer to the defence was not included in the grounds of appeal initially argued before this court, we consider that it also renders the conviction unsafe. Conclusions 53. As we have indicated, Ms Moore’s evidence was of considerable importance. The errors as regards the introduction of her statement (grounds 1 and 2) and the failure to give the jury proper directions as to how they should approach that evidence (ground 3) have led us to conclude that the verdict in this case is unsafe: if those errors had not occurred the outcome of this trial could have been different. Further, the failure by the judge to refer to the defence also renders the conviction unsafe. Accordingly this appeal against conviction is allowed and the conviction is quashed. For the reasons already expressed by the court when we gave our decision at the conclusion of the submissions, and in particular because the appellant has now served the greater part of the sentence imposed on him, we do not consider that it would be in the interests of justice to order a retrial. 54. Although Judge Zucker was not able to be present when this judgment was handed down, it has been seen and approved by all members of the court.

```yaml citation: '[2004] EWCA Crim 1099' date: '2004-05-07' judges: - LORD JUSTICE KEENE - MR JUSTICE FULFORD ```

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Neutral Citation Number: [2007] EWCA Crim 480 Case No: 200600225 D1 200600728 D1 200600251 D1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING HER HONOUR JUDGE SMITH Royal Courts of Justice Strand, London, WC2A 2LL Date: 2 March 2007 Before : LORD JUSTICE PILL MR JUSTICE LANGLEY and HIS HONOUR JUDGE FINDLAY BAKER QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - ANTHONY FREDERICK WELCHER BARRY ALEXANDER SIMPSON ROGER HARPER Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR A CAMERON QC &MR F CARAMAZZA for the Appellant Anthony Frederick Welcher MR A J BRIGHT QC for the Appellant Roger Harper MR B FORSTER QC for the Appellant Barry Alexander Simpson MR D FARRER QC & MR D MATTHEW for the Respondent Hearing date : 16 February 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pill: 1. On 8 December 2005 in the Crown Court at Reading before Her Honour Judge Smith and a jury, Anthony Frederick Welcher, Barry Alexander Simpson and Roger Harper were each convicted of an offence of conspiracy to corrupt (Count 1) and an offence of conspiracy to defraud (Count 2). Other counts were ordered to remain on the file. 2. On 9 December 2005, Welcher was sentenced to three years imprisonment on Count 1 and four years six months imprisonment concurrent on Count 2, Simpson to four years imprisonment on Count 1 and six years six months imprisonment concurrent on Count 2 and Harper to four years imprisonment on Count 1 and six years and six months imprisonment concurrent on Count 2. A confiscation hearing with respect to all three men has been fixed for 7 July 2007. 3. A co-accused Georgina Maria Welcher, the wife of Anthony Welcher, was convicted on Count 1 and sentenced to fifteen months imprisonment. She was acquitted on Count 2. With respect to another co-defendant, Philip Ronald Gray, the jury could not agree either on Count 1 or Count 2 and were discharged from giving verdicts. 4. Welcher appeals against conviction and Simpson and Harper appeal against sentence, each with leave of the single judge. 5. Count 1 alleged that the accused had from January 1991 until June 2001 conspired together that Simpson and Harper should corruptly give, and Gray, Welcher and Mrs Welcher should corruptly accept, or obtain, gifts or consideration, by way of cash, items of value and services, as inducements or rewards for showing favour to Ironfirm Ltd, trading as Excel Engineering (“Excel”), Simpson and Harper in relation to the business of Mars UK Limited (“Mars”). Count 2 (originally Count 3) alleged that during the same period the accused conspired together to defraud Mars. 6. In each count, particulars were given. Those on Count 1 were: (i) The placing of orders by Mars with Excel; (ii) The authorising of payments to Excel for work done; (iii) The authorising of payments to Excel for work not done; (iv) The authorising of overpayments to Excel. The particulars on Count 2 were: (i) Issuing purchase orders on behalf of Mars to Excel for work which was not required and/or was not done and/or provided for excessive charges to Mars; (ii) Submitting invoices for such work; (iii) Authorising payments on account of such invoices; (iv) Procuring that Mars through payments of inflated invoices, provided funds for such payments and such gifts [that is payments and gifts to Welcher and Gray]. 7. Simpson and Harper were the sole directors of Excel, a limited company which specialised in precision engineering work and had been set up by Harper’s father. It had enjoyed a good reputation in the engineering world. In general terms, Simpson was the engineer and Harper the accountant. Welcher and Gray were employed by Mars at premises on Slough Trading Estate, Welcher since 1974. He became an engineering technician with responsibility for running the company’s confectionary lines. The confectionary lines were in constant use and required both regular maintenance and urgent repairs either by internal staff or by external contractors such as Excel. He also set up a consultancy business, called GW Designs, which he operated from his home with the help of his wife. Mrs Welcher was also wrongly recorded in the books of Excel as an employee of that company. 8. Thus the two conspiracies overlapped in the identity of the alleged conspirators, the dates and, to a large extent, the conduct alleged. Welcher received bribes from Simpson and Harper in return for placing Mars’ works orders with Excel, and authorising excessive or bogus payments from Mars to Excel. The corruption was in the issue of purchase orders, excessive payments for work done and payments for work not done. A stage was reached when bribes were marked as extras on the documentation so that Mars were paying for the sums paid to its own employees as bribes. It was also alleged that GW Designs was a ghost sub-contractor whose false invoices were also used to defraud Mars. 9. We have considered the gain to the appellants only insofar as it is necessary to decide the issues before this court at this time. Confiscation proceedings are to follow and there is also a civil action against them arising out of the sale of the business. It is accepted on behalf of Harper and Simpson that the gain to them was, on any view, and taking them together, £3,000,000. (We have not heard the prosecution on the subject.) In addition to cash, (alleged to be in the region of £½million) Welcher received a conservatory and summer house for his home, power tools, electrical parts and a go-kart for his son on which Excel had done engineering work. 10. In January and February 2002, Mr M Carabok, Chief Engineer at Mars, conducted disciplinary interviews with Welcher concerning allegations of fraudulent receipt of goods and services from Excel and theft from Mars. Welcher denied the allegations and gave explanations. The prosecution sought to call evidence of the interviews at the trial. On 28 February 2002, Welcher was dismissed by Mars for gross misconduct. The homes of the accused were searched on 4 December 2002 and computers and documents were seized. 11. Welcher was interviewed by the police in 2003 and 2004 and denied the offences. His explanations at interview were substantially consistent with those he gave in evidence at the trial but inconsistent with those he gave when interviewed by Mr Carabok. 12. Detailed explanation for his receipt of cash and other benefits were given by Welcher in the course of his evidence. He claimed that work orders to Excel had all been approved by his managers. He could only authorise orders himself for short periods in 1997 and 2001. GW Designs worked largely for Excel but was used for legitimate purposes. The need to keep the confectionary lines running meant that there was a cross use of Mars funds between budgets. He signed off work only if he was satisfied that it was done. He had ordered tools through Excel when it was necessary because his budget had run out. His managers approved of his behaviour. Some of what purported to be his signatures writing-off work had been forged. Some benefits he had received from Excel were in lieu of money owed by Excel for work done by GW Designs. He did not know why Excel’s records showed receipt of sales commissions by him. 13. The trial lasted for about two and a half months and the records put in evidence were analysed in detail. It was alleged that there was a bogus code series known as the 70000 series. Other witnesses involved in similar corrupt arrangements involving Mars were called. It was also alleged that invoices on the 9000 series were from ghost contractors linked to Mars employees. 14. Harper and Simpson also gave evidence. They differed from each other in important respects. Simpson denied knowledge of the alleged payments and said he was not involved with the accounts. Harper said that both Welcher and Mrs Welcher had worked for Excel, she as a typist and he as GW Designs. The 70000 separate series was introduced at the request of Simpson. It was not designed to disguise dishonesty and corruption. The reason parts of the record were expunged from the computer was to make more space. What appeared to be ghost invoices, he said, were payments to sub-contractors in cash. He accepted that sales commissions were paid by Excel to Welcher and Gray, and tax on their behalf. They were paid consultants. 15. On behalf of Welcher, Mr Cameron QC submits that the judge was wrong to admit in evidence disciplinary interviews conducted by Mr Carabok of Mars, his senior line manager, on the ground that he was acting under a duty to investigate offences within the meaning of Section 67(9) of the Police and Criminal Evidence Act 1984 (“ the 1984 Act ”). Section 67(9) provides: “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 provisions of … a code ”. Reliance is also placed on Section 67 (11): “In all criminal and civil proceedings any … code shall be admissible in evidence and if any provision of … a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question”. 16. The interviews were not conducted in accordance with code C: the appellant was not cautioned and was not offered or allowed legal advice. Further, there was an absence of disclosure of documents before and during the interview: there was no mention of interviews being used in criminal proceedings. At the fourth interview, a threat which is alleged to have gone unsaid earlier was made expressly: “It affects your pension how you leave the business so it is important to offer you the opportunity to explain.” 17. The investigation was made in accordance with Mars disciplinary policy. Mr Carabok was seeking to determine what recommendations to make to the company’s disciplinary panel. The appellant was told of the nature of the allegations that had been made and they later appeared in counts of the indictment. The prosecution made use of the contents of the interviews at the trial. The appellant was cross-examined at length about them with a view to underlining their inconsistency with the contents of police interviews and evidence at the hearing and thereby discrediting him. 18. In her ruling on 28 September 2005, the judge stated that Mr Carabok was not charged with the duty of investigating offences within the meaning of 67(9). Further, the judge held that admission of the evidence would not have such an adverse affect on the fairness of proceedings that it ought not be admitted. The appellant was not cajoled into giving the answers he gave. 19. Mr Cameron relies on the case of Twaites [1991] 92 Cr App R 106 which establishes that “commercial” investigators may be covered by 67(9) if and insofar as they were charged with the duty to investigate offences. Reference is also made to Smith [1994] Cr App R 233 where the managing director of a bank was interviewed by R acting on behalf of the Bank of England who had statutory powers to supervise the bank. It was held in this court that R’s duties “fell well short of a duty to investigate offences”. However, the interview was excluded under Section 78(1) of the 1984 Act on the ground that whereas the interview had been set up to enable R to assess the impact on the market of a liquidity problem the bank had, R questioned the defendant and put it to him that he had knowingly entered into fraudulent transactions. 20. For the prosecution, Mr Farrer QC submits that Mr Carabok’s duty was limited to reporting to a Mars disciplinary panel as to whether the appellant should be dismissed from his employment. Unlike the case of Twaites, there had been no earlier police interviews under caution. Mr Carabok’s duty was not to investigate offences; it was, on behalf of the company, to investigate the appellant’s conduct as an employee. That was a necessary part of the employer/employee relationship. If matters did proceed to a criminal trial, it was not unfair for the jury to know what was said at such interviews. 21. In my judgment, in the circumstances of this case, the judge was entitled to admit the evidence. Mr Carabok was not under a duty of investigating offences and fairness did not require the exclusion of the interviews. The reason given for the falsity of the explanations in interview was that the appellant was trying to protect his pension. That reason can be, and was, advanced before the jury for their consideration but, true or false, it does not require the exclusion of the evidence. Clarke LJ in Gill [2004] 1 Cr App R 20 , when considering the safeguards provided by a Code stated, at paragraph 46, that their principal purpose is to ensure, as far as possible, that interviewees do not make admissions unless they wish to do so and are aware of the consequences. Clarke LJ added: “We do not think that the principal purpose of the code is to prevent interviewees from telling lies”. Those interviews were properly admitted. 22. The second ground of appeal is that the jury were insufficiently directed in the summing-up upon the status, relevance and effect of the Excel records. They were claimed to have recorded illicit payments by Excel to Mars employees. Two former Mars employees, Mr Brench and Mr Soroko, admitted in evidence that they had received illicit money from Excel. They did nevertheless strongly dispute that the Excel records accurately recorded what they had received. These records had not been seen at the material times by the appellant. 23. The submission is that such lack of accuracy weakened the case against the appellant and the issue needed to be identified and highlighted in the context of his case. It is accepted that the issue was drawn to the attention of the jury but that was in the context of the case of the co-defendant Gray and not of the appellant. The point was expressly put, on the appellant’s behalf, to the judge when further submissions were permitted in the course of summing-up. The jury’s disagreement in Gray’s case further demonstrated the relevance of the accuracy of the records. 24. The court was invited to consider the spreadsheets, prepared for the use of the jury, showing invoices and payments made. There was scope for argument as to the accuracy of some of the records. That issue was important to the case of Gray. However, in the case of the appellant the issue was of limited significance. He admitted a high proportion of the receipts recorded under the 9060 code, both cheques and benefits in kind. His defence was that payments were made for work and services rendered for the sums received. We see no merit in this ground. 25. The third ground of appeal is that there was such lack of structure in the summing-up that the verdicts are unsafe. The trial had commenced on 27 September 2005. Summing-up commenced in late November. The judge produced for counsel a draft of the directions she proposed to give at the beginning of the summing-up and no complaint is made about those initial directions. Then over several days, the judge summarised the evidence in great detail. 26. The submission is that the summing-up was fatally flawed in that the issues concerning each defendant needed to be identified and the cases for the prosecution and the defence put into the context of the relevant evidence. A “drawing together of the strings” was necessary, it is submitted. This should have happened in the course of the summing-up but was capable of remedy at the end had a thorough rescue attempt been launched. 27. Late on 1 December 2005, the judge told the jury that they would commence their deliberations on the following morning. For the prosecution, Mr Farrer requested the opportunity for counsel to meet the following morning to discuss matters. When asked why, Mr Farrer stated: “Yes, we are for the Crown gravely concerned that Your Honour’s summing-up has not enabled the jury to focus on the issues in this case, with great respect. I was going to put the matter I hope slightly more gracefully, but I am asked to put it shortly and I do.” 28. In addition to submissions on behalf of the prosecution, the judge received detailed written submissions from Mr Cameron, on behalf of the appellant, under the headings “Facts” and “Issues in the Case”, the second subject being divided into sub-sections. The judge considered the submissions over the weekend and on Monday 5 December gave a further series of directions in relation to each of the defendants, which cover about 8 pages of transcript. 29. Mr Cameron submits that rescue was not achieved. Its achievement would have required a further day’s summing-up devoting about an hour to the case of each defendant and including an analysis of the relevant evidence in the context of issues raised and submissions made. What happened was not enough. 30. For the prosecution, Mr Farrer accepts that the summing-up was much too long in its recitation of the evidence. It needed a clear concise statement of the questions which the jury had to consider. These were essentially simple and the jury needed to be reminded of that. The critical point in the appellant’s case was whether his explanations as to the circumstance in which cash and benefits were received by him were or may have been true. 31. Mr Farrer does not concede that, without the further 5 December directions, verdicts would have been susceptible to challenge but he submits that in the appellant’s case, as in the other cases, the issues were accurately and sufficiently stated in the further direction of 5 December. A further day’s summing-up would not have been appropriate or helpful. 32. The case against the appellant was a strong one. It included evidence of large, frequent and admitted payments by Excel to GW Designs, the appellant’s consultancy, payments to the appellant over several years purportedly as salary or sales commission, though the appellant had acted in neither role for Excel. There were payments to the appellant’s wife and his elderly mother, purportedly as salary as wages and treated by Excel as payments to the appellant. It was admitted that goods were delivered and facilities installed at the appellant’s home at Excel’s expense. The appellant lied about his conduct when interviewed for disciplinary purposes. This evidence was fully presented and thoroughly challenged. The jury were reminded of it in great detail in the summing-up. 33. Having considered the directions given at the beginning and the end of the summing-up, we accept the submissions of Mr Farrer. The further directions on 5 December stated the essential features of the appellant’s case and posed the questions which arose. The jury were in a position to give proper consideration to the issues which arose in the appellant’s case and there is no reason to doubt that they did so. Doubt has not been cast on the safety of the verdicts. 34. We have considered the grounds of appeal separately and cumulatively. They have not created doubt about the safety of the verdicts. The appeals must be dismissed. SENTENCE 35. Simpson, now 64 years old, and Harper, now 60 years old, appeal against sentence. As already stated, it is accepted that the benefits they together received were worth at least £3million. Surprise was expressed by defence counsel that, having regard to the way the case had been run, the longer sentence was on the conspiracy to defraud. However, it is not claimed that the judge’s approach was erroneous in this respect; clearly the fraud itself was aggravated by its association with corruption. 36. When sentencing the appellants, the judge referred to the very considerable sums corruptly given and received and to the persistence of the corruption for over a decade. The sheer scale of the operation, the judge said, was motivated by greed. The Judge acknowledged that both Appellants were of good character and that the corruption was commercial and not administrative, by which we assume the judge meant that it did not concern public servants or public funds. In the present context, we do not need to analyse whether that distinction is a significant one. The judge referred to the considerable personal mitigation available to both appellants and Mr Forster QC for Simpson and Mr Bright QC for Harper have addressed the court about it. 37. The judge added that the appellants were able to inflate the value of their company by the fraud. In the event, the company has been sold and Harper retired to Guernsey. The civil action arises out of the sale of the company. Counsel referred to evidence of a pre-existing culture of corruption in Mars’ engineering department and the judge appears to have acknowledged its existence. 38. It is submitted that the sentences were manifestly excessive. Both men are now in their 60’s. Each has had a long and successful marriage and was of positive good character. Having regard to the confiscation proceedings, they would come out of prison without assets and were likely to spend the rest of their lives in poverty, or at least in what the Judge described as “very reduced circumstances”. Simpson was described as a broken man. Prison reports are very favourable, those in relation to Simpson being particularly glowing. 39. Mr Bright refers to the maximum sentence for theft now being one of only seven years, having been reduced from ten years. He submits that the substantial personal mitigation requires a sentence lower than six and a half years in this case. We do not consider the reduction from ten to seven years to be material in present circumstances. The maximum sentence for conspiracy to defraud is ten years ( Criminal Justice Act 1987, Section 12(3) ). Moreover, in Clark [1998] 2 Crim App R 137, decided after that reduction, the need for sentences of ten years or more for theft, by use of consecutive sentences if appropriate, was acknowledged, in cases involving theft of over £1million. 40. We acknowledge, as did the Judge, the substantial personal mitigation available to both Appellants. However, the Judge appropriately referred to the size of the sums obtained, the serious corruption involved, the duration of the fraud and the motivation for it. In our judgment, the sentences cannot be faulted and the appeals are dismissed.

```yaml citation: '[2007] EWCA Crim 480' date: '2007-03-02' judges: - LORD JUSTICE PILL - MR JUSTICE LANGLEY ```

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No: 2008/1225/A7 Neutral Citation Number: [2008] EWCA Crim 1212 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 15 May 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE TREACY SIR PETER CRESSWELL - - - - - - - - - - - - - R E G I N A v ROSWELL SMITH - - - - - - - - - - - - - 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 T Singh appeared on behalf of the Appellant - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE TREACY: The appellant in this case is Roswell Smith. He pleaded guilty to an offence of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 at Coventry Crown Court. He was sentenced on 7th February 2008 by His Honour Judge Pyke to a term of six years' imprisonment. 2. The offence took place on the morning of 17th August 2007. The complainant was driving his car. He had a passenger with him. As he drove past an exit from a car park the appellant pulled out in his vehicle and, to put it in the vernacular, cut up the complainant. The complainant said something along the lines of: "You stupid black bastard". The appellant or his passenger heard that comment and so the appellant reversed his car back towards the complainant's now stationary vehicle and blocked it in. The appellant got out of his car. He was seen by the complainant's passenger to pick up a knife as he did so. He confronted the complainant about what he had said and there was a verbal exchange between the two men. 3. The appellant refused to move his vehicle and so the complainant tried to reverse away from the situation. However as he began to do so the appellant leaned through the driver's window of the complainant's car and slashed the face of the complainant with the knife. The slash entered one side of the mouth, went through the mouth injuring the gum and exited through the lower left lip, cutting entirely through the left lip so that the two parts of the lip were left separated. That slashing motion then continued so that the shoulder of the victim was also struck and there was a three-inch cut sustained to that part of the complainant's body. 4. At that point the appellant walked off. The appellant had had in his vehicle another man who had come out of the appellant's vehicle at about the same time as the appellant got out. That other man was an Angolan national who at the time was working illegally for this appellant. The appellant's action in the aftermath of this incident was to tell that person to leave the city of Coventry and not to come back. That was the beginning of a seriously aggravating feature of this case. The appellant set about within moments of the offence taking place creating a false defence for himself. The appellant had left the scene for a short while but then returned to the scene, by which time the police arrived and he was arrested. In a series of interviews he denied that he was responsible for inflicting the injuries upon the complainant. He said that the person responsible was the person who had been his passenger - the man he had told to leave the city and not to come back. However, the police investigation showed that that repeated account was lies. There was a positive identification of the appellant made both by the complainant but also by the other person in the complainant's vehicle. 5. Eventually the man who had been a passenger in the appellant's vehicle was traced by the police and he confirmed the accuracy of the identification by made by the complainant and his passenger. Accordingly when the matter came to court this appellant tendered a prompt and early guilty plea. 6. There was a basis of plea document placed before the court. In it the appellant said that he had attacked the complainant after he had been called a black bastard twice. The appellant also said that the knife which was used was not a Stanley knife but a putty knife. Assuming that to be correct, and the prosecution did not seek to contradict those assertions, it is plain to us having seen the photographs of the injuries that that knife, however it may be described, was an extremely sharp one. The appellant's account was that the knife which he used was one which he had with him that day for purposes relating to his work. Again the prosecution did not seek to contradict that. 7. This appellant is 33 years of age. He was of previous good character. There was a pre-sentence report available to the judge and there were favourable references, together with two letters from the appellant. The reporting officer found that the behaviour of this appellant was out of character as the appellant himself said it was. He took full responsibility for what he had done. The author of the report's view was that notwithstanding the level of violence used the likelihood of reoffending was low. The appellant had come to this country some 11 years ago and had worked his way up the employment ladder. At the time of his arrest he was self-employed and ran his own cleaning company. He was a married man with two children. There was no evidence at all that he was someone who abused alcohol or drugs. 8. The submission made to us is that the sentence which was imposed in this case was manifestly excessive - either the judge failed to give sufficient credit for the matters favourable to this appellant and his guilty plea, or he had adopted too high a starting point. Mr Singh also reminded us that the incident was preceded by racial provocation in the way which we have described and pointed out that what occurred was an attack involving a single blow or, more accurately put, a single slash as opposed to repeated use of the knife. 9. This was a vicious attack causing a dreadful injury. It was caused with a knife which this appellant had with him and had removed from his car when he went to confront the victim. He used the knife, it is plain to us, to punish the victim for the abuse which he (the appellant) had received. The appellant pleaded guilty at an early stage to this serious offence, although we have to point out the aggravating nature of the way in which he had sought to blame another, leading indeed to the arrest of that other person. The offence was undoubtedly out of character on a review of this appellant's background. He is a hard-working family man and the judge accepted that by the time of sentence he was expressing genuine remorse. The judge was entitled to and indeed took account of the element of racial provocation which no doubt lay behind the flaring up of this incident. 10. The ultimate question for this court is whether in those circumstances, including the guilty plea, a sentence of six years was too long. In our judgment the sentence was in all the circumstances too high. In our judgment the sentence imposed does not sufficiently reflect the mitigation which was available to this appellant, in addition to the guilty plea. We have had regard to the recent Sentencing Guidelines Council guideline which came into effect about a month after the time of sentencing in this case, but it supports our conclusion that the sentence which was in fact imposed was one which was too long. Nonetheless, this was a serious offence involving a very sharp bladed weapon used with the intention of causing really serious harm and used in a way which was bound to disfigure and indeed to cause serious harm. We have pointed to the additional aggravating feature of this offence, namely the attempt to blame another. Taking account of those matters, we consider that a reduction of the sentence is merited to the extent of reducing the sentence in this case to one of five years. To that extent the appeal is allowed.

```yaml citation: '[2008] EWCA Crim 1212' date: '2008-05-15' judges: - LORD JUSTICE HUGHES - MR JUSTICE TREACY - SIR PETER CRESSWELL ```

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No: 2006/6372/D2 Neutral Citation Number: [2007] EWCA Crim 2857 IN THE COURT OF APPEAL CRIMINAL DIVISION Sitting at Birmingham Crown Court Queen Elizabeth II Law Courts 1 Newton Street Birmingham, West Midlands B4 7NA Date: Wednesday, 7 November 2007 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE LATHAM) MR JUSTICE GIBBS MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - R E G I N A v LEE STANLEY - - - - - - - - - - - - - - - - - - - - - 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 M Hutt appeared on behalf of the Appellant Mr J Challinor appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE GIBBS: This appeal brought by the appellant Lee Darren Stanley with the leave of the single judge against a confiscation order raises a question about the meaning of the words "he obtains property" under section 76(4) of the Proceeds of Crime Act 2002 . 2. On 21st September 2004 in the Crown Court at Wolverhampton the appellant pleaded guilty to a count of handling stolen goods and assisting in the retention of stolen goods. On 31st August 2005 he was sentenced to 15 months' imprisonment. On 11th September 2006 a confiscation order was made by His Honour Judge Challinor for £70,274.10 with 18 months' imprisonment in default - that imprisonment, if it came into effect, to be consecutive with the substantive sentence. The only challenge in this appeal is to the appropriateness of the confiscation order. 3. In the year 2003 a company known as RDS Automotive Interiors Limited supplied components to M G Rover which were manufactured at their premises in Tipton. The plant was closed for a week at the end of October 2003. During that period, at about 2.30 in the afternoon of 29th October, the appellant, driving a Mercedes lorry, dropped a skip off at the site. Later that same afternoon, no doubt by arrangement, two men entered the site. One kept a lookout while the other went into the factory and came out with a large manufacturing tool on a fork-lift truck which was placed in the skip. A similar procedure was used to remove other large manufacturing tools from the factory. They were all placed in the skip. In the early hours of the following morning the appellant came back with his lorry and removed the skip. 4. The reason why we are able to describe these events so clearly is that they were caught on CCTV. The appellant's lorry was traced and he was arrested. At first he told a story about collecting the skip on instructions from a friend called "Dave" and that he had been doing no more than taking wooden pallets. However, the truth soon emerged. 5. The value of the tools to their legitimate owners was just over £250,000. It appears that their value as scrap was limited to some £10,000 and it appears further that the property was being stolen in order to be sold as scrap. The effect on the business of M G Rover was very serious indeed. It lost them three days of production, resulting, it appears, in a consequential loss of more than £10 million. 6. The appellant pleaded guilty upon a written basis of plea as follows: "(a) He dropped off the relevant skip knowing it was to be used for a criminal purpose; (b) He did not know that the contents were aluminium tooling; he believed that it was stolen scrap metal." 7. In considering the appropriateness of a confiscation order, the judge received detailed submissions on the issue and delivered a reserved judgment. The relevant statutory provisions may be stated quite briefly. The Proceeds of Crime Act 2002, section 76(4) provides: "A person benefits from conduct if he obtains property as a result of or in connection with the conduct." There is further clarification provided about the meaning of the word "obtains" in section 84(2)(b): "... property is obtained by the person if he obtains an interest in it..." Section 84(2)(h): "... references to an interest, in relation to property other than land, include references to a right (including a right to possession)". 8. One of the issues that the judge had to determine and the issue upon which leave to appeal to this court has been given revolves around the meaning of section 76(4) . If the appellant obtained property as a result of or in connection with his conduct then he benefited from the conduct and a confiscation order was appropriate. If, however, he did not obtain property within the meaning of that subsection, then he did not benefit from the conduct and a confiscation order would not have been appropriate. 9. In his ruling on the issue of confiscation, the judge recited the fact that the appellant had been paid £100 to drop off the skip in which the tools were placed and then returned to collect and deliver the skip as instructed. The judge noted that there was no assertion by the prosecution that the appellant had a criminal lifestyle and therefore he had to determine whether the appellant had benefited from the particular criminal conduct, namely the handling. The judge went on to consider the statutory provisions which we have just cited. The judge noted that it was asserted that the benefit of the conduct was limited to £100 for the appellant's part in transporting the stolen property and that the scrap value was confined to £10,000. It was submitted, therefore, if any confiscation order was appropriate it should be limited either to the lesser or, at most, to the greater sum. The judge referred to the value of the property to its owners and to the losses caused to M G Rover. He found that the appellant had clearly obtained the property. He had pleaded guilty to assisting in the retention of the machine tools and the fact that he was unaware of their real value was irrelevant. It was the physical obtaining that counted. 10. The judge considered authorities to which he had been referred, including R v Smith (David) [2002] 1 WLR 54 and R v Wilkes [2003] EWCA Crim. 848 . He concluded that the appellant obtained the property within the meaning of the subsection when it passed through his hands and that the value to be attributed to it was the replacement value rather than the value which the appellant attached to it, namely the scrap value. 11. It is not necessary for us to rehearse a number of further issues which the sentencing judge considered in the course of his judgment. The reason is that the single judge gave leave to appeal on one issue and one issue alone, namely whether the appellant can properly be said to have "obtained the goods". 12. Mr Hutt, on behalf of the appellant, relies upon the following factual aspects of the offence and the circumstances surrounding it. He relies on the fact that others, not the appellant, were responsible for organising and carrying out the theft of valuable tooling from the industrial premises. He points out that as it happens none of those individuals, though seen on CCTV, was ever arrested. He relies on the fact that the appellant's only part in the events was to drop off an empty skip and later transfer it together with its contents. He relies on the basis of the appellant's plea as to what happened thereafter. He says that it was not disputed that the appellant's role was confined to that which has been described to us. He relies on the fact that the appellant received only £100 for his services. He submits under the circumstances that the appellant's knowledge of what he was removing and his degree of control or possession of it, if any, were all minimal. Under those circumstances he contends that the appellant did not "obtain" the metal in the sense required by the relevant subsection. He argues by analogy on section 15 of the Theft Act 1968 as support for his argument since it speaks of obtaining as involving ownership, possession or control. He submits that in the present case ownership does not arise and the degree of possession and control were either absent or minimal. He relies on the fact that the offence to which the appellant pleaded guilty was not receiving the property but assisting with its retention. The particular offence with which the appellant was charged was, said Mr Hutt, further support for the proposition that he never essentially exercised any control over the goods. 13. The respondents say quite simply that the appellant obtained the tools within the meaning of the subsection when he collected the skip and took them away. The prosecution acknowledge that there is no direct authority on the meaning of the expression "obtaining property" within section 76(4) of the Proceeds of Crime Act 2002 . But they do rely on several authorities which deal with the predecessor of that subsection, namely the Criminal Justice Act 1988, section 71(4) . That section provided: "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." There was no definition or clarification of the expression "obtains property" within the 1988 Act . However, there was consideration of its meaning in the case of J v CPS [2005] EWCA Civ. 746 . This was an appeal to the Court of Appeal against a refusal to set aside a restraint order. At paragraph 38 of his judgment, Laws LJ considered the meaning of the word "obtain" and said as follows: "Clearly it does not mean 'retain' or 'keep'. But no less clearly, in my judgment, it contemplates that the defendant in question should have been instrumental in getting the property out of the crime. His acts must have been a cause of that being done. Not necessarily the only cause: there may, plainly, be other actors playing their parts. All that is required is that the defendant's acts should have contributed, to a non-trivial (that is, not de minimis) extent, to the getting of the property. This is no more than an instance of the common law's conventional approach to questions of causation. 14. I do not believe that there is a separate requirement that the defendant must be shown to have control over the property, although in reality if he has been instrumental in getting it he will, no doubt, in some sense (and at some stage) have had control over it." The respondents submit that in the present case the appellant was instrumental in getting the property out of the crime. He provided the skip and took the property away. It is submitted that the length of time that it was in his possession is of no consequence. 14. The respondents place reliance on the case of R v Smith (David Cadnam ) [2002] 1 WLR 54 , a case in the House of Lords. The respondent says that although that was directly concerned with section 71(5) the Court of Appeal in the case of R v Wilkes [2003] EWCA Crim. 848 held that a similar approach could be applied to section 71(4). The essence of those decisions was that the important assessment was of the value of the property in the hands of the offender when he obtained it regardless of what happened to it afterwards. The respondents submit that the approach adopted in those cases is consistent with what they describe as a simple statement of principle by the then Lord Chief Justice in R v Currey (1995) 16 Cr.App.R (S) 421. The Lord Chief Justice said that for the purposes of 71(4) "benefit": "does not mean that the defendant has retained the property, simply that he has obtained it." 15. In our judgment the logic of the respondents' case is persuasive. It cannot, we think, reasonably be argued that a person who participates in criminal conduct by collecting property which he knows to be stolen is otherwise than taking possession of that property. He may not be the principal offender. He may have been asked or instructed to collect the property by others, but in any circumstances falling short of duress, which is not suggested in the present case, he assumes possession of the property. That being so, in our judgment, in any sensible meaning of the word he "obtains" the property. To use Laws LJ's terminology he "gets the property out of the crime." As it seems to us, there is no need to resort to or consider section 84(2)(b). That subsection is designed, in our view, to cater for a situation in which an offender, whilst not necessarily obtaining possession of goods, obtains an interest in them. Here it is clear that the goods themselves were obtained. The fact that the offender may be ignorant of their true value is in our judgment immaterial. On the facts of this case he was aware that he was collecting a substantial amount of property which had been stolen from a nearby factory. It must have been clear to him that they were metal components of some kind. When he collected them, in our judgment, he obtained them. As was recognised in the case of R v Smith (David Cadnam) the effect of legislation of this kind may be draconian, but the purpose is to strip proven criminals of the benefits of their crime which, as was said, may not be out of place in that context. 16. Here many of Mr Hutt's powerful submissions were directed not to the question of whether the appellant obtained the property, but to the general fairness or otherwise of a situation in which he was ordered to pay a sum very many times greater than that which he stood to gain from the criminal enterprise. Indeed, that is the only sense in which the outcome here could be seen as draconian. Viewed from the point of view of the losers in this matter, namely the automotive suppliers and M G Rover, the amount of the confiscation order might be seen as a small fraction of the loss suffered by the victims of the criminal enterprise. 17. We return to the discrete point in issue. We are quite satisfied that the facts here amply justified the conclusion of the judge that the appellant "obtained" goods within the meaning of section 76(4) of the 2002 Act and accordingly the appeal must be dismissed.

```yaml citation: '[2007] EWCA Crim 2857' date: '2007-11-07' judges: - (LORD JUSTICE LATHAM) - MR JUSTICE GIBBS - MR JUSTICE LLOYD JONES ```

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Neutral Citation Number: [2011] EWCA Crim 2463 Case No: 200906579 D5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT IN LIVERPOOL His Honour Judge Lyon T20077606 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/10/2011 Before : LADY JUSTICE RAFFERTY DBE MR JUSTICE MACKAY and HIS HONOUR JUDGE LORAINE-SMITH (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : REGINA - and - SW - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss D Gould appeared for the Crown Mr T Chaize appreared for the Appellant Hearing date : 19 th October 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Rafferty : 1. On 22 January 2008 in the Crown Court at Liverpool the Appellant (53) was convicted of 3 counts of rape (counts 1, 2 and 3) 4 counts of indecent assault (counts 4-7 )3 counts of indecency with a child (counts 8 -10) and 2 counts of engaging in sexual activity in the presence of a child (counts 14 to 15) 2. On 11 February 2008 for count 3 rape he was sentenced to imprisonment for public protection; the minimum term under s. 82A Powers of Criminal Courts (Sentencing) Act 2000 7 years. In respect of counts 14 and 15 he was sentenced to IPP, (concurrent inter se and with count 3) the minimum term 3 years. On counts 1, 2 and 4 to 10 there was no separate penalty. 3. He appeals against conviction on counts 1, 2 and 3. The facts. 4. The appellant is the elder brother of HWC (complainant in counts 4 to 6) the mother of EW complainant counts 1 to 3 and SJF count 7. His second wife is LJW. Her sister HJ has daughters JCJ, EJ, GJ and CJ, complainants in counts 8 to 15. The appellant and LJW lived in Wigan before their July 2004 move to Spain. In October 2005 EW complained that he had sexually abused her when she was younger and a cascade of allegations then emerged. 5. Count 1 anal rape (the ‘bathroom rape’ ) . EW (born [a date in] 1990) said that aged 9-10 and visiting her aunt and uncle, after her cousin B had gone to bed she was playing a computer game when the naked appellant came up behind her. She tried to get away, he pulled her back, she ran to the bathroom and locked the door. He kicked the door down. B was told she had locked herself in and the appellant had helped her get out. B went back to bed, the appellant took her back to the living room, pushed her down on her front and inserted his penis into her anus. She told her mother HCW enough to ensure she was not at his house again without an adult. 6. Count 2 ( ‘burning field rape’) When the family was holidaying in Spain LJW and the appellant held a party for her 14 th birthday. The other guests were outside watching the fields being burnt, a custom in Spain, only 1 or 2 people in the house. She used the bathroom but the door did not shut properly. The appellant walked in on her, apologised, said he had not realised she was there, and then said he had a present for her. He said; “You’ll like this present, you’ve had it before.” He took her to a bedroom and raped her anally. 7. The final occasion (count 3) (‘the McDonalds rape’) was during the family holiday to Spain the following year, 2005. Visiting the appellant and his family for the day in Benalmedana she went to McDonalds in a group including 3-4 adult family members. Her mother was on the beach. When EW came out of McDonalds she stopped to look into a shop and found herself alone with the appellant who forced her to go down a side alley and perform oral sex. She returned to her mother on the beach and said she had gone to McDonald’s to use the lavatory. She did not want to cause trouble. 8. HWC (counts 4-6) the Appellant’s sister said she was 12-13 when on 2 or 3 occasions in a nightdress or pyjamas she woke to find him fumbling around “into her with his fingers.” touching her vagina. Told to stop he did. She locked the experience away in her mind. For a substantial period of time she had a good relationship with him. The first time her daughter EW told her about the abuse was during a heated discussion when EW said words to the effect of; “How would you feel if you were playing with your Play Station and you felt him up behind you with all his bits out and his dressing gown open pressing against you?” Because of EW’s friendship with the appellant’s son B, she asked her mother not to complain. They agreed she would not be left alone with the appellant in future. Once, out of the blue, in a telephone call LJW told her that HJ (mother of the complainants counts 8 - 15) had complained he was a paedophile. Thereafter HWC had no contact with HJ. Subsequently EW told her mother “something had happened” and HWC said far worse had happened to her and to SJF elder daughter of HWC and sister of EW. This drew further complaints from EW. 9. SJF Count 7 (born [a date in] 1972), said she visited the appellant and LJW regularly. He would be naked beneath his unbelted dressing gown. She was a teenager when once he said something like; “I’ll give you a cigarette if you give me a wank.” She masturbated him for approximately 5 minutes. He put his hand on her leg and stroked her stomach. 10. JCJ (counts 8-10) (born [a date in] 1987) said he kept his dressing gown closed only when LJW was present otherwise he left it open. One evening when she was 14 or 15 her aunt had gone to bed, she and he were playing Monopoly and he began masturbating himself. He said; “Can I have a look at you?” She thought he wanted to see her naked. She told her aunt what he said but was too embarrassed to mention his masturbating. He later explained he was looking for head lice. Something similar happened when she was 12 or 13 [youngest 11 oldest 15] The appellant joined in a floor game between JCJ and her sister G leaving his dressing gown open. He picked them up tickling them and was masturbating. She did not tell her mother because she was scared. 11. GRJ born [a date in] 1989 (counts 11 to 13 upon which the jury returned verdicts of Not Guilty on the judge’s direction) said he would wear his dressing gown with nothing on underneath. His erect penis was visible on occasion. She thought once when they were lying on sofa the he rubbed it against her back but could not be sure. Once he tickled her and she felt uncomfortable 12. CJ (born [a date in] 1995) (count 14) said once in 2004-2005 she had seen the appellant in his dressing gown, sitting in a chair playing with his penis. 13. EJ (born [a date in] 1997) Count 15 said once in 2005 she was in the bedroom with her sister C. he in his dressing gown stood by the door “showing his willy and playing with it.” He might have been wearing a top and shorts under the dressing gown; she did not know. 14. HJ (mother of complainants JCJ, GJ, CJ and EJ (counts 8-15)) said she spoke to LJW about the appellant walking around with his dressing gown open. 15. The appellant gave evidence that all allegations were fabricated. He had never carried out any sexual misconduct towards any member of his family. In the late 1990s HWC’S daughter SJF came to stay due to behavioural issues. He agreed “You can have a ciggie if you give me a wank”, shock tactics to get her attention and discourage her from smoking. He had never purposely or in any other way pressed his private parts against any parts of any complainant’s body, nor masturbated in her view. He had never engaged in a tickling game as an excuse for some sort of sexual contact. He wore his dressing gown until after breakfast and after his bath at the end of the day. His wife on occasion told him to cover himself up because there had been a couple of accidents, but she made sure he wore underpants under the gown. 16. EW could not have locked herself in the bathroom (count 1) because there were no locks on any room. EW’s 14 th birthday party in Spain saw 20-30 in and out of the house all the time. The door to the room in which the offence was alleged to have taken place was open at all times and would not shut all the way. There were no locks on the doors. EW could not have been separated from the rest of the party in Benalmadena nor could he and she have gone up an alleyway for oral sex since all in the group stayed together. 17. LJW called in his defence said on EW’s 14 th birthday party, nothing in her behaviour caused concern. On the visit to Benalmadena there was never an opportunity for oral rape in the town centre nor a time when EW and her husband were away from the party on their own 18. RJ (LJW’s niece), AJ (RJ’s step-mother) and APJ (LJW’s brother and RJ’s father) all gave evidence that on the day trip to Benalmadena there was not the time, space or opportunity for him orally to have raped EW though they were not monitoring his movements minute by minute. Grounds of appeal. 19. Counts 1-3 the rapes, are unsafe because: i) The Judge wrongly directed the jury that it could use any evidence on any count as evidence of propensity to support the rapes. Counsel relies upon R v Chopra [2006] EWCA Crim 2133 ; R v Wallace [2007] EWCA Crim 1760 ; R v Freeman, R v Crawford [2008] EWCA Crim 1863 ; R v Tully and Wood [2006] EWCA Crim 2270 and R v Clements [2009] EWCA Crim 2716 .) ii) Evidence of sexual misbehaviour, not charged, was merely “reprehensible behaviour” and pure bad character evidence. There was no application to adduce it as there should have been, and no objection to it, a very serious misjudgment in itself rendering the trial unfair. iii) The appellant was wrongly cross examined as to bad character, it being put to him that he was a “con artist” in relation to claiming unemployment benefit. Again, no application made, and no objection taken. iv) The Criminal Procedure Rules in relation to applications to adduce bad character evidence were ignored. v) The learned judge failed to remind the jury of important evidence pointing to the unreliability of prosecution witnesses. vi) The failure of counsel to put the defence by cross-examination or when calling, or failing to call witnesses was a very serious misjudgment rendering the trial unfair. The failure was partly responsible for the failure of the learned judge to sum up the defence case in any of the 3 counts. The Law 20. S98 CJA 03 where relevant defines bad character evidence as: i) …disposition towards misconduct…….other than evidence which a) has to do with the alleged facts of the offence….charged….. ii) S 100 (1) provides that BC evidence is admissible if……a) all parties agree …d) it is relevant to an important matter in issue between the defendant and the prosecution… iii) S101(3) provides that BC evidence must not be admitted if on a defence application to exclude it it seems to the court that “the admission…….would have such an adverse effect upon the fairness of the proceedings that the court ought not to admit it”. On such application the court “must have regard in particular to the length of time between the matters to which that evidence relates and the matters which for the subject of the offence charged.” iv) S 101 (3) provides that propensity to commit offences of the kind charged is included as a matter in issue under 101(1)(d) “except where his having such a propensity makes it no more likely that he is guilty of the offence” Oral development of the Grounds . 21. Counts 1, 2 and 3 alleged rape when the appellant was at least 39 years old. Counts 4, 5 and 6 alleged indecent assault by touching his sister’s genital area whilst she slept, he 15/16, she 12/13. All other counts, 7 to 15, alleged indecent conduct involving masturbation, he at least 37, and more than 20 years from counts 4, 5 and 6. 22. The Appellant submits that putting his fingers into his sister’s vagina, or mere touching it as she slept, does not show a propensity to rape, nor is it “sufficiently similar to be capable of supporting” a rape. Counts, 4, 5 and 6 are conceded as cross admissible but vis a vis each other only. Mr Chaize argues that they should have been severed, alternatively that the jury should have been directed to disregard them when considering the rape counts. 23. None of the other allegations, counts 7 to 15, which involve masturbation or “playing with himself” while wearing the dressing gown flapping open shows, so the argument goes, a propensity to rape. In one case he persuaded a child to masturbate him. In another he masturbated while playing a tickling game and in others masturbated in front of the children, evidence relating to these counts was cross admissible vis a vis these counts only. They too, so it is said, should have been severed. Alternatively the jury should have been directed to disregard them too when considering the rapes. The Respondent Crown . 24. Miss Gould, who appears here and below, explained the Crown’s case as that the Appellant was a man who would walk around with his dressing gown open in order to desensitise children so that he could behave in sexually inappropriate ways: masturbating in front of them and touching them in various places. All the children were female family members aged between 8 – 16, all in his care and with one exception his home at the time the offences occurred. The offences were opportunistic and the Appellant prepared to take risks to commit the offences knowing the family situation of the various girls and how vulnerable they were due to their poor relationships with their mothers. This was a pattern of behaviour albeit the behaviour was of different degrees of seriousness. 25. She submits that if the jury were sure of guilt in relation to any of the counts, that was evidence of a sexual interest in/attraction to female family members in his care, of sexually inappropriate behaviour towards them, and/or of grooming. Any one count proved made it more likely he committed the other offences. If seven female relatives within a limited age span all said he had sexually misbehaved in similar circumstances, it was more likely to be true than if only one said it even if there were a difference of degree in the conduct complained about. It went to credibility. Recent authority . 26. Mr Chaize (who did not appear below) today showed us R v D, P and U [2011] EWCA Crim 1714 where the court considered whether on a count of sexual abuse of a child, possession of indecent photographs of children were capable of admission as bad character evidence as evidence of a sexual interest in children, relevant to an important matter in issue between the defendant and the Crown The Vice President said that it does not necessarily follow that a person who enjoys viewing such pictures will act out activity there depicted by abusing children. The appropriate question was whether it were relevant to demonstrate a sexual interest in children. It could be. A sexual interest in small children or pre-pubescents is relatively unusual and certainly not the norm. The case against these defendants was that each had such an interest and translated it into active abuse. Evidence of viewing and/or collection of child pornography is capable of being admissible through gateway (d) though not automatically so; bad character provisions require an exercise of judgment, specific, in every trial. Moreover, this was but the first part of the exercise. The court must consider whether it were unfair to admit the evidence and in some cases it might be. Propensity in the true sense is a trait making it more likely the defendant behaved as charged. Juries should be reminded that they cannot proceed directly from the possession of photographs to active sexual abuse: the extra step must be proved. The previous behaviour must bear a sufficient relationship to the offence now charged for it to be capable of showing a propensity to commit such offence and to do so without unfairness. The court’s general conclusion was that possession of child pornography may, depending on the facts, demonstrate a sexual interest in children admissible through gateway (d) upon trial for offences of sexual abuse of children. It will not always be so. It may be right to exclude the evidence as a matter of discretion, particularly if its probative value is marginal. Discussion 27. We have approached the first Ground not by reviewing whether counts 4-6 and then counts 7-15 should have been the subject of a severance argument, as Mr Chaize submits, but by considering whether the rapes were properly tried on the same indictment as the balance of the counts. The evidence upon which the Crown relied to prove the rapes was of force used on a girl aged between 9-10 until early teenage, her assailant at least in his late thirties. The conduct complained of was penetration of her anus, on two indicted occasions, and of her mouth. The balance of the indictment alleged inappropriate sexual comment or sexual misbehaviour varying from exposure of the genitals to masturbation. Counts 4, 5 and 6 alleged touching the Appellant’s sister’s genital area whilst she slept, he 15/16, she 12/13. Counts 7 to 15 alleged indecent conduct involving masturbation, he at least 37, and with a gap of over 20 years from counts 4, 5 and 6. 28. R v D, P and U considered a temporal progression from the viewing of pornography to the acting out in physical abuse of its depicted content. We might, for shorthand purposes, equally well describe such as a translation of cast of mind into activity, in a readily understood escalation. The position here is very different. There existed clear water between the most serious allegations, rape by a forty-year old of a girl aged between 9 and 14, and indecencies beginning with the touching of a 12-13 year old by a 15-16 year old. Additionally, there are striking temporal gaps, of 32 and of 20 years. What we might term the gulf, in terms of harm, of culpability and of date between the rape and the remaining allegations is wide. We are surprised that the Crown considered that the rapes ought to be prosecuted with the balance of the indictment. That said, there was no application by the defence for severance, also surprising. The judge was confronted with apparent agreement between counsel that the counts were properly joined. Each member of this court would unhesitatingly have ordered severance of the rape counts. For reasons which will become apparent, we need do no more than express our disappointment that neither counsel put his or her mind to the potential prejudice consequent upon that failure. The picture is not improved by defence counsel’s failure to respond to these grounds despite waiver of privilege. Cross – admissibility. 29. Assuming the indictment remained in the form in which we now have it, in our judgment it was essential the jury be given a very clear direction on how it should treat evidence on the various counts and groups of counts in relation to other counts or groups of counts. Towards the end of counsel for the Crown’s cross-examination of LJW, the final defence witness, the judge indicated that this was an interesting point “that we will come back to”. 30. In the event there was no detailed consideration of this issue. There was a brief discussion in the absence of the jury on 21 st January 2008 in the course of which the judge noted that “this case has proceeded pretty much on the basis that the one does support the other”. He concluded the discussion by saying “the use of the evidence, the one against the other, that is a matter which I will deal with pretty much in the way I have already indicated”. That appears to have been the full extent of the consideration of this issue by judge and counsel. 31. When he came to sum up the case he gave a standard direction that the jury should look at each of the charges separately and decide the case against and for the defendant on each separately. “The evidence is different, it comes from different people and therefore your verdict need not be the same” he said. 32. He returned to the issue of cross-admissibility at page 7H to 8F. The passage is not lengthy and we set it out in full: “One of the things that the Crown invite you to do is to look, having looked at each of the cases separately, to consider whether the evidence of one count, and one person in relation to that count, could be used to support the case on another count. Members of the jury before you could use the evidence of one complainant in support of another, or of another count in the indictment, you must firstly be sure that there has been no collusion or contamination of the evidence. In short, you must be sure that the various complainants have not put their heads together for some reason to attack this defendant. If you are sure there is no collusion or contamination, does the evidence of one complainant, who you must be sure is telling the truth accurately, assist you in support of another complainant’s evidence by showing that the defendant has a propensity, a tendency, to commit these types of offences against young female members of his extended family? The first thing you do: are you sure there has been no collusion or contamination? If you are not sure of that then you must judge this case in each individual case purely by the evidence of the complainant in relation to that matter. But if you are sure there has been no collusion or contamination, providing you are sure of some particular person’s evidence , you can then use that evidence in support of other counts in this indictment by showing, as it may do in those circumstances, that he has a propensity to commit this type of offence .” [Emphasis added] 33. This direction, to which the Judge did not return later, puts the question of cross-admissibility of evidence in the widest possible form. The appellant argues that it gives the jury insufficient guidance as to how to treat the evidence of the various complainants on the various counts. There is no attempt to group the counts into, say, counts 1 – 3 (rape of a niece aged between 8 and 15, he in his forties); counts 4, 5, and 6 (indecent assault on his sister 25 or more years earlier, she was 12 or 13, he 15 or 16, by touching her vagina); and counts 7, 8 and 9 and 14 to 15 (indecent displays of his private parts to young female family members including some incidents of masturbation). By so doing, the Judge could and should, it is argued, have distinguished between these offences and particularly stressed the great gulf in seriousness between the first three counts and the remainder of the indictment. 34. Second it is argued that in all cases the jury should be directed that cross-admissible evidence should only be used as what Counsel described as “ a make-weight” to support other reliable evidence rather than to bolster an otherwise weak case or assume a primary role in proving the count being considered. 35. There is force in those submissions. In our judgment the danger was that, despite the brief direction to give separate consideration to each count, this jury was being invited to form an overall impression as to whether, in the words of Miss Gould, who prosecuted at the trial, “it did happen or it didn’t”. She contends that the summing up is good enough, though she concedes that in an ideal world the judge could have gone further and, in particular, a distinction could have been drawn between the most serious offences in counts 1, 2 and 3 and the lesser offences. The fact that there had been no argument seeking to exclude this evidence and therefore no discussion before the Judge of its potential impact on the fairness of the trial may have meant, she surmised, that the Judge tailored his fairly short direction to reflect the way the case had proceeded up to that point. With appropriate candour she accepts that with the benefit of hindsight this direction should have been approached in a different way. Her candour is to be commended, but she was prosecuting Counsel with responsibility for the indictment, and in a case where defence Counsel appears not to have been aware of the potential for unfairness that this direction might generate, it was her duty to assist the Judge to a much greater extent than she did. 36. On a minor point there was no direction at all as to what use they were to make of the evidence of GJ. The judge had directed acquittals of counts 11 – 13 relating to her because she failed to come up to proof, but she had given evidence of reprehensible conduct towards her by the Appellant which they had not been told to ignore. Conclusion. 37. We therefore consider that the judge’s directions were inadequate on the all-important question of cross-admissibility, and did not give the jury the assistance and close direction it needed. Even if these counts were appropriate to be tried together the verdicts resulting must therefore be regarded as unsafe. It follows that, pace our expressed views on the trial of the rapes on the same indictment as the balance of the counts, it has not proved necessary to consider any further grounds as advanced. 38. The convictions on counts 1, 2 and 3 are quashed. We give leave to appeal on counts 4 to 10, 14 and 15 and we quash those convictions also. We invite the Crown’s views upon a retrial.

```yaml citation: '[2011] EWCA Crim 2463' date: '2011-10-28' judges: - LADY JUSTICE RAFFERTY DBE - HIS HONOUR JUDGE LORAINE-SMITH ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2015] EWCA Crim 500 Case No: 201304840 B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 24 February 2015 B e f o r e : LORD JUSTICE BURNETT MR JUSTICE GILBART HIS HONOUR JUDGE GRIFFITH-JONES (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v RICHARD KELLY - - - - - - - - - - - - - - - - - - - - - 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 Joyce QC and Ms SJ Crabb appeared on behalf of the appellant Mr P Bennetts QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. LORD JUSTICE BURNETT: On 22 May 2013, in the Crown Court at Stafford before HHJ Tonking (the Recorder of Stafford), the appellant was convicted of murder. He was later sentenced to life imprisonment with a minimum term of 17 years. 2. This is his appeal against conviction brought by leave of the full court. There are three grounds of appeal. First, that evidence of bad character, which had been ruled inadmissible by the trial judge, was introduced by Miss Gould (prosecuting counsel) when she examined in chief Dr T Richardson (consultant psychiatrist on behalf of the prosecution). Secondly, that during her cross-examination of Dr Manny Bagary (consultant epileptologist and neuropsychiatrist) prosecuting counsel elicited from him his opinion that at least on one view of the facts the defence of loss of control was not made out. That was in the face of agreement between the parties, which the judge had endorsed, that the experts, of whom there were many, should not give their view on that matter. Thirdly, that the prosecution failed to give proper disclosure in three respects. The over-arching submission of Mr Joyce QC, on behalf of the appellant, is that these features demonstrate conduct on the part of the prosecution which was so unfair that it has resulted in the conviction being rendered unsafe. 3. The appellant, who is now aged 31, was arraigned for the murder of Brian Townley, which it was said had occurred on 16 or 17 July 2012. He had a co-accused, Thomas Heames. The three men had known each other for some time, perhaps 3 months. All were users of a drug known as Monkey Dust, which is a stimulant which acts in a way similar to amphetamine or cocaine. Mr Townley was 42 years old when he died. He was found dead in the flat belonging to Heames on 17 July. He had been savagely beaten. He had sustained 143 injuries, of which 121 were described by the pathologist as recent. There were substantial injuries to his head and neck, which were the cause of his death. 4. There had been an incident some days before involving the appellant and Mr Townley in which the police were involved, but no charges were brought. Although initially the appellant suggested that it was his co-accused who had inflicted the fatal injuries upon Mr Townley, shortly after the beginning of the trial he recanted and accepted responsibility for causing the death. 5. He also accepted that the violence inflicted upon Mr Townley was unlawful, but raised two issues before the jury. First, his case was that he did not intend to cause really serious injury; secondly, he ran the defence of loss of control found in sections 54 and 55 of the Coroners and Justice Act 2009. A second count of manslaughter was put on the indictment, to which the appellant pleaded guilty. 6. The circumstances in which the loss of control was said to arise were essentially these. As a young man of 19 the appellant had been the victim of a rape, or an attempted rape, late one night when he got into a car which he understood to be a taxi. His case was that as a result he suffered from post traumatic stress disorder (PTSD) and functional non-epileptic attack disorder (FNEAD). The latter condition caused him to suffer frequent epileptic like fits. 7. In the weeks leading up to the killing Mr Townley and the appellant had apparently become good friends. At some point the appellant told him, or gave him sufficient information for him to guess, the nature of the sexual attack some 10 years earlier. The appellant's case, as advanced at trial, was that Mr Townley had taunted him or wound him up about that incident by feigning a sexual interest in him. Mr Townley was a twice married man with nine children. Evidence adduced on behalf of the prosecution suggested that he was exclusively heterosexual. 8. In a very detailed account of the circumstances leading to the killing given by the appellant to Dr Richardson, the appellant described what on their face appeared to be sexual advances by Mr Townley, but himself explained that he thought they were feigned. He repeated evidence to the same effect before the jury. Be that as it may, the taunting by Mr Townley of the appellant was said to have led to his loss of self-control in circumstances where all the requirements for the partial defence of "loss of control" found in the 2009 Act were made out. There was a plethora of expert evidence concerning the question of PTSD and FNEAD. Some of that was directed towards the issue whether the appellant might be able to establish the partial defence of diminished responsibility. However, it was also contended on his behalf that it was relevant to the partial defence of loss of control. Diminished responsibility was not run at the trial. 9. As one would expect, each of the experts questioned the appellant about his background and history. In the course of that questioning the experts enquired about his previous history relating to violence. The appellant had three previous convictions for assaults. The details do not matter for the purposes of this judgment. One of those convictions predated the attack upon him. The prosecution eventually accepted that the sexual attack had occurred. The two other convictions were more recent. 10. The prosecution were also aware of many allegations of violence by the appellant from friends and associates and family members, none of which had been the subject of a prosecution. Indeed many of them had not been the subject of any investigation at all. 11. Following the appellant's acceptance of his factual responsibility for the death of Mr Townley, the murder charge was dropped against Heames. He pleaded guilty to a different offence. It was following those events that the prosecution made their application for the appellant’s bad character to be admitted. It was, as the judge pointed out in his careful ruling, a late application in any event. The judge ruled against the prosecution on that issue and excluded all evidence of bad character. 12. We note that the appellant, whilst of course accepting that he had been convicted of assault on the three occasions, did not accept any of the broad allegations made against him relating to the other incidents. One of the matters of understandable concern to the judge was that the trial would be deflected along a path of satellite litigation concerning a multitude of peripheral issues. 13. It was the contrast between the ruling that all evidence of bad character should be excluded and Dr Richardson's reliance, at least in part, upon that history of violence in forming one of her conclusions which gave rise to the complaint under ground 1. Prosecuting counsel sought to elicit the conclusion shorn of all its evidential foundation. 14. The prosecution argued that evidence relating to the appellant's PTSD and FNEAD was irrelevant to the partial defence of loss of control. As material, section 54 of the 2009 Act provides: "(1)Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if— (a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control, (b) the loss of self-control had a qualifying trigger, and (c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D. (2)For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden. (3)In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint." 15. The prosecution contended that the appellant's medical condition, of which the PTSD was disputed, fell within section 54(3) and thus was irrelevant for the purposes of the defence. The judge disagreed. By reference to the features of PTSD described in ICD-10, he concluded that the diagnosis of PTSD was relevant to more than the defendant's general capacity for tolerance and self-restraint. It was relevant to the defendant's circumstances as a whole because it was part of his character. He was also satisfied on the basis of the expert evidence which had been disclosed on behalf of the appellant that PTSD might provide an explanation for what appeared on its face to be a series of partial and contradictory accounts given by the appellant of the events, rather than a careful elaboration as suggested by the prosecution to meet their case. 16. The scope of section 54(3) has not been an issue in this appeal. We emphasise that the point has not been reargued before us. 17. In a shorthand written joint document produced by two of the appellant's experts, they expressed their conclusions about whether each of the factors identified in the statute necessary to found the partial defence of loss of control were established. Unsurprisingly there was concern that were evidence of that nature to be adduced it would trespass into the arena exclusively the domain of the jury and well beyond that of the expert. The issues for the jury are whether the defendant in question in fact lost his self-control, whether there was a qualifying trigger for the purposes of section 55, and whether a person of the same sex and age of the accused with a normal degree of tolerance might have acted in the same way. 18. There was an extensive discussion concerning the proper ambit of the expert evidence in the light of the judge's ruling that it was material to the defence being run by the appellant. There was agreement between the parties, which was endorsed by the judge, that the experts should not be asked whether in their opinion the defence of loss of control was or was not established. All agreed that that was not a matter of expert opinion because it involved an evaluation of non-expert factual matters entirely within the province of a jury. Ground 1: Bad character 19. Dr Richardson found no sign of PTSD, but considered that the appellant had suffered from anxiety and depression. She thought his psychopathology was complicated by chronic dependence upon illicit drugs. She also thought he had traits of dissocial personality disorder. In paragraph 7.7 of her report she expressed this conclusion: "I am concerned that Mr Kelly had a previous history of assaulting people when he is angry and this has been an established pattern of behaviour. He has previous convictions for violence. Mr Kelly, in my view, therefore demonstrates that he deals with conflict using physical force." 20. It was the last part of this paragraph that prosecuting counsel sought to get into evidence in the course of the evidence-in-chief. Both before and during the evidence of Dr Richardson there were many references in open court to what were described as "the parameters" of her evidence. That was a guarded allusion to the fact that the judge had excluded evidence of bad character and that all concerned should be careful to respect the ruling. 21. The evidence-in-chief followed very closely upon the content of the report. Having asked about drugs and dissocial personality disorder, to which we shall return, prosecuting counsel referred to “the parameters” and asked: "Did you consider whether or not Mr Kelly had any established patterns of behaviour?" Before Dr Richardson had an opportunity to answer the question the judge intervened. It was clear to him, as indeed no doubt it was to many others in court, that counsel was seeking to elicit the conclusion in paragraph 7.7. It was usual for a short break to be taken during the course of the evidence in the morning. The judge deftly contrived to do so at this point. The jury left court. The judge reminded counsel that he had ruled against the prosecution application on bad character and that she must respect that ruling. 22. It is then clear, from the exchanges that followed, that counsel thought that it would be permissible to ask Dr Richardson for her conclusion without establishing the factual premises upon which she had reached that conclusion. The judge sought to explain that such a course was not permissible. 23. There are circumstances in which an expert gives primary evidence of the factual matters upon which the expert opinion is then formed. That is often the case with a pathologist describing injuries found on a deceased and then expressing an opinion about their cause or possible causes. Psychiatrists may rely upon what they observe directly when interviewing a patient, but often depend to a great extent upon information provided to them by the person under examination or background information gleaned from other sources. In such cases the expert opinion is formed upon a series of factual premises which may or may not be correct. If the factual premises are uncontroversial it may well be appropriate to distil the conclusion for a jury and not complicate the evidence with unnecessary and sometimes complex underlying facts. That may be the case, for example, with some DNA evidence but otherwise the facts upon which the opinion is based must be described. If they are controversial they may be challenged. 24. Here the underlying facts were controversial in that the appellant disputed the general allegations of previous violence; but even insofar as the underlying facts were not disputed, that is in relation to the fact of previous convictions, that evidence had been ruled inadmissible by the judge. 25. In the lead up to the question we have identified Dr Richardson was also asked about her conclusion that the appellant showed "some traits of dissocial personality disorder", albeit that she thought the picture was confused by the use of illicit drugs. 26. Mr Joyce submits that the questioning, particularly when seen in the context of Dr Richardson's earlier description of the speciality of a forensic psychologist as being to deal with violent patients and prisoners, gave rise to an obvious risk. The risk was that the jury would infer that there were matters in the appellant's background about which they had not been told, but which the prosecution were hinting at. We note that he was also critical of an attempt by prosecution counsel during her cross-examination of Dr Bagary to revisit the issue. She raised the matter in the absence of the jury and received a firm answer from the judge whose patience, whilst by that point sorely tested, was commendable. He said, "I am sorry but I am not going to reopen bad character". 27. Mr Bennetts QC for the prosecution, who did not appear below, submits that nothing was admitted that should not have been. 28. It is regrettable, to put it mildly, that counsel prosecuting at the trial did not appear to appreciate that the ruling on bad character impacted upon the extent to which it was appropriate to explore the full amplitude of Dr Richardson's expert conclusions. Even more so that after a clear reminder from the judge during that evidence she came back to the topic in a different context during Dr Bagary's evidence. However in our judgment, Mr Bennetts is right. The quick action of the judge resulted in no harm being done with respect to the content of paragraph 7.7. 29. We do not consider that the evidence relating to dissocial personality disorder could give rise to the inference suggested by Mr Joyce. There was evidence other than the appellant's previous alleged or accepted violence, which could support such a conclusion, namely his description of the attack itself, the previous incident involving Mr Townley, and also much of his family history that was described in some detail by his own experts. The judge summed up this part of the evidence. No criticism was made of the summing-up and it clearly demonstrates that the judge did not consider that that part of the evidence was inadmissible. 30. Furthermore, we do not consider that a general description from a forensic psychiatrist of the specialist role of that discipline of medicine could give rise to, or provide any support for, an inference of the sort contended for on behalf of the appellant. It should not be forgotten that the basis upon which the expert evidence was eventually given was that the appellant accepted that he had launched a vicious fatal attack upon Mr Townley, in the context of a defence which suggested that, at the time, he was out of control. 31. In our judgment, the judge dealt with this problem admirably. We note that no submission was made to the judge that more should be done in respect of this matter, or that any harm had arisen in consequence of this undoubted lapse by prosecution counsel. Ground 2: Loss of Control 32. As we have indicated, the appellant gave conflicting and evolving accounts of events in the period between his arrest and trial. He did so not only in providing a prepared statement at interview, much of which he later contradicted, but also in his several accounts to the various experts. In the course of her cross-examination of Dr Bagary, prosecution counsel wished to place before the jury the different accounts that the appellant had given to him at various times. In his reports Dr Bagary dealt with a number of those accounts. One at least was not supportive of the suggestion that there was a loss of control. In addition to eliciting the appellant's account, prosecuting counsel then asked: "And your conclusion was he doesn't have a defence of loss of self-control? " Dr Bagary answered: “Not based on what he told me with that description." The judge immediately intervened and said: "Well, whether or not he does is not a matter for any expert witness, it is a matter for the jury." The following exchange then took place with the jury still in court. "MISS GOULD: I agree, but in your report, whether it be a matter for the jury or not, I accept of course your Honour it is, you have expressed the opinion -- JUDGE TONKING: No, I am sorry, Miss Gould. I am going to say this. We have discussed this in the absence of the jury and it has been decided and indeed agreed, the elements of loss of control which are susceptible to expert evidence and the elements which are not. MISS GOULD: I agree. JUDGE TONKING: And it is agreed that no expert can give an opinion as to whether they think there is loss of control or evidence of loss of control because that is a question for the jury. MISS GOULD: I agree completely with that, your Honour. That's not the point I am seeking to make. If you will allow me, I hope I can show you the point. JUDGE TONKlNG: I won't allow you. I am very sorry. The parameters are clear. You are drawing out from the witness his opinion of whether or not there was evidence of loss of control. MISS GOULD: No, your Honour, I am not seeking to do that. JUDGE TONKING: Will you give us a moment, ladies and gentlemen, please. I am very sorry." The jury then went out. The discussion continued: "JUDGE TONKING: I suspect that the witness doesn't need to leave for this discussion. MISS GOULD: He does, please. Yes, he does. JUDGE TONKING: Dr Bagary, I am sorry. Thank you. ... JUDGE TONKING: Yes. MISS GOULD: I am not seeking to draw out what your Honour thinks. What I am seeking to draw out is firstly having then acquired fresh facts by the process that he then goes through, which is the further questioning, there is a change of position, that is one aspect and, secondly, that this is contained in his report when we have had evidence from Mr Kelly that he has had the various psychiatric reports and the fact that the doctor has indicated that in the first instance and then there has been an alteration in position for Mr Kelly. JUDGE TONKING: Well, you can put that but you must not refer, as you have done, to what Dr Bagary's opinion was. MISS GOULD: Forgive me. I hope your Honour understands the point I am seeking to make. JUDGE TONKING: I do understand. MISS GOULD: If I have done it clumsily then I am sorry. JUDGE TONKING: I do understand, now that you make it clear. The difficulty was you just directly elicited what Mr Bagary's opinion was or at that time and that is not permissible. It's as simple as that. MISS GOULD: Forgive me. JUDGE TONKING: Right, can we have the witness back and can we have the jury back." 33. Mr Joyce then intervened and drew the judge's attention to a further problem. That problem was that the opinion elicited by prosecuting counsel was only part of the story because later in the report Dr Bagary had expressed his view that the nature of the attack admitted by the appellant, if it was accepted by the jury, indicated a loss of self-control when sexually charged comments were made to him. Prosecuting counsel then made clear that she had indeed wished to introduce evidence from this expert witness that on the early account given by the appellant the defence of loss of control would not run. We note that the early account preceded the appellant's acceptance of his responsibility for causing the death. 34. Prosecuting counsel appears to have been blind to the acceptance all round that no such course should be followed. 35. The judge reminded her that the doctor's opinion on whether the legal defence was made out was irrelevant. A discussion ensued about how to sort out the problem which concluded in these terms: "JUDGE TONKING: I think what I had better do is when the jury come back I had better explain to them that the opinion of Dr Bagary or any expert as to whether or not Mr Kelly lost control is irrelevant and in fact is inadmissible. MISS GOULD: Yes. JUDGE TONKING: But the question was asked and his opinion was elicited because a point is being made by the prosecution about an alleged change of account and it only goes to that and whether or not Mr Kelly lost control is not for any expert, it is for the jury. MISS GOULD: Absolutely. M R JOYCE: No, it doesn't go far enough. The opinion has been elicited. JUDGE TONKING: Yes. MR JOYCE: It has been elicited in absolute contradiction of the agreement and your Honour's ruling. JUDGE TONKING: I follow that. MR JOYCE: And it must be corrected specifically. That was Dr Bagary's opinion at one stage but in fact it's not a total change of story that is being referred to here either in this report if we can look at it. What is being adduced here is Dr Bagary saying the account is not hugely changed. It changes later. This is being asked about in terms of four to five blows to Mr Townley. "It is my opinion that Mr Kelly did experience a loss of self-control when he punched Brian Townley four to five times". This is towards the end of that self-same report and it has to be put as plain as a pikestaff. It shouldn't have been asked. The concluding opinion was this: Ignore both of them otherwise it is unfair. JUDGE TONKING: I rather gathered and implicit in what I said was that the concluding opinion would have to be given as well to address the balance. MR JOYCE: Absolutely. JUDGE TONKING: It must be given as well to address the balance." The jury then returned to court and the judge immediately gave them a direction: JUDGE TONKING: Members of the jury, there is a problem which I am going to try to put right. Questions of fact are for you and you alone. They are not for me, they are not for the lawyers, they are not for the expert witnesses. It is as simple as that. One of the questions of fact which you will have to decide in this case is whether or not Mr Kelly lost control and it is for you to decide on all of the evidence. It follows from that that whether an expert or anybody else at any stage thinks that there is evidence which does or does not support loss of control is totally irrelevant and for that reason the experts were not to go there. Miss Gould has elicited that at one stage, having heard an account from Mr Kelly, Dr Bagary was of the view that there was no evidence with supported loss of control -- inadmissible, irrelevant. Miss Gould's purpose, and I say this to be fair to her, was not to just get that out before you. The purpose is that Dr Bagary changed his opinion and he did so having had further discussion with Mr Townley (sic) Mr Townley having given him further and other information. That is the point of the question. It is right that you should know that Dr Bagary was of the opinion that has just been stated but at a later stage he changed his view about loss of control to a degree by saying that there was loss of control, though he opined that it was not complete. I tell you all that so that you know the full picture and you know why the question was asked but I must stress the opinion of any expert as to whether or not there was loss of control is totally irrelevant. It is a question for you to answer and it's a factual question and so the opinion of somebody else is not to the point. It is not to the point at all and that applies whether the opinion is yes or no or maybe. It just is not relevant. That is why I intervened when I did and that is why we have had the discussion and that is why I am giving you this direction now so that it is absolutely crystal clear, and I can see from you nodding that you understand and have taken the point. Thank you. Now may we have the witness back, please." 36. Mr Joyce takes no point on the judge mistakenly referring to Mr Townley on two occasions during the course of that direction. It was obvious that he was referring to various accounts given by the appellant. In our view, the judge explained to the jury in the clearest of terms that an expert's opinion on whether the defence of loss of control was made out was irrelevant, and also put right the partial picture that had emerged, as it was explained to him by Mr Joyce, by stating that Dr Bagary had come to a different conclusion elsewhere in his report. Both those conclusions were thus in one sense before the jury, then HHJ Tonking told the jury to ignore that evidence altogether. 37. No submission was made to the judge that his corrective action was inadequate, or that at that stage or later the jury should be discharged. Mr Joyce has explained that at the time that these events unfolded his focus, and the focus of his team, was on keeping the trial going in circumstances where the appellant was having repeated fits. That may well be so, but it is nonetheless a striking omission that there was no contemporary complaint of the nature now advanced. 38. Mr Joyce submits that because loss of control was the crucial issue in this trial, the introduction of the evidence by the prosecution "must make the conviction unsafe". We do not agree. We accept that what happened was more than unfortunate and led to Dr Bagary's inadmissible conclusion on the availability of the defence on one set of facts being placed before the jury. Mr Joyce has also submitted that even that was a partial account of the evidence found in the relevant part of his report. Nonetheless, it is clear that after careful consideration of submissions advanced on behalf of the appellant, which the judge accepted in full, the direction he gave neutralised any harm because the jury were told that Dr Bagary came to a different conclusion elsewhere in his report and, in any event, that the jury should ignore his opinion or opinions on this issue. 39. We would add that in his summing-up the judge dealt meticulously with the question of loss of control and produced a route to verdict for the benefit of the jury, which was agreed by the parties. 40. Whilst we understand fully the frustration felt both by the appellant and his team and indeed the judge at the turn of events, the issue surrounding Dr Bagary's evidence provides no basis for a conclusion that the conviction is unsafe. Ground 3: Disclosure 41. Mr Joyce complains, on behalf of the appellant, in relation to disclosure and what are called "general matters". They are distilled in paragraph 48 of the advice and grounds upon appeal and are in these terms: "In general terms, apart from the above, the prosecution of this case was characterised by unfairness in particular with reference to the following: (a) Failure to produce a chronology to the defence relating to their failed application to extend custody time limits. This was despite repeated requests and was only produced during the course of the hearing when it became apparent to the defence that there was such a document in the prosecution's possession which they had failed to disclose. (b) Informing the defence that the pocket notebook entry of PC Slater was not disclosable material. When these were finally disclosed after repeated requests it became plain that the document clearly assisted the defence and should have been disclosed earlier. The statement of PC Slater and the notebook require examination to see the point. (c) Cross examination of Mr Kelly in relation to the use he had made of the deceased's phone (in the possession of the defendant)... This was based upon telephone examination reports in the unused material not disclosed to the defence let alone served as evidence upon which the prosecution relied. To understand the significance of this it is important to consider the defence submissions in relation to this line of cross-examination... 'the problem I have is this, I don't know and I don't know because since material on the face of it quite clearly has been used that has been marked clearly not disclosable, I don't trust the rest of it.'" The last observation encapsulates an argument advanced by Mr Joyce to the judge and also before us that the problems with disclosure have led to a general lack of trust. 42. We note that the approach to questions of non-disclosure in criminal trials was settled by the Supreme Court in McInnes v Her Majesty's Advocate [2010] UKSC 7 relying upon earlier domestic authority, which in turn took full account of Strasbourg jurisprudence on Article 6 ECHR. In paragraphs 19 and 20 of his judgment Lord Hope identified two questions that fall to be considered in disclosure cases. The first is whether material under consideration should have been disclosed and the second is the consequence of any failure to disclose. As to the second he said: "The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict." Both Lord Walker and Lord Kerr agreed with Lord Hope. Lord Rodger at paragraph 30 and Lord Brown at paragraph 35 expressed the test in slightly different terms, but to the same effect. 43. The first complaint identified under this ground does not in fact touch upon the evidence adduced at trial. It is nonetheless a fair criticism of the prosecution. The second relating to PC Slater's notebook gave rise to no observable difficulty at the trial, although unquestionably it was disclosed late. As to the third, it is correct that prosecuting counsel asked the appellant questions about whether he used the deceased's phone and indeed Heames' phone in the weeks before the killing. It is also right that phone records were not disclosed before the questions were asked. 44. Mr Joyce submits that the questions were asked in a pointed way suggesting that the appellant had something to hide. The questioning came as a surprise to Mr Joyce and his team, given the absence of any disclosure of phone records. After the cross-examination had concluded Mr Joyce's team set out a series of written questions for the prosecution directed towards establishing the evidential foundation for these questions. In particular, they sought to understand whether phone records, which had been marked as "Not for Disclosure", had been used. 45. There was no response to the questions from Mr Joyce. It appears the prosecution lost the piece of paper on which the questions had been carefully set out. Thus it was in argument the next day that the issue was ventilated orally. Prosecuting counsel accepted that the foundation, at least in part, was to be found in the undisclosed records relating to what was described as an "unattributable phone". Some of the questions appear to have been merely speculative. There can be no doubt, as it seems to us, that having determined to ask the questions and used the records to craft some of them, that there was a duty to disclose those records before the questions were asked. Indeed, it would be necessary to disclose the records in time to give the defendant's team an opportunity to consider them and take instructions upon them. 46. Mr Bennetts did not seek to suggest otherwise. In our view, this was a serious lapse, alas one of many in the conduct of this prosecution. However, it is necessary to stand back and look at the quality of this evidence and its relevance. In our judgment, the exchanges were harmless and the judge rightly considered that part of the cross-examination to be irrelevant. A reading of the transcript leaves no real clue as to why this line of questioning was pursued at all. In a long and difficult trial this was perhaps the most peripheral of peripheral evidence. 47. As we have noted, these discrete issues, collected together under ground 3, support a submission from Mr Joyce that this was not only a poorly but unfairly conducted prosecution, particularly when viewed in the light of the earlier complaints under grounds 1 and 2. He has drawn our attention to a number of observations made by the trial judge during the course of the trial, which were critical of the way in which the prosecution was conducted. We can well understand why the judge said what he did. But criticism of the prosecution, even if fully justified, does not necessarily lead to the conclusion either that a conviction is unsafe, or that a trial was unfair. 48. We have dealt thus far with the individual complaints seriatim, nonetheless we have stood back, as Mr Joyce invited us to do, and asked ourselves whether the conviction is unsafe or whether the appellant was denied a fair trial. In our judgment the answer to both questions is "no". 49. Mr Joyce advanced legitimate criticism about the way the prosecution conducted itself. The judge too was, in our view, rightly critical on a number of occasions. Both he and Mr Joyce displayed commendable patience during the course of this trial, but the lapses by the prosecution in this case were not such as, in our judgment, undermined the conviction. In those circumstances this appeal must be dismissed.

```yaml citation: '[2015] EWCA Crim 500' date: '2015-02-24' judges: - LORD JUSTICE BURNETT - MR JUSTICE GILBART - HIS HONOUR JUDGE GRIFFITH-JONES ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200801293 A4 Neutral Citation Number: [2008] EWCA Crim 1194 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 14th May 2008 B e f o r e : LORD JUSTICE DYSON MR JUSTICE OPENSHAW HIS HONOUR JUDGE GORDON Sitting as a Judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - R E G I N A v ADAM STUART CROSS - - - - - - - - - - - - - - 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 C Ward-Jackson appeared on behalf of the Appellant - - - - - - - - - - - - - - J U D G M E N T 1. JUDGE GORDON: On 31st January of this year at the Crown Court at Salisbury, after a trial before His Honour Judge Cutler, the appellant was convicted of causing grievous bodily harm with intent. On 22nd February he was sentenced to life imprisonment with a minimum term of 6 years, less the 23 days that he had spent on remand. He appeals against both the sentence of life imprisonment and the minimum term with leave of the single judge. 2. The facts were these. On 29th July 2007 the victim, a Mr Starzacher, aged 34, was in the centre of Salisbury with a group of friends. They had been drinking. They went to a fast food outlet and at about 12.55 in the morning they came across the appellant who was slightly known to some members of the victim's group. The appellant was obviously drunk and started to abuse the victim. Everyone went outside where the appellant attacked the victim, trying to strike him with his fists. Someone else joined in and then the appellant struck a blow to the victim's head which caused him to fall to the ground. The appellant thereupon turned his attention briefly to another member of the group but then, as Mr Starzacher was trying to get to his feet, he kicked him on the left side of the head. 3. Others who had tried to prevent the attack tried to render first aid to the unconscious Mr Starzacher. The whole incident had been caught on closed circuit television and the operator of it immediately called the police. The appellant was still at the scene when the police arrived and he was arrested. He immediately admitted assaulting the victim, expressing remorse and stating that he had not intended serious harm. In interview he said that he had been drinking all day, had no recollection of the incident but accepted of course what was shown on the closed circuit television. 4. The victim was taken to hospital where he was found to have a blood clot on his brain which was removed by surgery. Although he regained consciousness in hospital, he then relapsed into a coma and he remains in a vegetative state which is likely to be permanent. 5. The sole issue at the trial was one of intent. The appellant was 28 years old. He had a number of previous convictions, in the main for offences of dishonesty but there was also a common assault in 1995. Most notably, for an offence of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 , in 1996 when he was 17 years old he received a sentence of 15 months in a young offender institution. That involved assaulting a policeman by kicking him in the head, breaking his nose and damaging some teeth. He also had two more recent convictions for common assault, one for obstructing an officer, another for being drunk and disorderly, and one for criminal damage. 6. The learned judge in sentencing set out the conduct perpetrated by the appellant, culminating in what he rightly described as a vicious, deliberate and appalling kick which had ruined the victim's life. The only matter of mitigation was that it was not a planned episode. 7. The grounds of appeal can be summarised in this way: firstly, the judge did not warn counsel that he was contemplating a life sentence; secondly, a life sentence was wrong in principle; and thirdly, the minimum term was manifestly excessive. We turn to each. 8. It is clear from the exchange between counsel and the judge immediately after sentence had been passed that Mr Ward-Jackson, who appeared below and appears today for the appellant, was taken by surprise by the discretionary life sentence as opposed to the only alternative, a sentence of imprisonment for public protection. Bearing in mind that he had accepted that the presumption of dangerousness applied, those were the only two types of sentence open to the judge. Perhaps he might therefore have contemplated the possibility of such a sentence but, be that as it may, it is in our view desirable, unless there are particular reasons for not doing so, for a judge contemplating a discretionary life sentence to alert counsel to the fact that it is at least a sentencing option that he is considering. That will give counsel the opportunity, in particular, to raise any matters of law concerning the approach to such a sentence. That said, the lack of a warning to counsel could not in our view of itself be a reason for allowing an appeal. It may lead to the existence of other grounds, as is suggested here and to which we now turn. 9. The second ground is that life imprisonment was wrong in principle. There have been a number of cases starting with R v Lang [2006] 2 Cr.App.R(S) 3 concerning the interpretation of section 225(2)(b) and in particular the words "is such as to justify the imposition of a sentence of imprisonment for life". It is, however, clear that the requirement that the offence itself should be serious enough, taken with any associated offences, to justify a sentence of life imprisonment has not been in any way watered down by the 2003 Act regime. 10. Mr Ward-Jackson in his submissions put forward two principal features of the offence itself which he submits means that a discretionary life sentence was not appropriate. It was, he says, a spontaneous drunken attack and not sustained. In our view, that is putting it a little too high. There was the earlier loutish behaviour and the punch which sent Mr Starzacher to the ground. That said, we accept that there was no pre-planning. Drunkenness does not assist the appellant. 11. Secondly, Mr Ward-Jackson submits that the injuries giving rise to the offence were the product of a single kick. That we accept. This is not a case, as many are, where kicking and/or stamping, once embarked upon, is repeated and the attack is sustained. We also bear in mind that the appellant at that time was acting alone. In our view, those factors, particularly the fact that there was a single kick, mean that the offence does not come within the small category of those offences contrary to section 18 where a life sentence is appropriate. 12. We have considered with care whether the effect upon Mr Starzacher was in itself sufficient to merit the imposition of a life sentence. There can be no doubt that in practical, as opposed to legal, terms his life was really ended as a result of the appellant's action committed, as the jury found, with an intent sufficient to amount to the crime of murder had Mr Starzacher actually died. Although there may in those circumstances be an argument that the sentence should bear some relation to that if the appellant had faced a sentence for murder, we bear in mind firstly that there is no authority of which we are aware to support that, at least in relation to an offence where the intent was less than the intent to kill, and secondly the new Definitive Guideline does not provide support for such an argument. In all the circumstances, we have come to the conclusion that the sentence of life imprisonment was wrong in principle. The appropriate sentence, therefore, is one of imprisonment for public protection. 13. As to the minimum term, it is submitted that a starting point of 12 years is manifestly excessive, bearing in mind the Sentencing Guidelines Council's Definitive Guideline on assault and other offences. It is right to point out that the guideline relates to offences where the sentence was passed on or after 3rd March this year. The sentence here was passed on 22nd February. Further, in the light of the date of the forward by the Lord Chief Justice it is highly unlikely that the learned judge would have had it available to him at all. It does, that said, provide a sentencing range for offences contrary to section 18 where the victim suffered life threatening or particularly grave injuries where the offence was not premeditated of 7 to 10 years. 14. We have considered that guideline. In our view, the minimum term of 6 years, taking a starting point of 12 years, was for this offence outside the admissible range and indeed was so even before the Definitive Guideline came into effect. The appropriate minimum term, in our judgment, is one of 5 years. Accordingly, the sentence of life imprisonment with a minimum term of 6 years is quashed. In its place we substitute a sentence of imprisonment for public protection with a minimum term of 5 years. The 23 days on remand and the period served thereafter should count towards that sentence.

```yaml citation: '[2008] EWCA Crim 1194' date: '2008-05-14' judges: - LORD JUSTICE DYSON - MR JUSTICE OPENSHAW - HIS HONOUR JUDGE GORDON ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

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).

```yaml citation: '[2004] EWCA Crim 621' date: '2004-03-18' judges: - MR JUSTICE DOUGLAS BROWN - MR JUSTICE NEWMAN ```

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No: 2008/2238/B3 Neutral Citation Number: [2009] EWCA Crim 2535 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 13 October 2009 B e f o r e : LORD JUSTICE RIX MR JUSTICE McCOMBE MR JUSTICE BURNETT - - - - - - - - - - - - R E G I N A v LINDANI MANGENA - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - Mr S Clarke appeared on behalf of the Applicant Mr S Hellman appeared on behalf of the Crown - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE RIX: On 7th March 2008 in the Crown Court at Southwark before His Honour Judge Testar and a jury, the applicant Lindani Mangena was convicted of three counts: one comprising fraudulent trading, another comprising money laundering and the third carrying on an unauthorised investment business. On 10th March 2008 he was sentenced in respect of the fraudulent trading to a term of imprisonment of five years. On the money laundering count he received a sentence of two years consecutive and on the count of carrying on an unauthorised investment business he received a term of 18 months concurrent. Thus he was sentenced to a total of seven years' imprisonment. He was also disqualified from being a company director for six years. His co-accused were convicted of other counts and received lesser sentences. He now renews his application for leave to appeal against conviction after refusal by the single judge, but appeals against sentence with the single judge's leave. 2. The case involved a Ponzi fraud, said the prosecution, in which Mr Mangena invited his victims to invest money on the stock market for the purposes of spread trading. The investors were misled into believing that the money they handed over would be invested on their behalf and that they would reap considerable rewards in short periods of time. All of the victims, who numbered about 1,000, like Mr Mangena himself, were members of or associated with the Seventh Day Adventist Church. A recurrent theme of the evidence of the investors was that they trusted Mr Mangena because of this link through the church. 3. Mr Mangena's principal vehicle for this fraud was a company called JNL Ltd which was incorporated on 12th August 2003. Mr Mangena was a director, as were his co-accused. In August 2003, JNL rented serviced office space in the heart of the city of London in Throgmorton Street. Investors were offered participation in a number of schemes with different names but the effect of all of them was that comparatively small sums of money would produce very large returns in a short period of time. For instance, something called a "gift exchange scheme" involved an investment of £200 and the promised return of £1,600 in less than two months. Other schemes such as "gift it plus" involved an investment of £2,000 and the return of £10,000 in less than 10 weeks. As is usual in Ponzi schemes of such a kind, it was a feature of this scheme, said the prosecution, that some investors were paid out what they had been promised at an early stage of the scheme in order to entice both them into further and larger investments and also to make good the case for investment by a larger and larger public. In total some £3.25 million was invested by more than 1,000 people. Hardly any of it was invested on the stock exchange, as had been promised. Whereas quite large sums, it is said, some £1.7 million, were rolled over in returns to investors, the overall loss was put at some £2.2 million. That reflected the recovery of some £900,000, most of it from the recovery, as we understand it, of two deposits which Mr Mangena put down, as deposits of 10 per cent, on two very expensive flats - in effect those deposits amounting to some £750,000 were buying two homes valued at some £7.5 million or thereabouts. Other large sums of money were spent by Mr Mangena on expensive cars and foreign travel to luxury hotels such as the Burj Al Arab in Dubai, said to be the world's only seven star hotel. Matters came to a head in February 2004 so that the fraudulent trading with which Mr Mangena was charged lasted for something like six months. 4. The defence case was that Mr Mangena was not involved in any wrongdoing at all and that it was his co-accused who were entirely responsible for deceiving the investors. In effect the defence was that a Ponzi scheme such as was alleged by the prosecution had taken place but that it was the co-accused who were responsible for it. Mr Mangena said that his part in JNL was to operate a legitimate business in the form of a pyramid scheme under which he was delivering training courses in the art of spread trading and other self-improvement techniques, so as to enable his clients to pyramid the virtues or otherwise of his spread trading abilities. He said that it was his relaxation of his control over the business that had given his co-directors the opportunity to operate the JNL business for their own abusive ends. So the issue for the jury was to determine the role and involvement of the appellant in the scheme. 5. So far as the grounds put forward for the purpose of obtaining leave to appeal, there was originally an additional ground (since abandoned) which was that the judge had interrupted so much in the process of trial as to render the trial unfair. That ground having been abandoned, three other grounds remain, but in his clear and helpful submissions today Mr Clarke has advanced oral submissions only on the first of those grounds, accepting that if he were to fail to obtain leave to appeal on behalf of Mr Mangena by reference to that first ground, then his second and third grounds could not by themselves bear the weight of obtaining leave to appeal. 6. That first ground related to a ruling or practice of the judge adopted at the trial, which was a second trial, pursuant to section 139 of the Criminal Justice Act 2003 , whereby the investor witnesses were permitted to refresh their minds from the witness statements which they had given to the police. Apparently the judge had made a general order, or at any rate a blanket order, permitting those witnesses to refresh their minds in that way - in other words to permit the Crown to assist the witnesses in giving their evidence by reference to their witness statements, but it is accepted by Mr Clarke that before any such assistance by reference to a witness statement was given to a witness they were individually taken through the conditions laid down by section 139 . Section 139(1) provides for these purposes: "(1) A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if— (a) he states in his oral evidence that the document records his recollection of the matter at that earlier time, and (b) his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence." 7. As we have said, Mr Clarke accepts that those conditions were met in the case of each witness, but he submits nevertheless that the judge's indication by means of his blanket ruling -- however it should be described it is not a ruling which we have in documentary form before us -- was wrong, because he submits the judge should not give permission for the use of a witness statement pursuant to section 139(1) , even if those two conditions set out in the statute are met, unless the witness should first be shown to stumble in his evidence by reference to a faulty memory. Mr Clarke seeks to support that submission by reference to a comment of the learned editors of Archbold 2009 at paragraph 11-09, where they are discussing section 120 of the 2003 Act and say that there may be a danger whereby through the means of those provisions there might be a routine substitution of a witness's statement for oral evidence-in-chief. 8. There came a point during the trial when the judge did give a ruling dated 29th January 2008, that is to say well into this ten week trial whose concluding stages began with a summing-up that started on 26th February 2008, in which the judge ruled on a continuing objection to witnesses referring to their witness statements. The judge stated in that ruling that Mr Clarke did not ask him to review his ruling, or a ruling which he was reminded that he had made at the first trial as well, that the parties could refresh their memories from statements. The judge went on to say this: "What he says is that he accepts that rulings in this trial are likely to be the same as rulings in the last trial on the basis that the submissions are likely to be the same and they are likely to concern the same material, but what he says in relation to the way that the present trial is being conducted is that he objects to the way in which the memory refreshing exercise is taking place with the witnesses and he says that the objection is one of appearance rather than substance and so he seems to accept that there is no injustice in his professional view about what is happening but he is concerned about the appearance of unfairness in the eyes of his client and he says potentially in the eyes of the jury." 9. Whether the objection to what became the practice at the trial, indeed as it seems at both trials, was the gravamen which Mr Clarke has put to us, namely that the judge ought not to exercise his power or the power which arises under the statute, even if the statute's conditions are met, unless the witness has first stumbled; or whether the complaint is rather that which the judge records in his ruling, namely that there was no vice in what was happening pursuant to the statute but that rather there was a danger that the appearance of things might be unfortunate; it seems to us that the matter raised is not arguably a wrongful use of the power under section 139 , nor does it potentially lead to the question of the safety of the conviction. 10. As we have already said, Mr Clarke accepts that in the case of each witness the conditions (a) and (b) of section 139(1) were met. In other words the witness had confirmed in his oral evidence that he had made an earlier document which recorded his recollection of the matter and that his recollection of the matter was likely to have been significantly better at that time than it was at the time of his oral evidence. Ultimately we think that the condition under section 139(1)(b) is a matter for the assessment of the judge, whatever be the witness's view of the matter, and that therefore section 139(1) is not, as Mr Clarke suggests, prescriptive if two conditions are met by the witness himself or herself, but that it is a matter for the discretion of the judge if the two conditions are met, one of which is the judge's view that the witness's recollection of the matter was likely to have been significantly better at the time of giving his witness statement than at the time of his oral evidence. 11. We consider that this judge, having had a full experience of the matters at issue at the earlier trial and having dealt with the investor witnesses in the same way at that earlier trial, was in an excellent position to exercise his discretion pursuant to section 139(1) in circumstances where the witness had referred in his oral evidence to his earlier witness statement and confirmed in the witness's opinion that his recollection at that time was likely to be better and the judge had himself concluded that that was likely to be the case. As the judge said, it was not a matter of memory but of what was in the interests of justice. After all, it is a standard matter for a witness to refresh his or her recollection by reading his statement before he goes into the witness box. 12. In as much as Mr Clarke seeks to draw comfort from the remarks of the learned editors of Archbold by reference to section 120 , it will of course be a matter for the judge to consider where evidence can properly be given with the assistance of the witness's memory being refreshed by reference to an earlier statement and where on the substance of the evidence which that witness has come to give it would in any event be preferable for the evidence to be given without reference to such a witness statement. What in any event the learned editors appear to be considering at paragraph 11-39 of their work is the replacement of oral evidence by reading written evidence. For our purposes the previous paragraph, 11-38, is perhaps as pertinent or more pertinent where the learned editors recognise that it will be unusual for it not to be possible to use a statement as a memory-refreshing aid by reference to the section 139 rule. 13. As we have said, we consider that this judge was peculiarly well situated to exercise his discretion on this matter and we do not think that it is arguably possible to interfere with it. In this connection we would observe that for the most part the evidence of these witnesses, which had to be given over a distance of some four years or so between the events in question in August 2003 to February 2004 and the trial which was taking place in early 2008, in dealing with matters such as with whom they were having particular conversations and what monies they were investing and what money they were receiving back, were obviously matters on which an earlier witness statement would be a useful tool for the refreshing of memory. This was detailed factual evidence about their implication in an investment which the Crown's case said was a fraud, rather than the description of some particular event. In sum, for these reasons, we consider that this first ground of appeal is not arguably correct and in those circumstances Mr Clarke accepts that his second and third grounds are not reached and it follows that this renewed application for leave to appeal against conviction is refused. 14. We turn then to Mr Mangena's appeal against sentence. Mr Mangena was born on 5th December 1983. At the time in question he was of the young age, for such offending, of 19 and he was of previous good character. He had had a successful school career and had gone on to university. No pre-sentence report was requested and the judge went on to sentence Mr Mangena without one. The judge was satisfied that the appellant was the driving force behind JNL and in charge of everything. He described him as a consummate conman without a shred of remorse. As time went on he had used others to act as salesmen in his fraud. The evidence against him was overwhelming and what had become clear in the trial was that when he had no other line of escape his response was to put all the blame upon his co-accused, but also to accuse his clients of lying and attempting to cheat by exaggerating their losses. Numerous people, predominantly church members, who were hard-working, intelligent and articulate people had been defrauded of large sums of money. The appellant had been defiant to the last and was likely to represent a danger to the public. The total sentence would be one of seven years. In that respect the judge explained the make up of his sentence as follows. He reminded himself that the offence of fraudulent trading carried a maximum of seven years and that money laundering (the offence on count 2) a maximum of 14 years. He said that the seven years were made up in the following way. The sentence on count 1 (the count of fraudulent trading) was one of five years. He considered however that the money laundering went beyond the defrauding of others by completely ignoring and defeating the investors' economic interests by enriching himself through the laundering of the money, in particular on the deposits on the two homes. Therefore the sentences should be consecutive. 15. In his elegant submissions on this point, Mr Clarke submitted that there was artificiality in dividing up the gravamen of the wrongdoing between the fraudulent trading and the money laundering. In effect, there was one overall course of conduct, however many individual offences had gone to make it up, and the spending of the money was part and parcel of the fraudulent obtaining of it. It was true that the offence of fraudulent trading could be committed on a very great scale. The jurisprudence included a case concerning an offence of fraudulent trading through the fraudulent issue of a rights issue, obtaining some £20 million, in circumstances where that was not done in order for the offender to spend the money obtained on himself, as distinct from in that case attempting to support a failing business. In the present case, however, Mr Clarke submitted that obtaining and spending was all part of a single course of conduct which should be met by one overall sentence and otherwise by concurrent sentences. 16. This case was not a case of the utmost gravity, Mr Clarke continued, one deserving of the maximum sentence of seven years for fraudulent trading, because much larger frauds could be visualised - those extending into hundreds of millions, if not billions, of pounds. As for an analogy with the case of Clark [1998] 2 Cr App R 137, dealing with stealing in breach of trust from employers, which had recommended sentences of 10 years and more for the theft of £1 million and upwards, Clark was now quite old and money had been sufficiently devalued to put that upon one side. Moreover, Mr Clarke relied upon matters of mitigation. It was, he said, a relatively short-term fraud. In particular this was a young man, at that time still very young, who had had a good background but who had gone wrong and of whom good might be hoped for in the future. 17. In general we are unsympathetic with these submissions. The fraud was undoubtedly a very bad one. One thousand victims are a very great number and it can well be imagined how those victims -- some of them had put in lifetime savings, be those greater or smaller -- had been bitterly deceived in the trust that they had put into this man, young as he was. It is clear from recent authorities on fraud such as Attorney General's Reference 48, 49, 50 and 51 of 2002 (Paulssen) [2002] EWCA Crim. 3165 , [2003] 2 Cr.App.R (S) 36, and Dekson [2004] EWCA Crim. 3205 , [2005] 1 Cr.App.R (S) 114 , that in relatively modern times the authority of Clark has been referred to as being relevant to the situation in fraud, in particular in a case such as this where investors have been invited to place their investments and thus their trust in an offender who has then gone on deliberately to misuse the investors' money entrusted to him. We therefore consider that Clark is directly relevant. 18. At the end of the day, however, we agree with the submission that the gravamen of this offending has to be found under the fraud count and not under the money laundering count. In truth the money laundering was the spending by the fraudster of his company's ill-gotten gains and although no doubt that aggravates the fraud, it is in truth part and parcel of the fraud. 19. The judge chose to divide up the sentence between the two offences. We consider that the fraud count should bear a sentence which reflects the gravamen of the offending. If we considered that this offence, utterly serious as it is, represented a case of the utmost gravity which merited the maximum sentence available on count 1 then we would have upheld the judge's overall sentence of seven years. However, we cannot quite persuade ourselves that that is the situation. In this connection we have in mind recent sentences, albeit in respect of conspiracy to defraud which has a higher maximum of 10 years, in which sentences for very similar kinds of offending of seven years and six years and so forth have been upheld in recent years. Cases such as the two we have mentioned, Paulssen and Dekson and also the case of Bright and Hibbert [2009] EWCA Crim. 652 . 20. We also bear in mind the appellant's youth. His youth has not spared him an overweening arrogance and confidence in his wrongdoing, nor has it led him upon detection to any remorse. Nevertheless, the arrogance and lack of remorse which he has shown may just possibly be part of his youth. While agreeing with the judge's remarks about this consummate conman who may well prove to be a danger rather than a reformed character as he progresses through life, we nevertheless feel that some discount should be allowed him on a maximum sentence of seven years. For that reason and that reason only we would allow this appeal to the extent of quashing the sentence of seven years in total and substituting for it a sentence of six years which we would make up in the following way. We would impose a sentence of six years in respect of count 1 and otherwise maintain a two year sentence on count 2, but making it concurrent rather than consecutive, and finally maintaining the sentence of 18 months concurrent on count 3. To that extent this appeal against sentence is allowed.

```yaml citation: '[2009] EWCA Crim 2535' date: '2009-10-13' judges: - LORD JUSTICE RIX - MR JUSTICE McCOMBE - MR JUSTICE BURNETT ```

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. [2022] EWCA Crim 1095 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202200355/A4 Royal Courts of Justice Strand London WC2A 2LL Tuesday 26 July 2022 Before: LADY JUSTICE CARR DBE MRS JUSTICE CUTTS DBE THE RECORDER OF LEEDS HIS HONOUR JUDGE KEARL QC (Sitting as a Judge of the CACD) REGINA V NICHOLAS GRAY __________ 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 S REIZ QC appeared on behalf of the Appellant _________ J U D G M E N T LADY JUSTICE CARR: Introduction 1. This is an appeal against sentence brought partly as of right under section 13 of the Administration of Justice Act 1960 and partly with leave of the single judge. 2. Having changed his plea to guilty in June 2021 the appellant, now 42 years of age, was sentenced on 16 January 2022 on a single count of fraud contrary to section 1 of the Fraud Act 2006 by His Honour Judge Taylor QC sitting in the Crown Court at Swindon to 56 months' imprisonment (that is to say, four years and eight months’ imprisonment). The fraud related to the use of company credit cards at a company where the appellant had been Head of Finance over a period of some three-and-a-half years, between March 2014 and December 2017. 3. The appellant failed to attend his first sentencing hearing on 10 September 2021. For that failure the judge sentenced him to an additional one month's imprisonment, to run consecutively to the term of 56 months. 4. On this appeal the appellant has had the benefit of representation by Mr Reiz QC who has advanced the appellant’s case effectively. We are grateful to him for his assistance. The facts 5. The appellant had been employed as Head of Finance at a digital media company known as Equimedia Limited ("Equimedia") founded by Andrew and Louise Burgess in 1999. The company had offices in the United Kingdom and in America and by 2017 had a turnover of £20 million. 6. At the time of the offending the appellant had worked at the company for some 13 years and had access to and the authority to use the company's five main credit cards. Monitoring the use of these cards was one of his responsibilities and he was aware that it was policy that the company auditors would not audit credit card expenditure below £100,000. 7. His offending came to light in November 2017 when serious accounting anomalies were spotted during a meeting between Mr Burgess and his bank manager. A new financial team was appointed and insurers appointed a bookkeeper to investigate matters. It became clear that the appellant had been making a number of substantial purchases on company credit cards for his own benefit. The transactions included payments for items of clothing, watches, cash withdrawals and family hotel accommodation. 8. The appellant had deliberately hidden his fraudulent use of the cards within internal accounting systems using "banners and button" and trafficking account codes. The accounts that he had prepared for the company had been completely fictitious and wholly misleading. Additionally, large sums had gone uncollected from clients and the appellant had failed to chase bills - to such an extent that at one stage the company was placed under a seven-day threat of winding-up. 9. What has been described as the direct loss to the company from the appellant's fraudulent use of the credit cards was £53,600, but it was Equimedia's case that there were further significant additional losses to the company arising out of the appellant's offending. 10. Initially, the appellant had denied any guilt and sought to blame the Burgesses. But on the first day of trial, having indicated his intention to do so a week earlier, he pleaded guilty. As already indicated, he failed to attend court for sentencing on 10 September 2021 and a warrant for his arrest was issued. He was arrested at his home address three days later. 11. He was of previous good character and the judge had before him a number of character references. He was said to be someone devoted to his wife and young children. A pre-sentence report recommended a community disposal with an unpaid work requirement. 12. The judge also had before him victim personal statements from Andrew and Louise Burgess. They spoke of their deep shock, distress and confusion upon discovery of what was a profound abuse of trust. Mrs Burgess spoke of the untold stress that had been caused to them as the evidence became pieced together. 13. The Burgesses referred not only to the direct loss of £53,600 but also to an additional £143,000 in terms of additional costs said to flow from the fraud, including payment of an insurance excess, additional insurance premium costs, £70,000 paid in wages to an individual employed to fill the appellant's role whilst on garden leave and £21,000 in relation to the costs of engaging someone to resolve issues with HMRC. Those costs, in particular the additional insurance premium and wage costs, were the subject of challenge by the appellant. By the time of sentence Mr Burgess had provided further statements increasing the loss alleged to have been suffered by the company in terms of costs to just under £690,000, later reduced to a sum of just over £678,000. That sum included some £368,000 written off as inaccurate in monthly management accounts that the appellant had prepared, and also a sum of £85,000 claimed by way of compensation for Mr Burgess' time spent on a daily basis dedicated to the internal investigation into the appellant's wrongdoing. The sentence 14. The judge placed the appellant's offending in Category A2 of the Sentencing Council Guideline for Fraud Offences. The sum of £53,000 would place the harm in Category 3 but, said the judge, that would not provide a true or accurate picture. The actual and what he described as indirect loss came closer to £700,000 which would place the harm in Category 1. But the judge said he would be cautious as to how that figure had been calculated, and that placing harm in Category 2 was the "fairest way" to approach the situation. Then he moved up the category to reflect what he described as "at the very least" medium impact. Arguably, he said, this was high victim impact. In terms of mitigation the judge recorded that the appellant had no previous convictions, that there were elements of remorse - although they were more to do with the position in which the appellant found himself than any regret for the Burgesses. Indeed, said the judge, the appellant had on occasion sought to minimise or justify his actions. The judge said that he took on board the character references for the appellant and the impact of custody on the appellant's family. After trial the judge said that he would place the custodial term at five-and-a-half years. With credit of 15% for a guilty plea, a term of 56 months' imprisonment was arrived at. As for the failure to surrender at the sentencing hearing, the judge said that this had added to the listing difficulties caused by the pandemic. It was a deliberate attempt to delay or evade justice and one which had a substantial effect on the timing of sentencing. Placing the offending in Category A1 of the relevant part of the Sentencing Council Guideline for Breach Offences, the judge sentenced the appellant to a consecutive term of one month's custody. Grounds of appeal 15. Mr Reiz advances essentially two grounds of appeal. First, he submits that the judge was wrong in principle to include in his evaluation of harm what Mr Reiz describes as "indirect losses". It is said that the judge erred in sentencing on the basis that the loss from the fraud was in excess of £500,000. The actual loss was only £53,608. The starting point chosen by the judge of 66 months was too high as a result. Mr Reiz emphasises that the indictment facing the appellant and to which the appellant had pleaded guilty was specific and limited to fraud. The appellant was not charged with, and did not admit, false accounting. The loss from that fraud and its value was only the £53,000-odd. The additional costs claimed by the company might be said to be relevant to costs and/or a compensation order, but it was wrong as a matter of principle to increase the category of harm as a consequence of them. Mr Reiz informs us that compensation proceedings are ongoing. The matters there to be taken into account should not have been used against the appellant for the purpose of determining the custodial term. The appellant, submits Mr Reiz, was being punished for costs over which the appellant had no control. The offence of fraud was complete before and independently of any additional investigative costs. Further, Mr Reiz points to the evidential lack of clarity as to the precise losses caused as a result of the fraud on the one hand and costs incurred as a result of wider mismanagement issues. Having correctly concluded that the judge could not be sure that the appellant was trying to sabotage the company, he submits that the judge erred in taking account of such alleged additional criminality in reaching the sentence that he did. In terms of specifics, Mr Reiz points to the sum of £368,000-odd written off as a correction to the management accounts. That was simply an accounting exercise and could not conceivably form part of the harm related to the fraud. 16. As for victim impact, Mr Reiz takes issue with the judge's categorisation of the victim impact as medium. This was a company operating as a substantial international business. All but £5,000 was reimbursed by insurers, so far as the loss from the fraud was concerned. This was not a case, submits Mr Reiz, where a considerable detrimental effect was made out. 17. Separately and briefly, Mr Reiz also submits that the judge was wrong to impose a consecutive sentence of one month’s imprisonment for the appellant's failure to surrender. The judge was wrong to conclude that there was a substantial delay and/or interference with the administration of justice. The appellant was arrested only three days later and thereafter remanded in custody. Whilst there may have been further delay due to listing difficulties in the pandemic, that was not the fault of the appellant. Discussion 18. This was a sophisticated fraud with cunning steps taken by the appellant to cover his tracks. He fraudulently used an elaborate accounting methodology to conceal the fact that cash was missing, inflating costs on numerous transactions. It was a calculated methodology used pro-actively to hide his deceit. The appellant was on a good salary of over £65,000 a year as at 2017. His offending was driven by pure greed. 19. As indicated, the focus of this appeal is the judge's categorisation by reference to harm. There is no, nor could there be any, complaint about placing the offending in high culpability. Indeed, there were multiple high culpability factors, namely abuse of position of power, trust and responsibility, sophisticated offending with significant planning, fraudulent activity over a sustained period of time. 20. Under the Sentencing Council Guideline for Fraud Offences, harm is initially assessed by reference to the actual intended or risked loss. The values in the table are for actual or intended loss only, risk of loss being treated less seriously. Having identified value, the court should then take into account the level of harm caused to the victim to determine whether it warrants the sentence being moved up to the corresponding point in the next category or further up the range of the initial category. Three levels of impact are identified: high, medium and lesser. 21. It is clear to us that the judge did not sentence the appellant on the basis that the loss from the fraud was in excess of £500,000. He recognised the need for caution in relation to the suggestion that the loss might be that high. That is why he placed the offending initially in Category A2. He then increased his starting point to reflect what he found to be medium impact. 22. It is right that if one just considers the £53,000, harm would be placed in Category 3. It is also important to remember, as Mr Reiz emphasised repeatedly, that the relevant loss is loss limited to that caused by the appellant's fraudulent use of the credit cards, not the wider issue of potentially seeking to sabotage the business. But it does seem to us, as it did to the judge, unrealistic to ignore directly consequential additional financial losses when considering harm. We do not consider that the judge was wrong to do so as a matter of principle. On the facts, he was entitled to be sure that there was at least additional direct financial loss caused to the Burgesses such as to bring harm at least to the top of the range for Category 3 or the bottom of the range for Category 2 harm. There is overlap there at the level of £100,000. 23. The question of victim impact then fell to be considered. Having placed harm in Category 2, the judge considered victim impact to be medium. That was in our judgment arguably generous to the appellant. Had the judge not taken the additional direct losses into account and placed harm in Category 3, then he would have been entitled to assess victim impact as high, which in itself would have justified moving up a category for harm. This would have been a different way of achieving a similar result. 24. In this context and in response to Mr Reiz's submissions as to the level of victim impact, we remind ourselves of Mr Burgess’ indications of the complexity of the cover-up, something which caused the Burgesses more time and grief as they unpicked the appellant's activities. The distractions led to poor business decisions and they left Mr Burgess regularly questioning his own competency. These events placed (understandably) an enormous strain on the Burgess' marriage. They had championed the appellant's career. They had placed so much trust in him. They lost their belief in trusting people. As the judge put it, the intricacy of the appellant's cover up and the level of breach of trust had had real and salutary consequences for them. 25. For Category A2 offending the starting point of five years is based on harm in the sum of £300,000. Taking all of the above into account, namely the number of high culpability factors, the combination of financial loss and victim impact, we could find no fault with a term of around five years’ imprisonment, before then considering aggravating and mitigating factors. 26. In terms of aggravation not already taken into account in the categorisation process, there was the fact that the appellant initially wrongly placed blame on the Burgesses, something which the judge overlooked. By way of mitigation, there was the appellant's previous good character, some remorse and the effect of custody on his young family. 27. Balancing these factors out, in our judgment an appropriate custodial term before credit for guilty plea, would have been around 54 months (that is to say four-and-a-half years) before applying credit for guilty plea of 15%, resulting in an eventual term of 46 months' custody. 28. In our judgment, therefore, the term of five-and-a-half years before credit for guilty plea taken by the judge was too high and did result in a sentence that was manifestly excessive. As we have said, it must be remembered that five years was the starting point for Category 2 harm based on loss at £300,000. The judge could not be sure on the evidence that the relevant financial loss suffered was that high. The judge must then have gone to the very top of the range because of victim impact, before coming down to five-and-a-half years to reflect the availability mitigation. Even taking into account the number of high culpability factors and victim impact and the aggravation in the form of blaming others, it is difficult to see how a term of around six years before reduction for mitigation and then credit for guilty plea was justified. 29. We move next to the sentence imposed for the failure to surrender. There can in our judgment be no justifiable complaint about the imposition of a consecutive sentence of one month for the appellant's failure to surrender. The judge was entitled to take the view that this was a deliberate attempt to delay or evade justice and one which had a substantial effect on the timing of sentencing. It inconvenienced counsel. We would not interfere with the judge's categorisation at A1 for this offending. Six weeks’ custody with credit for guilty plea resulted in a sentence of one month. It was a different type of offending to the fraud offending and it fell to be marked separately. The imposition of a consecutive sentence of one month did not result in an overall sentence that was disproportionate to the appellant’s overall offending. Conclusion 30. For these reasons we allow the appeal. We quash the sentence on the count of fraud and replace it with a sentence of 46 months’ imprisonment. The consecutive sentence imposed for failure to surrender will stand undisturbed, as will all other aspects of the sentence. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2022] EWCA Crim 1095' date: '2022-07-26' judges: - LADY JUSTICE CARR DBE - MRS JUSTICE CUTTS DBE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Case No: 200804719 , 200804737 , 200805477 Neutral Citation Number: [2010] EWCA Crim 496 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CARDIFF Mr. Justice Wyn Williams T20077497 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17 March 2010 Before : LORD JUSTICE MOORE-BICK MR JUSTICE SILBER and MR JUSTICE KENNETH PARKER - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - RHYS THOMAS LEWIS LEE JAMES WARD MARK DAVID COOK Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Alun Jenkins Q.C. for the first appellant Mr. Gerard Elias Q.C. for the second appellant Mr. Cook in person Mr. John Charles Rees Q.C. for the respondent Hearing dates : 4 th February 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moore-Bick : Background 1. These appeals and applications arise out of a series of violent incidents involving two groups of men who had been out drinking in Bridgend on the evening of 8 th July 2007. The appellants, Rhys Lewis and Lee Ward together with the applicant, Mark Cook, were out together to celebrate Cook’s birthday. Lewis and Ward were in their early thirties; Cook was in his early forties. 2. Also on a night out in Bridgend was a group of younger men comprising Ryan Edwards, Ricky Williams, Ashley Evans, Mark Kilnan, Andrew Saunders and Jonathan Diamond. They were referred to at the trial as “the Croeserw boys”. We shall refer to them for convenience as “the boys”, as did everyone at the trial and on the appeal. 3. At about 9.45 pm Lewis, Cook and Ward went to a bar called Bar Inc. Later, at about 10.40 pm, the boys went to the same bar. Lewis and a young woman must have left the bar at about that time or very soon after, because they just missed a train to Cardiff at about 10.50 pm, having walked up Court Road, which leads from Bar Inc to Bridgend railway station. 4. Ward and Cook became separated in the bar. A minor altercation took place between Cook and Ricky Williams, after which Williams and his friends started to leave. Whatever exactly had occurred, it appears that it had angered Cook, who followed Williams towards the door. There was a further skirmish between them just inside the entrance to the bar, in the course of which Cook headbutted Williams. Cooke followed Williams into the street where blows were exchanged. At that point Ashley Evans also became involved. 5. Ward came out of the bar looking for Cook and to find out what was going on. Cook walked off and Ward went after him. It is not clear whether they exchanged words, but shortly afterwards Cook walked away. Ward then made two telephone calls to Lewis, as a result of which Lewis and Ward set off to meet each other. After meeting in Court Road, they walked back to the bar to look for Cook. 6. In the meantime Cook had walked by an indirect route to the station and was making his way back down Court Road when he saw the boys. As he ran past them he struck Williams once with his arm, breaking his nose and causing bruising and swelling of his cheek and cuts around one eye. 7. Cook, Lewis and Ward met up outside the bar. After a short discussion they went back up Court Road to the station, arriving there at about 11.07 pm. The boys were already there. As soon as the two groups came close to each other in the station car park fighting broke out, in the course of which Ashley Evans was injured, Mark Kilnan was knocked down and rendered unconscious and Ryan Edwards sustained an injury to his head from which he later died. The whole incident lasted only about a minute and was captured on two CCTV cameras. 8. As a result of these events Lewis, Cook and Ward were all jointly charged on an indictment containing the following counts: Count 1: Murder of Ryan Edwards; Count 2: Causing grievous bodily harm with intent to Ricky Williams; Count 3: Causing grievous bodily harm to Ricky Williams (alternative); Count 4: Attempting to cause grievous bodily harm with intent to Ashley Evans; Count 5: Attempting to cause grievous bodily harm with intent to Mark Kilnan; Count 6: Violent disorder. 9. With the exception of counts 2 and 3, the indictment was directed to events that had occurred in the station car park at the end of the evening. The Crown’s case was that Lewis, Cook and Ward had been acting together in pursuit of a common purpose when they attacked the boys in the station car park. When they regrouped at the bar they had decided to find the boys and give them a severe beating to teach them a lesson. With that in mind they set off up Court Road towards the station where they came upon the boys at the entrance to the car park and immediately attacked them. Lewis, Cook and Ward denied that there had been any plan to beat up the boys; they said that they had gone to the station to catch a train to Cardiff and came upon them in the car park by chance. The fight had been provoked by the boys, who were being abusive and aggressive. Lewis admitted that he had punched Edwards once because he had heard the sound of breaking glass and thought that Edwards was about to attack Cook. He said that the blow had not caused Edwards to fall down. Cook denied having assaulted Edwards altogether. It was accepted that at that stage Ward had been fighting with Ashley Evans some distance away and had not himself touched Edwards. 10. All three of them admitted having assaulted Evans; Ward and Cooke denied any intention to cause him really serious harm; Lewis said that he had been acting in defence of Ward. 11. The assault on Kilnan occurred very close to the place where the attack on Edwards had taken place and very shortly after Lewis had punched Edwards. Cook and Lewis both said that they had acted in self-defence, but Lewis later accepted that his actions might have gone beyond that. However, he denied having intended to cause really serious harm. 12. Counts 2 and 3 of the indictment related to the earlier incident in Court Road when Cook had struck Ricky Williams in the face as he was returning from the station to the bar. Cook said that he had been running through the group of boys when Williams tried to stop his progress. He admitted that he had feared attack and had struck Williams once in the face, but he did not accept that he had caused Williams’ injuries or that he had intended to cause really serious harm. Lewis and Ward said that the incident had had nothing to do with them. 13. It will be apparent from this somewhat abbreviated description of the events and the charges in the indictment that the case raised complicated issues of fact as well as the principles of law relating to self-defence and joint enterprise. It therefore presented a challenge to the judge, especially given the need to direct the jury on the application of the law to a wide range of possible findings of fact. 14. The trial took place before Wyn Williams J. and a jury at the Crown Court at Cardiff between 4 th June and 31 st July 2008. On 31 st July 2008 Lewis and Cook were convicted on count 1 of the murder of Edwards; Ward was found not guilty of murder but guilty of manslaughter. All three were convicted on count 4 of attempting to cause grievous bodily harm to Evans and on count 5 of attempting to cause grievous bodily harm to Kilnan. Cook was also convicted on count 2 of causing grievous bodily harm with intent to Ricky Williams, no verdict being taken on count 3. The judge directed that Not Guilty verdicts be entered on counts 2 and 3 in respect of Lewis and Ward. He ordered that count 6 (violent disorder) be left on the file on the usual terms. The appeals and applications 15. Lewis and Ward now appeal against conviction by leave of the single judge. Cook renews his application for an extension of time in which to apply for leave to appeal against conviction and sentence following refusal by the single judge. (a) Count 1, murder and manslaughter 16. Attention has been directed primarily to the convictions on count 1. Lewis appeals against his conviction for murder on two grounds: first, that the verdicts returned by the jury on Ward in relation to this count and count 5 are inconsistent, thus demonstrating that they failed to understand the judge’s directions on joint enterprise; second, that the judge failed to direct the jury in accordance with the decision in R v Powell and English [1999] 1 A.C. 1 , [1998] 1 Cr. App. Rep. 261 and thereby deprived them of the opportunity of finding that Cook had gone beyond the scope of any joint enterprise in the attack on Edwards. 17. Ward appeals against his conviction on count 1 on the following grounds developed in counsel’s skeleton argument: first, that the judge failed to direct the jury correctly on joint enterprise; and second, that the verdict on count 1 is inconsistent with the verdict on count 5 and is therefore unsafe. 18. Cook seeks leave to appeal against his conviction on count 1 on the following grounds: that the verdicts returned by the jury on Ward in relation to count 1 and count 5 are inconsistent, (i.e. the same ground as that relied on by Lewis); that the judge failed to draw the jury’s attention to the fact that the evidence showed that he did not have time to strike Edwards; and that the evidence as a whole shows that he did not in fact strike Edwards. (i) The evidence 19. Before turning to consider the various submissions made in relation to the convictions on count 1 it is necessary to describe in a little more detail the CCTV evidence of what occurred that evening. There were cameras both inside and outside the bar which captured some of the earlier events of the evening and two cameras in the station car park which captured the events there from different angles. None of the cameras captured the events to which counts 2 and 3 of the indictment related. 20. The recordings of events inside the entrance to the bar and outside in the street show Lewis, Cook and Ward together at various times, in particular before they set off to the station for the last time. That is scarcely surprising, however, since it has never been disputed that they were spending the evening together and could therefore be expected to join up again if they became separated for any length of time. Mr. Rees Q.C. for the Crown submitted, however, that their behaviour and actions immediately before they set off for the station for the last time, viewed in the context of their earlier behaviour, tend to support the conclusion that they set off with the common intention of finding and attacking the boys, or at any rate of giving them a good beating if they should come across them. 21. Earlier that evening Cook had displayed an aggressive attitude towards Williams when he was leaving the bar and had become involved in a violent scuffle with him and others after they had both emerged into the street. The jury had the benefit of seeing the CCTV recordings and were also provided with still photographs which enable one to grasp without too much difficulty the nature of their behaviour. The material was by no means conclusive; indeed, it hardly could be. However, taken in conjunction with the evidence of what followed, it was certainly capable of supporting the conclusion that the three men set off for the station together with the common intention of beating up the boys if the opportunity presented itself. 22. The events which unfolded when they reached the car park are dramatically recorded in the CCTV footage and the still photographs derived from it, in which the movements and gestures of the various participants are clearly visible from different angles. Together they provided evidence that was capable of supporting the conclusion that Lewis, Cook and Ward were acting together from the moment they arrived at the entrance to the car park and had instigated the violence. The picture that emerges from this and other evidence is that two of the boys, Jonathan Diamond (who was holding a bottle) and Andrew Saunders, ran off almost at once, leaving Evans, Kilnan, Williams and Edwards. Lewis struck the first blow against Evans, then he and Ward started to fight with Evans and the others. It seems likely that while that was going on Edwards moved away from the group towards the station and Williams ran off. While Lewis and Ward were fighting, Cook walked in the direction of the station building. Ward continued to fight with Evans, but Lewis soon left that group and followed Cook. Cook walked along the offside of a dark coloured vehicle parked facing the station and confronted Edwards, who by that time had had become separated from the rest of the group. Lewis walked along the nearside of the vehicle and approached Edwards from behind. 23. What happened next was not caught by the CCTV cameras because the vehicle obstructed their view, but was described by Lewis and Cook, albeit in somewhat different terms. Lewis, fearing, as he said, that Edwards had a bottle and was threatening Cook, admitted that he had struck him a forceful blow on the right side of the head, designed, as he later said, to “stop him in his tracks”. It had the desired effect. Edwards went to the ground, where he was punched several times by Cook, causing his head to strike the ground with considerable force on a number of occasions. Kilnan then ran up to assist Edwards and tackled Lewis. Lewis went to the ground, but was soon up again. Cook knocked Kilnan to the ground and both he and Lewis kicked him repeatedly, rendering him unconscious. The latter part of these events occurred in view of the cameras. While all that had been going on Ward had been fighting with Evans. Lewis and Cook joined him and the three of them can be seen fighting with Evans for a short time before Cook broke off and the incident came to an end. The assault on Edwards lasted no more than eight seconds; the whole incident lasted just under a minute. (ii) Joint enterprise 24. It is convenient to consider first the question of joint enterprise and the nature of the judge’s direction. The defendants all denied that they had set off for the station with any purpose in mind other than to catch a train to Cardiff; the violence, they said, had been spontaneous and had been provoked by the boys. However, if the jury were satisfied that they had left with the common intention of beating up the boys, they had not intended to cause any of them really serious harm and none of them had contemplated that any of the others might do so. Anyone who went beyond that was acting on his own. As to the attack on Edwards, Ward said that in any event he had had nothing to do with it. Lewis said that, insofar as he and Cook were acting together, he did not intend to cause Edwards really serious harm and had not contemplated that Cook might do so. On that basis Mr. Jenkins Q.C. and Mr. Elias Q.C. both submitted that the judge ought to have directed the jury that they could not convict either Lewis or Ward of the murder of Edwards unless they were sure that he had contemplated the possibility that Cook might use sufficient violence to cause him really serious harm. It is common ground that the judge did not direct the jury in those terms, but Mr. Rees submitted that, having regard to the evidence before the jury, a direction of that kind was not required in this case. 25. The leading cases on liability for the acts of another committed in pursuance of a joint enterprise are R v Powell and Daniels; R v English [1999] 1 A.C. 1 and R v Rahman [2009] 1 A.C. 129 . In Powell and Daniels three men visited a drug dealer. As he opened the door one of them shot him, as a result of which he died. In English the two defendants attacked a man with wooden posts. One of them, unbeknown to the other, was carrying a knife which he drew and stabbed the victim, causing his death. The question for the House in each case concerned the state of mind of the secondary party necessary to support a conviction for murder. In the case of Powell and Daniels there was one question for consideration, namely, whether it is sufficient for a secondary party to a killing to have realised that the primary party might kill with intent to do so or to cause really serious harm, or whether it is necessary for the secondary party to hold that intention himself. In the case of English there was in addition a second question, namely, whether it is sufficient to support a conviction for murder that the secondary party intends or foresees that the primary party will or may act with intent to cause grievous bodily harm if the lethal act carried out by the primary party is fundamentally different from the acts intended or foreseen by the secondary party. As to the first question, the House held that it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm: per Lord Hutton at page 27. As to the second question, the House held that that if the act of the primary party causing death was not something which the secondary party had foreseen as a possibility, it took the killing outside the scope of the joint venture and the secondary party is not guilty of any offence: per Lord Hutton at page 30. 26. In Rahman a group of persons, including the four defendants, who were armed with various blunt weapons attacked a man who collapsed to the ground, where he was further assaulted with blunt weapons and kicked. He was subsequently found to be dead. The cause of death was one or two of three knife wounds, the infliction of which would have required considerable force. Each defendant denied having used a knife and said that he had joined in the attack with at most an intention to cause serious harm and without knowing or foreseeing that anyone else involved intended to kill the victim. The House clarified its earlier decision in Powell and Daniels and English , holding that, where the principal commits an unlawful killing with the requisite intent for murder, an accessory is liable for murder on the basis of his foresight of what the principal might do rather than his foresight of the intention with which the principal’s act might be performed; and that an undisclosed and unforeseen intention to kill on the part of the principal was not relevant to whether the principal’s act had been fundamentally different from the act or acts which the accessory had foreseen as part of the joint enterprise. (iii) The judge’s direction 27. In a case such as this, in which a number of possible findings of fact are open to the jury, it is important that the judge ensures as far as possible that he gives the jury such directions on the law as are necessary to enable them to address the real issues and does not risk confusing them with unnecessary directions relating to findings that are no more than a theoretical possibility. In the present case the judge gave the jury nine pages of written directions covering the law relating to murder, manslaughter, causing grievous bodily harm with intent, self defence and joint enterprise. The directions were inevitably complicated; to have added what has been called an English direction would have made them even more so. The judge was right to consider whether it was necessary to add to the directions of law in that way. He decided that it was not; the question is whether he was right about that. 28. None of the defendants in this case used a weapon of any kind other than their fists and feet. The only joint enterprise alleged by the Crown was to give the boys a severe beating. If the jury was satisfied that there was a joint enterprise, therefore, it was one that involved punching, kicking and stamping. Whatever the precise degree of harm that any one of them may have intended or contemplated, it must, therefore, have been harm of the kind that may be caused in that way. It is well known, however, that a person who falls to the ground in a sudden and uncontrolled manner may suffer a life-threatening injury, for example, by hitting his head on the kerb. It is also well known that equally serious injuries may be caused by kicking or stamping on the head of a person lying on the ground. 29. If, as we think, there was evidence from which the jury could find that Lewis, Cook and Ward set off up Court Road on their way to the station with the common intention of giving the boys a severe beating, it then becomes necessary to consider what evidence there was of the nature and scope of the joint enterprise in which they were all participating. The behaviour of Cook when he attacked Williams outside the bar earlier that evening and his assault on Williams on his way back from the station provided some insight into his state of mind. The aggressive actions of all three in the station car park, however, provided the best indication of what they had in mind. We think it was beyond doubt that each of them intended to fight with the boys and in doing so to use such force as might be necessary to administer a severe beating, using their fists and feet. It was certainly open to the jury to find that each of them individually intended to cause really serious harm, but even if they did not, as a matter of common sense each of them must have realised that either or both of the other two might punch or kick repeatedly with such force as to cause really serious harm. Punching and kicking of a severity that was liable to cause really serious harm cannot in those circumstances have been unforeseen; it was an obvious possibility, if not the very kind of act they each had in mind. 30. In those circumstances the judge was right to hold that there was no need for an English direction in this case; to have given one would only have served to lengthen the already complicated directions and risk confusing the jury. Whatever the intention of Lewis or Cook at the time he struck or kicked Edwards, his acts were of a kind that the others must have foreseen as part of the joint enterprise. Mr. Jenkins submitted on behalf of Lewis that the degree of violence meted out by Cook was far greater than he had foreseen and thus fundamentally different from that which he had foreseen, and no doubt a similar submission could be made on behalf of Cook in relation to Lewis’s punching of Edwards to the ground. In our view, however, such a submission is wholly unrealistic in the circumstances of this case. On behalf of Ward Mr Elias submitted that the attack on Edwards went far beyond anything that he had either intended or foreseen, but for the reasons we have already given we do not consider that to be realistic. The fact is that the attack on Edwards was a part of a single enterprise in which all three joined in the understanding that fists and feet would, or might, be used to inflict really serious harm. 31. It follows that the judge’s failure to give an English direction in this case does not render the convictions on count 1 unsafe. (iv) Inconsistency – Lewis and Cook 32. Ward was convicted of manslaughter on count 1 of the indictment and of attempting to cause grievous bodily harm with intent to Kilnan. Since he had not been directly involved in the assault on Edwards or Kilnan, he could be convicted of those offences only on the basis that he was a party to a joint enterprise with Lewis and Cook which had been formed at the time the three of them set off for the station. That being so, the verdicts returned on counts 1 and 5 in relation to Ward are inconsistent in law, since, if he foresaw that Lewis or Cook might assault Kilnan in such a way as to cause him really serious harm (as the verdict on count 5 required), he must also have foreseen that one or other of them might assault Edward in the same manner, thus rendering himself guilty of murder on count 1. Indeed, Mr. Rees did not seek to argue the contrary. 33. We shall consider in a moment what the consequences of that inconsistency are for Ward, but we shall first consider what implications those verdicts have for Lewis and Cook. Mr. Jenkins submitted that they show that the jury misunderstood the judge’s directions on joint enterprise and therefore any convictions which depended on the application of those principles are unsafe. Mr. Elias made a similar submission, arguing that the judge had failed to provide the jury with a written summary of the directions which set out a clear and coherent route to verdict, leading to confusion and inconsistent verdicts. 34. As we have already mentioned, the judge did provide the jury with written directions on the law, including the law on joint enterprise, the formulation of which has not been criticised, apart from the omission of an English direction which we have held to have been unnecessary. Nothing in those directions has been identified as being unclear or likely to have caused confusion. Whatever may be said about the verdicts in relation to Ward, there is nothing to indicate that the jury may have been confused in any way when considering their verdicts in relation to Lewis and Cook on count 1. There was, as we have said, ample evidence on which they could find that the two of them were parties to a joint enterprise to inflict really serious harm on all or any of the boys whom they might encounter and the verdicts on counts 1 and 5 reflect such a conclusion. The fact that different verdicts were returned in relation to Ward may raise a question in his case, but does not do so in theirs. 35. For all these reasons we are satisfied that the convictions of Lewis and Cook on count 1 are not unsafe. (v) Inconsistency - Ward 36. One can approach the verdicts returned in relation to Ward on counts 1 and 5 in a number of different ways. Mr. Elias submitted that the jury must have found that, if he was a party to a joint enterprise of any kind, he did not foresee that Lewis and Cook might inflict really serious harm on Edwards, otherwise they must have convicted him of murder. Equally, however, they had no rational basis for distinguishing between the assault on Edwards and the assault on Kilnan. Ward was therefore not criminally responsible for the actions of Lewis and Cook in assaulting Edwards or Kilnan in such a way as to cause really serious harm. The jury should therefore have acquitted him on both counts and both convictions are unsafe. 37. However, Mr. Rees advanced another interpretation. He submitted that the better view is that although the jury was satisfied that all three defendants had been parties to an agreement to give the boys a beating and that Ward had foreseen that one or more of them might suffer really serious harm as a result, they were reluctant to convict him of murdering Edwards, since he had played no direct part in the attack on him. They did not, however, feel the same reluctance to convict him of attempting to cause grievous bodily harm to Kilnan because the way in which he fought with Evans showed that he was willing for a considerable degree of violence to be used with that purpose in mind. 38. We were referred to a number of cases in which the court has considered the effect of inconsistent verdicts. In R v Drury (1971) 56 Cr. App. R. 104 the appellant, a lorry driver, had been charged with the theft of 28 boxes of oranges and with two counts of obtaining by deception. He had short-delivered a consignment of oranges to a wholesale fruiterer, retaining the 28 boxes on his lorry with the connivance of his foreman and subsequently selling them to various local greengrocers. The Crown put its case on the basis that the appellant had dishonestly appropriated the oranges by selling them and that by selling them he had also obtained money by deception from the buyers. Since all three counts depended on whether the sales were dishonest, they stood or fell together, but for some reason the jury convicted the appellant of obtaining by deception but acquitted him of theft. The court rejected the proposition that whenever the jury has returned inconsistent verdicts the convictions must necessarily be quashed, saying that it all depends on the facts of the case. In that case, however, the court considered the verdicts to be so violently at odds that it felt obliged, to quash the convictions. notwithstanding the cogency of the evidence against the appellant. 39. A similar question arose in R v Durante [1972] 1 W.L.R. 1612, (1972) 56 Cr. App. Rep. 708. The appellant had been charged with handling a stolen cheque and endeavouring to obtain money on a forged instrument, namely, the same cheque. A blank cheque was stolen from a company’s cheque book. The appellant went to a public house and asked the manager to cash a cheque for him. He later admitted that he had bought the blank cheque for £2 from a man in a pub and had made it out himself, but he said he had been too drunk to form the necessary criminal intent for either offence. The jury convicted him of handling the cheque, but acquitted him of attempting to obtain money on a forged instrument. 40. The court referred to the case of Drury and to the earlier case of R v Hunt (1968) 52 Cr. App. Rep. 580 in which Lord Parker C.J. had cited the following passage from the judgment of Devlin J. in the unreported case of R v Stone : “When an appellant seeks to persuade this Court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that.” The court formally approved and adopted that as a correct statement of the law. Having done so it was satisfied that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the two differing conclusions and therefore held that the conviction was unsafe. 41. In R v Segal [1976] R.T.R. 319 the appellant was charged with driving in a dangerous manner and driving at a dangerous speed. Although he was said to have made some dangerous manoeuvres in the course of a ten mile journey through a built-up area, the essence of both charges was that he had driven at a very high speed. The appellant denied that he had done either. The jury, preferring the police evidence, convicted him of driving at a dangerous speed but acquitted him of driving in a dangerous manner. Scarman L.J. observed that since the evidence of the police officer and that of the appellant had been in direct conflict, the only real issue for the jury was which of them was to be believed. Scarman L.J. giving the judgment of the court said: “By their verdict of guilty on the count of driving at a dangerous speed it is plain that the jury did reach the view that the speed was dangerous, and it is also plain by their verdict that on the broad issue of who was telling the truth the jury preferred, and indeed accepted, the evidence of the police officer, at least so far as that evidence was concerned with the speed at which the car was being driven. As a matter of common sense and justice the jury might seem to have reached a very reasonable conclusion. They brought in a verdict of guilty of dangerous speed. They felt, or this is a fair interpretation of what they may well have felt, that really in those circumstances it was quite unnecessary, and perhaps indeed unfair, to bring in a verdict of guilty of driving in a dangerous manner since that verdict added nothing to the guilt of the appellant, who in their view was to blame for driving too fast. Nevertheless, as Mr Levene has submitted, those verdicts are as a matter of legal logic inconsistent.” 42. Having then adverted to the principle enunciated in Drury , he continued as follows: “Mr Rylance for the Crown in the course of some very helpful observations pointed out that, though the legal logic of the matter is that these verdicts are inconsistent, the practical common sense of the jury in reaching the verdict that they did reveals no inconsistency in approach, but rather reflects the way in which the case for the Crown had been presented to them. He reminded the court that the jury might well have seen this case as consisting of two parts, linked of course, but nevertheless capable of being assessed separately. One part was the dangerous driving in coming suddenly without warning out of a minor road on to a major road, in overtaking at the brow of a hill and in zigzagging. The other part was the continuous high speed to which the officer spoke and which the officer said in his opinion was a dangerous speed. The jury may well have thought that it sufficed, for the reasons we have indicated, to bring in a verdict of guilty to the dangerous speed and to reach no final conclusion on the other incidents of the driving but to give the defendant the benefit of an acquittal there. Inconsistent? Yes, in law. Unsafe, unsatisfactory or lacking in common sense? No, a perfectly understandable approach, in the view of this court. This is not a puzzling case. In Reg. v Drury (1971) 56 Cr. App. R. 104 the court was puzzled. In this case we are not; and certainly the existence of a formal logical inconsistency does not lead us to doubt the safety of the verdict on speed. At the end of the day it is for this court to make up its mind under section 2 of the Criminal Appeal Act 1968 whether the verdict of guilty in all the circumstances was safe and satisfactory. We have reached the unhesitating conclusion that, although it is formally inconsistent with the verdict of not guilty on driving in a dangerous manner, it is nevertheless a safe, satisfactory and sensible verdict once the jury had decided that they preferred the evidence of the police officer to the evidence called for the defence.” 43. The circumstances which gave rise to the appeal in R v McKechnie, Gibbons and Dixon (1992) 94 Cr. App. Rep. 51 were somewhat closer to the present case inasmuch McKechnie was said by the prosecution to have committed an assault on an elderly man, which ultimately contributed to his death, in the course of a joint enterprise with his two co-accused, Gibbons and Dixon, neither of whom had any direct hand in it. All three defendants were charged on count 1 of the indictment with murder and on count 2 with causing grievous bodily harm with intent. That second count had been included to cater for the possibility that the jury might not be satisfied that the injuries sustained by the victim had contributed to his death. In the event McKechnie was convicted of manslaughter on the grounds of provocation and Gibbons and Dixon were convicted of causing grievous bodily harm with intent. 44. All three appellants appealed against conviction on the grounds that the verdict on count 1 in relation to McKechnie was inconsistent with the verdicts on count 2 in relation to Gibbons and Dixon. The prosecution had put its case to the jury on the basis that they only had to consider count 2 if they were unsure that McKechnie’s attack had caused the victim’s death. The appellants argued, therefore, that the verdict in relation to McKechnie on count 1 could only be supported if they were sure that it had, but the verdicts in relation to Gibbons and Dixon on count 2 could be supported only if they were not sure of that. 45. Auld J., giving the judgment of the court, referred to Drury and Durante . He then pointed out that the real inconsistency between the verdict on count 1 and the verdicts on count 2 lay in the fact that Gibbons and Dixon could be guilty on either count only if they had been parties to McKechnie’s attack. However, the jury’s finding that McKechnie was or may have been provoked, which led to a verdict of manslaughter by reason of that provocation, made it impossible to conclude that there had been any joint enterprise between them. The court concluded that there was ample evidence to support McKechnie’s conviction and that a proper direction had been given on causation and provocation. It therefore upheld his conviction. It also held, however, that the jury had not been told how to approach the position of Gibbons and Dixon if they were satisfied that McKechnie may have been provoked into committing the assault and for that reason quashed their convictions. 46. In R v McCluskey (1994) 98 Cr. App. Rep. 216 the appellant, who had been involved in a fight in the street in which another man had been killed, was charged with murder and affray. He said he had acted in self-defence. The judge directed the jury that if they convicted the appellant of murder or manslaughter, there was no defence to the charge of affray. However, the jury convicted the appellant of manslaughter but acquitted him of affray. The primary ground of appeal was that the verdicts were inconsistent and that the conviction was therefore unsafe. Giving the judgment of the court Henry J. said: “The general rule in this Court is that where the jury convict on one count but acquit on another, this Court will quash the conviction on grounds of inconsistency if, and only if, the conclusion reached by the jury is one at which no reasonable jury who had applied their minds properly to the facts of the cause could arrive. (See the unreported decision of Devlin J. in Stone [1955] Crim.L.R. 120 C.C.A., formally adopted by this Court in Durante (1972) 56 Cr. App. Rep. 708, 714, [1972] 1 W.L.R. 1612, 1617E). But in the case of Trundell (unreported, June 28, 1991) it was emphasised that the fact that two verdicts were shown to be logically inconsistent might not by itself be a reason for quashing a verdict unless the only explanation for the inconsistency must or might be that the jury was confused and/or adopted the wrong approach, thus making the verdict complained of unsafe. In this case, these verdicts were clearly inconsistent. Might the reason for that have been that the jury was confused and/or adopted the wrong approach? The appellant submits that that might have been the case. The submission is that as the only basis for acquittal on the affray charge is that the appellant was not acting unlawfully because he was acting in self-defence, so the jury must have believed that self-defence only reduced murder to manslaughter, rather than offering a complete defence. The appellant has not satisfied us that that is a possibility. The jury here were trying the most serious crime of the calendar. Central to that was self-defence. They had had the direction on self-defence three times, put in the clearest terms. To emphasise the point, the last time was in the passage last quoted above – a plain and unambiguous answer to the jury's specific question. It is inconceivable that they misunderstood it. The matter can be approached in another way by testing that conclusion against what other explanations there may be. Here, this jury, having taken time, acquitted of murder and convicted of manslaughter. They could justifiably have felt that they had then reached the only important decision in this case and that all that followed, namely count 2 affray, was academic — as in reality it was. A consecutive sentence would have been wrong as all arose out of the same incident. We regard the acquittal on the relatively minor charge of affray as reflecting no more than that. Certainly that acquittal goes no way to persuading us that this jury misunderstood the main issue on the murder charge. To make such a finding on so slight a basis would be an insult to the jury.” 47. None of the cases to which we have referred is quite on all fours with the present, which is hardly surprising. Apart from anything else, all of them, other than McKechnie , are cases in which the appellant had been acquitted on another count, thereby casting doubt on the findings on which the conviction was based. Nonetheless, the principles that emerge from them are reasonably clear: the only question for the court is whether the conviction is safe and it is for the appellant to satisfy the court that it is not by showing that the only satisfactory explanation for the inconsistency is that the jury is likely to have been confused or to have adopted the wrong approach when reaching their verdict. As McCluskey makes clear, whether the conviction is unsafe is a matter to be judged by the circumstances of the case as a whole. 48. In the present case the judge made it very clear to the jury, both in relation to count 1 and again in relation to count 5, that they could not convict Ward of either offence unless they were satisfied that he was a party to the joint enterprise from the outset. We think that there can be no doubt, therefore, that in convicting him on both those counts they were satisfied of that fact. Moreover, in convicting him on count 4 (attempting to cause grievous bodily harm with intent to Evans) it is clear that they were satisfied that when he took part in the violence he intended to cause really serious harm. In those circumstances we find it impossible to believe that the jury was not satisfied that he had foreseen that Lewis and Cook might act in a similar way. If that is so, Ward’s conviction on count 5 is safe. The anomaly is the conviction for manslaughter on count 1; on that basis the jury should have convicted him of murder. In our view the explanation offered by Mr. Rees is clearly the more plausible: the jury was unwilling to convict Ward of murder in circumstances where he had played no direct part in the death of Edwards. He may be fortunate in having been convicted of manslaughter rather than murder, but we are quite satisfied that the conviction is not unsafe. (vi) Cook – other grounds 49. In addition to the grounds with which we have already considered Cook seeks leave to appeal against his conviction for murder on the grounds that the evidence did not support the conclusion that he struck Edwards intending to cause him really serious harm. In support of that argument he produced for the hearing photographs of the deceased and diagrams showing his injuries together with written submissions based on various aspects of the evidence. 50. Having reviewed the evidence, in particular the CCTV evidence and the stills taken from it, there is in our view no merit whatsoever in any of his arguments. It goes without saying that it was for the jury to evaluate the evidence before them and none of the points made in the written submissions provides any grounds for thinking that the conviction is unsafe. Although the assault on Edwards happened very quickly, there was enough time for Cook to strike Edwards several forceful blows and the evidence of Lewis tended to confirm that he did so. It cannot be said that there was insufficient evidence to support the jury’s finding. (b) Count 4, Attempting to cause grievous bodily harm to Evans 51. The attack on Ashley Evans began almost as soon as Lewis, Cook and Ward reached the station car park. Lewis struck the first blow, after which he and Cook moved away to confront Edwards, leaving Ward and Evans fighting. After the attacks on Edwards and Kilnan were over, Lewis and Cook returned to join in the fight, which was still going on. Mr. Jenkins submitted that as far as Lewis was concerned (and the same is true for Cook), the assault on Evans fell into two quite separate stages, in relation to each of which the issue of self-defence was raised. Accordingly, he submitted, it was necessary for the judge to direct the jury that they had to reach agreement on the facts relating to the first or second stage before they could convict. In other words, it would not do for (say) six of them to find that Lewis acted in self-defence at the first stage but not at the second and the other six to find that he acted in self-defence at the second stage but not at the first. The direction which it is said that the judge should have given is sometimes known as a Brown direction (see R v Brown (K) (1984) 79 Cr. App. Rep. 115). Mr. Jenkins submitted that since the judge did not give such a direction, Lewis’s conviction on count 4 is unsafe. Mr. Rees, on the other hand, submitted that the attack on Evans constituted a single continuing course of conduct and that therefore no direction of that kind was required. 52. It has often been said that the jury should not be overburdened with unnecessary warnings and directions which serve only to confuse them and that a Brown direction will be necessary only in comparatively rare cases where there is a risk that the jury will not realise that they need to agree upon the particular ingredient which they rely upon to find the defendant guilty of the offence charged. A number of cases in which the need for a Brown direction has been discussed were considered in R v Boreman [2000] 2 Cr. App. Rep. 17. Among them was the case of R v Gianetto [1997] 1 Cr. App. R. 1, in which the appellant was charged with the murder of his wife. The Crown’s case was that he had either murdered her himself, or had arranged for someone else to kill her. The defence asked the judge to give a Brown direction, but he declined to do so. The appeal was dismissed on the grounds that the appellant was guilty of murder in either event, being either the principal or a secondary party to what was a single offence. 53. In R v Christopher Smith [1997] 1 Cr. App. R. 14 the appellant had been present at a family party which degenerated into violence. He was alleged to have committed various assaults on those present, both while he was in the house and after he had gone outside. He was charged with two offences of assault and with affray, the latter being intended to cover what had gone on both inside and outside. He appealed against his conviction on the grounds that the judge should have given a Brown direction because there was a possibility that some of the jury might have been minded to convict on the basis of what had taken place only inside the house and others on the basis of only what had taken place outside. The appeal was dismissed on the grounds that it is unnecessary for the Crown to prove particular incidents in order to obtain a conviction for affray. As Lord Bingham C.J. pointed out at page 17, affray “ . . . typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on. Again, typically it involves a continuous course of conduct, the criminal character of which depends on the general nature and effect of the conduct as a whole and not on particular incidents and events which may take place in the course of it. Where reliance is placed on such a continuous course of conduct it is not necessary for the Crown to identify and prove particular incidents.” 54. However, he recognised that in some cases the position may differ, since he went on to say this: “Different considerations may, however, arise where the conduct which is alleged to constitute an affray is not continuous but falls into separate sequences. The character of the conduct relied on in each sequence may in such a case be quite different and so may the effect on persons who are (or might hypothetically be) present at the scene. The possibility then arises that half the jury may be persuaded that the first sequence amounted to an affray and the second did not, and the other half of the jury may be persuaded that the second sequence amounted to an affray and the first did not. The result would then be that there was no unanimous jury verdict in support of conviction based on either sequence.” 55. Unlike affray, the offence of causing grievous bodily harm with intent is not directed to the overall impression made on third parties by what is typically a continuous course of conduct, but concerns one or more acts committed by the defendant against another person. Those acts may, of course, form part of a continuous course of action, but the overall course of action is not itself what constitutes the offence. In the present case the assault on Evans was continuous, since Ward was engaged throughout, following the initial punch by Lewis, but the contributions made by Lewis and Cook were separated in time. We doubt therefore whether they can properly be regarded as part of one continuous course of action in quite the same way as would have been possible if they had been charged with affray. Nonetheless, we do not think that the lack of a Brown direction in this case renders the convictions of Lewis and Cook on count 4 unsafe. The verdicts on counts 1 and 5 make it clear that the jury was satisfied that there was a joint enterprise involving all three defendants and that each of them intended or foresaw the use of violence of a kind that might cause really serious harm. In those circumstances, whatever part each played in the attack, Lewis, Cook and Ward were each criminally liable for the assault on Evans, either as principal or secondary parties. To have given a Brown direction would only have risked confusing the jury. 56. For all these reasons the appeals of Lewis and Cook against conviction are dismissed. Since there is no merit in the substance of Cook’s renewed application for leave to appeal against conviction, his application for an extension of time is refused. (c) Sentence 57. Cook was sentenced to life imprisonment with a minimum period of 16 years in custody. Lewis was also sentenced to life imprisonment, but in his case the minimum period in custody was set at 14½ years. Cook renews his application for leave to appeal against sentence on the grounds that the minimum period in his case was manifestly excessive having regard to the fact that no weapons were used, that there was no intention to kill and that there was no significant premeditation. He also submits that there is objectionable disparity between the sentence imposed on him and that imposed on Lewis. 58. In our view there is no merit in any of these arguments. The judge was well-placed at the conclusion of the trial to assess the relative culpability of each defendant. As he rightly pointed out, there were aggravating factors in this case, in particular the fact that the offence was committed jointly, in a public place, late at night and was in the nature of a revenge attack. Cook was significantly older than Lewis or Ward and could have been expected to be a moderating influence; instead there was reason to think that his actions in repeatedly striking Edwards were the principal cause of his death. In our view neither the length of the minimum term itself nor the fact that it was somewhat longer than that imposed on Lewis is open to criticism. 59. Again, since there is no merit in the substantive application, we refuse the necessary extension of time.

```yaml citation: '[2010] EWCA Crim 496' date: '2010-03-17' judges: - LORD JUSTICE MOORE-BICK - MR JUSTICE SILBER - MR JUSTICE KENNETH PARKER ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

No: 200407224/B5-200407226/B5-200407225/B5 Neutral Citation Number: [2006] EWCA Crim 2000 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 31st July 2006 B E F O R E: LORD JUSTICE MAURICE KAY MR JUSTICE OPENSHAW SIR CHARLES MANTELL - - - - - - - - R E G I N A -v- MICHAEL STEELE PETER THOMAS CORRY JACK ARTHUR WHOMES HOUSE OF LORDS PRONOUNCEMENT - - - - - - - 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 F BENLAMKADEM appeared on behalf of the APPELLANT CORRY MR R KEOGH appeared on behalf of the APPELLANT WHOMES MR J ASHLEY-NORMAN appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE MAURICE KAY: Since this matter was listed some 2 months ago, this has proved to be the first occasion upon which the three members of the Court have been in London at the same time. But before turning to the disposal of the application under section 33(2) of the Criminal Appeal Act 1968 , we shall address a point which has been raised in written submissions by Steele and also by Mr Blaxland QC. They contend that, because Openshaw J was not present on the day when judgment was handed down, 22nd February 2006, the appeal was not legally determined on that date. As a result, they seek to make further submissions on the merits of the appeal to this Court. Their contention is based on section 55 of the Supreme Court Act 1981, the material parts of which provide as follows: "(2)... a court shall be duly constituted for the purposes of exercising any of its jurisdiction if it consists of any uneven number of judges not less than three... (4)...a court shall, if it consists of two judges, be duly constituted for every purpose except- (a) determining an appeal against (i) conviction..." 2. Thus, it is submitted, this remains an undetermined appeal. Reference is made to the case of R v Coates & Ors [2004] EWCA Crim 2253 , which dealt with the position which arose when the presiding Lord Justice had died after the hearing but before the reserved judgment was produced. 3. We reject the submission based on section 55. It is the common practice of this Court, however constituted, to hand down judgments which have previously been released to counsel without all members of the constitution necessarily being present. The usual reason and the one which arose in the present case is that, by the time the judgment is ready to be handed down, a member of the Court is no longer in London but is sitting somewhere on circuit. In such circumstances it would only be possible for the three judges to reassemble for the hand-down if the judge on circuit were to leave his duties there for a day, thereby disrupting a current trial, or if a potentially lengthy delay in handing down the judgment were to be tolerated. It is the view of this Court, and (we apprehend) all constitutions of it, that it is in the public interest to hand down the judgment as soon as possible without disrupting a trial in another part of the country. In the present case Openshaw J was presiding over a trial in Liverpool on 22nd February. We reject the submission that the Court is not properly constituted on an occasion such as pertained on the handing down of the judgment in the present case. No judgment is released to counsel unless and until it has been approved by all members of the Court. That occurred in the present case. The appeal was not "determined" by the Court on 22nd February. What happened on that day was simply the formal promulgation of the judgment. As Judge LJ observed in Coates (paragraph 32): "An appeal is 'determined' for the purposes of section 55 when the decision is properly to be treated as binding on the judges themselves." That point was reached when all three indicated their approval of the draft and authorised its release to counsel. Accordingly, this Court has no jurisdiction to receive further submissions on the merits of the case at this stage. 4. Steele seeks to raise a further point in the form of complaint that we are unwilling to receive oral submissions about the application under section 33(2) . He says (correctly) that if Openshaw J had been present on 22nd February, it would have been appropriate for oral submissions to have been made by counsel at that time. However, such oral submissions were not and could not be made at that time, partly because of the absence of Openshaw J but also because Baroness Kennedy QC, with the apparent support of other counsel, asked for time before submitting an application in writing. Her request was granted and indeed there was a further extension of time. We should add that on 22nd February there was, in any event, only a very short amount of court time available for this case. 5. As a matter of law, it is open to this Court to deal with an application for leave to appeal to the House of Lords on the papers: see R v Daines and Williams 45 Cr App R 57 . Whilst applications are often made orally at the conclusion of a hearing and are dealt with on that basis, that is not always so. We have considered whether any appellant can have a justified sense of grievance by our not inviting oral submissions in the present case. We are in no doubt that any such sense of grievance would not be justified. What has happened is that the appellants have been able to make lengthy written submissions - far more lengthy than would have been possible in the time that would have been allowed for oral submissions - and they have supplemented them with further written submissions. In Steele's case, the original submissions were made in writing by his counsel but he then dispensed with the services of counsel and has added his own submissions in writing, partly adopting what counsel had advanced but adding to that material at some length. We are entirely satisfied that no injustice has arisen from the exclusion of oral submissions. We are also satisfied that our view does not contravene Article 6 of ECHR. Quite apart from the lack of unfairness (as we find), we are no longer at the stage of a "trial". Finally, we turn to the application under section 33 . As we have previously communicated in writing, we decline to grant a certificate that a point of law of general public importance is involved. We discern no such point. The matters raised are essentially specific to the facts and circumstances of this particular appeal. We consider the application to be a thinly disguised attempt to reargue the case. The application is therefore refused.

```yaml citation: '[2006] EWCA Crim 2000' date: '2006-07-31' judges: - LORD JUSTICE MAURICE KAY - MR JUSTICE OPENSHAW - SIR CHARLES MANTELL ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2006] EWCA Crim 1792 Case No: 2006/1032/A6 & ORS IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM (1)THE CROWN COURT AT MIDDLESBOROUGH HIS HONOUR JUDGE TAYLOR (2)THE CROWN COURT AT WOLVERHAMPTON MR RECORDER BAKER, QC (3)THE CROWN COURT AT MIDDLESEX GUILDHALL HIS HON JUDGE SIMON SMITH (4) THE INNER LONDON CROWN COURT HIS HON JUDGE VAN DER WERFF 5) THE CROWN COURT AT BLACKFRIARS HIS HONOUR JUDGE WALKER (6)THE CROWN COURT AT SWANSEA HIS HONOUR JUDGE GERALD PRICE Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/07/2006 Before : LORD JUSTICE LATHAM (VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION) MR JUSTICE FORBES and MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Appellant - and - 2006/1032/A6 2006/0740/A4 2006/0979/A6 2006/1204/A1 2006/1432/A3 2006/1193/A0 Shane Martin NORMAN Jaameed HUSSAIN Jason EGAN Lee Alan WALTON Ambrose Otsemobor IGBANOI Rodney Phillip CORY Respondents - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Richard Whittam (instructed by CPS York ) for the Prosecution A Braithwaite (instructed by Clark Willis Solicitors, 105, Bondgate, Darlington ) for the appellant Shane Martin Norman S Crawford (instructed by Challinors Ltd ) for the appellant Jameed Hussain J Shepherd (instructed by Powell Spencer & Partners ) for the appellant Jason Egan P Shaw (instructed by Harters, London ) for the appellant Lee Alan Walton N Marney (instructed by Rock Solicitors ) for the appellant Ambrose Otsemobor Igbanoi F Phillips (instructed by Graham Evans & Partners ) for the appellant Rodney Phillip Cory Hearing dates : 26th June 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham: 1. These appeals raise a variety of issues arising out of the provisions of section 240 of the Criminal Justice Act 2003 ( the 2003 Act ). This section imposes an obligation on judges when passing sentence to make a specific direction that the number of days that the offender has spent in custody on remand in connection with the offence or a related offence should count as part of the sentence being served. We will return to the detailed provisions later. The purpose of the Section was to bring clarity and transparency to the process of sentencing, and in particular to the effect of any particular sentence. It replaced, in relation to offences committed on or after the 4 th April 2005, the commencement date of the relevant provisions, section 67 of the Criminal Justice Act 1967 ( the 1967 Act ) under which period spent in custody on remand were taken into account administratively by the Prison Service when calculating the number of days that a particular prisoner had to serve. The application of this provision has undoubtedly caused difficulty, not least because of successive amendments to deal with changing sentencing regimes. 2. The principle behind both section 67 of the 1967 Act and section 240 of the 2003 Act , is that time spent on remand should count towards the serving of the sentence ultimately imposed. But, like many apparently clear principles it is not always easy to apply in practice. Although the six appeals raise a number of different issues, a clear theme emerges, which is that there are difficulties in ensuring that courts have accurate information about relevant periods of custody at the time of sentence, and what a court should do if it is subsequently discovered that incorrect information has been given. This problem was referred to by the court in R –v- Oosthuizen [2005] EWCA Crim 1978 . The present cases provide an opportunity to look in more detail at the relevant statutory provisions. 3. Section 240 of the 2003 Act provides: “(1) This section applies where:- (a) A court sentences an offender to imprisonment for a term in respect of an offence committed after the commencement of this section, and (b) The offender has been remanded in custody (within the meaning of section 242) in connection with the offence or a related offence, that is to say, any other offence the charge for which was founded on the same facts or evidence. (2) It is immaterial for that purpose whether the offender – (a) Has also been remanded in custody in connection with other offences; or (b) has also been detained in connection with other matters. (3) Subject to sub-section (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence. (4) Sub-section (3) does not apply if and to the extent that – (a) Rules made by the Secretary of State so provide in the case of – (i) A remand in custody which is wholly or partly concurrent with the sentence of imprisonment or (ii) A sentence of imprisonment for consecutive terms or for terms which are wholly or partly concurrent, or (b) It is in the opinion of the court just in all the circumstances not to give a direction under that sub-section. (5) Where the court gives a direction under sub-section (3), it shall state in open court – (a) The number of days for which the offender was remanded in custody, and (b) The number of days in relation to which the direction is given. (6) Where the court does not give a direction under sub-section (3), or gives such a direction in relation to a number of days less than that for which the offender was remanded in custody, it shall state in open court – (a) that its decision is in accordance with rules made under paragraph (a) of sub-section (4), or (b) that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are. ........... (8) for the purposes of the references to sub-section (3), to the term of imprisonment to which the person has been sentenced (that is to say, the reference to his “sentence”), consecutive terms and terms which are wholly or partly concurrent are to be treated as a single term if – (a) The sentences were passed on the same occasion, or (b) Where they were passed on different occasions, the person has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occasions. .... (10) This section applies to a determinate sentence of detention under section 91 of the Sentencing Act or section 228 of this Act as it applies to an equivalent sentence to imprisonment.” 4. The rules referred to in sub-section (4) are contained in The Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005 (the 2005 Rules). These provide by Rule 2: “ Section 240(3) of the 2003 Act does not apply in relation to a day for which an offender was remanded in custody – (a) If on that day he was serving a sentence of imprisonment (and it was not a day one which he was on licence under Chapter 6 of Part 12 of the 2003 Act or Part 2 of the Criminal Justice Act 1991 ; or (b) Where the term of imprisonment referred to in sub-section (1) of that section is ordered to be served consecutively on another term of imprisonment, if the length of that other term falls to be reduced by the same day by virtue of section 67 of the Criminal Justice Act 1967 .” 5. It should be noted that section 240 of the 2003 Act applies only where a sentencing judge imposes a determinate sentence in relation to an offence committed on or after the 4 th April 2005. The judge, as we have already said, is under a duty under section 240(3) to give a direction as to the number of days which the offender was remanded in custody which are to count as time served by him as part of the sentence. That must be stated in open court. And if the number of days to count towards the sentence is less than the number of days for which he was remanded in custody, the judge must explain which of the provisions of Section 240(4) is being applied, and if it is section 240(4) (b) what the circumstances are which justify the conclusion that it would be just not to give a direction. 6. In December 2004 the Sentencing Guidelines Council issued a guideline entitled “New Sentences: Criminal Justice Act”, which in relation to Section 240 was summarised in the following terms: “The court should seek to give credit for time spent on remand in all cases. It should make clear when announcing sentence, whether or not credit for time on remand has been given and should explain its reasons for not giving credit when it considers that this is either not justified, would not be practical, would not be in the best interest of the offender.” 7. This obligation can only properly be met by the court if it is provided with reliable information. This task is undertaken by the Prison Service in accordance with Prison Service Order No 6650. The National Offender Management Information System will, it is hoped, ensure that the relevant information is available to the courts. And we understand that the Prison Service intend to have an Establishment Liaison Officer who will be a single point of contact for the courts and available at short notice by telephone. But it is likely that the problems will still arise. 8. If inaccurate information has been given, the only express power which a court has to correct any resulting mistake is under section 155 of the Powers of the Criminal Courts (Sentencing Act) 2000 (the 2000 Act) which provides: “(1) Subject to the following provisions of this section, a sentence imposed, or other order made, by the Crown Court when dealing with an offender may be varied or rescinded by the Crown Court within the period of twenty-eight days beginning with the day on which the sentence or other order was imposed or made or, where sub-section (2) below applies, within the time allowed by that sub-section. .... (4) The sentence or other order shall not be varied or rescinded under this section except by the court constituted as it was when the sentence or other order was imposed or made, or where that court comprised one or more justices of the peace, a court so constituted except for the omission of any one or more of those justices.” 9. The existence of this express power means, in general terms, that there is no room for a mistake to be remedied in any other way. We say generally speaking because the courts have recognised exceptions in very limited circumstances, one example is R –v- Saville (1980) 2 Cr App R (S) 26 . In this case, the Crown Court having made a criminal bankruptcy order in the sum of £5,000 failed to identify how that was to be distributed between the offences. The judge subsequently, but after the 28 day period provided by section 11(2) of the Courts Act 1971 , the predecessor to section 155 , purported to rectify the court’s order. This court held that he was entitled to do so as it was “an adjustment of an inchoate order which at that moment existed.” Essentially the court concluded that where an amendment was required which had no effect on the sentence or other orders made, but merely corrected an error, the court was entitled to do so. It also approved a decision of Judge Rubin in Michael [1976] QB 414 , where he held that the court had an inherent jurisdiction to correct an order which was drawn up in a way which did not reflect what the judge had ordered. This essentially followed from the principle that the order of the court is the order pronounced by the judge in open court: see R –v- Kent 77 Cr App R 120. 10. With those preliminary remarks we turn to the individual appeals, each of which raises a slightly different practical problem, and in some of which there are other issues which we have to determine on the appeals. Norman 11. On the 25 th November 2005, at the Crown Court at Teesside, the appellant was sentenced as follows: i) On an indictment to which he had pleaded guilty, three years imprisonment for an offence of burglary, three months imprisonment concurrent for possessing amphetamine, and three months imprisonment concurrent for possessing cannabis; ii) On a committal for sentence, he having pleaded guilty in the Magistrates Court, to 18 months imprisonment for dangerous driving, to be served consecutively to the sentences imposed on the indictment and to three months imprisonment for failure to surrender to bail, to be served consecutively to the sentence for dangerous driving. 12. Having committed an offence before the expiry of the full term of an earlier sentence of imprisonment, he was ordered to be returned to custody to serve the remaining period of 388 days under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 to be served before the sentence for the offences on the indictment and committal for sentence. No direction was given under section 240 of the 2003 Act . On the 28 th November 2005, the Court record was amended to the effect that a direction had been given under section 240 of the 2003 Act in respect of 136 days. The court clearly had no power to do so administratively. The matter then came back before the judge for variation of sentence pursuant to section 155 of the 2000 Act at which time it was submitted on behalf of the appellant that the correct direction should have been for 165 days. The judge adjourned the hearing for further enquiries to be made. When the matter came back before the judge on the 16 th January 2006, he concluded, as was the case, that he no longer had jurisdiction under section 155 to vary the order. The appeal comes before us by reason of a certificate of fitness to appeal granted by the trial judge, as to which the judge said: “The information given to me in respect of time on remand which I said he should have had credit for was incorrect. By the time the correct information came to hand more than 28 days had passed. I would have given him full credit.” 13. The offences of burglary, possession of cannabis and amphetamine were all committed before the 4 th April 2005. The sentences of imprisonment imposed for those offences fall to be dealt with, so far as the remand period is concerned, under section 67 of the 1967 Act . No direction under section 240 of the 2003 Act could therefore be given in relation to these offences. As the sentences for dangerous driving and failure to surrender to bail were to be served consecutively to these sentences, the provisions of Rule 2(b) of the Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005 (the 2005 Rules) apply. As the remand period will be taken into account fully under section 67 of the 1967 Act , there is no period to which section 240 of the 2003 Act can apply. The purported direction added administratively must be rescinded as the Court had no power to make it. For the purpose of this judgment, it is assumed that period to be credited under the 1967 Act is 136 days or more. 14. The appellant further submits that so far as the totality of the sentence is concerned, the judge failed to appreciate that by ordering the appellant’s return to prison for 388 days, the consequence was a sentence in excess of 5 years and 9 months. It is submitted on his behalf that the judge does not appear to have approached the matter as recommended by this court in R –v- Taylor [1997] EWCA Crim 2020 . In that case Rose LJ indicted that a sentencing tribunal should first decide what the appropriate sentence was for the new offence or offences and then the question of return to prison and if so for what period. In his sentencing remarks the judge started by directing his return to prison and then turned to the sentences for the offence in question. There is no doubt that the practice suggested by the Vice President helps a sentencing tribunal to ensure that it has the totality of the sentence in mind, when deciding if and to what extent it should exercise its power to order a return to prison. The question that we have to ask at the end of the day is whether the sentence in the present case was manifestly excessive. Despite the fact that the judge did not deal with the matter as indicated in Taylor, we do not consider that it was. 15. The consequence is that we extend time, and allow the appeal to the extent that the purported order under Section 240(3) of the 2003 Act is rescinded, on the basis that 136 days or more will be credited under section 67 of the 1967 Act . Hussain 16. On the 13 th December 2005 in the Crown Court at Wolverhampton the appellant pleaded guilty on re-arraignment and on the 10 th January 2006, was sentenced to imprisonment for public protection on a count of attempted robbery; and in relation to two counts of racially aggravated fear or provocation of violence, the Recorder imposed no separate penalty. In relation to the sentence of imprisonment for public protection, the period of three years six months was specified. The Recorder took as a starting point a determinate sentence of seven years taking into account his plea. In determining that three and a half years was the minimum term, he said: “In coming to that minimum term I, of course, have taken note of the time spent in custody, which is 152 days, and I have taken that into account in coming to the broad sentence.” 17. There is some uncertainty as to whether or not, at a later stage, the court record was amended so as to direct that the 152 days should be deducted from the minimum term of 3 and a half years. If that indeed did happen, it should not have done. The order as made by the Recorder, should have provided expressly for the 152 days; but that could not be remedied administratively. It would have to be done under section 155 of the 2000 Act . The purported amendment therefore did not reflect what the judge had said. The only point in relation to section 240 of the 2003 Act which arises in this case is that it does not apply to cases of indeterminate sentences. As we have indicated the only proper way to carry out the relevant calculations for indeterminate sentences is set out by Rose LJ in R –v- Lang [2005] EWCA Crim 2864 at paragraph 10. It is also relevant to point out that the Recorder was also wrong to have imposed no separate penalty in relation to the two counts of racially aggravated fear or provocation of violence. On the basis that he was correct in imposing a sentence of imprisonment for public protection, he must have concluded that the applicant was a dangerous offender. Accordingly concurrent extended sentences should have been imposed: Lang paragraph 20. 18. But the real issue in this appeal is whether or not a sentence of imprisonment for public protection was justified on the facts. The incidents which gave rise to the charges that the applicant faced took place in the early hours of the morning of the 11 th August 2005. The complainant had just left a restaurant and was going back to his car which was parked in an alley way near by. As he was preparing to start the car, the applicant got into the front passenger seat and demanded that the complainant gave him a lift round the corner. The complainant refused. The applicant assaulted him and demanded the car keys from him. A struggle ensued. The complainant got out of the car and tried to run away; but the applicant caught up with him, knocked him to the ground, kicked him, and then tried to prise the car keys from his hand by twisting his fingers back. 19. By then the police had arrived. He tried to run away, but was stopped and held against the bonnet of a police car. He became violent and verbally abusive to the officers; and to one of them he said in no uncertain terms “Paki bastard. I am going to fuck you up Park Lane. The Taliban are going to fuck you up. You don’t know who you are fucking with.” To the other officer he said “White boy bastard” and threatened him. He also struck that officer in the head and mouth with his knee while trying to free himself. 20. The applicant had a number of relevant previous convictions. In 1998, he was convicted of robbery and given a 12 months supervision order. In July 2002 he was fined for an offence of assault occasioning actual bodily harm. In 2004 he was given a Community Rehabilitation Order for two years for an offence of assault occasioning actual bodily harm and religious harassment by use of words. In February 2005 for using threatening, abusive or insulting words he was sentenced to a Community Punishment Order for 120 hours. In April 2005 for using threatening abusive or insulting words he was sentenced to imprisonment for two months. The pre-sentence report recorded that he had obviously been drinking at the time of these offences and because of his previous convictions stated: “There appears to be a notable risk of violence towards the public at large.” 21. The Recorder, having noted that attempted robbery was a serious offence for the purpose of the Criminal Justice Act 2003 stated: “I am quite satisfied, for two reasons, that in your case until you can sort yourself out, you pose to the public ...... a significant risk to members of the public of severe harm, ..... of serious harm by the commission of various specified offences, in other words I am quite satisfied that you have crossed the threshold of dangerousness within the 2003 Act . The two reasons that lead me to that conclusion are these. You have a previous conviction for robbery albeit in 1998, and you have two later convictions for assault causing actual bodily harm amongst other convictions but those are the three which I am entitled to take into account to presume that you pose that risk to the public. Secondly, the pre sentence report quite specifically makes the point, and I will just quote it “there appears to be a notable risk of violence towards the public at large.”” 22. The Recorder was undoubtedly correct in approaching the matter on the basis that pursuant to section 229(3) of the 2003 Act there was a presumption that the applicant presented a risk to the public of serious harm occasioned by the commission by him or further specified offences to use the words of section 225(1)(b). The question raised by the applicant’s counsel is whether or not it would be reasonable to apply the presumption in the circumstances of this case. Counsel points out that the specified offences do not indicate that there was any risk of serious harm within the meaning of the relevant sections, which is defined by section 224(3) of the 2003 Act as “death or serious personal injury, whether physical or psychological.” He points out that the only evidence of injury as a result of his previous conviction was of grazing and bruising to one complainant in the offences in August 2004, and a cut and back pains to the other. Otherwise there was nothing to suggest that any of the three specified offences carried with them the risk of his having caused serious harm. He submits that the injuries received by the victims in the present case fall into a similar category. In our judgment there is force in these submissions. As has been acknowledged, the Recorder was right to conclude that there was a presumption of dangerousness; but the facts of the previous offences, together with the facts of the present offence, make it in our view, unreasonable to conclude that the presumption should apply. Clearly there is a real risk of the applicant once again resorting to violence. That is acknowledged in the pre-sentence report. But his background does not suggest that there is a real risk of his causing death or really serious injury. 23. It follows that we grant him leave to appeal against his sentence and allow the appeal. In our view the Recorder was entitled to take the view that a determinate sentence of seven years was appropriate. Accordingly we substitute a sentence of seven years imprisonment for the charge of attempted robbery. In relation to the two counts of racially aggravated fear or provocation of violence, there will be sentences of two years imprisonment concurrent with each other and concurrent to the sentence in respect of the attempted robbery. We direct under section 240 of the 2003 Act that 152 days should count as time served by him as part of the sentence. Egan 24. This case presented the sentencer with a complex sentencing problem. The applicant seeks leave to appeal against a total sentence of 30 months imprisonment imposed on him on the 23 rd January 2006. At the Crown Court at Middlesex Guildhall the judge directed that 142 days spent on remand was to count towards the sentence. The grounds of appeal are that the judge should have directed that a further 26 days should count towards his sentence and that, in any event, some of the sentences imposed upon him were unlawful. 25. The first offences for which he was sentenced were committed in January 2005. They were an offence of taking a motor vehicle without consent and possessing a bladed article. The appellant took a BMW motor car whilst its owner went to close her garage door. Police officers spotted the vehicle later and saw the applicant and another man approach the vehicle. The officers challenged them but they ran off. The applicant was ultimately caught and found to have a lock knife with a four inch blade in his possession. For reasons which do not appear in the papers before us, these offences were not dealt with by the courts until 10 th January 2006, when having pleaded guilty to them, he was committed for sentence pursuant to section 3 of the 2000 Act in respect of the offence of possessing the bladed article and pursuant to section 6 of the 2000 Act in respect of the offence of taking a motor vehicle without consent. 26. The next offences for which he was sentenced arose out of events on the 29 th April 2005 when police spotted the applicant driving a Peugeot motor car which had been reported stolen. When they approached him, the applicant attempted to drive away but the vehicle stalled and the officers seized the key. He was ultimately on the 10 th January 2006 committed for sentence pursuant to section 6 of the 2000 Act for offences of using a vehicle without insurance, taking a vehicle without consent and, subsequently, failing to surrender in that he failed to appear in relation to those offences at the Brent Magistrates Court on the 28 th November 2005. 27. On the 17 th May 2005, the applicant walked into a flat above a public house through an unsecured door and was found there by one of the residents as he was searching a room. He was arrested and ultimately sentenced on the 7 th October 2005 in the Crown Court at Middlesex Guildhall to a 12 month Community Sentence Order with a Drug Rehabilitation Requirement and a Supervision Requirement. In relation to this offence he had been in custody on remand for 142 days. 28. He remained at liberty from the date of that sentence until the 28 th December 2005. During that time, on the 22 nd November 2005, he was seen to try to force the rear off-side window of a Toyota motor car and was arrested. He failed to appear at Horseferry Road Magistrates Court on the 29 th November 2005 in relation to that offence for which he was ultimately committed for sentence again on the 10 th January 2006 pursuant to section 6 of the Powers of 2000 Act for offences of interfering with a vehicle and failing to surrender. 29. Finally on the 28 th December 2005 he was recognised by a police officer as a passenger in a vehicle, was arrested whereupon he resisted and had to be forcibly restrained. He was remanded in custody after that incident from the 29 th December 2005 until he was ultimately sentenced. As far as the incident on the 28 th December was concerned, he was charged with an offence of resisting a constable in the execution of his duty, and was again committed on the 10 th January 2006 for sentence pursuant to the provisions of section 6 of the 2000 Act . 30. The ultimate sentence of 30 months imprisonment imposed by the judge was constructed as follows: i) Burglary – 18 months imprisonment ii) Possession of a bladed article 4 - months imprisonment iii) The two offences of taking vehicles without consent - 6 months imprisonment to be served concurrently with each other and concurrently with the offence of possession of a bladed article but consecutive to the sentence for burglary. iv) Interfering with a motor vehicle - three months imprisonment to be served consecutively to the other sentences. v) The two failures to surrender - 1 month imprisonment concurrent to each other but consecutive to the other offences vi) Resisting a constable - two months imprisonment, again consecutive to all the other sentences. 31. As we have said, the judge gave a direction pursuant to section 240 of the 2003 Act in respect of the period of 142 days prior to the applicant’s sentence for burglary in October 2005. But he declined to make any direction in relation to the 26 days from the 29 th December 2005 to the date of sentence. As to the latter he said: “Well, I am not concerned with giving credit for his being in custody after breaching the order and then committing further offences, he deserved to be there.” 32. As far as the 26 days are concerned, the judge was right not to direct that they should count towards the serving of the sentence. The offence of burglary was committed before the 4 th April 2005; and as we have said before, as a result of the sentences being served consecutively, section 240(3) does not apply by reason of the provisions of Rule 2(b) of the 2005 Rules. It should be noted that the direction given in relation to the 142 days reflects a change from the position under section 67 of the 1967 Act under which time spent on remand prior to the imposition of a community order did not count towards the serving of any sentence imposed after its breach. 33. However, there are considerable difficulties about the structure of the sentences that the judge chose in arriving at the overall sentence of 30 months imprisonment. The committals pursuant to section 6 of the 2000 Act carried with them a maximum sentence, in total, of 6 months imprisonment, being the maximum which the Magistrates’ Court could impose. In relation to the possession of the bladed article and interfering with a motor vehicle, both carried a statutory maximum of three months imprisonment; and as far as taking and driving away is concerned that carried a maximum of 6 months imprisonment. It follows that the judge imposed the maximum in relation to those charges. And finally, the maximum sentence for resisting a police constable in the execution of his duty is one month imprisonment, so that the judge, in imposing a sentence of two months imprisonment exceeded that maximum. 34. It follows that the maximum sentence available to the judge in relation to the offences for which the applicant was committed for sentence was nine months imprisonment being six months for the offences committed pursuant to section 6 of the 2000 Act and 3 months for the possession of the bladed article. If the sentence for the burglary remains at 18 months, the total would therefore be 27 months imprisonment. Whilst we would have the power to increase the sentence imposed for the burglary, if we felt that the overall sentence of thirty months imprisonment was not manifestly excessive, we consider that it would not be right for us to interfere with the sentence for the burglary in all the circumstances of this case. 35. We therefore give the applicant leave to appeal against sentence. We allow the appeal to this extent, namely that the sentence for possession of a bladed article should be one of two months imprisonment to reflect credit for the plea of guilty, to be served consecutively to the 18 months imprisonment for the burglary. As far as the offences of taking vehicles without consent are concerned, four months imprisonment on each to be served concurrently; as far as interfering with a motor vehicle is concerned two months imprisonment concurrently; as far as the two offences of failing to surrender are concerned one month imprisonment concurrent but consecutive to the other offences committed under section 6 of the 2000 Act ; finally for resisting a constable, one month imprisonment again consecutive to the other sentences for the committals under section 6 . The result is a total sentence of 6 months imprisonment in respect of those committals to be served consecutively to the other sentences. The total is accordingly 26 months imprisonment; and we direct that the 142 days for which the offender was remanded in custody as we have identified above is to count as time served by him as part of the sentence. For the reasons that we have given in paragraph 32 above no direction is made in respect of the 26 days from the 29 th December 2005 to the date of sentence. Walton 36. This appellant, who is now 18 years of age, was sentenced on the 17 th February 2006 to three years seven months detention under section 91 of the Act 2000 Act and a direction was given that a period of 182 days spent on remand would count towards his sentence. On the 13 th March 2006 the matter was brought back before the sentencing judge, HHJ Van der Werff, because the prison service had then recalculated the number of days spent on remand as a result of the fact that a part of the remand period included a period whilst he was serving a Detention and Training Order. If that period was deducted from the overall period, the number of days spent on remand would be 86 days. The judge does not appear to have made a substantive order deducting that period, but granted a certificate of fitness for appeal pursuant to section 11 of the Criminal Appeal Act 1968 in the following terms: “When calculating the number of days credited to the offender and therefore to count as time served by him as part of his sentence (under section 240 of the Criminal Justice Act 2003 ) should any custodial period which would have been deducted from another sentence under the early release provisions but which was not so deducted because he was in custody for the incident offences be added to the days to be credited?” 37. The appellant further seeks to appeal the sentence on the grounds that the sentence was manifestly excessive. 38. The facts are as follows. The appellant, who was 17 years old at the time, and his friend Dean Rees, who was then 18 years old, lived in the same area of London as the complainant. In that area there were rumours that the complainant had indecently assaulted a young girl. As a result the complainant had left the area for some months. He returned on the 6 th April 2005 and was alighting from a bus in the early hours of the morning when he saw the appellant and Rees who were on bicycles. He was frightened and ran off; but they pursued him. Rees knocked him to the ground and took a £10 note and a mobile phone from his trouser pocket. Rees then lifted him up and said “If you tell anyone I will burn your house down”. Whilst he was being held by Rees the appellant punched him to the side of the head before they both made off. 39. The main ground of appeal in relation to the substantive sentence is disparity. Rees was sentenced to 2 years 3 months detention in a Young Offenders Institution. It is submitted that the part he played in the robbery was the major part; and accordingly the appellant, it is said, has a genuine sense of grievance that he has been treated more severely. 40. The judge explained the difference in sentencing quite clearly. He described the appellant as a persistent young offender with a truly appalling and dreadful record, to the extent that he had considered whether or not a sentence of detention for public protection should be imposed. He had been sentenced to four previous detention and training orders, the first for motoring offences including taking a motor vehicle without consent and aggravated vehicle taking, the second for burglary and theft, the third for causing grievous bodily harm with intent, and the fourth for a serious offence of aggravated vehicle taking. Rees on the other hand, had significantly fewer and less serious previous convictions. In all the circumstances, whilst we accept that the sentence was a severe one, we do not consider that it was manifestly excessive nor that the disparity between it and the sentence imposed on Rees meant that it was wrong in principle, bearing in mind the very real difference between their respective records. 41. Turning then to the question certified by the judge, the direction that he gave in the first instance was one which was entirely correct unless he intended to exercise his power under section 240(4) (b) of the 2003 Act on the basis that it would be just in all the circumstances not to give a direction. The position, as is agreed before us, is that for the period that the appellant was subject to a Detention and Training Order, he was also on remand in custody for this offence. A detention and training order is not a sentence of imprisonment for the purposes of section 240(4) (a)(i), so that it remains a period which is required to be taken into account unless the judge exercises his discretion, as we have said, under section 240(4) (b). And if he exercises such a discretion, he must state what the circumstances are justifying that exercise of the discretion pursuant to section 214(6)(b). There is nothing to suggest that the judge considered the exercise of the discretion. The Prison Service had, in effect, asserted that the mere fact that he was serving a Detention and Training Order was in itself the justification for not counting those days. For the reason that we have given above, that is not a sufficient reason in itself. Counsel for the appellant has also raised a subsidiary issue. Twenty-eight days of the period that the appellant spent subject to the Detention and Training Order, was a period as to which he had been notified that he would be released on early release. But that could not be effected because of his continuing remand in custody. Clearly if the judge had considered exercising his discretion under section 240(4) (b) in relation to the Detention and Training Order, a relevant consideration would have been whether the whole of that period should have been excluded in the circumstances of the case. 42. In those circumstances, the right order was the original order made by the Judge namely a direction that 182 days should count towards the serving of his sentence, in the absence of any proper exercise of his discretion under section 240(4) (b). The documents before us suggest that the order drawn up by the court is in the form of the judge’s original order, in which case the appeal is dismissed. If we are wrong, and the order was varied on the 13 th March to substitute 86 days, then the appeal should be allowed so as to restore the original figure of 182 days. Igbanoi 43. In this case, the applicant was sentenced to 3 years imprisonment on the 26 th October 2005, with a direction under section 240(3) of the 2003 Act that 114 days was to count towards the sentence. In fact that was inaccurate. As the judge himself identified earlier in his sentencing remarks, the whole of the period that the appellant had spent on remand “since 3 rd June” was to count towards the sentence. The proper calculation for that period should have been 146 days. This is, in our view, a classic example of a situation in which the matter should be dealt with by an amendment of the court record to show the true effect of the judge’s order. But as the matter is before us we extend time within which to appeal, we give leave to appeal, and we substitute 146 days for the 114 days directed by the judge to count towards his sentence. Cory & Miller 44. On the 3 rd March 2006 the appellant Cory and the applicant Miller were sentenced to three years imprisonment each for conspiracy to supply a class C judge, cannabis. As far as Miller was concerned, the judge directed that the period of 98 days spent on remand should count towards his sentence. On the 3 rd March 2006, the judge purported to vary that sentence so as to direct that only two days spent on remand would count towards the sentence. Cory appeals against his sentence with leave of the single judge. The Registrar has referred Miller’s application for leave to appeal direct to the full court. 45. The facts were that on the afternoon of the 1 st July 2005, police officers saw Miller drive a co-defendant to a block of flats where Cory lived. Both men got out and went inside. About 15 minutes later they re-emerged together with Cory and his girlfriend. They drove to another block of flats where Cory and his girlfriend left them for a short time, Cory returning with a rucksack which he handed to Rees and returned to the flats. Miller and Rees then drove away. Their car was followed and stopped. The rucksack was found to contain 17 bars of cannabis resin weighing a total of 4.25 kilograms. Forensic evidence showed that the material found in Cory’s home was consistent with the wrappings round the cannabis. When interviewed Cory decline to comment. Miller said that following his release from a previous sentence for possession of drugs with intent to supply he had been told that he had a drug debt which would be wiped out if he collected the drugs in question. 46. Each put forward a basis of plea which was accepted. Cory said that he was a custodian of the drugs for which he would receive £300. Miller confirmed the account he gave in his interview, namely that he had agreed to collect these drugs and money on this occasion in order to extinguish what was said to be a drug debt. 47. The judge concluded that they were involved in a large scale drug trafficking enterprise and both had previous convictions for drug trafficking. He noted that both of them were on licence, Miller for a similar offence. He considered they were in the middle of the supply line from a major supplier to street vendors. He did not consider that there was any reason to distinguish between them. 48. Dealing first with the sentence of three years imprisonment in respect of both of them, it seems to us that the part they played in the supply of drugs was significant. A custodian plays a central role in the distribution of drugs, as does a courier. Bearing in mind the substantial amount of drugs in question, and the fact that both had previous convictions for supplying drugs, Cory in 1995 and Miller, as was clear from his own basis of plea, in 2004, three years imprisonment cannot be said to be manifestly excessive. It follows that as far as the appeal of Cory is concerned, it is dismissed. 49. In relation to Miller, the point is a simple one. The judge purported to vary the original order directing that 98 days spent on remand should count towards his sentence to an order that only 2 days should count 2 days, more than 28 days after the sentence had been imposed. In other words he had no power under section 155 to make that variation. It follows that it must be quashed. The effective order is the one which was made on the 30 th March 2006 directing that 98 days spent on remand should count towards his sentence. His application for leave to appeal is accordingly granted and the appeal is allowed, restoring the direction that 98 days should count towards his sentence. Generally 50. The following points of general application arise out of these appeals. i) It is vital that the court is provided with accurate information as to the number of days which are said to have been spent on remand. We hope that the National Offender Management Information System, referred to in paragraph 7 above will obviate many of the current difficulties. ii) If the information provided subsequently turns out to be incorrect, the sentencing court can only correct the mistake within 28 days (or the extended period in section 155(2) of the 2000 Act ), unless the judge’s order has identified the period in question, but the order as drafted has simply miscalculated the number of days. In that case, the court record can be amended. iii) The procedure under section 240 of the 2003 Act is mandatory in regard to determinate sentences of imprisonment or detention imposed for offences committed on or after the 4 th April 2005, unless the sentencing judge exercises his discretion under sub-section (4) in which case, pursuant to sub- section (6 ) the judge must identify which of the provisions of sub-section (4) apply, and in the event of the court exercising its power under sub-section (4)(b), the circumstances which have led the judge to make the order that he has. iv) Care must be taken to apply the 2005 Rules, whenever a defendant falls to be sentenced for offences committed both before and after the 4 th April 2005. v) Care must also be taken in the case of young offenders to note that, if a Detention and Training Order has intervened between arrest and sentence, the 2005 Rules, do not apply. If the court wishes to disapply the period in question, it must give reasons for so doing. vi) If the period for which the direction has been given is wrong, and both parties agree, but more than 28 days have elapsed since the sentence was imposed, the application for leave to appeal should so state, in which event, on receipt of confirmation of that agreement from both the prosecution and the defence, the matter will be remitted by the Registrar direct to the Court for it to correct the mistake. He will not normally make a representation order for that purpose. The court will then hear the application as the appeal; and the appellant will be informed that as no purpose would be saved by his attendance the Court will assume that he does not intend to exercise his right to do so unless informed to the contrary within 28 days. But that will only apply where the mistake has been to the detriment of the appellant. vii) There may well be cases where the judge fails to give a direction. It should be the responsibility of counsel to bring the matter to the attention of the judge. But where that has not occurred, the same procedural mechanism, as set out in (vi) above should be used in order to correct such a mistake. 51. The suggestion by Rose LJ in Oosthuizen that a non-direction under section 240(3) will not normally be a ground of appeal if the sentence is otherwise appropriate was not the subject of argument in that case. Bearing in mind that the period spent on remand could be a significant proportion of the sentence, we consider that a failure to identify, or identify correctly the period which should be treated as served pursuant to section 240 means that a sentence is wrong in principle. The defendant is entitled to have a direction; and an appeal is the only route available if section 155 of the 2000 Act , or an administrative correction, is not available.

```yaml citation: '[2006] EWCA Crim 1792' date: '2006-07-20' judges: - LORD JUSTICE LATHAM - MR JUSTICE IRWIN ```

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Case No: 2004/4246/A3 Neutral Citation Number: [2004] EWCA Crim 2400 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 18 August 2004 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE GRIGSON MR JUSTICE STANLEY BURNTON - - - - - - R E G I N A -v- SUNSHES NKESHA PIKE-WILLIAMS - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR D LEWIS appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: (To the appellant) We are going to make a conditional discharge for a period of one year. Do you understand? Counsel will explain to you what that means. 2. MR JUSTICE STANLEY BURNTON: On 15th June 2004 at Southwark Crown Court before His Honour Judge Dodgson, the appellant pleaded guilty to a count of misconduct in a public office and on 13th July 2004 was sentenced by that judge to two months' imprisonment. She was released on bail when leave for this appeal was granted by the single judge on 6th August 2004, so that at that date she had served almost one month and almost completed her sentence. As we have mentioned, she appeals against sentence by leave of the single judge. 3. The brief facts are that the appellant was employed by the Metropolitan Police as a station reception officer. Whilst there she accessed secure terminals and viewed confidential information which she was not entitled to do. That information related to her own associates and friends. The basis of the plea was that she had not disclosed to them, or indeed to anyone, what information was held on the police computer relating to them. The offence took place between 9th December 2001 and 13th August 2002. 4. As has been mentioned, there was a written basis of plea to the effect that her searches on a number of people were motivated by idle curiosity, but the information that she accessed was not passed to anyone and that she did not foresee or intend harm to the Metropolitan Police as a result of her actions. 5. It is not surprising that she is a lady of previous good character. She was born on 2nd September 1982. The effect of her conviction and indeed the sentence on her was obviously significant. There were a number of references relating to her and she had the benefit of a positive probation officer's report. 6. The judge in sentencing, however, referred to the harm that had been done to the Police Service as a result of her actions, resulting in a lack of trust in the passing of confidential and sensitive information to the police station where she served. We appreciate that in the circumstances of this case, notwithstanding that the appellant intended no harm to the Police Service, it is not surprising that harm results. 7. We have been referred by Mr Lewis, who represents the appellant, to the decision of this court consisting of the Lord Chief Justice, Gage and Moses JJ in the case of Nazir [2003] EWCA Crim. 901. In that case a police officer who had sought effectively to pervert the course of duty by destroying a fixed penalty notice which had been issued in respect of a friend, had his sentence of three months imposed by the judge trial reduced to one month. That was a case in which there were consequences or intended consequences of the breach of trust on the part of the defendant in question. In this case there were, on the basis of plea, no such consequences. We feel compelled to conclude on the basis of that authority therefore that this case did not pass the custody threshold. 8. The question therefore arises what is to be done in the present circumstances? Had this case come to us at trial we would have been disposed to have passed a community punishment order and a significant one. That is a course which we do not think is appropriate in the present circumstances, having regard to the fact that the appellant served virtually all of her sentence. In those circumstances, as has already been mentioned, we propose to quash the sentence of imprisonment and there will be a conditional discharge for 12 months. 9. LORD JUSTICE HOOPER: (To the appellant) Do you understand? You made a very silly mistake. Let us hope it is the last you ever make.

```yaml citation: '[2004] EWCA Crim 2400' date: '2004-08-18' judges: - LORD JUSTICE HOOPER - MR JUSTICE GRIGSON - MR JUSTICE STANLEY BURNTON ```

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Neutral Citation Number: [2013] EWCA Crim 1389 Case No: 2012/06704/C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CANTERBURY ON A REFERENCE FOM THE CRIMINAL CASES REVIEW COMMISSION Royal Courts of Justice Strand, London, WC2A 2LL Date: Wednesday 31 st July 2013 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE FOSKETT and MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - BRIAN BERRY Appellant - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - David Bentley QC (who did not appear at the trial or the appeal in 2010) for the Appellant P Bennetts QC for the Respondent Hearing dates: 14 May and 16 July 2013 - - - - - - - - - - - - - - - - - - - - - Judgment The President of the Queen’s Bench Division: Introduction 1. In this reference from the Criminal Cases Review Commission (CCRC) made on 22 November 2012, the appellant appeals against his conviction at the Crown Court at Canterbury before Her Honour Judge Williams on 19 and 20 February 2009 on counts of indecent assault or indecency with a child or other sexual offences committed between 1996 and 2002. He was sentenced to a total of 13 years imprisonment, less time on remand. Five counts involved a child called EG aged 14 and 14 involved 3 sisters, R, K and L. At the time the offences were committed the appellant was in his later 50s or early 60s. He is now aged 75. He was tried with the half-brother of R, K and L who was alleged to have abused them between 1984 and 2004; the jury were unable to reach a verdict on the counts relating to him. 2. An appeal was made to this court in relation to his conviction on the counts relating to EG on the basis that the judge had erred in relation to her decision not to allow cross examination of EG on the basis of material in the social services file concerning her relationships with other men. It was contended by the appellant that EG had invented the allegations against him to draw attention away from those relationships. On 14 May 2010, this court (Hooper LJ, David Clarke and Openshaw JJ) allowed the appeal, quashed the convictions on those counts and reduced the overall sentence to 10 years imprisonment [2010] EWCA 2317. 3. The appellant did not seek to contend in that appeal that the convictions on the other counts were unsafe as a result of quashing the convictions relating to EG. The Crown did not seek a re-trial on the counts that had been quashed. 4. The appellant then applied to the CCRC which investigated the matters advanced by him. In its careful and clear report, it did not refer any of those matters, but referred the case to the court on two issues identified from its own investigation of the case: a) The judge’s direction to the jury on the way to approach the evidence of the mother of the three sisters was incorrect. That evidence had been admitted under s.120 of the Criminal Justice Act 2003 (CJA 2003). It was suggested that the judge had not directed the jury in accordance with the decision in R v AA [2007] EWCA Crim 1779 . b) The quashing of the conviction on the counts relating to EG made the convictions on all the other counts unsafe. The enquiries directed by the court 5. The appeal came on for hearing on 14 May 2013. It was clear that both of the points referred by the CCRC could have been taken at the hearing of the previous appeal, but neither was. There was no explanation as to why that was so. After hearing argument on the two issues, we directed that further enquiries be made in the light of our concern that: a) There was nothing by way of fresh material before us on these issues. b) The Crown had not asked for a re-trial in 2010 of the counts relating to EG on the basis that the convictions on the remaining counts were not challenged. 6. It became clear from these enquiries that after listening to the recording of the hearing of the appeal in 2010, when counsel (not Queen’s Counsel) then acting for the appellant had been asked by the Court of Appeal: “Are we right in thinking that the appeal is limited to the counts reacting to EG?” she answered “Yes”. 7. After a waiver of legal professional privilege by the appellant in relation to the appeal and what had happened subsequently, it was apparent that the reason for her answer to the Court of Appeal was that she and the other junior she was leading had not considered the point before she was asked the question. Both junior counsel did consider the point subsequently, but concluded that it could not properly be argued that the quashing of the convictions on the counts relating to EG affected the other counts. After the CCRC had made its report on 22 November 2012, both junior counsel were instructed to act on the reference. As we shall explain, both junior counsel advised in writing in January 2013 that neither issue raised by the CCRC could be argued and that other counsel should be instructed on behalf of the appellant. It was in these circumstances that Mr David Bentley QC was instructed to act. 8. Against that background, we turn to the two issues. The direction on s.120 of the CJA 2003 (a) The evidence 9. It is not necessary in relation to this issue to set the evidence out in any detail. It is sufficient to state the mother of the three sisters, R, K and L described in her evidence the complaints made by R,K and L: i) R had complained at New Year 2007 that the appellant had sexually abused her from the age of about 6 until she was about 11 or 12. R told her that she had also seen the appellant abusing K and L. ii) She then questioned K whether the same had happened to her as had happened to R; K said that it had and that she thought that L had been abused. iii) She then questioned L who told her that she did not want to remember it and did not want to be pressed to remember it, as she had made herself forget it. iv) When R was in hospital after a suicide attempt, R, when not fully conscious, stated that the appellant had raped her. Later she told R that she knew R had been raped by the appellant, R said she had been and told the police she had been. 10. There was also evidence from a family friend to the effect that in November 2006 he had been told by K that she had been sexually assaulted by the appellant. (b) The direction to the jury and the submission of the appellant 11. When the judge came to sum up that evidence to the jury she directed them that, if they accepted the evidence of the witnesses who spoke of such complaints, it was evidence they could take into account, if they thought fit, when considering the reliability of the three sisters as witnesses and when considering the verdicts. She then directed them in relation to whether the complaint had been made as soon as could reasonably have been expected, setting out the contentions of the prosecution and the defence on that question. The direction closely followed that in the Judicial College specimen directions. Nothing was said expressly about the need to bear in mind that the source of each complaint was the individual complainant and not some independent source. 12. It was submitted by Mr Bentley QC that the direction given was wrong in law as it did not state the law as set out in s.120 of the CJA 2003 and as made clear by this court in R v AA [2007] EWCA 1779. This was a material misdirection and the conviction was therefore unsafe. (c) The decisions of this court on s.120 13. The law as to the admissibility of the hearsay statements we have set out is contained in s.120 of the CJA 2003 which provides, in so far a material, as follows: “(1)This section applies where a person (the witness) is called to give evidence in criminal proceedings. …. (4) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if— (a)any of the following three conditions is satisfied, and (b)while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth. …. (7)The third condition is that— (a) the witness claims to be a person against whom an offence has been committed, (b) the offence is one to which the proceedings relate, (c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence, (d) (repealed) (e) the complaint was not made as a result of a threat or a promise, and (f) before the statement is adduced the witness gives oral evidence in connection with its subject matter. (8) For the purposes of subsection (7) the fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved. 14. This change in the law effected by the CJA 2003 was first considered by this court in R v AA [2007] EWCA Crim 1779 . A direction had been given in respect of the evidence of a friend to whom the complainant had complained of a sexual assault the day after she alleged it had happened. After referring to the clear exposition by Buxton LJ in R v Islam [1999] 1 Cr App R 22 of the origins and development of the common law in relation to recent complaint in relation to sexual offences, the court made clear that the law had been changed and re-stated in s.120. Laws LJ, in giving the judgment of the court which quashed the conviction, explained what ought to be made clear in the summing up in relation to a statement admitted under s.120: “16. In our judgment, in order to reflect (a) the substantive change in the law effected by s.120 and (b) the circumstance that a previous consistent statement (whether in a sexual case or otherwise) comes from the same person as later makes the accusation in the witness box, juries should be directed that such a previous consistent statement or recent complaint is, if the jury accepts it was given or made and the conditions specified in s.120 are fulfilled, evidence of the truth of what was stated: but in deciding what weight such a statement should bear, the jury should have in mind the fact that it comes from the same person who now makes the complaint in the witness box and not from some independent source. 17. The Recorder gave no such direction here. Is the conviction thereby rendered unsafe? The case was one, as it has been put in argument, of word against word.” 15. In subsequent decisions of this court, the court has stated that the requirements set out by Laws LJ correctly state the law: see R v Ashraf A [2011] EWCA Crim 1517 , R v D [2011] EWCA Crim 1493 and R v H [2012] 1 Cr App R 30 . However, in each of these cases, the court held that the failure to set out in the summing up what had been stated in R v AA did not render the convictions unsafe. In the last of the cases, this court observed: “It may be inferred that the judge was not asked by defence (or Crown) counsel for an independence direction, and much must be allowed for the feel of the case which the trial judge and counsel would have had. In circumstances where it was the defence rather than, or as much as, the prosecution which was relying on the mother’s evidence, there was a danger in overcomplicating matters.” 16. As we have indicated in the present case, no direction of the type set out in AA was given. It was a case where the evidence of the three sisters was the principal evidence against the appellant. The evidence of the complaints to the mother was only being relied on by the prosecution as support. Should the judge therefore have given the direction as suggested in AA ? 17. In our judgment it was not necessary in the circumstances of this particular case. It must have been obvious to the jury that the evidence of the mother and the family friend was evidence that was not independent of the three sisters as they were the source of that evidence. In our view on the facts of this case, it would have been over complicating the directions of law to have given such a direction as the matter was so obvious to the jury. 18. We had reached that conclusion without knowing the advice of trial counsel. However it is clear from that advice that both trial counsel for the appellant were rightly of the view that the jury cannot have been led to believe in the circumstances of the trial that the witnesses who gave evidence of the complaints were giving evidence that did not originate from the sisters. 19. This ground of appeal therefore fails. (2) The effect of quashing the conviction on the counts relating to EG on the safety of the remaining counts. (a) The position on the appeal in 2010 20. As we have set out, the court hearing the original appeal in 2010 was told that no appeal was being brought in relation to the counts other than those involving EG. When trial counsel were asked to act on this appeal after the decision of the CCRC to refer the case to this court, both trial counsel advised that R had discredited the evidence of EG, as she had denied that EG had witnessed any abuse of her by the appellant or that she had witnessed any abuse of EG; EG had had a separate reason for lying. Thus the jury could not have relied on the evidence of EG in returning verdicts of guilty on the other counts. 21. Mr Bentley QC, however, advanced a formidable argument that the safety of the remaining counts must have been called into question as a result of the quashing of the conviction on the counts relating to EG. It rested on two bases: (a) the evidence of EG and the evidence of the three sisters was interrelated and (b) the judge had directed the jury expressly that the evidence of each complainant was cross-admissible and that if they found that what one of the complainants had said was true, they could use that in supporting the prosecution case on the other counts. The jury had plainly accepted the evidence of EG by finding the counts involving her proved; they therefore may well have taken that evidence into account in determining guilt on the other counts. (b) The interrelationship of the evidence 22. It is clear from the careful way in which the judge summed the case up that EG gave evidence that specifically described an incident where she said that R gave the appellant oral sex and another incident where R “had sex with the appellant’s leg”. There was also evidence in general terms of EG seeing abuse of K. She also gave evidence that the appellant slept in the same bed as the sisters. 23. It was submitted on behalf of the prosecution on the appeal that that evidence did not support the evidence of the sisters in two principal respects: i) The evidence of EG was that she had seen R give the appellant oral sex; the evidence of R was that when she had given R oral sex, he had given her oral sex at the same time; that mutual sexual activity had formed the express basis of count 4. The sexual activity was therefore not the same. There was no evidence from R that oral sex had been confined to R giving oral sex to the appellant. ii) EG’s evidence was that the three sisters were behaving promiscuously with the appellant; the description of having sex with his leg and sharing the same bed was evidence of their promiscuous conduct. The evidence of the three sisters was of abuse entirely carried out by the appellant. 24. We cannot read the record of the evidence contained in the summing up in this way. For example, it is not clear from the way in which the judge summed up the evidence that when R performed oral sex on the appellant, the appellant always performed oral sex on her. In any event there were close similarities; count 16 of the indictment charged the appellant with performing oral sex on K; it was a count similar to count 24 which charged him with performing oral sex on EG. 25. However, of far greater importance is the way the prosecution put the case to the jury and the way the judge summed up the prosecution case to the jury. It is clear that counsel for the prosecution at trial addressed the jury in his final speech on the basis that the evidence of EG supported the evidence of the three sisters and that the evidence of the three sisters supported that of EG. The case was not advanced at trial on the basis that EG’s account and that of the sisters was contradictory. Indeed the trial judge summarised the prosecution’s case as follows: “The prosecution has pointed out, on the other hand, that there are similarities in the defendant’s behaviour as described by each of them. The prosecution suggest that that is no coincidence.” The case run by the prosecution was not one which suggested that the evidence of EG was either discredited or contradictory: it was that the evidence was mutually supportive and cross admissible. (c) The directions on cross admissibility 26. The judge directed the jury in relation to cross admissibility as follows: “The evidence on one count is capable of supporting the prosecution’s case against that defendant on other counts that he faces … …. the evidence of the four complainants in each defendant’s case is capable of lending support to the others. You are perfectly entitled to view the evidence in this way, but let me explain what should be your approach. First, the prosecution’s point only has force if the complaints made are truly independent of one another….. You must consider the evidence and make your own decision. If you are sure that the realistic possibility of influence, conscious or unconscious, by one girl on the others has been excluded, you can treat the evidence of each complaint as supportive of the others in respect of the defendant whose case you are considering Second, you need to assess the value of the evidence. If you have decided that they are independent, it follows that the closer the similarities between the complaints, the less likely it is that they can be explained away as coincidences. It is for you to decide the degree to which the evidence of one girl assists you to assess the evidence of the others. It may lend powerful support or it may not. It is for you to decide.” (d) The safety of the conviction on the counts involving the three sisters 27. Although we appreciate the way in which the prosecution put the case to us on this appeal to an extent coincides with the views of trial counsel for the appellant, the sole record provided to us of what happened at the trial is the transcript of the judge’s summing up. No transcripts of any other part of the trial were obtained by the prosecution. There is nothing in the summing up to indicate that the prosecution was taking anything other than the position that EG was a credible witness and that the evidence each girl had given supported the account of the others on the basis that there were similarities and, in some respects, close similarities (see paragraph 24 above). 28. The prosecution case that EG was a credible witness was a case that the jury accepted as they found the appellant guilty on the counts relating to her. The jury were not told that the activities as described by EG were not similar to those described by R and K; on the contrary, the judge specifically referred to the evidence of all four complainants being capable of lending support to the others. As they were told this by the judge and they accepted EG as a reliable witness, the inference in the circumstances of this case is that the jury might well have relied on the evidence of EG in determining their verdicts on the counts relating to the three sisters. It follows that the convictions are unsafe and must be set aside. 29. The prosecution made it clear that if we reached the conclusion that the conviction had to be quashed, they would seek a retrial on the counts relating to R. In the light of the history of the trial and the appeals it is in the overwhelming interests of justice that there be a retrial of the counts involving R, even though the appellant may only be at risk of serving a short further period of imprisonment, if found guilty. We will give further directions as to the retrial when this judgment is handed down. Postscript 30. We would like to pay tribute to the characteristically thorough work done by the CCRC. We would, however, make one observation. Although the CCRC normally seeks the views of trial counsel before reaching a conclusion, this was not done in this case. As this court has had to ascertain from trial counsel an explanation for the course taken on the appeal in 2010, it would have been much better if the CCRC had done this. It seems to us that unless there are exceptional circumstances, the better practice is for the CCRC to put itself in the position to ascertain an explanation from trial counsel and to obtain that explanation before concluding its reference to this court.

```yaml citation: '[2013] EWCA Crim 1389' date: '2013-07-31' judges: - MR JUSTICE HICKINBOTTOM ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2011] EWCA Crim 1571 Case No: 201006337 C2 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHELMSFORD HIS HONOUR JUDGE BALL QC T20097312 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/06/2011 Before : LORD JUSTICE AIKENS MRS JUSTICE SWIFT and HIS HONOUR JUDGE PERT QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - CLAIRE LOUISE SAUNDERS Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Michael Levy (instructed by David Davies Linn & Associates, Solicitors, Harwich, Essex ) for the Appellant Mr Simon Denison Q.C. (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 16 June 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Aikens : 1. On 16 June 2011 we heard the appeal of Claire Louise Saunders against her conviction on 26 October 2010, after a trial before HHJ Ball QC and a jury at the Crown Court at Chelmsford, of assisting an offender contrary to section 4(1) of the Criminal Law Act 1967 . Following her conviction, Judge Ball had sentenced the appellant to nine months imprisonment suspended for 2 years with an unpaid work requirement. At the conclusion of the hearing before us we announced that we would allow the appeal and quash the conviction. We said that we would give our reasons in writing. These are they. The Facts 2. At about 6pm on 11 July 2009 there was a fight in the street in Jaywick, Essex. It involved Laurence Wheatley (“LW”), his brother, Graham Wheatley (“GW”), Jason Bethell (“JB”) and John Smith. The fight arose following the acrimonious termination of a relationship between John Smith and his girlfriend Deanna McKee (“DM”) on 8 July 2009. DM ended the relationship because she found John Smith too possessive and controlling. John Smith took the termination badly. DM was concerned about what John Smith might do and so she asked LW to train his CCTV cameras on her house as a protective measure. John Smith found out about this and began to think that DM and LW were having an affair. He threatened violence against them both. On the evening of 10 July LW visited John Smith and tried to talk to him but John Smith immediately assaulted LW and so he fled. 3. In the fight on 11 July, John Smith was set upon by some or all of LW, GW and JB. He was repeatedly stabbed, punched and kicked. He was also hit by a car driven by GW. John Smith sustained injuries to his pancreas and he died two months later. At some stage in the fight, LW was stabbed in the stomach. 4. The appellant had been the driver of a car that contained LW and others on the evening of the fight. The car had arrived at the scene where the fight subsequently occurred. LW, GW, JB and the appellant were all charged with the murder of John Smith (count 1). At the trial the prosecution case was that all were guilty of murder on the basis of a joint enterprise. It was said that the appellant’s role was to drive LW and others to the scene in the knowledge that they intended to cause John Smith really serious harm. GW arrived at the scene in his car and the prosecution alleged that he joined in the joint enterprise by driving at John Smith and knocking him to the ground. As an alternative to count 1, GW was accused of attempting to cause John Smith grievous bodily harm with intent (count 3). 5. The prosecution case was that the appellant watched the attack from her car then acted as the getaway driver, taking the men involved from the scene. This activity gave rise to count 2 on the Indictment, although it was alleged that the appellant assisted only one of the men involved, namely LW. 6. The terms of count 2 are as follows: Statement of Offence Assisting an offender, contrary to section 4(1) of the Criminal Law Act 1967 . Particulars of Offence Laurence Wheatley having committed an arrestable offence, namely, the attempted murder of John Smith. Claire Louise Saunders on the 11 th day of July 2009, knowing or believing that the said Laurence Wheatley had committed the said offence or some other arrestable offence, without lawful authority or reasonable excuse assisted the said Laurence Wheatley to leave the scene of the said offence with intent to impede the apprehension or prosecution of the said Laurence Wheatley. 7. The appellant’s case at the trial was that she was not a party to a joint enterprise to murder John Smith. She said that she was driving LW and others to the shops when they happened to see John Smith and she stopped her car believing that they wished only to talk to him. In relation to count 2 her case was that once she had seen that LW had been stabbed she drove him away, intending to take him to hospital. However, LW insisted that the appellant take him home. 8. The appellant gave a mainly “no comment” interview upon arrest but she handed to the police a prepared statement. That set out her case as summarised above. The trial 9. The prosecution called evidence from eye witnesses to the fight and from DM. It also called evidence from Dr Shorrock, the Home Office pathologist who, on 24 September 2009, had conducted the post-mortem of John Smith. Dr Shorrock’s evidence was that the deceased had been punched, stabbed and kicked repeatedly and also struck by a car. Damage had been caused to the deceased’s pancreas which had required many operations. Dr Shorrock could not say definitively whether the damage to Mr Smith’s pancreas had been caused by the stabbing, the kicking or by being hit by the car, but in his view it was likely the pancreatic injury was caused by the stabbing. 10. LW gave evidence in his defence. It was his evidence that the appellant was driving him to a shop to buy alcohol when they saw John Smith and LW asked her to stop the car so LW could talk to him. LW said that he approached John Smith who immediately stabbed him in the stomach. LW said that he did not see anything further of the incident, although he recalled getting back into the appellant’s car and being driven back to his house where he attended to his wound. The appellant, GW and JB did not give evidence. 11. The jury acquitted LW, GW, JB and the appellant of murder. GW was convicted of attempting to cause John Smith grievous bodily harm with intent. He was sentenced to 42 months imprisonment less 249 remand days. He has not appealed his conviction. 12. When the jury had acquitted both LW and the appellant of murder they asked the judge whether they had to go on to consider the alternative charge against the appellant of assisting an offender, viz. count 2. The judge said they did and he gave some further directions. The jury found the appellant guilty on count 2 by a majority of 10 to 2. The Grounds of Appeal 13. There are two grounds of appeal. First, it is argued that the judge wrongly left count 2 to the jury once LW, who is identified in count 2 as the principal offender, had been acquitted of murder by the jury. Secondly, it is argued that the judge failed properly to direct the jury in relation to what the prosecution had to prove concerning the offence that LW had committed before the jury could properly convict the appellant on count 2. 14. The single judge gave leave to appeal on both grounds. He refused leave on a third ground and there has been no attempt to renew the application for leave on that ground. We decided we would first of all hear argument on the second ground. Having decided we would allow the appeal on that ground we did not hear any argument on the first ground. The judge’s summing up 15. The second ground is concerned exclusively with the judge’s summing up. Before the judge started his summing up there was much discussion with counsel about the written directions of law that the judge indicated that he would give the jury. There were discussions of draft written directions at various intervals during the judge’s summing up which started on Tuesday 12 October 2010 and finished on Friday 15 October 2010. 16. We understand that the written directions only concerned count 1: viz. the murder charge. The written directions were to comprise directions on the ingredients of the offence of murder and “Routes to Verdict” in the case of each of the defendants. We were told by Mr Michael Levy, who had appeared for the appellant at the trial and who appeared on the appeal, that because there was continued discussion on the content of the written directions during the judge’s summing up he only gave the jury the directions towards the end. Mr Levy told us that there were no written directions to the jury on the ingredients of the offence in count 2; nor was there any written “Route to Verdict” in respect of that charge. 17. When the judge began his summing up on 12 October he gave directions on the ingredients of murder for the purposes of count 1: pages 10 – 18 of the summing up. In the course of those directions he dealt with “joint enterprise” and causation, both of which were major issues at the trial with each defendant saying that he (or she) was not part of a joint enterprise and that John Smith’s death was not caused, in law, by the attack. The judge dealt with the prosecution case against the appellant regarding count 1 at pages 18 – 19. At that stage he did not deal with the ingredients of the offence of assisting an offender, the subject of count 2 against the appellant. Nor, at that stage, did the judge give any directions on a possible defence of “self-defence” to the murder charge as far as LW was concerned. 18. The judge then began a summary of the evidence. He continued with this summary on 13 October before considering the issue of causation, which he dealt with at pages 83 and following of the transcript. The judge started to deal with the defence evidence that day: see page 98. After the jury had been sent home that afternoon and then before the jury were called in again on 14 October, counsel made many submissions to the judge on the form of his proposed written “Route to Verdict” documents concerning count 1. In the course of those discussions on the morning of 14 October, Mr Caudle, counsel for LW, asked the judge when he would be dealing with the issue of “self – defence”. The judge indicated that he would give directions on it when explaining to the jury his “Route to Verdict” document: page 147. 19. During this same session in the absence of the jury on 14 October, Mr Hodivala, junior counsel for the appellant, posed two questions to the judge: see page 157 of the transcript of the summing up. The first was whether “the Crown would suggest that it would be right and proper for Claire Saunders to nevertheless be convicted of Count 2” if the other three defendants were acquitted on count 1. (Although Mr Hodivala’s question did not specifically mention also the acquittal of the appellant on count 1, he must have been making that assumption at the same time). The second question was put upon the premise that the answer to the first question was “yes”. In those circumstances, Mr Hodivala asked whether the judge “would be inclined to direct the jury with regard to those directions that are relevant to [LW’s] guilt on the murder as relevant to Count 2 as well”: page 157C. Mr Hodivala continued, at page 157C: “Because it’s obviously [the appellant’s] knowledge or belief that the Crown would have to prove. If the Crown fail to prove that [the appellant] knew or believed that [LW] for example, was not acting in self defence at the time then that would be sufficient. If the Crown fail to prove that then it seems that [the appellant] can’t be guilty of the offence, or indeed any offence”. 20. There was then further discussion on what directions the judge might give to the jury on count 2 with regard to the possible offences that the prosecution had to prove had been “committed” by LW as the premise upon which the appellant “knew or believed” that LW had committed that offence yet, without lawful excuse, assisted LW to leave the scene with intent to impede his apprehension or prosecution. It is apparent from the discussion at pages 157 – 158 of the transcript that the judge was contemplating a direction to the jury that, even if they acquitted LW of count 1, yet for the purposes of count 2, the jury could consider whether they were sure LW had committed the offence of either the attempted murder of John Smith or the offence of committing grievous bodily harm with intent against him, contrary to section 18 of the Offences Against the Person Act 1861 . 21. Mr Hodivala ended his submissions on these points as follows (page 158): “….in our submission the fairest and most logical course through this morass of evidence and legal direction is that if [the defendants] are acquitted of count 1 …the jury ought to be directed that they should acquit [the appellant] of count 2. But if Your Honour is against us on that then there need to be consequential directions, it seems to us, on for example self-defence in relation to [LW] that may have impacted on [the appellant’s] state of knowledge or belief”. 22. This whole discussion took the morning and some of the afternoon session on Thursday 14 October. When the jury were called in the judge started to give them directions on a document which was handed to the jury headed “Murder”. As the judge explained, that 5 page document set out the fundamental propositions of law that would govern the jury’s deliberations on count 1. It did not deal with the issue of self-defence. 23. The judge then directed the jury on the law relating to count 1 by reference to each of the defendants. He started with the appellant’s case. He gave the jury a single sheet document headed “Route to Verdict – Claire Saunders”. The judge concluded his discussion of this document by reminding the jury that it was only if they concluded that the appellant was not guilty of murder that they would need to go on to consider count 2 against her. 24. The judge then gave his directions on count 2: “….. We’ve hardly spent a moment looking at Count number 2, and that’s hardly surprising given what the trial is focused upon, but Count 2 alleges that she assisted an offender. What is required for her to be guilty on Count 2 is first of all, she’s got to be acquitted of Count 1. If you’ve convicted her of Count 1 no verdict will be required from you on Count 2. But if you do come to consider Count 2, the first matter that the prosecution have to prove is that an arrestable offence has been committed by Laurence Wheatley. In here it’s alleged as attempted murder. It doesn’t need to be quite as precise as that, it would be sufficient if the Crown had established that he had committed the offence of inflicting grievous bodily harm, but it doesn’t have to be that precise because of the nature of the case that we are dealing with here. You have to be satisfied that Laurence Wheatley had committed an arrestable offence. I’m going to say for the purposes of this, either attempted murder or causing grievous bodily harm with intent. And that Claire Saunders, knowing or believing that he had done that, that he had committed that offence, violence of that order, assisted him to escape the scene, to leave the scene. And she had no lawful authority to do that. It’s there within the particulars what needs to be proved. It isn’t, of course, disputed that she helped him leave the scene. Mr Levy told you, what else was she expected to do? Of course she would take him away. And one might have imagined take him to hospital as well, and the indications are that that’s what she wanted to happen and that’s what she was intending should happen. You won’t find her guilty is she’s whisked him away from the scene solely to get him to hospital. But if she whisks him away from the scene knowing or believing he’s committed that serious crime of attempted murder or grievous bodily harm, and she whisks him away with the intention to impede the apprehension or prosecution of him, then that is a crime. It’s a bit of a mouthful that, intention to impede the apprehension or prosecution, but you know what it means. If she’s whisked him away so the police can’t arrest him and question him and detain him. If she’s whisked him away to increase his chances of getting away with what she believes he has done, then she will be guilty of Count 2. ….” 25. The judge next considered the case of LW. In the course of his directions concerning LW and count 1, the judge gave directions on the issue of self-defence: see page 170E to 172D. The directions are tailored to deal with the question of whether LW did or might have a defence of self-defence to the charge of murder in count 1. There is no reference to count 2 in the course of those directions. There is no suggestion that the jury might have to consider the issue of self-defence in relation to whether LW had committed the offence of attempted murder or grievous bodily harm with intent for the purposes of deciding whether the appellant was guilty of the count 2 offence of assisting an offender. 26. The judge continued his summing up to the jury on Friday 15 October 2009 by giving the jury his “Route to Verdict” with regard to LW. Question 3 of that document poses the question: “Are we sure that the violence used was unlawful violence, not in reasonable self-defence?”. The judge explained that orally: see page 178 of the transcript. The judge then went through the same exercise with a document entitled “Route to Verdict: Jason Bethell” and then, lastly, a document headed “Route to Verdict: Graham Wheatley”. That dealt only with questions relating to count 1 against GW, not count 3. 27. When the judge had finished giving those directions, in the absence of the jury Mr Hodivala raised a further issue in relation to count 2. He asked: “In light of the discussions yesterday Your Honour obviously intends to leave Count 2 to the jury in the event that they acquit the other three of the primary offending. Was Your Honour going to give any further assistance to the jury with how their deliberations, particularly in relation to Laurence Wheatley and their route to verdict, how those deliberations may impact on Count 2 at all?” 28. Following final directions the jury retired to consider their verdicts that Friday afternoon. The jury deliberated all the following week. We have no transcripts for those days but at some stage the judge must have given a “majority verdict” direction. The jury continued its deliberations again on Monday 25 October. The not guilty verdict against LW on count 1 and the jury question on how they should proceed on count 2 in consequence 29. At 3.15pm on Monday 25 October the jury returned not guilty verdicts on count 1 in relation to LW and the appellant. The foreman of the jury indicated that they had not then reached a verdict on which at least ten of them were agreed either as regards GW on count 1 or as regards the appellant on count 2. It appears that no question was at that stage put to the jury concerning GW and count 3. 30. The jury had sent a note to the judge regarding count 2 at the time when they indicated they had reached some verdicts. The note stated: “We have found [LW] not guilty of murder therefore we require some legal directions with reference to count 2 of [the appellant’s] charge. Can [the appellant] still be found guilty even though [LW] has been found not guilty of murder?”. 31. The judge told the jury he would deal with their question the following morning. In the absence of the jury, the judge said that counsel would need to discuss the issue but his recollection was that (page 203B-C): “…I directed them that in respect of count two against [the appellant] that was a verdict available to them if she knew or believed that he [viz. LW] had committed either the arrestable offence of attempted murder that was charged or an offence of inflicting grievous bodily harm with intent. That is my recollection”. Counsel agreed with that recollection, as indeed had been the case. It was agreed that there would be further consideration of the question the following day. 32. On 26 October Mr Harvey QC, leading for the prosecution, submitted to the judge that the answer to the jury’s question was that they could still convict the appellant of count 2 if the ingredients of the offence of assisting an offender were proved. Mr Levy, counsel for the appellant, submitted that the judge should direct the jury to acquit the appellant because “the offender” identified in count 2 had been acquitted so that “there is not an offender now left”: page 205D of the transcript. Mr Levy referred the judge to remarks of Watkins LJ in the decision of R v Donald and Donald (1986) 83 Cr App R 49 at page 51 where he posed the question: “…can it ever be right, in the absence of a prior conviction of a principal, for a person to be brought to trial upon a charge under section 4(1) [of the Criminal Law Act 1967 ] and for the prosecution to endeavour to prove that the principal, though not being tried, is nevertheless guilty of the arrestable offence about which those charged under section 4(1) are alleged to have known and to have assisted the offender upon after the commission of the offence?”. 33. Judge Ball gave a ruling on that submission and said that the remarks in Donald were distinguishable. He said that he would remind the jury of the directions that he had given them on count 2. He continued: “I propose reminding the jury of the terms in which I summed the matter up and the alternative Count to them before they retired. This case is clearly distinguishable from Donald. It ahs been left to them on the premise that if they acquit Laurence Wheatley and he is not to be found guilty of the offence, the arrestable offence of murder, nonetheless if they are satisfied that he has committed another arrestable offence less than murder and that that arrestable offence of which he, on the evidence available to them in a trial where he participates and hives evidence, if they are satisfied that he had committed an offence of causing grievous bodily harm to John Smith with intent to cause him grievous bodily harm but that the harm he caused was not instrumental in the death of John Smith that would account for his acquittal in murder but nonetheless would form a foundation for conviction in the case of Claire Saunders if they were satisfied that (A) Laurence Wheatley having committed that offence, she, knowing or believing that to be the case, had enabled him to leave the scene with the intent if impeding apprehension or prosecution. That is how it was left at the close of the evidence and when the jury went out. This is a case which we know from beginning to end has been challenged with the issues not just of participation and aspects of joint participation, but also elements of causation, which give rise to a number of routes for the acquittal of Mr Laurence Wheatley, which occurred yesterday. However, that does not preclude this jury on Count 2, however much one might consider it to be unfair in the round were they to go down that route but in law, given the way the case has been conducted and the issues that have been aired, it is open to them in the singular way that I have described to, in fact, convict on Count 2. ….. ” 34. The jury were then recalled and the judge both answered their question and gave them further directions. He said (page 208) they could still convict the appellant on count 2 but there was a “very narrow and limited route by which she could be found guilty and I am just going to remind you of that”. The judge read out section 4(1) of the Criminal Law Act 1967 (albeit in the form before the 2005 amendments) and then continued (page 209B): “….. There is a very wide range of arrestable offences but for the purpose of this case and for your verdicts in this case I have tried to focus on what have been the issues in the case so you are not here going to be asking yourselves: “Did he commit the arrestable offence of assault occasioning actually bodily harm?”. You have to be satisfied that Laurence Wheatley has either committed the arrestable offence. It is charged as attempted murder on the indictment, murder would have sufficed or, and I directed you in these terms, or if you are not satisfied he had committed murder, which you are not, you are not satisfied he has committed attempted murder, which would appear to follow from your verdict you are not. Attempted murder does not really run here because death did follow. The only other route available in respect of Claire Saunders is, first of all, if you are satisfied that Laurence Wheatley committed the arrestable offence of inflicting grievous bodily harm with intent, so you would have to be satisfied that he did involve himself in the fighting in some way against Smith and that he was responsible for causing grievous bodily harm. Not necessarily the harm that led to death or was a substantial cause of death but, nonetheless, grievous bodily harm”. ” 35. The judge then directed the jury that if they were so satisfied they then had to consider whether the appellant was aware that LW “had acted in a way that amounted to that offence and had then conducted herself in a way which prevented his apprehension or detection”. The judge then summarised his direction to the jury on count 2 as follows (page 210B): “Focusing on what is left, which is Claire Saunders, the only route to conviction in her case is (A) if you are satisfied that Laurence Wheatley has committed the arrestable offence of inflicting grievous bodily harm with intent to do grievous bodily harm and, if you are satisfied of that, that you are then satisfied that she acted with the requisite knowledge and belief. That is the assistance that I give you in her case. …..” 36. Later that day the jury returned further verdicts. They found GW not guilty on count 1 but guilty on count 3, by a majority of 10 to 2. At the same time, they returned a guilty verdict against the appellant on count 2 by the same majority. Section 4(1) of the Criminal Law Act 1967 and its application in count 2 of the Indictment in this case 37. Section 4(1) and (1A) of the 1967 Act (as amended) provide: “(1) Where a person has committed a relevant offence, any other person who, knowing or believing him to be guilty of the offence or of some other relevant offence, does without lawful authority or reasonable excuse any act with intent to impede his apprehension or prosecution shall be guilty of an offence. (1A) In this section and section 5 below, “relevant offence” means- (a) An offence for which the sentence is fixed by law, (b) An offence for which a person of 18 years or over (not previously convicted) may be sentenced to imprisonment for a term of five years…. “ 38. Section 4(4) stipulates that no proceedings shall be instituted for an offence under section 4(1) except by or with the consent of the DPP. The phrase “relevant offence” in sub-section (1) and its definition in sub-section (1A) replaced the previous wording of “arrestable offence”. The amendment was introduced by Schedule 7(3) paragraph 40(2) of the Serious Organised Crime and Police Act 2005 . 39. It is clear from the decisions of this court in R v Donald and Donald (1986) Cr App R 49 and R v Zaman [2010] 1 Cr.App.R. 29 that the commission of the “relevant offence” by the principal offender, A, may be established in a case where B is charged with assisting A under the terms of section 4(1) , notwithstanding that A himself has not been found guilty of the “relevant offence”. As Maurice Kay LJ pointed out in Zaman at paragraph 18, there could be many reasons for the failure to establish the commission of the “relevant offence” as against the principal offender, A. 40. Where B is being tried for an offence of assisting A under section 4(1) , the prosecution has to prove four things to obtain a conviction of B. First, it must prove that the principal offender, A, committed a “relevant offence” as defined by subsection (1A). Secondly, it must establish that B, who is alleged to have assisted A, knew or believed at the time he assisted A, that A was guilty of that “relevant offence or some other relevant offence”. Thirdly, the prosecution must show that B did an act (or acts) and did it with the intent to impede the apprehension or prosecution of A. Lastly, the prosecution must prove that the act done by B was done without lawful authority or reasonable excuse. 41. In count 2 of the Indictment in this case, LW was identified as the principal offender whom the appellant was accused of assisting. In the Particulars of Offence LW is stated as having committed the “arrestable offence” of the attempted murder of John Smith. (The draftsman of the Indictment appears to have used the old form of wording of the statute before its amendment in 2005. The old wording is still used in the current edition of Archbold at 18-35). However, in the second paragraph of the Particulars of Offence of count 2 it is said that the appellant, “knowing or believing that the said LW had committed the said offence or some other arrestable offence”, without lawful authority or reasonable excuse assisted LW to leave the scene of the “said offence” with the intent to impede the apprehension or prosecution of LW. 42. Therefore, as count 2 of the Indictment was drawn, for the purposes of establishing that the appellant was guilty of assisting LW in relation to “a relevant offence”, the prosecution was not confined to a case of proving that LW had committed the offence of the attempted murder of John Smith. It was open to the prosecution to prove that LW had committed any other “relevant offence” as defined in section 4 (1A) of the 1967 Act . Moreover, as the judge correctly recognised, the fact that LW was acquitted by the jury of the murder of John Smith did not, as a matter of law, prevent the prosecution from pursuing its case against the appellant on count 2 in the same trial. Theoretically the prosecution could even have continued to attempt to prove that LW had, in fact, committed the offence of the murder of John Smith for the purposes of trying to obtain a conviction of the appellant on count 2. That would doubtless have been well nigh impossible when the jury had just acquitted him. However, as a matter of law, the prosecution was free to attempt to prove, for the purposes of count 2, that LW had committed any other “relevant offence”. 43. In fact, when the judge initially gave the jury directions on count 2 (at page 167-8 of the transcript) he directed the jury that it should consider whether or not it was satisfied that LW had committed one or other of just two possible “relevant offences”. They were the attempted murder of John Smith (as particularised in the Particulars of Offence) and the offence of inflicting grievous bodily harm on him with intent, contrary to section 18 of the Offences Against the Person Act 1861 . Directing the jury that there were only two possible “relevant offences” that LW might have committed for the purposes of count 2 was a legitimate and sensible thing to do so. It meant the jury would know the possible “relevant offences” they had to concentrate on for the purposes of count 2. Unsurprisingly, there was no objection that that direction from either the prosecution or the defence. The submissions of the parties on Ground 2 44. In his written submissions, Mr Levy on behalf of the appellant submitted that the judge failed properly to direct the jury on what the prosecution had to prove concerning the offence LW had committed in relation to count 2. Mr Levy submitted that when the judge directed the jury on count 2 (at pages 167-8 of the transcript) he was obliged first of all to direct that they had to be sure that LW had committed one or other of the “relevant offences” of attempted murder or grievous bodily harm with intent. Therefore, Mr Levy submitted, the judge had to direct the jury fully on the ingredients of those offences. LW had raised the defence of “self-defence” in relation to the murder charge against him in count 1. Accordingly, Mr Levy submitted, the judge was obliged to direct the jury that they had to be sure that LW had not acted in self-defence before they could be sure, for the purposes of count 2, that LW had committed the “relevant offence” of either the attempted murder of John Smith or of inflicting grievous bodily harm on John Smith with intent. Mr Levy also submitted that the judge was wrong to decline to give further directions on the ingredients of the “relevant offences” for the purposes of count 2 when he was asked specifically whether he would: see page 192 of the transcript. 45. Mr Levy further submitted that once the jury had found LW and the appellant not guilty of the murder of John Smith and the jury had asked for further “legal directions” on count 2, the judge should have given a more detailed direction than he did. In particular, Mr Levy argued that the judge should have directed the jury that they had to be sure that LW had not acted in self-defence before they could be sure that, for the purposes of count 2, LW had committed the “relevant offence” of grievious bodily harm with intent. But the judge did not mention self-defence in his further direction at pages 208- 210 of the transcript. 46. Mr Simon Denison QC, for the Crown, in his characteristically concise and realistic submissions, accepted that the judge was obliged to direct the jury on the ingredients of the “relevant offences” it was alleged that LW had committed, in order to establish count 2 against the appellant. He accepted that when the judge gave his original directions on count 2, he did not specifically direct the jury fully on the ingredients of the offence of inflicting grievous bodily harm with intent for the purposes of count 2. In particular, Mr Denison properly conceded that the judge did not specifically direct the jury on the issue of self-defence in that context. However, he submitted that, in the context of count 1 against LW, the judge had given the jury a full direction on the need to be sure that LW inflicted unlawful violence on John Smith. Furthermore, the judge had dealt fully with the self-defence issue in that context. Mr Denison argued that, given the directions that the judge had given the jury, the jury could have been in no doubt that they had to be satisfied that LW had committed unlawful violence with intent against John Smith before they could be satisfied that LW had committed either attempted murder or the section 18 offence for the purposes of count 2. 47. Mr Denison submitted that the further directions the judge gave to the jury after they had acquitted LW and the appellant of murder on count 1 and they had asked for further “legal directions” on count 2 were sufficient. He accepted that there was no specific direction on the issue of self-defence in relation to a section 18 offence by LW. But Mr Denison argued that the previous directions given in relation to count 1 would have been sufficiently in the jury’s mind and they would have appreciated they must apply the directions given in relation to count 1 concerning unlawful violence to their consideration of count 2. Accordingly the conviction of the appellant on count 2 was safe. Analysis and conclusions on Ground 2 48. Before the appellant could be convicted on count 2 the jury had to be sure that LW had committed a “relevant offence”. When the judge first directed the jury on count 2 he had, quite properly, directed the jury that the only offences they need consider in this context were that LW had committed the attempted murder of John Smith or, alternatively, that LW had inflicted grievous bodily harm on John Smith with intent. In our view the judge had to direct the jury on the ingredients of those two offences to ensure that they had the right legal basis on which to reach a conclusion that they were sure that LW had committed one or the other of them. Only if they were so satisfied could the jury then go on to consider whether the prosecution had proved the remaining ingredients of the offence under section 4(1) of which the appellant was charged. 49. Unfortunately, doubtless because the whole weight of the long and complex trial had focused principally on count 1, the judge did not give full directions to the jury on the ingredients of attempted murder and grievous bodily harm with intent when he gave directions on count 2 at pages 167-8 of the transcript. He did not give any direction at that stage on the need to be sure, for the purposes of either of the two “relevant offences” concerned with count 2, that LW had not acted in self-defence. In our view the judge should have done so. The jury had a lot to consider in relation to the cases of the four defendants on count 1. In the absence of a written “Route to Verdict” for count 2, it would be expecting too much of a jury to appreciate that the directions that the judge had given on “unlawful violence” and “self-defence” in connection with the case against LW under count 1 applied equally to the two “relevant offences” said to have been committed by LW that the jury had to consider in relation to count 2. 50. Once the jury had acquitted LW and the appellant on count 1 and had asked for further “legal directions” on count 2, the judge very properly told the jury to concentrate on whether LW had committed only one offence, namely the section 18 offence. But the jury still needed to be directed on the ingredients of that offence before it had a proper legal basis for reaching the conclusion that LW had committed it. 51. The judge did not and could not know the basis on which the jury had reached their verdict that LW was not guilty of the murder of John Smith. It could have been on any one of a number of issues that had arisen on count 1. Therefore, it seems to us, the judge had to ensure the jury was properly directed on what the prosecution had to prove so that they could be sure that, for the purposes of count 2, LW had committed the offence of inflicting grievous bodily harm with intent on John Smith. When the judge gave his further directions at pages 208-210 of the transcript he correctly stated that the jury had to be sure that LW was responsible for causing grievous bodily harm on John Smith. The judge did not specifically deal with the mental element of that offence in that context. More importantly, he did not tell the jury that it had to be satisfied that the violence was unlawful and that they had to be sure that LW had not acted in self-defence. 52. Accordingly, we are driven to the conclusion that the jury were not sufficiently directed on the ingredients of the offence which it was alleged that LW had committed, for the purposes of count 2 against the appellant. Her conviction on count 2 must therefore be unsafe. Disposal 53. As we announced at the end of the hearing on 16 June, the appeal is allowed and the conviction of the appellant on count 2 is quashed. There was no application for a retrial. 54. In the light of our conclusion on Ground 2, we need say nothing further about Ground 1.

```yaml citation: '[2011] EWCA Crim 1571' date: '2011-06-29' judges: - LORD JUSTICE AIKENS - HIS HONOUR JUDGE PERT QC ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2022] EWCA Crim 288 Case Nos: 201903008 B5, 201903010 B5, 202002337 B5 & 202002733 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM ISLEWORTH CROWN COURT His Honour Judge JA Denniss QC Ind. No. T20171258 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/03/2022 Before : LORD JUSTICE DINGEMANS MR JUSTICE HILLIARD and HIS HONOUR JUDGE ALTHAM (Recorder of Preston) - - - - - - - - - - - - - - - - - - - - - Between : El Mehdi Zeroual Applicant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Csengeri (instructed by The Registrar for Criminal Appeals ) for the Applicant Mr Watkinson (instructed by the London Borough of Hammersmith & Fulham ) for the Respondent Hearing date : 1 March 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Dingemans : Introduction 1. This renewed application for an extension of time of 209 days and for permission to appeal against conviction, which was referred to the full Court after a hearing before the Court on 21 October 2021 (Spencer J and His Honour Judge Menary QC, Recorder of Liverpool) (“the referring court”) raises an issue about whether a trial judge was required, in this particular case, to give directions to the jury about the legal differences between a lodger and a sub-tenant. The referring court found that this was an arguable ground of appeal, but they did not grant permission to appeal at that stage because the applicant also needs a substantial extension of time. 2. The applicant is a 58 year old man who was of previous good character and working as a civil servant before his conviction and sentence. In November 1996 the applicant became the tenant of a one bedroom flat in Blythe Road, London W14 (“the flat”) owned by the London Borough of Hammersmith and Fulham (“the council”). The tenancy agreement was governed by, among other statutes, the Housing Act 1985. 3. The applicant was convicted on 18 December 2018, following a trial in the Crown Court at Isleworth (before His Honour Judge JA Denniss QC and a jury) of two counts of fraud, contrary to section 1 of the Fraud Act 2006, on a three count indictment. The conviction on count one was for dishonestly failing to disclose information that he was under a legal duty to disclose “namely that he had sub-let part of the premises” of the flat in breach of these conditions. 4. The conviction on count three was for dishonestly failing to disclose that the applicant’s wife was living with him between 2010 and 2013 (before their later separation), which meant that he was no longer eligible for the single person’s discount in respect of council tax payable for the flat. The applicant was acquitted on count two which alleged that he had dishonestly failed to disclose a change in circumstances in relation to his application to purchase the flat under the Right to Buy. 5. The applicant was sentenced on 23 January 2019 to 18 months imprisonment suspended for 18 months, with a 30 day Rehabilitation Activity requirement. By a judgment and order dated 6 July 2020 and a judgment dated 12 July 2020, the applicant was ordered to pay £89,074 (of which £17,500 was to be paid as compensation to the council) pursuant to the Proceeds of Crime Act 2002. 6. In addition the applicant has applied to vary the grounds of appeal to raise two new grounds of appeal against conviction in relation to the applicant’s conviction on count three of the indictment. These have been drafted by Ms Csengeri after her instruction by the Registrar of Criminal Appeals. Ms Csengeri did not appear at the trial below. This application to vary raises issues identified in R v James [2018] EWCA Crim 285 ; [2018] 1 WLR 2749 and the Criminal Procedure Rules at 36.14(5). 7. Further, although the referring court could not detect any arguable grounds of appeal in relation to renewed applications for permission to appeal against sentence, for permission to appeal against the confiscation order and for permission to appeal against a costs order, these were formally referred to this court in case issues of sentence, confiscation amounts and costs needed to be reviewed in the light of any decision on the renewed application for permission to appeal against conviction. 8. We are very grateful for the helpful written and oral submissions made by Ms Csengeri on behalf of the applicant and by Mr Watkinson on behalf of the respondent. The extension of time 9. It was apparent that the applicant’s conviction has had very serious consequences for him. He has been evicted from the flat, which he had intended to purchase under the right to buy scheme. He has lost his job with the civil service. His family circumstances have deteriorated. His savings have been confiscated. The applicant has suffered mental health problems being severe reactive depression, requiring treatment. As a result he had not been in a position to take forward his appeal after receiving negative advice from his former legal representatives. It was submitted on behalf of the applicant that these reasons justified an extension of time for seeking permission to appeal. 10. It became common ground at the hearing that if this Court considered that any of the grounds of appeal against conviction should succeed it would be in the interests of justice to grant an extension of time and to quash the relevant conviction. If, however, the court considered that any grounds of appeal, though arguable, should not succeed then it would be appropriate to refuse an extension of time. We therefore turn to the main ground of appeal on count one, which relates to whether there was a need to direct the jury on the difference between a lodger and a sub-tenant. In order to consider this ground of appeal it is necessary to: set out some relevant principles of law about the difference between a lodger and sub-tenant; identify what were the respective cases for the prosecution and defence at trial; and set out some of the evidence at trial. Some relevant principles of landlord and tenant law 11. The relevant principles of law were not in dispute. The applicant had a secure tenancy from the council which was governed by the Housing Act 1985. Section 93 of the Housing Act 1985 provides that it was a term of such a tenancy that the tenant “(a) may allow any persons to reside as lodgers in the dwelling-house but (b) will not, without the written consent of the landlord, sublet or part with possession of part of the dwelling-house”. Local authority housing is limited and these provisions help to ensure that the stock of housing is used by those needing it, but also that tenants have the right to have lodgers (although there was a contractual duty to notify the council about such lodgers). 12. In the course of the submissions before us, reference was made to various authorities including Stening v Abrahams [1931] 1 Ch 470 at 473, Lam Kee Ying v Lam Shes Tong [1975] AC 247 at 256 and Street v Mountford [1985] AC 809 . It is established law that unless the occupier of premises has exclusive possession, they will not have a tenancy. On the other hand whatever label is attached to the agreement, if exclusive possession of the property has been granted to an occupier, a tenancy of some sort will have been created. 13. This means that for the purposes of this appeal the main difference between “sub-letting”, which involves the grant of a form of tenancy, and “lodging”, which involves the grant of a licence to live in premises, is whether the occupier of the flat had exclusive possession. If a person has exclusive possession then they will, regardless of what terms are used to describe the relationship, be a tenant, and if there is no exclusive possession then the person will be a licensee or lodger. This analysis is consistent with the approach taken in R v Adedeji [2019] EWCA Civ 804 ; [2019] 4 WLR 135 . 14. As already noted the applicant had the right to have lodgers, albeit there was a notification requirement under the terms of his lease. In practical terms if the applicant was living at the flat when permitting others to live at the flat, then he would not have granted exclusive possession to those occupiers, regardless of whether the occupiers were described as sub-tenants or lodgers. This meant that the applicant could not be guilty of count one which alleged that he had parted with possession of part of the flat to a sub-tenant. If, however, the applicant had moved out and charged someone a sum per calendar month, whether described as rent or a licence fee, for the right to occupy either the main room or the bedroom of the flat, then in the absence of any genuine reservation of rights to enter and control that room, exclusive possession would have been granted and a sub-tenancy granted. The respective cases on count one 15. The prosecution case on count one appears most clearly from an opening note dated 4 December 2018. In that opening note it was made clear that the prosecution case was that the applicant had moved out of the flat and sub-let it to various persons receiving payments in cash which he had then banked. At times he had sub-let the bedroom to one person and the main room as another bedroom to another person. He had placed advertisements for the flat which made it clear that he was not living there. The prosecution stated that they would call witnesses who had lived at the flat either alone or with other persons in the other room who were not the applicant. 16. At paragraph 12 of the note it was stated: “there can be no doubt that the defendant was well aware of his obligations in relation [to] 7 Elgar Court, sub-letting and lodgers. The difference between sub-letting, and having a lodger, as the defendant well knew, is that to have a lodger you, as the tenant, have to actually be living in the property.” Count one was addressed in paragraphs 13-15 of the note. It is relevant (to a second ground of appeal in relation to count one) to note that the note recorded “… it is not in dispute that if the defendant did in fact sub-let part of 7 Elgar Court then he was under a duty to disclose it to [the council], it is not in dispute that no such disclosure was ever made, it is not in dispute that the defendant would have intended to make a gain for himself, and it is not in dispute that this behaviour would be dishonest.” 17. Mr Watkinson confirmed in written and oral submissions that the prosecution case had been reduced to the following proposition, whether “the prosecution had proved to the jury so that they were sure that the [applicant] was not living at the premises when the `lodgers’ were, then they could not be `lodgers’, and they would be sub-tenants”. 18. The fact that this was how the prosecution case was understood at trial part appears from the note prepared by counsel who appeared on behalf of the applicant at trial. This note was produced because earlier grounds of appeal produced by the applicant had criticised counsel and a waiver of privilege had been provided to counsel (it is only fair to record that these complaints were found by the referring court to be unarguable). Trial counsel noted that the prosecution case was that the applicant had vacated the premises on occasions when tenants were there, and that the jury needed to be sure that he had vacated the premises during the periods of occupation in order to find him guilty of count one. The referring court considered that trial counsel’s reference to count one in the note was a mistake for count two. Now, however, that we have more information about the way that the prosecution case was put at trial, it is apparent that this was an accurate reference to count one. 19. The case for the applicant was that he had always lived at the flat. In the defence case statement it was said “I have resided at 7 Elgar Court since 11 th November 1996 … During my residence at 7 Elgar Court, I have had a number of lodgers reside with me for a short period. Mr Xue and Mr Thalmeier both resided with me for a short period. They did not have exclusive right to the all or part of the flat because they shared the bathroom, kitchen, communal hall with me and all my facilities … I advertised 7 Elgar Court on the internet to look for lodgers not for sub-tenants. At the same time I also placed adverts for [a friend]’s apartment in Shepherd’s Bush”. The applicant’s case was that there was no sub-letting because he was always living at the flat. The evidence at trial 20. The applicant signed an original tenancy agreement with the council in 1996 and a further tenancy agreement for the flat in November 2004. The terms were changed in March 2013. So far as is material relevant conditions of the applicant’s tenancy agreement were: “2.5 Residence To occupy the property as his/her principal home …”; “2.7 Sub-letting To obtain the council’s permission before sub-letting or parting with possession of part of the premises”; and “2.8 To inform the council when lodgers are taken in”. 21. The flat had a bedroom, lounge, kitchen and bathroom. In December 1999 Council Officers had visited the applicant after it had been suspected that he was charging people for staying at the property. This was denied by the applicant. 22. In relation to count one it was alleged that between February 2014 and March 2016 the applicant placed nine advertisements on the Gumtree website, targeted at overseas visitors and students, for the apparent rental of the flat. Six different email addresses were used to post the advertisements and the advertisements themselves provided contact mobile phone numbers which belonged, in some cases, to the applicant and, in others, to his ex-wife. Between October 2014 and February 2016 he posted a further nine advertisements relating to the property on another website, spareroom.co.uk. Each advertisement was for rental of the main living room in the flat and one advertisement specifically showed that a student was living in the small bedroom and the living room was available for separate rental. 23. In April 2016 two Housing Officers visited the property. They found Mahmoud Tariq and Yunis Ahmed living at the property. Two days later the applicant submitted for the first time an Additional Occupants Form requesting to have a lodger. 24. There was banking evidence between May 2014 and April 2016 which showed that the applicant regularly deposited large amounts of cash and also received bank transfers, some of which explicitly referred to ‘rent’ or ‘flat fee’. The applicant was employed at the time as a civil servant and was not paid in cash. The cash deposits ceased in late April 2016 after the visit to the flat by the housing officers. The prosecution conducted a forensic analysis of photographs exhibited by the applicant showing his children at the flat and concluded that the periods for when there existed no photos coincided with periods when substantial monies were being deposited into his account. 25. An Equifax report, obtained by the prosecution, which traced any debt footprint that had arisen from the occupation of a property, contained numerous names of people living at the address. Most of the names appeared to be Japanese but Mahmoud Tariq’s name also appeared on the list. 26. There were witnesses who had lived at the flat. Rui Xue said that he answered a Gumtree advertisement and rented the living room at the flat from May 2014 and paid the applicant £1,500 per month. He had originally been intending to stay until July but he had been asked to leave. He said that a Korean student lived in the other room and the applicant did not live at the property. 27. Dominic Thalmeier made a statement which was admitted as hearsay evidence as he was overseas, and stated that he stayed at the flat for a month in April to May 2015. He paid the applicant £1,800. There was another person, who was not the applicant, living at the flat when he arrived and during the first week that he was there. 28. Bibier Gungor and Roxanne Gani-Kasmani, the two housing officers who visited the applicant’s flat, gave evidence, admitted as hearsay evidence, as to what the two occupants said to them. Mahmoud Tariq said that he had been living in the flat for five to six months and paid the applicant £750 per calendar month in cash. Yunis Ahmed said he had just moved in to the flat having paid the applicant £250. He produced a “short-stay agreement” document. They both confirmed that the applicant did not live there. 29. The housing officers reported overhearing a phone conversation between Mr Ahmed and the applicant during which the latter was heard to say to Mr Ahmed that he should tell the officers that he was staying either as a lodger or as a friend. When the officers returned to the flat the same afternoon, the applicant was present but would not grant them immediate entry and asked them to wait. It became apparent that the applicant had changed the layout so that the living room had been converted back into just that, with Mr Ahmed’s clothes and personal items having been removed. 30. So far as count three was concerned, between February 2010 and December 2013 a Single Persons Discount “(SPD)” of 25% (amounting to £808) was applied to the applicant’s Council Tax bill. The claim forms which had to be completed to obtain the discount included an annual requirement to notify the council if the claimant’s circumstances changed. The applicant admitted in interview that he had failed to inform the Council Tax department that his wife was living with him during this period and thus he was no longer eligible for the SPD. The monies wrongly rebated were subsequently paid back to the council by the applicant. 31. The applicant gave evidence on his own behalf that he was involved in a commercial deal with a female friend who owned a flat in Shepherd’s Bush. He would pay her £1,000 per calendar month and rent her flat on her behalf, taking any profit he made on the rental. He used the details of his own flat in the internet advertisements so as to attract tenants for her flat in Shepherd’s Bush. He had failed to mention these facts in interview because that interview had lasted 2 ½ hours and he was exhausted. 32. He was always living at the flat. Mr Tariq and Mr Ahmed were sharing the bedroom whilst he was living at the flat. He had been staying with a girlfriend the evening before the officers’ visit and Mr Ahmed had taken the liberty of sleeping in the living room. The written agreement that Mr Ahmed provided to the officers was simply drawn up to assist him at his place of work. He was merely tidying up the flat, and not re-converting the lounge, when the officers returned and photos showed that many of his own personal effects were already in the lounge during the morning visit. 33. The applicant produced photos of his children living at the flat. The payments into his account were both from money he was receiving in relation to the rental of his friend’s Shepherd’s Bush flat and money from his brother who was purchasing a property from him in Morocco. 34. Many of the people whose names appeared in the Equifax report were girlfriends or friends who he had assisted by providing a residential address so that they could open bank accounts. The applicant also produced invoices from Amazon which gave the flat as his billing address and evidence from a boiler maintenance team as to their visits to the flat. Susan Batchelor, Jimmy Tirea, and Majic Shekarstan, all of whom lived in the same block as the applicant, and Abdellah Benali, a friend, gave evidence as to the fact that they regularly saw the applicant at Elgar Court. 35. In respect of Count 3 the applicant said that he had made an application to the Council to upgrade his accommodation from a one-bedroom to a two-bedroom property because his wife was pregnant. That amounted to sufficient notification that his wife was living with him. He had not realised that it was necessary for him to specifically inform the Council Tax Department. He was not acting dishonestly. The relevant directions on count one in the summing up 36. The judge shared drafts of written directions headed “jury core legal directions” that he proposed to give to the jury. There was no objection from counsel to the terms of the draft and this was incorporated into the summing up. 37. In the summing up the judge gave conventional directions on the functions of the judge and jury, the burden and standard of proof before turning to the elements of the offence. 38. In the core legal directions the judge said that all three counts involved common ingredients being: “(1) the defendant acted dishonestly and with an intent to make a gain for himself or another. I do not need to define those concepts. (2) the defendant failed to disclose to the [council] information that he was under a legal duty to disclose.” The directions continued “count 1 alleges a legal duty to disclose that he had sublet part of the premises at flat 7 Elgar Court. This duty arises by reason of the obligations he entered into in his tenancy agreement. The prosecution allege that he repeatedly sublet part of the premises, whether he used the expression lodger or paying guest, during the period 31 st of May 2014 to 29 April 2016.” These directions were read out as part of the summing up. 39. The judge then summarised relevant parts of the evidence. The judge referred to evidence from the advertisements showing that a room was being advertised and a student was living in the bedroom, with the applicant’s explanation that these referred to his friend’s flat. The judge referred to the evidence of the occupiers of the flat who referred to another student or another person, not the applicant, living there, with the applicant’s evidence that one of the occupiers had an argument with the applicant and was not telling the truth. The judge referred to the evidence from the housing officers to the effect that Mr Ahmed and Mr Tariq confirmed that they were both living at the flat, together with the applicant’s explanation that they were both in the front room, he had been away for a night with his girlfriend, and one of them had taken the liberty of sleeping in his bed. The judge referred to the case on behalf of the applicant. The judge said “and throughout the case, the defendant has maintained that he was living at the premises …”. 40. There was one part of the summing up where the judge said “insofar as the defendant has stated that these people were lodgers, the prosecution – sorry, the prosecution submit that despite what he must have known about his obligation, he never in fact declared any of these lodgers’ existence and occupation in the premises. The prosecution again submit that it is evidence of sub-letting or having lodgers on a commercial basis.” Sufficient directions on count one 41. As already noted the ground of appeal on count one focuses on the directions given in relation to sub-letting and whether they were sufficient to deal with the issue of exclusive possession and whether any persons staying in the flat were lodgers. 42. Ms Csengeri submitted that the Judge did not direct the jury on the relevant law with respect to count one. The jury were not directed as to what was required for them to reach the conclusion that the applicant had failed to disclose information that he was under a legal duty to disclose, namely, that he had sub-let the property. This was because the Judge provided no directions as to the legal meaning of “sub-let”. The effect was a repeated failure to distinguish between a sub-tenant on the one hand, and a lodger or paying guest on the other hand. The jury might have convicted the applicant in circumstances when in fact he had not parted with exclusive possession of the flat. Ms Csengeri highlighted the passage set out in paragraph 40 above, and submitted that it showed that the judge had given no relevant assistance to the jury. 43. Mr Watkinson submitted that the directions given to the jury were adequate. It had become clear in the preparations for the trial that there was a binary choice, either the prosecution had proved the applicant had moved out and sub-let the flat to others, or the applicant was living there at all times. There was, in the circumstances of this particular case, no middle ground where the applicant might have been convicted on the basis that he was still living at the flat, and had then let or licensed the other room at the flat to paying occupiers. In these circumstances the passage of the summing up at paragraph 40 above was not wrong, although it might have been more clearly expressed. This is because everyone was clear that the prosecution case was that the applicant was not living in the flat, and whatever he called the persons who he had let into occupation (sub-tenants or lodgers) they had exclusive possession because he was not there. 44. It is established law that any summing up must be tailored to the circumstances of the particular case. We accept that in this case the jury were presented with a case where the prosecution alleged that the applicant had moved out, and had sub-let the flat to others for monetary payment. In this case this meant that the person living at the flat would have had exclusive possession. The applicant’s defence was that he lived there throughout and anyone else who stayed there had been there with him so he had not sub-let the flat. It is plain that interesting questions of landlord and tenant law could have arisen if the prosecution case was that the applicant had continued to live in the bedroom at the flat and let (or licensed) the main room, or had lived in the main room and let (or licensed) the bedroom. That, however, was not the prosecution case and it was not the defence case. 45. In these circumstances it was sufficient for the judge to direct the jury in terms “the prosecution allege that he repeatedly sub-let part of the premises whether he used the expression `lodger’ or `paying guest’ during the relevant period from 31 May 2014 to 29 April 2016”, and to remind the jury that the applicant’s defence was that he “has maintained that he was living at the premises”. That said we consider that it would have been helpful to have told the jury in terms that if the applicant was living at the flat then there could be no question of sub-letting because any other persons occupying the flat would not have had exclusive possession. 46. We have considered a further point made by Ms Csengeri to the effect that even if the applicant was not living at the flat, then he may still have retained some element of possession of the flat because there were no locks on the individual room doors, and the judge should have addressed that. We do not accept that the judge was wrong in this respect. This is because there was no evidence as to the terms of occupation to suggest that there was not exclusive possession of the flat once the applicant’s evidence that he was living there had been (as it must have been) rejected by the jury. The evidence from the occupiers showed that they had been provided with a room for a sum payable each calendar month. There was no evidence to show that the applicant was providing services to those living in the flat, or retained some right to come into the flat, and the evidence was consistent only with those occupiers having exclusive possession of their rooms, compare Street v Mountford . 47. We have noted that there was an acquittal on count two. That count alleged a failure to disclose information relating to a change in his circumstances, namely that the flat was no longer “his principal or only residence”. The judge directed the jury that they had to be sure that the applicant no longer “had the intention to use that property as his only or principal residence …”. In circumstances where there was evidence that the applicant was intending to buy the flat under the right to buy provisions, it is apparent that the jury could have been sure that the applicant was sub-letting the flat and had moved out on occasions for that purpose, but had still maintained the intention to use the flat as his principal residence. This acquittal does not therefore take the appeal in relation to count one any further. 48. Ms Csengeri raised a second ground of appeal in relation to count one. We will address that ground even though it is not clear to us that it was a ground of appeal which the referring court considered arguable. This second ground of appeal is that the Judge failed to properly direct the jury as to the legal tests: for dishonesty; as to the meaning of intent to make a gain for oneself or another; and of the need for there to be a causative link between the two. It is correct to say that the judge simply referred to dishonesty and gain, and did not further define the terms. In our judgment this was sufficient in the circumstances of this case. As the prosecution’s opening note recorded, it was common ground that if the applicant had sub-let the flat, he was intending to make a gain and he was acting dishonestly. This was not particularly surprising in circumstances where, if they were to find the applicant guilty, the jury would have had to be sure that the applicant had moved out of the flat and sub-let it to others, and lied to the housing officers about who was present at the flat when this was discovered. 49. For all these reasons the judge’s directions on count one were sufficient. Further we are sure that the conviction of the applicant on count one was safe. There was compelling evidence that the applicant had moved out of the flat and sub-let the bedroom and the main room to other persons. The appeal in relation to count three 50. The applicant has, since the matter was referred to the full court, sought to raise new grounds of appeal which relate to the conviction on count three. As was made clear in R v James as a general rule all the grounds of appeal on which an applicant wishes to advance should be lodged with the notice of appeal. It is important not to bypass the filter mechanism of the single judge. If new grounds are raised at a late stage applicants have to address the reasons why the grounds are raised late. Ms Csengeri has pointed out that the applicant did not have the benefit of legal advice after receiving negative advice on appeal before she had been instructed on the applicant’s behalf by the Registrar. 51. The proposed grounds of appeal are: (1) the Judge failed to properly direct the jury as to the elements required to convict the applicant on count three; and (2) count three should not have been left to the jury, because the failure of the applicant to disclose information charged under this count was not a failure to disclose information which he was under a legal duty to disclose for the purposes of the Fraud Act 2006. 52. The answer to the first proposed ground of appeal part mirrors the answer to the second ground of appeal in relation to count one. The judge’s directions were sufficient in this case. There was no issue about an intended gain for count three. The term dishonesty did not require any further explanation from the judge. The judge specifically reminded the jury of some of the applicant’s evidence about contact with the council which was “highly relevant”, as the judge put it, to their determination of the issue of dishonesty. 53. As to the second proposed ground of appeal Ms Csengeri is right to identify that it was for the prosecution to adduce evidence from which the jury could be sure that there was an obligation to report the change in circumstances, and that an implied obligation to report might not arise in relation to certain statutory schemes, as appears from R v D [2019] EWCA Crim 209 ; [2019] 2 r App R 15. There are two answers to this point. First in the admitted facts made pursuant to section 10 of the Criminal Justice Act 1967, it was provided at paragraph 12 in relation to the SPD that “if someone claims one of these discounts and their circumstances change, for example because another adult moves in with them, then they are under a duty to tell the local authority …”. This means it was an agreed fact that there was a legal duty to report the change of circumstances. Secondly it appears that the obligation derived from regulation 16 of the Council Tax (Administration and Enforcement) Regulations 1992, as amended. Ms Csengeri identified questions about commencement dates for various amending regulations, but was unable to show that the admission made at trial was not well-founded. 54. In these circumstances we can see no basis for permitting this late variation to permit the grounds of appeal relating to count three to be raised. The provisions of Crim PR 36.14(5) exist for good reason, which is in part to ensure that the court is not having to deal, at a very late stage in the proceedings, with matters which, if they were well-founded, should have been dealt with before the single judge. The renewed applications for permission to appeal in relation to the sentence, confiscation order and costs order 55. We have looked at the renewed applications for permission to appeal against the sentence, confiscation order and costs order. We agree with the referring court that there are no arguable grounds of appeal. The sentence was as short as it could be, and was rightly suspended given the particular circumstances of the applicant. The judge had full regard to the consequences of the applicant’s conviction. The confiscation order showed that there had been a careful analysis by the judge of the evidence of expenditure and a proper application of the assumptions. The costs order was properly made given the costs incurred, the time taken on the proceedings, and sums involved. Conclusion 56. For the detailed reasons set out above we consider that the judge’s directions on count one were sufficient, and we have therefore refused the application for an extension of time and refused permission to appeal on count one. We refuse the application to vary the grounds of appeal to challenge the conviction on count three because the judge’s directions were sufficient and the evidence showed that there was a case to answer. We refuse the renewed applications for permission to appeal against sentence, the confiscation order and the costs order because we agree with the referring court that there are no arguable grounds of appeal.

```yaml citation: '[2022] EWCA Crim 288' date: '2022-03-08' judges: - LORD JUSTICE DINGEMANS - HIS HONOUR JUDGE ALTHAM ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======

Neutral Citation Number: [2023] EWCA Crim 1331 Case No: 202202061 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NEWPORT CROWN COURT Assistant Judge Advocate General Robert Hill Ind. No. T20200017 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/11/2023 Before : LORD JUSTICE DINGEMANS MR JUSTICE JAY and MR JUSTICE KERR - - - - - - - - - - - - - - - - - - - - - Between : Allen Brutnell Appellant - and - Rex Respondent Mr John McNally (who did not appear below) instructed by the Registrar of Criminal Appeals on behalf of the Appellant Mr Ahmed Hossain KC instructed by the Crown Prosecution Service for the Respondent Hearing date : 8 November 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 12 noon on 15.11.23 by circulation to the parties or their representatives by e-mail and by release to the National Archives ............................. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Lord Justice Dingemans : Introduction 1. This is the hearing of an appeal against conviction pursuant to leave granted by the full Court. The appellant is a 37 year old man who was at the time of his conviction working as a carpenter. He was convicted on 30 May 2022 in the Crown Court at Newport on the Isle of Wight, following a trial before Assistant Judge Advocate General Robert Hill (the judge) and a jury. The conviction followed an earlier trial at which the jury had been unable to agree. 2. The convictions were for five counts of indecent assaults on a girl aged under 14 contrary to section 14(1) of the Sexual Offences Act 1956, and five counts of sexual assault of a girl aged under 13 years contrary to section 7(1) of the Sexual Offences Act 2003. Some of those counts were multiple incident counts pursuant to rule 10(2) of the Criminal Procedure Rules. In total the appellant was convicted of 26 separate occasions on which the jury were sure that the appellant had touched the vagina, over underwear but under dresses or skirts, of three separate complainants. The appellant was aged between 16 to 18 years for half of the offences and aged between 18 and 21 years for the remainder of the offences. The appellant was sentenced to an overall sentence of 3 years 9 months. 3. The ground of appeal for which leave was granted relates to the fairness, balance and sufficiency of the summing up. The relevant factual background 4. The prosecution case was that the offences took place between 2003 and 2009 at Cheeky Chimps, a day care nursery and after school club in Ryde on the Isle of Wight, against three complainants. The complainants have the benefit of lifelong anonymity pursuant to the provisions of the Sexual Offences Amendment Act and they have been referred to in the papers before us at C1, who had been born in 1994, C2, who had been born in 1996, and C3, who had also born in 1996. C1 and C2 were sisters. The sexual assaults were the touching of the vaginas of the complainants over their underwear while the appellant pretended to be engaged in innocent physical play involving giving piggybacks, having them sit on his lap and tickling. 5. Cheeky Chimps catered for children aged 5 to 13 years. It was run by the appellant’s half-brother Ricky Larbalestier. Between 2003 and 2009 the three complainants each attended there when aged between 9 and 13 years. The appellant worked there initially before he left school, aged 14, and then on a permanent basis after he had left school, aged 16 until he left aged 21. This was between 2003 to 2009 and the period during which the prosecution alleged that the offences occurred. During this period it was common ground that the appellant encountered each of the complainants whilst working there. 6. An allegation was first reported to the police in November 2017. It followed disclosures by C1 to a psychiatric therapist, when undergoing counselling for depression, that the appellant had repeatedly touched her vagina when she was sitting on his lap watching television. At this time C1 was 23 years old. 7. The prosecution relied on the evidence of C1. C1 said that she had discussed matters with her sister, C2, when she had been 15 or 16 years old. She had asked her whether the appellant had touched her, her sister had been embarrassed and had said no, so she could not be sure that they had been sexually assaulted in the same way. C1 accepted that she knew C3 but said that she had not discussed her allegations with her and had not seen her since they were at Cheeky Chimps. 8. C1 had also told her counsellor that the abuse had also happened to a friend. She later clarified that she meant her sister C2, but that she was protecting her identity. The appellant relied on C1’s use of the word friend to suggest that C1 was referring to C3, and that this showed collusion and contamination of the respective accounts. 9. C2 attended Cheeky Chimps every day after school with her sister, C1. She could not recall the exact dates but had started going there when she was attending primary school and stopped going when she started at middle school. She knew the appellant as ‘Big Al’. She disclosed to a male friend when she was in middle school that she had been sexually assaulted whilst at Cheeky Chimps. 10. She accepted that she and C1 had discussed their allegations before C1 had reported matters to the police, but she could not recall what had been discussed. She thought that it had also happened to C3, but she had not kept in contact with her. She recalled that there had been a discussion at Cheeky Chimps when she was about 8 years old, and she believed that C3 had made reference to Big Al tickling and had asked ‘when he tickles you does he tickle your fanny?’. 11. C2’s male friend from middle school gave evidence to rebut the allegation that C2’s complaint was a recent fabrication. He said he had met C2 when they were both aged between 9 and 11. They became good friends and she disclosed to him that she had been inappropriately touched at Cheeky Chimps by ‘Big Al’ who would tickle her ‘fanny’. 12. C3 gave evidence that when she was aged 7 or 8 she attended the after school club ‘Cheeky Chimps’. She had disclosed to her Mum that the applicant had touched her vagina at the time but no action was taken. Her mother knew the appellant and his family and may have thought that her daughter was mistaken and that any touching had been accidental. 13. She had no recollection of the discussion or comment made at Cheeky Chimps, referred to by C2, when C2 said that C3 made reference to the appellant tickling and touching her fanny. C3 denied that she was friends with C1 or C2, or that she had spoken to either of them since being at Cheeky Chimps in 2010. 14. C3’s mother gave evidence to rebut allegations that C3’s complaints were a recent fabrication, and confirmed that when her daughter was approximately 8 years old she disclosed to her that the appellant had touched her vagina whilst he gave her a piggyback, but that the mother had not pursued the matter. 15. The appellant was arrested and interviewed. In interview he denied the allegations. He agreed that he had helped at Cheeky Chimps when he was 14 years old. He had worked there properly from the age of 16 helping with the supervision of the children. He did not recall giving any of the complainants piggybacks or being aroused by C1 sitting on his lap and he did not touch their vaginas. The appellant said that he had been told by Hayley Sparshott, who was his partner’s sister, that C1 and C3 were friends at High School and they had all socialised together. C3 had frequently visited Hayley Sparshott whilst the appellant had been looking after her and they had engaged in conversation. He emphatically denied the allegations. 16. At trial the appellant gave evidence denying the allegations. His case was that the complainants had colluded and fabricated their evidence. He repeated the accounts he had provided to the police in interview. He said he had never been alone with any children at Cheeky Chimps. There were about eight other adults working there at the time, and everyone could wander around the building. He had never placed any children on his lap. Although he would tickle children he would never tickle them under their dress or touch their vaginas. 17. In about 2011 (the appellant had originally said 2017 but there seems to have been some confusion about the dates) he and his partner Stacey Sparshott had been looking after Stacey’s siblings, Hayley Sparshott and their brother. C3, who was about 14 at the time, was friends with Hayley Sparshott and had visited the address and had sleepovers. It was accepted that the appellant had said that C3 stayed for sleepovers for the first time at the retrial, but he denied suggestions in cross examination that he was making it up. He said that prior to that in 2011 and 2012 he frequently saw C3. The appellant suggested that the disclosure by C3 to the friend at middle school had not occurred and that, instead, C3 had contacted that person much later and ‘roped him in’ to the investigation. 18. Hayley Sparshott gave evidence to the effect that she was close friends with C3 and frequently saw her. Whilst the appellant looked after her and her sibling, C3 came to the address and slept over. C3 and the appellant had ‘high fived’ each other, there was no suggestion of any animosity or awkwardness. She declined to comment on whether C1 and C3 knew each other. 19. The case for the appellant relied on: (1) his denials; (2) his good character in the sense that he had dissimilar and minor previous conviction for which he was conditionally discharged and fined, which meant that he had no previous convictions for sexual offending at all. He was less likely than not to have committed the offences with which he was charged; (3) the evidence of Hayley Sparshott to rebut the evidence that C3 had not seen the appellant since she and he had left Cheeky Chimps; (4) the discrepancies in the accounts given by C1 and C3, which undermined their credibility, about their friendship with each other after they had left Cheeky Chimp; (5) C1, C2 and C3 had colluded and fabricated their evidence. It was accepted that C1 and C2, who were sisters, had discussed their allegations, which provided further support that they had colluded or that their accounts had been contaminated. The summing up 20. The judge circulated his draft directions to counsel and it is apparent that those directions were modified in the light of submissions made by trial counsel for the appellant. The judge gave a split summing up. The judge gave directions on the functions of Judge and jury; the burden and standard of proof; the elements of the offences; the need for a separate consideration of counts; the meaning of multiple and single incident counts; the changes in the law and the relevant dates for that; collusion and innocent contamination; delay; the relevance of good character; cross admissibility; and the need for unanimity. The first set of directions took 19 pages of the transcript. 21. After closing speeches, the judge completed his summing up. His summing up went from pages 22 to 71 of the transcript. 22. After the first part of the summing up, the judge asked if there were matters arising and counsel for the appellant clarified the date of the appellant’s drink driving conviction (the convictions had been led by the defence because they were minor, did not relate to sexual offences and the judge gave a direction on good character). After the judge had finished summarising the evidence in the second part of the summing up, he sent the jury away for the evening, and confirmed with counsel that he did not intend to sum up what he referred to as peripheral witnesses and confirmed that there was nothing arising from counsel. The next morning he took the jury through the routes to verdict, and at the end of that process trial counsel for the appellant identified that one of the steps needed to be clarified and that was corrected for the jury. The issues on appeal 23. Mr McNally identified six ways in which the summing up was defective in his perfected ground of appeal. These were: (1) The narrative background summing up being inadequately and unhelpfully constituted; (2) The Court’s directions as to the maturity, comprehension and capacity of the complainants being inappropriate both as to form and content; (3) The Court did not sum up inaccuracies and inconsistencies in the Crown’s case, nor the defence case sufficiently fully; (4) The treatment of the separate issues of collusion, contamination and delay was inadequate in law and as it related to the matters of evidence before the jury (particularly as related to the discussions that had taken place in the past about allegations); (5) the characterisation of the allegations as ‘surreptitious’ did not properly reflect the totality of the evidence or the defence case which acknowledged the possibility of an accidental contact (albeit not accepting that such occurred); and (6) The defence case was not properly or adequately summed up, whether in relation to the Defendant or witnesses called in his case. 24. Mr McNally on behalf of the appellant submitted that the structure of the summing up was unhelpful because the judge mixed the legal framework with a narrative of contentious and non-contentious matters. The judge gave a commentary which trespassed on the province of the jury. There was a failure to sum up the evidential issues including the defence case. The treatment of collusion and contamination was not balanced. The judge’s description of the offending as surreptitious minimised the defence points about the unlikelihood that the appellant could have acted as alleged without being seen and maximised the possibility of guilt. Even if the points individually might not have been enough on their own, the effect of all of these matters made the convictions unsafe. 25. Mr Hossain KC on behalf of the prosecution submitted that the judge’s directions were fair and sufficient, and the draft legal directions had been modified in the light of submissions by trial counsel on behalf of the appellant. The judge’s split summing up was appropriate, the judge’s commentary was not unbalanced, and he had summed up both the prosecution and defence cases fairly. The judge’s directions on collusion and contamination were proper directions, which highlighted the jury’s need to take particular care. The use of the word surreptitious was a perfectly permissible description of what the complainants had said had happened, in that the appellant had taken the opportunity to put his hand under dresses and over underwear to touch their vaginas, and had piggybacked the complainants in such a way that he could touch their vaginas. 26. In the written and oral submissions the points were advanced by Mr McNally and responded to by Mr Hossain under slightly different headings, and we have considered each of them under the heading “the specific complaints” below. We are very grateful to Mr McNally on behalf of the appellant and Mr Hossain on behalf of the prosecution for their helpful written and oral submissions. Relevant legal principles 27. As the ground of appeal for which leave was given relates to the balance and fairness of the summing up it is relevant to record that this Court will allow an appeal against conviction if we think that the conviction is unsafe, see section 2(1) of the Criminal Appeal Act 1968. Paragraph 3(a) of Part 25.14 of the Criminal Procedure Rules requires a judge to give the jurors directions about the relevant law and to summarise for them, to such extent as is necessary, the evidence relevant to the issues they must decide. The judge must remain impartial. 28. The form and content of any summing up can almost always be improved, but the fact that it could be improved will not, of itself, make a conviction unsafe. Everything will depend on the directions given and the issues at the trial. A judge is entitled to comment on the facts, but should do so with care and avoid the summing up becoming fundamentally unbalanced, see Mears v The Queen [1993] 1 WLR 818. In Mears a judge had impermissibly undermined the main defence argument which was to the effect that the defendant’s confession to his partner, which was disputed, did not match with the pathological evidence as to the cause of death. 29. On the specific issue of fairness, in Randall v The Queen [2002] UKPC 19; [2002] 1 WLR 2237 at paragraph 28 Lord Bingham stated: "While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders the trial unfair … But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty." 30. In Bernard v The State of Trinidad and Tobago [2007] UKPC 34; [2007] 2 Cr App R. 22 the court stated that "in a case of procedural unfairness … determination of such an issue involves weighing the seriousness of the irregularities. If the defects were relatively minor, the trial may still be regarded as fair. Conversely, if they were sufficiently serious it cannot be accepted as fair, no matter how strong the evidence of guilt." 31. As was emphasised in R v Awil [2022] EWCA Crim 1802 at paragraph 32 and R v BKY [2023] EWCA Crim 1095 at paragraphs 77 to 82, the guiding principle must always be balance and fairness. At paragraph 87 of BKY it was said that when assessing issues of balance and fairness on appeal, the fact that trial counsel did not raise a point at trial is not necessarily fatal to an appeal, but it is often a good indication of whether a particular omission seemed important at the time to those immersed in the trial and who were well able to judge the significance of a point being made. The specific complaints 32. Before turning to the summing up we deal with one particular point made on behalf of the appellant to the effect that the judge had descended into the arena and cross examined the appellant. It is correct that at the end of the appellant’s evidence the judge had asked questions of the appellant, but it is apparent that this was because there appeared to be some confusion over dates, and in particular when C3 had gone to visit Hayley Sparshott. The judge’s questioning was to ensure that his note was accurate. It is right that the questioning did continue for some time as appears from the transcript, but it seems that was because the appellant had some difficulty in working out the dates. In the end the position was clarified. This questioning was permissible and did not represent the judge appearing to take sides. 33. Mr McNally submitted on behalf of the appellant that the “summing up was unhelpful from its outset” and the judge should not have mixed introductory legal matters with what he described as a handed down narrative. The legal directions should not have descended into the detail of the case. It had led to the bolstering of the complainant’s evidence because there was an implied endorsement of what they had said. It was said that there was no clear and logical framework to the summing up. 34. We do not accept the overarching complaint that the judge should not have tailored his legal directions to the specific circumstances of this case. It is the duty of any trial judge to tailor their legal directions to the specific circumstances of the case before them. This is because a jury is not likely to be assisted by an academic summary of principles of criminal law. That said, it is important to ensure that legal directions are not to be seen as deciding issues of fact for the jury, and we address below the specific complaints about the legal directions that were given. 35. Mr McNally submitted that “a number of passages amounted to commentary or explanation which it was not for the Court to give as it impermissibly trespassed on the province of the jury”. Particular complaint was made about the way in which the judge had referred to the maturity, comprehension or otherwise of each complainant which existed at the time of the events, leading to an implied endorsement of what complainants said. Mr McNally also complained about the way in which the judge had dealt with “the issues of collusion and contamination”. 36. The judge started this part of his summing up by briefly summarising the prosecution case and then turning to the defence case summarising it as follows: “The Defendant denies all allegations made against him and maintains that each complainant has fabricated their evidence. He invites you to consider whether, in fabricating their evidence, they have, in the vernacular, put their heads together.” This was a succinct and accurate summary of the defence case. 37. The judge then turned to the issue of collusion and contamination. The judge noted that the sisters had discussed in broad terms the allegations being made and noted that as sisters it would be extraordinarily odd if it were otherwise. The judge went on: “However, in a case of this nature when the evidence they give is both similar and related to matters that were alleged to have happened many years ago when they were children, when you consider their evidence, you should necessarily as a matter of common sense take great care ” (underlining added). This showed the judge was dealing with the issues of collusion and contamination carefully. 38. The judge went on to deal with what collusion and innocent contamination were saying: “For the purpose of this case, collusion refers to a situation where two or more witnesses deliberately get their heads together to concoct a false story. So here, to falsely concoct allegations of indecent touching against the Defendant. Innocent contamination refers to a situation where one witness either consciously or subconsciously picks up on another witness’ recollections when told about them and their own memory plays tricks and they falsely adopt or at least to some degree incorporate or are influenced by the other witness’ recollections when they try to recall, recollect matters themselves”. This was a proper approach to collusion and contamination in the circumstances of the case. 39. The judge concluded this aspect of his directions saying: “If you decide the Defendant’s suggestion the three complainants colluded to make similar false allegations against him either is or even might be right, then obviously he’d be entitled to be acquitted on all counts. However, if you reject the suggestion it does not automatically follow that he must be guilty. You must go on and consider the case in accordance with the directions I now come to give you. You could not convict the Defendant of the counts you are considering unless you are first sure that the evidence of the Complainant to that count is truthful, accurate and reliable.” This was a fair and proper summary of the position. 40. The judge then turned to directions about “preconceived ideas or expectations” as to how victims might respond. Mr McNally criticised the passage in which the judge addressed the fact that the complainants were now adults but at the time were childlike and immature. We see nothing wrong with that direction, in circumstances where the judge had started the passage saying that they were young children “at the point in time when the offence is alleged to have occurred”. This made it clear that the issue whether the offences had occurred was for the jury to determine. Mr McNally is right that the judge did say at one stage that “you will need to bear in mind and take into account that they were not telling you about matters laid down as memories in recent years but laid down in their memory as children a long time ago” but to be fair to the judge it followed the introduction to this passage where he said: “As they gave their evidence to you, the complainants were, of course, setting out what they say are their memories of these events from childhood many years afterwards …” (underlining added). As the underlining emphasises, the judge had not made the mistake of treating the complainants accounts as being true, but had left that for the jury. The fact that the judge had said that these matters, if they occurred, would have been experienced by the complainants as children did not undermine the appellant’s evidence about the relative maturity of the respective complainants. This is because the appellant was not contending that the complainants were not children at the time. 41. The judge dealt with the issue of delay in reporting making the point that the fact that a complaint is not made at the time did not necessarily mean that it must be false any more that a complaint made immediately meant that it was true. The judge dealt fairly with the effect of delay. He made it clear that he was not prejudging the evidence, saying that the complainants “in making these allegations are all recalling as adult matters that if they happened …” (underlining added). 42. Mr McNally drew attention to a passage where the judge did say, when summarising the evidence that C2’s evidence that there had been no contact with C3 after leaving Cheeky Chimps “again, firm evidence there’s no contact post Cheeky Chimps days between her and [C3]”. The judge, however, went on immediately to say “you’ll decide whether you accept that evidence or not and if you do, well you’ve got the prosecution’s suggestions in regard to it”. The use of the phrase “firm evidence” when followed by the passage did not suggest that was the judge’s assessment of it, but that it was C2’s firm evidence, for the jury to decide whether to accept or reject. 43. We turn next to consider the complaint that “There was a failure to properly sum up the evidential cases on relevant issues (including the defence case)”. Mr McNally complained about the fact that the judge recited extracts from the ABE interviews given by the complainants. In fact the judge had fairly summarised the complainants’ evidence, and specifically reminded the jury of the relevant cross examination about discussions with the other complainants. 44. As to the complaint that the judge did not deal with the defence we have looked carefully at the whole of the summing up. The judge had summarised succinctly the defence case at the start of his directions, and he then picked up the points made by trial counsel for the appellant throughout the summing up. For example when summarising the evidence of C3 he set out her evidence about whether she had visited a particular house and said “when we come to the defendant’s evidence, he and Ms Sparshott give a different account of that”. The judge provided a full summary of the appellant’s evidence and set out his case about collusion between the complainants. The judge referred to the fact that the appellant was engaged, had two children and summarised his case about each complainant, reminding the jury that the appellant had said that C3 was “a bit more grown up” than the sisters C1 and C2. The judge summarised the evidence of Hayley Sparshott which was relied on to show that C3 had met the appellant after she had finished attending Cheeky Chimps and greeted him normally. We can see no unfair failure to set out the defence case. 45. We turn finally to the complaint that the judge characterised the touching of the complainants as “surreptitious”. It is apparent that this word first featured when used by the judge in the draft directions that he sent to counsel. He used it in the legal directions and in his summary of the evidence. The first reference was: “All three female complainants have alleged that Adam Brutnell sexually abused them as children when they were in his care. The nature of the abuse being quick surreptitious touching of their vaginas over their knickers whilst outwardly engaged in innocent physical activity in the course of his duties”. The second reference was: “In this case, the alleged pattern of multiple offending as far as both, it should be [C1] and [C2] are concerned is one of the same surreptitious touching occurring on very many occasions …”. The third reference was: “The nature of the allegation, of course, is that it was surreptitious quick touching”. This was said in the context of the evidence of C1 who did say that the touching did not last for any length of time, as opposed to the complaint made by C3. 46. It is apparent that when the judge used the word “surreptitious” he was summarising the prosecution case. The judge was not saying that he considered the touching to be surreptitious, but that the prosecution case was that it was surreptitious. This was a permissible description of the prosecution case because it was the evidence of the three complainants that the appellant had taken advantage of the piggybacking or having them sit on the lap to put his hand under their dresses and to touch their vaginas above their underwear. That behaviour can properly be described as surreptitious. The judge was not in these passages saying that the abuse had happened. Indeed the judge had specifically said before the last use of the word surreptitious “The, the point, you’ll appreciate, from the defendant’s perspective is that there were a number of adults there. It was all every open plan, and it would be very difficult to behave in this way repeatedly without being seen”. 47. We have read through the summing up carefully, but we do not find that the summing up was unfair. There is nothing in the summing up to suggest that these convictions are unsafe. Conclusion 48. For the detailed reasons set out above the appeal is dismissed.

```yaml citation: '[2023] EWCA Crim 1331' date: '2023-11-15' judges: - LORD JUSTICE DINGEMANS - MR JUSTICE KERR ```

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202300907/B5 NCN:[2023] EWCA Crim 1215 Royal Courts of Justice Strand London WC2A 2LL Friday 22 September 2023 Before: MR JUSTICE JACOBS MR JUSTICE GRIFFITHS REX V DYLAN DAVIES __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR A WILLIAMS appeared on behalf of the Appellant. _________ J U D G M E N T Approved MR JUSTICE JACOBS: 1. On 8 December 2022, in the Crown Court at Aylesbury, the appellant (who was then aged 18) was convicted of two offences, which were committed on more or less the same occasion: wounding, contrary to section 20 of the Offences Against the Person Act 1861 , and affray, contrary to section 3(1) of the Public Order Act 1986 . On 21 February 2023, before the same trial judge, the appellant, who was then still aged 18, was sentenced to a period on each count of 2 years’ detention in a young offender institution, the two sentences to run concurrently. 2. There were a number of co-accused in the case, each of whom received similar sentences. The appellant now appeals against sentence by leave of the single judge, who gave permission on one of the two grounds which have been advanced in the grounds of appeal. That ground was whether the judge was wrong to categorise the appellant as a “persistent offender”, in circumstances where he had only one previous caution recorded against him and had only been involved in one incident which gave rise to both of the counts against him for which he was being sentenced. 3. The significance of that point arises from the fact that the appellant was aged 14 at the time of the offence although, owing to delays which it is not necessary to recount in detail, he was 18 at the time of conviction and sentence. Accordingly, some significant age thresholds were crossed between the time of the offence and conviction. 4. Paragraphs 6.1 to 6.3 of the Guideline on Sentencing Children and Young People provides as follows: “6.1 There will be occasions when an increase in the age of a child or young person will result in the maximum sentence on the date of the finding of guilt being greater than that available on the date on which the offence was committed (primarily turning 12, 15 or 18 years old). 6.2 In such situations the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed. This includes young people who attain the age of 18 between the commission and the finding of guilt of the offence... 6.3 When any significant age threshold is passed it will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed. However, a sentence at or close to that maximum may be appropriate.” 5. The importance of those paragraphs and the section of the Guideline in which it is contained has recently been reaffirmed in cases such as R v Ahmed [2023] EWCA Crim 281 and R v ZA [2023] EWCA Crim 596 . 6. Since the appellant was aged only 14, and since the offences of which he was found guilty do not constitute what are known as “grave” crimes to which section 250 of the Sentencing Code applies, the starting point for the judge’s sentence should, in accordance with the Guideline, have been the sentence likely to have been imposed on the date at which the offence was committed. In the case of a 12 to 14-year-old, the sentence likely to be imposed on the date on which these offences were committed was a youth rehabilitation order, at least unless that child or young people was deemed to be a persistent offender, in which case a detention and training order of up to 24-months duration could be imposed. Hence the significance of whether the appellant was a persistent offender, the issue on which the single judge gave leave. 7. The facts of the case were as follows. On 2 March 2019, whilst under the influence of alcohol, the appellant and his co-defendants made their way down an alleyway located close to the house of Mr Tim De Gelas and his wife, Laura De Gelas. The couple were at home with their daughters. Their son, Josh, who was known to the group, was not in but they called for him to come outside. They then shouted insults about the son. The judge found that the appellant had instigated the verbal abuse. Mrs De Gelas challenged the group from her bedroom window before going outside followed by her husband, who was dressed only in a pair of tracksuit bottoms. The couple asked what their problem was. Mr De Gelas was then attacked by the group and stabbed multiple times. There was evidence that at least one of the stabbing injuries was delivered with the force of a full punch. He was also struck over the head with a bottle. Following the attack, the group ran away, and they were heard laughing. 8. Mr De Gelas was treated at the John Radcliffe Hospital. He had three penetrating stab wounds, two to the chest and one to the abdomen. A CT scan revealed a severe laceration to the liver that caused significant bleeding. Further intervention was required after complications were detected. These injuries were life threatening. 9. None of the defendants was found guilty of a section 18 offence and this no doubt, as the judge recorded in his sentencing remarks, reflected the uncertainty as to which of them had actually carried out the stabbing. The learned judge passed sentence on the basis that it was unknown who was responsible for the stabbing and in doing so he was, as he said, being faithful to the jury’s verdict. He also accepted that he could not be sure on the evidence which, if any of them, knew that there was a knife there. That too was consistent with the jury verdict. 10. The appellant has four convictions for six offences spanning from July 2020 to August 2022. However, all of them postdated the offences committed in 2019 for which he was being sentenced. He had however received a caution in March 2017 for a battery committed in October 2016, when he was just 12 years old. In his sentencing remarks the judge recognised that, in accordance with the Guideline on Sentencing Children and Young Persons, he should not pass a sentence which was more severe than the maximum available at the time that the offence was committed. In the case of the appellant, he recognised that certain sentences would only have been available if he was to find that he was a persistent offender, but otherwise the most serious sentence would have been a non-custodial youth rehabilitation order. He said that the appellant’s single caution would not be enough, on its own, to make him a persistent offender, but he went on to conclude that he could treat this appellant as a persistent offender. His reasoning was as follows: “You had a caution at the time and that’s not enough on its own, in my judgment, to make you a persistent offender, but here you committed an affray and a section 20 offence on the same day, one after the other, and I’m satisfied applying paragraph 6.8 of the sentencing guidelines on young people that I would be entitled to find you a persistent offender under those circumstances, given your course of conduct that night, especially given that I take the view that no alternative sentence to custody has any reasonable prospect of preventing re-offending and so it seems to me that a Youth Court would almost certainly have found you a persistent offender.” 11. There is a reference there to paragraph 6.8 of the relevant Guideline. This provides in relevant part: “When a child or young person is being sentenced in a single appearance for a series of separate, comparable offences committed over a short space of time then the court could justifiably consider the child or young person to be a persistent offender, despite the fact that there may be no previous findings of guilt. “ 12. The ground of appeal upon which permission was given was that this was not a conclusion which the judge could properly have reached. 13. The judge was plainly correct when he said that the caution on its own was not enough. That is clear from paragraph 6.6 of the Guideline which provides: “A child or young person who has committed one previous offence cannot reasonably be classed as a persistent offender, and a child or young person who has committed two or more previous offences should not necessarily be assumed to be one.” 14. That paragraph reflects an earlier decision of the Court of Appeal in R v M [2008] EWCA Crim 3329, where the Court said at paragraph [9]: “... a person who offends for a second time cannot in any proper sense of the word be termed a ‘persistent offender’. Repeat offender, yes, but not a persistent offender. We do not propose to go further than that.” 15. We consider that the appellant was, at the time of the two offences of which he was convicted, a person who had only offended once. We agree with the submissions of Mr Williams on behalf of the appellant that, although there were two offences on the night in question, there was essentially a single incident with the two offences being committed as part of that overall incident. This made the appellant a repeat offender but not a persistent one. We do not accept that paragraph 6.8 of the Guideline has any application to the facts of this case. The appellant was not being sentenced for a series of separate comparable offences committed over a short space of time, where there had been no previous findings of guilt. Here there was one incident, and two offences were different aspects of that incident rather than a series of separate comparable offences. 16. We can well understand why the judge was anxious to reflect the severe criminality of this offending and the very serious injury to Mr De Gelas in a custodial sentence of the maximum length. That was permissible in the case of the other defendants who were older but, applying the Guideline, it was not permissible in the case of the appellant. Accordingly, the judge’s sentence cannot stand and must be quashed. We therefore allow the appeal. 17. That gives rise to the question of what sentence the Court should substitute for the sentence that was imposed. This is not straightforward. The appellant was remanded in custody in December 2022 pending sentence. He was sentenced in February 2023, and was then in custody for a period of some 3 months or so until he was released under home detention curfew. He has been under home detention curfew since around May or early June 2023. He has therefore, in one way or another, served the majority of the custodial element of the 24-month sentence which the judge imposed, albeit that the sentence imposed by the judge would have meant that he was on licence for the second year of that 24-month term. Since the appropriate order would have been a youth rehabilitation order, probably with rehabilitation activity requirements (“RAR”), it would in theory be open to us now to impose an equivalent sentence: for example, a community order with an RAR. 18. However, in circumstances where the appellant has already served most of the custodial sentence of a sentence which, in our judgment, should not have been imposed, we do not consider it appropriate to impose further punishment by way of a community or other order. The only practical option, in our view, is to reduce the custodial sentence to a period which entitles the appellant to be released unconditionally as at of today’s date, with no further orders to apply hereafter. In so doing, we are not saying that a custodial sentence of this length would have been appropriate at the time of sentence. For the reasons given, custody was not, in this case, an available option. However, we consider that it is the only practicable way forward given the present circumstances and the amount of time which has been served by the appellant. We note that a similar course was taken in the recent Court of Appeal decision in ZA , albeit on different facts. 19. Accordingly, our decision is to allow the appeal and to substitute a sentence of 5 months in a young offender institution for the 24-month sentence imposed by the judge, each concurrent. 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]

```yaml citation: '[2023] EWCA Crim 1215' date: '2023-09-22' judges: - MR JUSTICE JACOBS - MR JUSTICE GRIFFITHS ```